Court of Appeals of Indiana | Opinion 18A-CR-1719 | February 14, 2019 Page 1 of 9

ATTORNEY FOR APPELLANT

Brian A. Karle

Ball Eggleston, P.C.

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Joshua J. Kelp,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

February 14, 2019

Court of Appeals Case No.

18A-CR-1719

Appeal from the Tippecanoe 

Superior Court

The Honorable Steven Meyer, 

Judge

Trial Court Cause No.

79D02-1802-F4-2

May, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-1719 | February 14, 2019 Page 2 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).
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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).
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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 5 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. 
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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 
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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). 
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[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.
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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.