                                                                          FILED
                                                                     Mar 11 2019, 8:38 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Larry Warren                                              Curtis T. Hill, Jr.
Pendleton, Indiana                                        Attorney General of Indiana
                                                          Angela Sanchez
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Larry Warren,                                             March 11, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1725
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Clark Rogers,
Appellee-Plaintiff.                                       Judge
                                                          The Honorable David Hooper,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49F25-1001-FA-1153



Tavitas, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-1725 | March 11, 2019                            Page 1 of 11
                                                Case Summary
[1]   Larry Warren appeals the trial court’s partial denial of his motion for return of

      property. We reverse and remand. 1


                                                         Issue
[2]   Warren raises one issue, which we restate as whether the trial court properly

      denied Warren’s motion for return of property that contained depictions of

      sexual conduct.


                                                         Facts
[3]   In 2010, Warren was charged with multiple counts of child molesting, Class A

      felonies; sexual misconduct with a minor, Class B felonies; and child

      solicitation, Class D felonies. Search warrants were executed on Warren’s

      residence and his mother’s residence, and property was seized as a result. In

      December 2012, Warren was found guilty of three counts of child molesting,

      Class A felonies, and two counts of child solicitation, Class D felonies. The

      trial court sentenced Warren to an aggregate sentence of eighty years in the

      Department of Correction. On appeal, we remanded for resentencing based on

      a violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). See




      1
       In a footnote in his reply brief, Warren contends that he “contemporaneously filed a Motion to Strike in this
      matter, seeking to strike the State’s Appellee’s Brief . . . .” Appellant’s Reply Br. p. 16 n.1. We find no such
      motion in our records; consequently, we do not address the issue further.

      Court of Appeals of Indiana | Opinion 18A-CR-1725 | March 11, 2019                                 Page 2 of 11
      Warren v. State, No. 49A04-1301-CR-25 (Ind. Ct. App. Oct. 8, 2013). The trial

      court resentenced Warren to an aggregate sentence of seventy years.


[4]   On March 1, 2017, Warren filed a petition for return of his seized property not

      used in the prosecution of his crimes, which included hundreds of items,

      including photographs and video recordings. The State did not object to the

      release of electronic devices. The State, however, objected to the release of

      “any tapes, recordings, film or digital and photos” because the items contained

      “a wealth of sexual images that seem[] to involve private sexual conduct

      probably confidential between unnamed individuals other than [Warren],” and

      the State had no indication that “said individuals consent to dissemination of

      their images to [Warren], his mother, or any other 3rd party.” Appellant’s App.

      Vol. II p. 33. On March 7, 2017, the trial court granted Warren’s request to

      release the electronic devices but denied the request to release “tapes, films,

      digital, or photographic images or other recordings in that these items contain[]

      sexual-images that seem to involve private sexual conduct between un-named

      and un-identifiable persons and the State has no indication that the individuals

      depicted give their consent to dessiminate [sic] these items.” Id. at 35.


[5]   Warren filed a motion to correct error. Warren alleged that: (1) some of the

      photographs and recordings are from his childhood, family events, Hurricane

      Katrina, Afghanistan, and Iraq; (2) other photographs and recordings were

      from his work for RWG (Real Wild Girls) Media and were taken in public

      places or consent was given; and (3) none of the items related to his child

      molesting conviction. The trial court granted Warren’s motion to correct error

      Court of Appeals of Indiana | Opinion 18A-CR-1725 | March 11, 2019          Page 3 of 11
      in part. In general, the trial court directed the State to release all of the property

      to Warren or his agent except for videos and other images containing sexual or

      pornographic materials. The trial court noted: “Should the State elect not to

      release these types of material [sic], the Defendant may petition this court for

      further proceedings.” Id. at 89.


[6]   Warren then filed a motion to reconsider and argued that the State had failed to

      rebut Warren’s lawful ownership of the images and videos and the State’s

      “hunch” that the images were “non-consensual and illegal” was insufficient. Id.

      at 93. Warren listed hundreds of video tapes, DVDs, CDs, and photographs

      that were retained by the State. The trial court denied the motion to reconsider.


[7]   On September 15, 2017, Warren filed a motion for rule to show cause and

      argued that the State had failed to return his firearms. Warren also filed a

      second motion for return of property regarding the remainder of his property.

      Warren alleged that all of the recordings and photographs were provided to him

      or recorded by him “with full and explicit written and oral consent of the

      persons of whom whose [sic] likeness appears therein.” Id. at 135. According

      to Warren, due to the seizure of the materials, he was “suffering irreparable

      injury” because he was “unable to sell such on the open market.” Id. at 136.


[8]   The trial court held a hearing to address Warren’s motions. At the hearing,

      Warren stated that the recordings at issue were about six hundred hours long.

      The deputy prosecutor stated that she had previously been required to watch the

      videos, which were not well labeled, and that: “What I recall was I watching a


      Court of Appeals of Indiana | Opinion 18A-CR-1725 | March 11, 2019          Page 4 of 11
       magic show and then from the magic show it broke to two people having

       intercourse and then it went back to a magic show. That was, that is the one

       that is most distinct in my head.” Tr. Vol. II p. 8. Warren argued that some of

       the recordings were from Hurricane Katrina, spring breaks, Mardi Gras, and

       biker events that he recorded and that he was the “rightful owner” of the

       recordings. Id. at 7.


[9]    On December 14, 2017, the trial court entered an order requiring the State to

       release Warren’s weapons, family photos, military medals, and family

       mementos. Regarding the other recordings and photos, the trial court denied

       Warren’s motion as follows:


               Any CD’S, DVD’s, Diskettes, tapes or other recordings
               (collectively referred to herein as “videos”) shall not be returned
               as the Court cannot tell what Mr. Warren (as a sex offender) can
               legally possess and what he can’t. Further, even if Mr. Warren
               doesn’t want to “possess” the videos (he is serving a lengthy
               prison sentence) and he just wants to sell them using a third
               party, the Court cannot tell which videos are innocuous (such as
               videos of Hurricane Katrina) and which are filmed under
               questionable consensual circumstances.


       Appellant’s App. p. 179. Warren filed a motion to correct error, which the trial

       court denied.


[10]   On April 16, 2018, Warren filed a third motion for return of his property. The

       trial court denied the motion. The trial court noted that it had previously ruled

       on the motion and that it had informed Warren to pursue an appeal but he had



       Court of Appeals of Indiana | Opinion 18A-CR-1725 | March 11, 2019        Page 5 of 11
       not done so. On June 19, 2018, Warren filed a petition for permission to file a

       belated notice of appeal, which the trial court granted.


                                                    Analysis
[11]   Warren appeals the trial court’s partial denial of his motion for return of

       property. When we review the denial of a motion for return of property, we

       will affirm unless the decision is clearly erroneous and cannot be sustained on

       any legal theory supported by the evidence. Williams v. State, 952 N.E.2d 317,

       319 (Ind. Ct. App. 2011). “Statutes that relate to search and seizure must be

       strictly construed ‘in favor of the constitutional right of the people.’” Id.

       (quoting Wallace v. State, 199 Ind. 317, 327, 157 N.E. 657, 660 (1927)). “The

       court, once its need for the property has terminated, has both the jurisdiction

       and the duty to return seized property.” Id.


[12]   The return of property following the final disposition of a criminal cause is

       governed by Indiana Code Section 35-33-5-5, which provides in relevant part:

       “Property which may be lawfully possessed shall be returned to its rightful

       owner, if known. If ownership is unknown, a reasonable attempt shall be made

       by the law enforcement agency holding the property to ascertain ownership of

       the property.” Thus, the issue before us is whether Warren is the “rightful

       owner” of the recordings and photographs and whether Warren can “lawfully

       possess” the materials. See Merlington v. State, 839 N.E.2d 260, 263 (Ind. Ct.

       App. 2005) (noting that “the question is whether the cash is ‘property which

       may be lawfully possessed.’ If so, then it ‘shall be returned to its rightful owner,


       Court of Appeals of Indiana | Opinion 18A-CR-1725 | March 11, 2019          Page 6 of 11
       if known’”). If Warren is the rightful owner of the materials and can lawfully

       possess the materials, the trial court “shall” return the property. Ind. Code § 35-

       33-5-5. Warren must demonstrate his claim by a preponderance of the

       evidence. Tracy v. State, 655 N.E.2d 1232, 1236 (Ind. Ct. App. 1995), trans.

       denied.


[13]   The parties do not seem to dispute that Warren is the rightful owner of the

       materials. 2 The question remains, however, whether the materials are property

       that may lawfully be possessed. Although our court has considered whether

       other items may be lawfully possessed, see Matter of Prop. Located at Marriott Inn,

       505 Marriott Drive, Clarksville, Ind., 456 N.E.2d 444, 448 (Ind. Ct. App. 1983)

       (holding that a gambling device could not be lawfully possessed and that the

       petitioner was not entitled to return of the seized device), we find no Indiana

       cases addressing a factually similar circumstance.


[14]   The trial court found that Warren could not lawfully possess the materials due

       to his status as a sex offender and incarceration and due to the “questionable

       consensual circumstances” found in the materials. Appellant’s App. Vol. II p.

       179. Warren argues that the materials should be returned to him because the

       State failed to prove that the materials contain non-consensual and illegal




       2
         Where the defendant was in possession of the items at the time of his arrest, there is a presumption that the
       defendant is the owner of the items. See Merlington, 839 N.E.2d at 263; State v. Poxon, 514 N.E.2d 652, 654
       (Ind. Ct. App. 1987), trans. denied. The materials at issue here were found during a search of Warren’s
       residence and a search of his mother’s residence. Because the parties do not dispute that he is the owner of
       the materials, we do not address whether a presumption of ownership exists.

       Court of Appeals of Indiana | Opinion 18A-CR-1725 | March 11, 2019                                 Page 7 of 11
       activity. The State contends that “[t]here is nothing in this record suggesting,

       let alone demonstrating, that the participants in the recorded sex acts were

       aware that they were being recorded, let alone that they consented.” Appellee’s

       Br. p. 13. The State argues that the trial court’s order is correct “based upon

       Defendant’s inability to lawfully possess this sexually explicit material, and the

       unlawful dissemination of it by any third parties without consent of the persons

       appearing in the recordings.” Id. at 12-13.


[15]   The trial court’s first basis for denying Warren’s motion was that Warren is

       unable to possess such materials due to his child molesting convictions and

       current incarceration. Warren, however, designated other persons to take

       possession of several other items that had been seized, including firearms.

       Despite Warren’s incarceration and status as a sex offender, the materials could

       have been released to his mother or agent. See, e.g., Williams v. State, 952

       N.E.2d 317, 320 (Ind. Ct. App. 2011) (holding that, where the defendant could

       not lawfully possess a firearm due to his prior felony conviction, defendant

       could transfer ownership of the firearm to his counsel).


[16]   Next, the trial court denied Warren’s request due to the “questionable

       consensual circumstances” found in the materials. Appellant’s App. Vol. II p.

       179. The trial court here issued a blanket order denying Warren’s request

       regarding the “CD’S, DVD’s, Diskettes, tapes or other recordings.” Id. The

       deputy prosecutor, however, only referenced one video, out of hundreds of

       videos, and stated: “What I recall was I watching a magic show and then from

       the magic show it broke to two people having intercourse and then it went back

       Court of Appeals of Indiana | Opinion 18A-CR-1725 | March 11, 2019        Page 8 of 11
       to a magic show. That was, that is the one that is most distinct in my head.”

       Tr. Vol. II p. 8. The trial court did not require the parties to catalogue or

       itemize the materials or specifically identify the materials that were unlawful to

       possess and those that were innocuous.


[17]   We recognize, as the trial court did, the time involved in cataloguing Warren’s

       materials. The State, however, cannot take a person’s property, not use the

       property in a prosecution, and then refuse to return the property because doing

       so is burdensome. Warren was not charged with any crimes related to these

       materials, and he is entitled to the return of his property that he can lawfully

       possess. The trial court’s blanket order fails to specifically identify the materials

       Warren can and cannot lawfully possess.


[18]   Although the federal rules and statutes differ from Indiana’s statute on this

       issue, we find the Ninth Circuit Court of Appeals’ opinion in U.S. v. Gladding,

       775 F.3d 1149 (9th Cir. 2014), instructive. The court held:


               The district court may also order alternative measures for
               returning Gladding’s noncontraband files other than forcing the
               government to pay for segregating the data itself. For example,
               the district court can require Gladding to pay the costs of
               segregation by having his expert review the electronic storage
               devices and copy the noncontraband files to the extent otherwise
               permitted by law. Indeed, Gladding already had an expert
               review the storage devices while this appeal was pending. The
               district court may decide to order the government to provide a
               printed directory of the electronic storage devices. A directory
               could assist Gladding in better identifying which files he wants
               returned or which folders potentially contain noncontraband
               material. Such a remedy may have the effect of substantially
       Court of Appeals of Indiana | Opinion 18A-CR-1725 | March 11, 2019         Page 9 of 11
                reducing the government’s costs in identifying noncontraband
                files to return to Gladding. And counsel for Gladding suggested
                at oral argument that a printed directory would go a long way
                toward resolving this dispute. We of course do not mean to
                require the district court to adopt any or all of our suggestions;
                nor do we mean to preclude the district court from ordering other
                remedies. In cases such as this, the district court is in the best
                position to fashion a remedy, “taking into account the time
                needed to image and search the data and any prejudice to the
                aggrieved party.” Fed.R.Crim.P. 41, Advisory Committee’s
                Note to 2009 Amendment.


       Gladding, 775 F.3d at 1154 (footnote and internal citation omitted). Similarly,

       here, the trial court may attempt to fashion a remedy to allow the specific

       cataloguing of Warren’s materials. 3


[19]   We do note that the burden here is on Warren to prove by a preponderance of

       the evidence that the materials can be lawfully possessed. Of the recordings

       containing sexually explicit materials, Warren must demonstrate that the

       materials do not violate the obscenity statutes. See Ind. Code Chapter 35-49-3.

       Warren must also show that the participants in the sexual activity were aware

       of or consented to the recordings. 4 See, e.g., Wallace v. State, 961 N.E.2d 529,




       3
         We encourage the parties to reach an agreement regarding these materials to save both parties time and
       effort.
       4
         It is also unclear whether the participants consented to the commercial dissemination of the recordings.
       Various torts are implicated here too but would not make the materials unlawful to possess. For example,
       the tort invasion of privacy by appropriation of name or likeness is implicated when an individual uses the
       plaintiff’s name or likeness for his own benefit. See Westminster Presbyterian Church of Muncie v. Yonghong
       Cheng, 992 N.E.2d 859, 869 (Ind. Ct. App. 2013); see also Ind. Code § 32-36-1-8 (a) (“A person may not use
       an aspect of a personality’s right of publicity for a commercial purpose during the personality’s lifetime or for
       one hundred (100) years after the date of the personality’s death without having obtained previous written

       Court of Appeals of Indiana | Opinion 18A-CR-1725 | March 11, 2019                                 Page 10 of 11
       533 (Ind. Ct. App. 2012) (holding that the surreptitious recording of consensual

       sexual activity could support a conviction for voyeurism).


                                                   Conclusion
[20]   The trial court’s blanket order regarding the materials is clearly erroneous. We

       reverse and remand for proceedings consistent with this opinion.


[21]   Reversed and remanded.


       Baker, J., and May, J., concur.




       consent from a person specified in section 17 of this chapter.”). We express no opinion regarding the
       application of such tort claims here.

       Court of Appeals of Indiana | Opinion 18A-CR-1725 | March 11, 2019                              Page 11 of 11
