Court of Appeals of Indiana | Memorandum Decision 18A

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### MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT Brian A. Karle B ALL E GGLESTON , PC Lafayette, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Ian McLean Supervising Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA
Nicholas Taylor Custance , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. April 25, 2019 Court of Appeals Ca se No. 18A

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- 2627 Appeal from the Tippecanoe Superior Court The Honorable Steven P. Meyer, Judge Trial Court Cause No. 79D02

- 1805

- F5

- 89

Bailey , Judge .Court of Appeals of Indiana | Memorandum Decision 18A

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# 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 c onditions of probation.



# Issue s

[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 n ot 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

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- 4(b)

. 2 I.C. § 35

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- 4(d)

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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 genital ia 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 sentence s 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

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- 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

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- 7 provide s 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

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[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 offen der.” 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 mit igators 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 circum stances 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. a t 1225. Whether we rega rd 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. a t 1224.

[8] Deference to the tri al 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 per sistent 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 , theCourt of Appeals of Indiana | Memorandum Decision 18A

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severity of the pattern of offenses, and the admitte d 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 issu es (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, h e 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, hi s 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 pl e a d guilty indicat es 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 su m, Custance has failed to demonstrate that his sentence is inappr opriate in light of the nature of his offenses and his character.Court of Appeals of Indiana | Memorandum Decision 18A

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## 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 p ossess obscene matter as defined by IC 35

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- 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 bookst ores, motels spe cifically 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. d enied

. However, conditions imposed must b e 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 con duct 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. d enied , a panel of this Court considered a challenge to a probationary term that , like Probation Condition 12 her e, 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

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as it could encompass entry to a drug store

. Id. at 714. T he matter was remanded for clarification of the proba tionary term. Subsequently, o ur Indiana Supreme Court agreed with the rationale of Collins regarding the overly broad provision. See Bleeke , 6 N.E.3d at 921 ; s ee 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 6 3 and 19, Custance was prohibited from establishing a ne w 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 iden tity 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 Custan c e. Appellant’s Brief at 16.

[14] Custance does not ot herwise 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

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- 2.5(e), which requires the imposition of this restriction upon a sex offender.Court of Appeals of Indiana | Memorandum Decision 18A

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not to contact or live near one of the children dep icted in the pornography he possessed or dissem inated

. Rather, h is 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 c ourt 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 r eply brief, Custance appears to recognize th at 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

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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 chall enged 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.” B leeke , 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

.