MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                    Apr 25 2019, 9:11 am

court except for the purpose of establishing                                     CLERK
the defense of res judicata, collateral                                      Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Brian A. Karle                                            Curtis T. Hill, Jr.
BALL EGGLESTON, PC                                        Attorney General of Indiana
Lafayette, Indiana
                                                          Ian McLean
                                                          Supervising Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nicholas Taylor Custance,                                 April 25, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2627
        v.                                                Appeal from the Tippecanoe
                                                          Superior Court
State of Indiana,                                         The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          79D02-1805-F5-89



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2627 | April 25, 2019                       Page 1 of 9
                                           Case Summary
[1]   Nicholas Custance (“Custance”) pled guilty to one count of Child Exploitation,

      a Level 5 felony,1 and one count of Possession of Child Pornography, a Level 6

      felony.2 He challenges his five-year aggregate sentence and the imposition of

      certain special conditions of probation for sex offenders. We affirm the

      sentence and remand for clarification of conditions of probation.



                                                    Issues
[2]   Custance presents three issues for review:


                 I.        Whether his sentence is inappropriate;


                 II.       Whether a probationary requirement that he not enter
                           businesses selling sexual devices or aids is overbroad; and


                 III.      Whether requirements that he not contact or live near a
                           child victim are overbroad when victim identities are
                           unknown.


                                 Facts and Procedural History
[3]   On May 9, 2018, the State charged Custance with one count of Child

      Exploitation, a Level 5 felony, and three counts of Possession of Child




      1
          Ind. Code § 35-42-4-4(b).
      2
          I.C. § 35-42-4-4(d).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2627 | April 25, 2019     Page 2 of 9
      Pornography, Level 6 felonies, based upon events transpiring between February

      and May of 2018. On September 18, 2018, Custance pled guilty to one count of

      Child Exploitation and one count of Possession of Child Pornography. He

      admitted that he possessed child pornography, he had saved to his computer

      images of children displaying genitalia or engaging in sex acts, and he had

      uploaded one such video to a website to share child pornography. Pursuant to

      his plea agreement with the State, two of the charges against Custance were

      dismissed.


[4]   On October 25, 2018, Custance was given concurrent sentences of five years

      (with one and one-half years suspended to probation) for Child Exploitation

      and two years for Possession of Child Pornography. He now appeals.



                                 Discussion and Decision
                                Appropriateness of Sentence
[5]   Indiana Code Section 35-50-2-6 provides for a sentence for a Level 5 felony of

      one year to six years, with an advisory sentence of three years. Indiana Code

      Section 35-50-2-7 provides for a sentence for a Level 6 felony of six months to

      two and one-half years, with an advisory sentence of one year. Custance claims

      that his aggregate five-year sentence (with one and one-half years suspended) is

      inappropriate in light of his guilty plea, mental illness, and lack of criminal

      history.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2627 | April 25, 2019   Page 3 of 9
[6]   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). We take into consideration the fact that a portion of the

      sentence is suspended. Serban v. State, 959 N.E.2d 390, 393 (Ind. Ct. App.

      2012).


[7]   We assess the trial court’s recognition or non-recognition of aggravators and

      mitigators as an initial guide to determining whether the sentence imposed was

      inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).

      Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

      sentence to the circumstances presented and the trial court’s judgement “should

      receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.

      2008). The principal role of appellate review is to attempt to “leaven the

      outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the

      end of the day turns on “our sense of 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.” Id. at 1224.


[8]   Deference to the trial court “prevail[s] unless overcome by compelling evidence

      portraying in a positive light the nature of the offense (such as accompanied by

      restraint, regard, and lack of brutality) and the defendant’s character (such as

      substantial virtuous traits or persistent examples of good character).” Stephenson

      v. State, 29 N.E.3d 111, 122 (Ind. 2015). In sentencing Custance, the trial court

      found as aggravators Custance’s lack of remorse and understanding, the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2627 | April 25, 2019   Page 4 of 9
      severity of the pattern of offenses, and the admitted pornography addiction

      without resort to treatment. In mitigation, the trial court found that Custance

      had pled guilty (but recognized that he received a benefit by having charges

      dismissed), that he had no criminal history, and he had mental health issues

      (albeit not adequately addressed).


[9]   As to the nature of Custance’s offenses, he collected pornographic images of

      children, some pre-pubescent. He traded one such video, of significant length,

      on the internet. As for Custance’s character, he does not have a criminal

      history. That is not to say that he has led a law-abiding life. He created an

      online profile in 2012 as “shameless indeed” and posted about his activity of

      watching children take showers at the YMCA. (App. Vol. II, pg. 30.)

      Moreover, his collection of child pornography appeared to be prolific and long-

      term. A forensic examination of Custance’s computer revealed that he had

      many more images of child pornography than those upon which his guilty pleas

      were based. Custance’s decision to plead guilty indicates some acceptance of

      responsibility for his actions, but he also received a significant benefit for the

      guilty plea and he continued to minimize his culpability in his discussion of the

      victims and events. And, although Custance claims to have cooperated with

      police, he was initially deceptive and attempted to mislead police into believing

      that he documented child pornography only to report it as a concerned citizen.

      In sum, Custance has failed to demonstrate that his sentence is inappropriate in

      light of the nature of his offenses and his character.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2627 | April 25, 2019   Page 5 of 9
                              Special Probation Condition 12
[10]   Among other probation conditions, Custance was ordered to comply with

       special conditions for sex offenders, including Condition 12, as follows:


               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, DVDs, and
               material downloaded from the internet. You shall not visit strip
               clubs, adult bookstores, motels specifically operated for sexual
               encounters, peep shows, bars where partially nude or exotic
               dancers perform, or businesses that sell sexual devices or aids.


       (App. Vol. II, pg. 76.) He challenges the prohibition against visiting

       “businesses that sell sexual devices or aids” as overbroad.



[11]   A trial court has broad discretion in determining appropriate conditions of an

       offender’s probation. McVey v State, 863 N.E.2d 434, 447 (Ind. Ct. App. 2007),

       trans. denied. However, conditions imposed must be reasonably related to the

       objective of reintegration into the community. Bleeke v. Lemmon, 6 N.E.3d 907,

       921 (Ind. 2014). A probationer has a due process right to have the conditions of

       supervised release be sufficiently clear to inform him of what conduct will result

       in his being returned to prison. McVey, 863 N.E.2d at 447.


[12]   In Collins v. State, 911 N.E.2d 700 (Ind. Ct. App. 2009), trans. denied, a panel of

       this Court considered a challenge to a probationary term that, like Probation

       Condition 12 here, prohibited the probationer from entry to businesses selling

       sexual devices or aids. The Court found the prohibition to be “unfairly broad”

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2627 | April 25, 2019   Page 6 of 9
       as it could encompass entry to a drug store. Id. at 714. The matter was

       remanded for clarification of the probationary term. Subsequently, our Indiana

       Supreme Court agreed with the rationale of Collins regarding the overly broad

       provision. See Bleeke, 6 N.E.3d at 921; see also Kelp v. State, 2019 WL 614211, at

       *3 (Ind. Ct. App. Feb. 14, 2019) (remanding for clarification of an identical

       term). We also find the language of Condition 12 “unfairly overbroad” and

       remand for clarification.


                         Special Probation Conditions 6 and 19
[13]   In conditions 63 and 19, Custance was prohibited from establishing a new

       residence within one mile of the residence of any of his victims, unless granted

       a court waiver, and from direct or indirect contact with a victim, unless pre-

       approved for the benefit of a victim. Custance argues:


                Because Custance does not know the identity of any victim, he
                does not have adequate notice of what conduct may constitute a
                violation of the challenged conditions. Accordingly, those
                conditions are unreasonable and unconstitutional as applied to
                Custance.


       Appellant’s Brief at 16.


[14]   Custance does not otherwise develop a constitutional argument as to vagueness.

       Indeed, Custance admits to having knowledge of the prohibited conduct. He is




       3
         Special condition 6 arises from Indiana Code Section 35-38-2-2.5(e), which requires the imposition of this
       restriction upon a sex offender.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2627 | April 25, 2019                     Page 7 of 9
       not to contact or live near one of the children depicted in the pornography he

       possessed or disseminated. Rather, his argument is impossibility of

       performance. He cannot necessarily avoid proximity when the victims are

       unidentified. Indeed, the trial court acknowledged that neither the State nor

       Custance knew the identities of the children and the court equivocated to some

       degree when reviewing the special probationary conditions:


               You shall not establish residence within one mile of your victim.
               I don’t think you know the victim, necessarily, but those other
               conditions apply. .. You shall not reside within one mile …
               Again, I don’t know if we’ll ever be able to identify them,
               residence of the victim, but I’ve got to apply that. … Number 19,
               you shall have no contact with your victim or victims’ family
               unless approved in advance by the Court. Again, this may not,
               these [sic] directly applicable because we don’t know the victim,
               but [I am] putting that in there.


       (Tr. Vol. II, pgs. 40-42.) (emphasis added).


[15]   In his reply brief, Custance appears to recognize that his claim is that of

       impossibility:


               No person involved in the case knows the names, identities, or
               locations of any of the victims. Under these circumstances, it is
               impossible for Custance to avoid interacting with (directly or
               indirectly) or establishing a residence near a victim or victim’s
               family member. The State offers no support for the proposition
               that Custance could intelligently avoid violation of Condition 6
               or Condition 19, which are written as strict liability conditions.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2627 | April 25, 2019   Page 8 of 9
       Reply Brief at 10. He urges that, “at a minimum, a specific intent

       requirement should be inserted into Condition 6 and Condition 19 in

       order to cure their constitutional infirmity.” Id. at 11.



[16]   Although we are not persuaded that Custance has identified constitutional

       infirmity, we agree that the challenged conditions are not reasonably susceptible

       of compliance as written, under the unique circumstances of this case. And our

       supreme court has observed that judicial review of special conditions of release

       is “very fact sensitive.” Bleeke, 6 N.E.3d at 921. We thus remand for

       clarification that Custance will be in violation of conditions 6 or 19 only if he

       acts with criminal culpability.



                                               Conclusion
[17]   Custance’s sentence is not inappropriate. We remand for clarification of

       probation conditions 6, 12, and 19.


[18]   Affirmed in part and remanded with instructions.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2627 | April 25, 2019   Page 9 of 9
