Court of Appeals of Indiana | Opini on 18A

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- 1719 | February 14, 2019 Page 1 of 9 A TTORNEY FOR A PPELLANT Brian A. Karle Ball Eggleston, P.C. Lafayette, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. At torney 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 Ca se No. 18A

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- 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 | Opini on 18A

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- 1719 | February 14, 2019 Page 2 of 9 [1] Joshua J. Kelp appeals following his conviction s 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 who m 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 In d . 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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- 1719 | February 14, 2019 Page 3 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 t he State ’s mo tion, 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 sentence d 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 th at 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 decisi on 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 an d 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 a n aggravator because

tra ding the images is a material element of child exploitation

. Kelp is corr ect 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) ( e ssential eleme nt of aCourt of Appeals of Indiana | Opini on 18A

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- 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

ca se 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 participate d 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 chil dren 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 c o urt would have considered his trading of the images as an aggrava tor

. 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 | Opini on 18A

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- 1719 | February 14, 2019 Page 6 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 certa in 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 culpabili ty 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 h is 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 adviso ry 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 tr ial court sentenced Kelp to ten years; thus, on this charge, he received the maximumCourt of Appeals of Indiana | Opini on 18A

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- 1719 | February 14, 2019 Page 7 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 les s than the possible maximum sentence

.

[10] Regarding the nature of the offense, the trial court note d the seriousness of Kelp’s crime s
. 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. I I 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) ( d efendant ’ 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 tria l 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 c ommitted by the defendant, including downloading child pornography, could not be redeemed by his positive character traits)

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- 1719 | February 14, 2019 Page 8 of 9 [12] Given the nature of the offense, i.e. , the heinous images Kelp possessed , and the character of the offender, i.e. , Ke lp had been collecting these images for five years prior to be ing arrested , we cannot say Keller’s ten

- year sentence i s in appropriate. See Schroeder v State , 998 N.E.2d 279, 285 (Ind. Ct. App. 2013) (e xploitation of children through video s and images allowed for an aggravated

sentence ). Accordingly, we affirm that sentence.


### Probation Condition

[13] Kelp’s final argument i s that Special Probation Condition 12 i s unconstit utionally va gue a nd overly b road

. 6 “T he tr ial c ourt ’ s broad discretion in de termining t he c onditions of probation i s limited only b y t he p rinciple th at the c onditions must b e r easonably r elated to the tr eatment of the defendant and protection of

p ublic sa fety. ” Stott v. State , 822 N.E.2d 176, 179-80 (Ind. Ct. App. 2005), trans. denied

. Special Probation Rule 12 s t ates:

Y ou 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 clu bs, adult bookstores, motels, specifically operated for sexual

6 The State argue s Kelp waived his right to appeal this issue by failing to objec t 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 | Opini on 18A

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- 1719 | February 14, 2019 Page 9 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 , w e 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

. T he 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 P robation C ondition 12

. See Bleeke v. Lemmon , 6 N.E.3d 907 , 921 (Ind. 2014) (Indiana Supreme Court agreed with the rationale in Collin s regarding the overly broad probation condition)

.


# Conclusion

[15] The trial court committed harmless error when it improperly considered Kelp trading images as a n aggravating factor. Also, in light of the nature of Kelp’s offenses and Kelp’s characte r , his ten

- year sentence is not inappropriate. However, because Special Pr obation Rule 12 is overly broa d, we remand to the trial court for clarification.

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

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

.