                                                                            FILED
                                                                    Feb 14 2019, 9:08 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Brian A. Karle                                             Curtis T. Hill, Jr.
Ball Eggleston, P.C.                                       Attorney General of Indiana
Lafayette, Indiana
                                                           J.T. Whitehead
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Joshua J. Kelp,                                            February 14, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-1719
        v.                                                 Appeal from the Tippecanoe
                                                           Superior Court
State of Indiana,                                          The Honorable Steven Meyer,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           79D02-1802-F4-2



May, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1719 | February 14, 2019                           Page 1 of 9
[1]   Joshua J. Kelp appeals following his convictions of Level 4 felony child

      exploitation, 1 Level 5 felony child exploitation, 2 and Level 5 felony possession

      of child pornography. 3 Kelp argues:


                 (1) the trial court abused its discretion by considering a material
                 element of his crime as an aggravator;


                 (2) his ten-year sentence is inappropriate; and


                 (3) the language in Special Probation Condition 12 is overly
                 broad and vague.


      We affirm in part and remand in part with instructions.



                                Facts and Procedural History
[2]   From July 1, 2016, to August 31, 2017, Kelp collected pornographic images of

      children under the age of eighteen, some of whom had not yet reached puberty.

      Kelp also traded these images with people on the internet. When confronted by

      law enforcement, Kelp admitted to collecting and distributing the pornographic

      images. Kelp said he had been in possession of child pornography for five years




      1
          Ind. Code § 35-42-4-4(b)(2) & (c)(1).
      2
          Ind. Code § 35-42-4-4(b)(2).
      3
          Ind. Code § 35-42-4-4(d) & (e)(1).


      Court of Appeals of Indiana | Opinion 18A-CR-1719 | February 14, 2019            Page 2 of 9
      and he might possess as many as one thousand pornographic images of

      children.


[3]   On September 7, 2017, the State charged Kelp with one count of Level 4 felony

      child exploitation. On February 8, 2018, under a separate cause number, the

      State charged Kelp with one count of Level 4 felony child exploitation, two

      counts of Level 5 felony child exploitation, one count of Level 5 felony

      possession of child pornography, two counts of Level 6 felony possession of

      child pornography, 4 and one count of Class D felony possession of child

      pornography. 5 On the State’s motion, the trial court consolidated the two cause

      numbers.


[4]   Kelp pled guilty to one count of Level 4 felony child exploitation, one count of

      Level 5 felony child exploitation, and one count of Level 5 felony possession of

      child pornography, in exchange for the dismissal of the remaining charges. The

      trial court sentenced Kelp to ten years for Level 4 felony child exploitation, five

      years for Level 5 felony child exploitation, and five years for Level 5 felony

      possession of child pornography. The trial court ordered the sentences be

      served concurrently, with seven years executed and three years suspended to

      probation. Kelp was ordered to comply with all rules of the Indiana Special

      Probation Conditions for Adult Sex Offenders, except for Rules 1, 5, 6, and 19.




      4
          Ind Code § 35-42-4-4(d).
      5
          Ind. Code § 35-42-4-4(c) (2013).


      Court of Appeals of Indiana | Opinion 18A-CR-1719 | February 14, 2019      Page 3 of 9
                                  Discussion and Decision
                                          Abuse of Discretion
[5]   Kelp argues the trial court abused its discretion by improperly considering

      Kelp’s trading of the pornographic images an aggravating factor. “We initially

      observe that sentencing decisions rest within the sound discretion of the trial

      court and are reviewed on appeal only for an abuse of discretion.” Gleason v.

      State, 965 N.E.2d 702, 710 (Ind. Ct. App. 2012). An abuse of discretion occurs

      if the trial court’s decision is “clearly against the logic and effect of the facts and

      circumstances before the court, or the reasonable, probable, and actual

      deductions to be drawn therefrom.” Anglemyer v. State, 868 N.E.2d 482, 490

      (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007).


              The trial court can abuse its discretion by: (1) issuing an
              inadequate sentencing statement, (2) finding aggravating or
              mitigating factors that are not supported by the record, (3)
              omitting factors that are clearly supported by the record and
              advanced for consideration, or (4) finding factors that are
              improper as a matter of law.


      Gleason, 965 N.E.2d at 710.


[6]   Kelp claims the court abused its discretion when it considered the trading of

      pornographic images of children on the internet to be an aggravator because

      trading the images is a material element of child exploitation. Kelp is correct

      that a trial court may not use a material element of an offense as an aggravator.

      See Spears v. State, 735 N.E.2d 1161, 1167 (Ind. 2000) (essential element of a


      Court of Appeals of Indiana | Opinion 18A-CR-1719 | February 14, 2019         Page 4 of 9
      conviction was not allowed to be considered as an aggravating circumstance),

      reh’g denied, distinguished on other grounds by Frances v. State, 817 N.E.2d 235 (Ind.

      2004). However, after reviewing the record, we believe the court’s error in this

      case was harmless.


[7]   When a trial court considers an improper aggravator, we may nevertheless

      affirm the sentence if we can “say with confidence that the trial court would

      have imposed the same sentence.” Webb v. State, 941 N.E.2d 1082, 1090 (Ind.

      Ct. App. 2011) (affirming despite trial court’s failure to consider guilty plea a

      mitigator), trans. denied. In addition to the trading of the images, the trial court

      found the seriousness of Kelp’s offense and the length of time Kelp participated

      in the activity as aggravators. Kelp possessed over a thousand pornographic

      images of children, some of which were “horrible” images of children forced to

      do “unnatural” things. (Tr. Vol. II. at 43.) Many of the images were of children

      who were clearly under the age of twelve, as they had not yet reached puberty.

      As such, we are confident the trial court would have reached a ten-year

      sentence regardless whether the court would have considered his trading of the

      images as an aggravator. See, e.g., Webb, 941 N.E.2d at 1090 (affirming

      sentence despite abuse of discretion).


                                       Inappropriate Sentence
[8]   Kelp argues his sentence is inappropriate in light of the nature of his offense and

      his character.




      Court of Appeals of Indiana | Opinion 18A-CR-1719 | February 14, 2019        Page 5 of 9
              We “may revise a sentence authorized by statute if, after due
              consideration of the trial court’s decision, the Court finds that the
              sentence is inappropriate in light of the nature of the offense and
              the character of the offender.” Ind. Appellate Rule 7(B).
              “Although appellate review of sentences must give due
              consideration to the trial court’s sentence because of the special
              expertise of the trial bench in making sentencing decisions,
              Appellate Rule 7(B) is an authorization to revise sentences when
              certain broad conditions are satisfied.” Shouse v. State, 849
              N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and
              quotation marks omitted). “[W]hether we regard a sentence as
              appropriate at the end of the day turns on our sense of the
              culpability of the defendant, the severity of the crime, the damage
              done to others, and myriad other factors that come to light in a
              given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
              In addition to the “due consideration” we are required to give to
              the trial court’s sentencing decision, “we understand and
              recognize the unique perspective a trial court brings to its
              sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
              (Ind. Ct. App. 2007).


      Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.

      denied. The appellant bears the burden of demonstrating his sentence is

      inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),

      trans. denied.


[9]   When considering the nature of the offense, the advisory sentence is the starting

      point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d

      at 494. The sentencing guideline for a Level 4 felony is a fixed term between

      two and ten years with the advisory sentence being six years. The trial court

      sentenced Kelp to ten years; thus, on this charge, he received the maximum


      Court of Appeals of Indiana | Opinion 18A-CR-1719 | February 14, 2019       Page 6 of 9
       sentence. The sentencing guideline for a Level 5 felony is a fixed term between

       one and six years with an advisory sentence of three years. The trial court

       sentenced Kelp to five years for each Level 5 felony; thus, he received a

       sentence above the advisory but below the maximum. Kelp was ordered to

       serve all the sentences concurrently, such that he received a cumulative

       sentence that was less than the possible maximum sentence.


[10]   Regarding the nature of the offense, the trial court noted the seriousness of

       Kelp’s crimes. Kelp possessed over one thousand pornographic images of

       children. Among these images were children “obviously under the age of

       twelve” or who “hadn’t reached puberty.” (Tr. Vol. II at 16.) Through his

       actions, Kelp “perpetuated the victimization” of an unknown number of

       children. See Brown v. State, 912 N.E.2d 881, 902 (Ind. Ct. App. 2000)

       (defendant’s possession of pornographic images of children younger than

       sixteen permitted an aggravated sentence), trans. denied.


[11]   As to Kelp’s character, the trial court acknowledged Kelp had no criminal

       record, was employed, and was remorseful. However, as pointed out by the

       trial court, those factors are diminished by Kelp’s actions. Despite not having a

       criminal history, Kelp admitted to possessing pornographic images of children

       for five years prior to his arrest. See Wright v. State, 108 N.E.3d 307, 320 (Ind.

       2018) (crimes committed by the defendant, including downloading child

       pornography, could not be redeemed by his positive character traits).




       Court of Appeals of Indiana | Opinion 18A-CR-1719 | February 14, 2019       Page 7 of 9
[12]   Given the nature of the offense, i.e., the heinous images Kelp possessed, and the

       character of the offender, i.e., Kelp had been collecting these images for five

       years prior to being arrested, we cannot say Keller’s ten-year sentence is

       inappropriate. See Schroeder v State, 998 N.E.2d 279, 285 (Ind. Ct. App. 2013)

       (exploitation of children through videos and images allowed for an aggravated

       sentence). Accordingly, we affirm that sentence.


                                            Probation Condition
[13]   Kelp’s final argument is that Special Probation Condition 12 is

       unconstitutionally vague and overly broad. 6 “The trial court’s broad discretion

       in determining the conditions of probation is limited only by the principle that

       the conditions must be reasonably related to the treatment of the defendant and

       protection of public safety.” Stott v. State, 822 N.E.2d 176, 179-80 (Ind. Ct.

       App. 2005), trans. denied. Special Probation Rule 12 states:


                You shall not possess obscene matter as defined by IC 35-49-2-1
                or child pornography as defined in 18 U.S.C. § 2256(8), including
                but not limited to: videos, magazines, books, DVD’s, and
                material downloaded from the Internet. You shall not visit strip
                clubs, adult bookstores, motels, specifically operated for sexual




       6
         The State argues Kelp waived his right to appeal this issue by failing to object to it at sentencing. We have
       allowed defendants to appeal their probation terms despite not objecting to them and signing the probation
       form stating the probation conditions. See Piercefield v. State, 877 N.E.2d 1213, 1218 (Ind. Ct. App. 2007)
       (Court considered defendant’s argument regarding probation terms despite the defendant not objecting at
       sentencing and signing the probation terms). We exercise our authority to address the constitutional
       argument raised by Kelp.

       Court of Appeals of Indiana | Opinion 18A-CR-1719 | February 14, 2019                                Page 8 of 9
               encounters, peep shows, bars where partially nude or exotic
               dancers perform, or businesses that sell sexual devices or aids.


       (App. Vol. II at 104.)


[14]   In Collins v. State, we held that prohibiting someone from visiting “businesses

       that sell sexual devices or aids” was unfairly broad as it “could extend to drug

       stores.” 911 N.E.2d 700, 714-715 (Ind. Ct. App. 2009), trans. denied. The

       probation condition at issue herein is identical to the one at issue in Collins.

       Therefore, we remand to the trial court for clarification of the final clause of

       Special Probation Condition 12. See Bleeke v. Lemmon, 6 N.E.3d 907, 921 (Ind.

       2014) (Indiana Supreme Court agreed with the rationale in Collins regarding the

       overly broad probation condition).



                                                Conclusion
[15]   The trial court committed harmless error when it improperly considered Kelp

       trading images as an aggravating factor. Also, in light of the nature of Kelp’s

       offenses and Kelp’s character, his ten-year sentence is not inappropriate.

       However, because Special Probation Rule 12 is overly broad, we remand to the

       trial court for clarification.


[16]   Affirmed in part and remanded in part with instructions.


       Baker, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1719 | February 14, 2019       Page 9 of 9
