MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                         Apr 05 2017, 7:03 am
court except for the purpose of establishing
                                                                      CLERK
the defense of res judicata, collateral                           Indiana Supreme Court
                                                                     Court of Appeals
estoppel, or the law of the case.                                      and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joel C. Wieneke                                          Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Luke Paul Eckrich,                                       April 5, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1610-CR-2343
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable Michael J. Lewis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D06-1511-F6-2893



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1610-CR-2343 | April 5, 2017      Page 1 of 6
                                             Case Summary
[1]   Following a bench trial, Luke Paul Eckrich (“Eckrich”) was convicted of

      Possession of Child Pornography, as a Level 6 felony,1 and the charge was

      enhanced because Eckrich was found to be a repeat sexual offender.2 Eckrich

      now challenges the sufficiency of the evidence supporting his conviction.


[2]   We affirm the conviction and remand for correction of the sentencing order.



                               Facts and Procedural History
[3]   Around 9:30 p.m. on September 29, 2015, Eckrich was using a library computer

      at Indiana State University. Later that night, a library patron saw Eckrich

      viewing child pornography on the computer. The patron took photos of

      Eckrich and alerted staff. Someone contacted the police.


[4]   Officer Michael Eldred (“Officer Eldred”) of the Indiana State University Police

      responded to the library around 12:37 a.m. Officer Eldred approached Eckrich,

      and could see that Eckrich was viewing child pornography. When Eckrich saw

      Officer Eldred, Eckrich immediately turned off the computer. Eckrich was

      warned that he was trespassing, and the police later returned to collect the




      1
        Ind. Code § 35-42-4-4(c). We refer throughout to the substantive provisions of the Indiana Code in effect at
      the time of Eckrich’s offense.
      2
          I.C. § 35-50-2-14.


      Court of Appeals of Indiana | Memorandum Decision 84A01-1610-CR-2343 | April 5, 2017               Page 2 of 6
      computer. A forensic examination of the computer confirmed that Eckrich had

      accessed child pornography websites.


[5]   On November 24, 2015, the State charged Eckrich with one count of Possession

      of Child Pornography. The State also filed an enhancement, alleging that

      Eckrich was a repeat sexual offender. A bench trial was conducted on July 29,

      2016, and Eckrich stipulated to certain facts. The trial court took the matter

      under advisement and later found Eckrich guilty as charged.


[6]   A sentencing hearing was held on September 12, 2016. The trial court

      sentenced Eckrich to one year for Possession of Child Pornography and

      enhanced the sentence by one year, purportedly imposing the enhancement as a

      consecutive sentence to that of Possession of Child Pornography.


[7]   Eckrich now appeals.3



                                    Discussion and Decision
[8]   When reviewing the sufficiency of the evidence to support a conviction, we

      neither reweigh the evidence nor assess witness credibility. Drane v. State, 867

      N.E.2d 144, 146 (Ind. 2007). We consider only the evidence supporting the

      judgment and any reasonable inferences that can be drawn from that evidence.

      Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). We must affirm the




      3
       Subsequent to filing his appeal, Eckrich filed a motion requesting that this Court accept his supplemental
      appendix. We hereby grant this motion.

      Court of Appeals of Indiana | Memorandum Decision 84A01-1610-CR-2343 | April 5, 2017               Page 3 of 6
       conviction if there is “substantial evidence of probative value supporting each

       element of the offense such that a reasonable trier of fact could have found the

       defendant guilty beyond a reasonable doubt.” Willis v. State, 27 N.E.3d 1065,

       1066 (Ind. 2015).


[9]    To convict Eckrich of possession of child pornography, the State had to prove

       that Eckrich “knowingly or intentionally possess[ed] . . . any pictorial

       representation” of child pornography. I.C. § 35-42-4-4(c). In challenging the

       sufficiency of the evidence, Eckrich does not dispute that he intentionally

       accessed and viewed websites that contained child pornography. Rather,

       Eckrich argues that his actions did not amount to possession under Indiana law.


[10]   To prove that a defendant possessed an item, the State may prove either actual

       possession or constructive possession. Sargent v. State, 27 N.E.3d 729, 733 (Ind.

       2015). Actual possession occurs when a person has direct physical control over

       an item. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). Constructive

       possession occurs when a “person has (1) the capability to maintain dominion

       and control over the item; and (2) the intent to maintain dominion and control

       over it.” Id.


[11]   Eckrich focuses his argument on a computer caching process that automatically

       stored images from websites he visited. Those images were retrieved during the

       forensic analysis of the computer. Eckrich argues that there was no evidence

       that he knew of the caching process or that he controlled any of the images

       stored through that process. Here, however, no such evidence was necessary.


       Court of Appeals of Indiana | Memorandum Decision 84A01-1610-CR-2343 | April 5, 2017   Page 4 of 6
       Rather, the stipulated evidence indicates that Eckrich intentionally pointed a

       web browser to certain websites containing images of child pornography, and

       intentionally viewed the pornographic images therein. In doing so, Eckrich

       controlled when images of child pornography would appear on the computer

       screen, and for how long. Moreover, while an image was on the screen,

       Eckrich “was free to use the image as he desired.” (Appellee’s Br. at 11.)

       These actions constitute sufficient control over the pornographic images such

       that Eckrich possessed them under Indiana law. Thus, the evidence is sufficient

       to support Eckrich’s conviction.


[12]   Finally, the State directs us to a brief sentencing matter. That is, in sentencing

       Eckrich, the trial court purportedly ordered that Eckrich serve consecutive

       sentences for the possession conviction and the repeat sexual offender finding.

       However, a repeat sexual offender finding does not itself generate a separate

       conviction for which a defendant can be separately sentenced, rather it allows

       the trial court to impose an enhanced sentence on a proper conviction. See, e.g.,

       Young v. State, 57 N.E.3d 857, 860-61 (Ind. Ct. App. 2016), trans. denied. The

       instant sentencing order is therefore inaccurate. Accordingly, on remand, the

       trial court should amend its sentencing order to reflect that Eckrich’s possession

       sentence is enhanced by one year, with no separate consecutive sentence.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1610-CR-2343 | April 5, 2017   Page 5 of 6
                                               Conclusion
[13]   The evidence was sufficient to support Eckrich’s conviction of possession of

       child pornography, but the sentencing order inaccurately characterized the

       repeat sexual offender enhancement as a separate consecutive sentence.


[14]   Affirmed and remanded.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1610-CR-2343 | April 5, 2017   Page 6 of 6
