                                                                       FILED
                                                                   Apr 30 2020, 6:25 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEES
Cara Schaefer Wieneke                                       Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                     Attorney General of Indiana
Brooklyn, Indiana                                           Megan M. Smith
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE

     COURT OF APPEALS OF INDIANA

Kevin MT Edwards,                                           April 30, 2020
Appellant/Defendant,                                        Court of Appeals Case No.
                                                            20A-CR-42
        v.                                                  Appeal from the Lawrence
                                                            Superior Court
State of Indiana,                                           The Hon. John M. Plummer, III,
                                                            Judge
Appellee/Plaintiff.
                                                            Trial Court Cause No.
                                                            47D01-1903-F5-518



Bradford, Chief Judge.




Court of Appeals of Indiana | Opinion 20A-CR-42 | April 30, 2020                           Page 1 of 13
                                            Case Summary
[1]   In early 2019, Kevin Edwards was determined to be in possession of ten

      pornographic images of minors and eventually pled guilty to ten counts of

      possession of child pornography, three as Level 5 felonies and seven as Level 6

      felonies. The trial court imposed an aggregate sentence of thirteen and one-half

      years of incarceration with one and one-half years suspended to probation.

      Edwards contends that because his ten possession charges constituted a single

      episode of criminal conduct, the trial court erred in imposing an aggregate

      sentence of longer than seven years. Because the State failed to produce enough

      evidence to allow a finding that Edward’s crimes did not constitute an episode

      of criminal conduct, we affirm Edwards’s convictions but remand for the

      imposition of a sentence of no longer than seven years.


                             Facts and Procedural History
[2]   In December of 2018, Google LLC reported an incident of suspected possession

      of child pornography to the National Center for Missing and Exploited

      Children (“the NCEMC”), which forwarded a CyberTip report to the Indiana

      State Police, which forwarded it to Detective Kevin Getz. (Appellant’s App.

      Vol. II p. 17). According to the CyberTip report, the person suspected of

      downloading pornographic images had used an email address of

      zombiebait0419@gmail.com, which was determined to belong to Edwards.

      Two further CyberTip reports indicated suspected incidents of downloading

      child pornography on December 7, 2018, at 16:30:04 hours Greenwich mean

      time and on December 7, 2018, at 16:26:39 Greenwich mean time. Four


      Court of Appeals of Indiana | Opinion 20A-CR-42 | April 30, 2020        Page 2 of 13
      images associated with the two incidents were forwarded along with the

      CyberTip reports. On January 15, 2019, Detective Getz forwarded a search

      warrant to Google requesting information and content related to the account

      associated with zombiebait0419@gmail.com. Google forwarded an additional

      six images of child pornography in the search-warrant return. Another search

      warrant was executed on Edwards’s Bedford residence on March 21, 2019.

[3]   On March 22, 2019, the State charged Edwards with ten counts of possession of

      child pornography, three as Level 5 felonies and seven as Level 6 felonies. On

      November 13, 2019, Edwards pled guilty as charged without a written plea

      agreement. On December 9, 2019, the trial court held a sentencing hearing,

      during which neither party presented any evidence and Edwards argued that his

      aggregate sentence could be no longer than seven years because his ten acts of

      possession constituted a single episode of criminal conduct. Without providing

      a rationale, the trial court rejected this argument, finding that Edwards’s

      offenses were not part of a single episode of criminal conduct. The trial court

      proceeded to sentence Edwards to two and one-half years of incarceration for

      each of his Level 5 felony convictions and to one year for each of his Level 6

      felony convictions, with all sentences to be served consecutively with the

      exception of one of the Level 6 felony sentences. The trial court suspended one

      and one-half years of Edward’s aggregate thirteen-and-one-half-year sentence to

      probation.


                                  Discussion and Decision


      Court of Appeals of Indiana | Opinion 20A-CR-42 | April 30, 2020         Page 3 of 13
[4]   The determination of a defendant’s sentence is within the trial court’s

      discretion, and will be reversed only upon a showing of abuse of discretion.

      Pritscher v. State, 675 N.E.2d 727, 729 (Ind. Ct. App. 1996). The legislature

      prescribes penalties for crimes and the trial court’s discretion does not extend

      beyond the statutory limits. Id. Therefore, in reviewing a sentence, we will

      consider whether it was statutorily authorized. Id.

[5]   Indiana Code section 35-50-1-2 provides, in part, that “except for crimes of

      violence, the total of the consecutive terms of imprisonment […] to which the

      defendant is sentenced for felony convictions arising out of an episode of

      criminal conduct […] may not exceed seven (7) years [… i]f the most serious

      crime for which the defendant is sentenced is a Level 5 felony[.]” Because none

      of Edwards’s convictions were for “crimes of violence” (as defined by Indiana

      Code section 35-50-1-2(a)),1 if they all arose from “an episode of criminal

      conduct[,]” his aggregate sentence cannot exceed seven years of imprisonment.

      Ind. Code § 35-50-1-2(d)(2).




      1
          Indiana Code section 35-42-4-4 provides, in part, as follows:

                [A] person who knowingly or intentionally possesses or accesses with intent to view […]
                a photograph […] that depicts or describes sexual conduct by a child who the person
                knows is less than eighteen (18) years of age or who appears to be less than eighteen (18)
                years of age, and that lacks serious literary, artistic, political, or scientific value commits
                possession of child pornography, a Level 6 felony. […] However, the offense of
                possession of child pornography […] is a Level 5 felony if […] the [photograph] depicts or
                describes sexual conduct by a child who the person knows is less than eighteen (18) years
                of age, or who appears to be less than eighteen (18) years of age, who […] is less than
                twelve (12) years of age[.]



      Court of Appeals of Indiana | Opinion 20A-CR-42 | April 30, 2020                                       Page 4 of 13
[6]   The statutory definition of an “episode of criminal conduct” is that it “means

      offenses or a connected series of offenses that are closely related in time, place,

      and circumstance.” Ind. Code § 35-50-1-2(b). Although we have stated that

      “‘the singleness of a criminal episode should be based on whether the alleged

      conduct was so closely related in time, place and circumstances that a complete

      account of one charge cannot be related without referring to details of the other

      charge[,]’” Tedlock v. State, 656 N.E.2d 273, 276 (Ind. Ct. App. 1990) (quoting

      State v. Ferraro, 800 P.2d 623, 629 (Haw. Ct. App. 1990)), the Indiana Supreme

      Court has since said that “this is a bit of an overstatement” and elaborated as

      follows:

              We are of the view that although the ability to recount each charge
              without referring to the other can provide additional guidance on
              the question of whether a defendant’s conduct constitutes an
              episode of criminal conduct, it is not a critical ingredient in
              resolving the question. Rather, the statute speaks in less absolute
              terms: “a connected series of offenses that are closely connected in
              time, place, and circumstance.” I.C. § 35-50-1-2(b). And as we
              have observed, “Tedlock emphasizes the timing of the offenses”
              and “refers to the ‘simultaneous’ and ‘contemporaneous’ nature of
              the crimes which would constitute a single episode of criminal
              conduct.” Smith v. State, 770 N.E.2d 290, 294 (Ind. 2002) (citing
              Tedlock, 656 N.E.2d at 276).
      Reed v. State, 856 N.E.2d 1189, 1200 (Ind. 2006).

[7]   All the convictions in this case were for possession of child pornography, ten

      items of which, the parties seem to agree, were discovered to be in Edwards’s

      possession at the same time. Edwards argues that this simultaneity renders all

      ten possessions a single episode of criminal conduct, even if all ten items were



      Court of Appeals of Indiana | Opinion 20A-CR-42 | April 30, 2020           Page 5 of 13
      acquired at different times. Edwards also argues that, even if the time of

      acquisition matters, the record indicates that he acquired all images at the same

      time. The State argues that, despite the Reed Court’s emphasis on the

      simultaneous nature of the crimes at issue, simultaneous possession is not

      determinative if the images were acquired separately, as it argues they were.

                I. The Interaction Between Possession Crimes
                    and Indiana Code Section 35-50-1-2(b)
[8]   Over the past twenty years, a split has developed in this court regarding the

      interaction between possession crimes and the consecutive-sentence limitations

      in Indiana Code section 35-50-1-2. In Ratliff v. State, 741 N.E.2d 424 (Ind. Ct.

      App. 2000), trans. denied, the defendant was operating a vehicle while

      intoxicated and fled when police attempted to make a traffic stop. Id. at 427–

      28. When Ratliff was apprehended, he was found to be in possession of

      marijuana. Id. at 428. The State charged Ratliff with, and he was convicted of,

      operating a vehicle while intoxicated, resisting law enforcement, and marijuana

      possession; the trial court imposed an aggregate sentence in excess of that

      allowed pursuant to the then-current version of Indiana Code section 35-50-1-

      2(b), if it applied. Id. Ratliff argued on appeal that it did apply because all three

      of his convictions were part a single episode of criminal conduct. The majority

      disagreed:

              Although it may be true that Ratliff’s OWI and resisting law
              enforcement convictions could not be related without referring to
              both crimes, the possession of marijuana conviction is wholly
              separate, related only by the fact that the crime was discovered in
              the course of pursuing a fleeing drunk driver. […] That the three

      Court of Appeals of Indiana | Opinion 20A-CR-42 | April 30, 2020           Page 6 of 13
               criminal acts were “part of a larger or more comprehensive series”
               of acts which were discovered simultaneously does not distract
               from the fact that they are distinct acts, not all of which bear a
               direct relation to the others. Therefore, we hold that Ratliff’s
               actions did not constitute a single episode of criminal conduct, and
               the trial court was not limited by Indiana Code section 35-50-1-
               2(b) in sentencing Ratliff to consecutive terms of imprisonment.
       Id. at 434.

[9]    Judge Mathias dissented on this point, focusing on the fact that Ratliff had

       committed other crimes while simultaneously in possession of contraband:

               The majority holds that the OVWI and resisting law enforcement
               convictions, each of which required a volitional act, are part of the
               same criminal episode but that “the possession of marijuana
               conviction is wholly separate, related only by the fact that the
               crime was discovered in the course of pursuing a fleeing drunk
               driver.” Op. at 434. The possession of marijuana offense, which
               does not require a volitional act, occurred at the same time and
               place as the other offenses. Nevertheless, the majority excludes
               the possession offense from the criminal episode because the
               marijuana was merely “discovered” at the time of the other
               offenses. Under the majority’s rationale, every possession offense,
               by virtue of its non-volitional nature, will never be part of any
               criminal episode. I believe such a result contravenes both the
               language and intent of the statute, although I fully acknowledge
               that there is no authority on the issue.
               Ratliff’s possession of marijuana was directly and inextricably
               connected to the other offenses, as the marijuana would never
               have been discovered had Ratliff not been driving while
               intoxicated.
       Id. at 436 (Mathias, J., concurring in part, dissenting in part).

[10]   Since Ratliff, two panels of this court have adopted the majority’s approach,

       while two have adopted the dissent’s. In Johnican v. State, 804 N.E.2d 211 (Ind.

       Court of Appeals of Indiana | Opinion 20A-CR-42 | April 30, 2020           Page 7 of 13
       Ct. App. 2004), a panel followed the dissent, holding that “where, as in this

       case, a defendant possesses contraband on his person as he simultaneously

       commits other criminal offenses, the offenses should be deemed part of a single

       episode of criminal conduct.” Id. at 218. In June of 2006, we issued our

       opinion in Cole v. State, 850 N.E.2d 417 (Ind. Ct. App. 2006), in which a panel

       again followed Judge Mathias’s approach from his dissent in Ratliff:

               In other words, Cole possessed the ammonia as he simultaneously
               committed the crime of resisting law enforcement. We therefore
               conclude that the actions underlying Cole’s convictions were one
               episode of criminal conduct.
       Id. at 423.

[11]   In December of 2007, we issued our opinion in Deshazier v. State, 877 N.E.2d

       200 (Ind. Ct. App. 2007), trans. denied, in which we followed the Ratliff

       majority:

               Here, no evidence exists as to when Deshazier came into
               possession of the handgun or marijuana. Possession is inherently
               a “continuing offense,” which occurs from the time the defendant
               comes into possession of the contraband until the time he
               relinquishes control. See State v. Phillips, 172 N.C. App. 143, 615
               S.E.2d 880, 882 (2005); cf. United States v. Medina-Ramos, 834 F.2d
               874, 876 (10th Cir. 1987) (“[T]he acts that define the crime [of
               unlawful possession of a controlled substance] are the acts by
               which a defendant possesses the drug. The location at which the
               acts constituting possession occur is therefore the location at
               which the crime is committed for purposes of venue.”). However,
               the evidence indicates that he must have come into possession of
               the handgun and marijuana at some point before he encountered
               the officers. […] Although the marijuana was in Deshazier’s jacket
               while he resisted the officers, we do not find this fact to bring his



       Court of Appeals of Indiana | Opinion 20A-CR-42 | April 30, 2020            Page 8 of 13
               act of possession into the same episode of conduct as his
               resistance.
       Id. at 212–13.

[12]   Finally, in March of 2012, we issued our opinion in Akers v. State, 963 N.E.2d

       615 (Ind. Ct. App. 2012), trans. denied. Following Deshazier and Ratliff, we

       concluded that Indiana Code section 35-50-1-2(b) did not apply to Akers’s case

       because, inter alia, his crimes were not all part of an episode of criminal

       conduct:

               Here, Akers’ possession of paraphernalia conviction is related to
               his other convictions only in the sense that his possession was
               discovered by police officers immediately after or during his other
               criminal acts. However, as in Deshazier, it is unclear from the
               evidence when Akers came into possession of the paraphernalia,
               making the timing of the offenses more distinguishable than at first
               glance. Further, unlike in Johnican, where the criminal actions of
               resisting law enforcement and pointing a firearm at another person
               resulted largely due to Johnican’s possession of cocaine, here there
               is no evidence to suggest that Akers’ battery of the victim or
               resisting arrest were fueled by his possession of paraphernalia.
               Thus, even putting chronological relation aside, Akers’ conviction
               for possession of paraphernalia was not related in circumstance to
               his other convictions. There is no nexus between the acts of
               battery and the subsequent resisting arrest, and Akers’ possession
               of paraphernalia.
       Id. at 619–20.

[13]   Because “[p]ossession is inherently a continuing offense, which occurs from the

       time the defendant comes into possession of the contraband until the time he

       relinquishes control[,]” Deshazier, 877 N.E.2d at 212 (citation omitted), such

       crimes require an approach different than the one used to evaluate more


       Court of Appeals of Indiana | Opinion 20A-CR-42 | April 30, 2020              Page 9 of 13
       ephemeral crimes. We conclude that the approach laid out by the majority in

       Ratliff and followed in Deshazier and Akers is the correct one. Indeed, we believe

       that that approach is mandated by Indiana Code section 35-50-1-2(b)’s

       requirement that a number of crimes which constitute an episode of criminal

       conduct must be “a connected series of offenses that are closely connected in

       time, place, and circumstance[,]” not just time and place. (Emphasis added).

       With this requirement in mind, we agree with the Akers court’s conclusion that

       what is required is a “nexus” between the illegal possession and another

       crime—that the crimes must be “related in circumstance” as well as time and

       place. 963 N.E.2d at 620.

[14]   In cases where a nexus does exist between a possession crime and another

       offense is committed while the possession continues, it is appropriate to find

       that the crimes are connected in time, place, and circumstance. For example,

       we agree with the result in Johnican because it is clear that Johnican committed

       the crimes of pointing a loaded firearm and resisting law enforcement because he

       was in possession of cocaine. In other words, his crimes were closely connected

       by circumstances, not just by time and place. For the same reason, we agree

       with the result in Massey v. State, 816 N.E.2d 979 (Ind. Ct. App. 2004), trans. not

       sought, in which we concluded that the simultaneous illegal possessions of a

       handgun and a large amount of cocaine were both part of the same episode of

       criminal conduct. Id. at 991. Again, this result is correct not only because the

       two possessions happened to be simultaneous, but because it was reasonable to




       Court of Appeals of Indiana | Opinion 20A-CR-42 | April 30, 2020         Page 10 of 13
       assume, under the circumstances, that Massey was carrying the handgun for

       protection while dealing cocaine.

[15]   As for cases where there is no nexus between a continuing possession and

       another continuing possession, there is still a way to evaluate whether those

       possessions are part of an episode of criminal conduct. While we agree with

       Judge Mathias’s observation in his Ratliff dissent that continued possession does

       not require any volitional action, each possession necessarily involves at least

       one volitional act, the act of acquisition. See Medina-Ramos, 834 F.2d at 876

       (“[T]he acts that define the crime [of unlawful possession of a controlled

       substance] are the acts by which a defendant possesses the drug.”). So, in cases

       where the illegal possession at issue is completely passive and has no relation in

       circumstance with other continuing, illegal possessions, we believe that it is the

       act of acquisition that should be used to evaluate whether those offenses were

       part of an episode of criminal conduct.

           II. Whether Edwards’s Ten Possessions Constitute a
                  Single Episode of Criminal Conduct
[16]   There does not seem to be a dispute that the images are connected by place of

       possession. There is, however, no indication of any nexus between any of the

       ten possessions at the time of their discovery; they were ten unconnected

       images which happened to be in Edwards’s possession at the same time.2 That




       2
        It is possible to envision acts related to the possession of the images that could have generated a nexus with
       one of the other possessions. For example, if Edwards had traded a copy of an image he already possessed




       Court of Appeals of Indiana | Opinion 20A-CR-42 | April 30, 2020                                  Page 11 of 13
       leaves us with timing, and because there was no indication of any nexus

       between any of the offenses on the date of their discovery, it is the date of

       acquisition that is of paramount importance to us. Common sense dictates that

       the simultaneous, or near-simultaneous, acquisition of several of the images

       would most likely constitute a single episode of criminal conduct, while the

       acquisition of the same images separately over the course of several days,

       weeks, or months would most likely not. Edwards argues that the record

       supports an inference that he acquired all of the images simultaneously or near

       simultaneously, because the CyberTip reports only indicate that two suspicious

       incidents occurred within four minutes of one another on December 7, 2018,

       shortly before his account was deactivated. The State maintains that the record

       supports an inference that Edwards acquired the images through ten distinct

       acts. We conclude that neither inference is warranted on the record before us.

[17]   That said, because the State was seeking the imposition of a harsher penalty, we

       believe that it had the burden to produce evidence to justify that penalty, see,

       e.g., J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011) (concluding that

       “the juvenile court failed to recognize that the State held the burden to

       establish” the amount of restitution), a burden that it failed to carry. To the

       extent that the State could have produced evidence that Edwards acquired some

       or all of the ten images separately, it did not do so. In the absence of sufficient




       for a new image, we believe that that would generate a nexus between the two possessions. There is,
       however, no indication that anything like this occurred.



       Court of Appeals of Indiana | Opinion 20A-CR-42 | April 30, 2020                              Page 12 of 13
       evidence to sustain a finding that Edwards acquired the ten images during more

       than one episode of criminal conduct, we remand for the imposition of a

       sentence of no longer than seven years of incarceration.

[18]   We affirm in part, reverse in part, and remand with instructions.

       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 20A-CR-42 | April 30, 2020    Page 13 of 13
