Court of Appeals of Indiana | Memorandum Decision 18A-CR-2627 | April 25, 2019 Page 1 of 9

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.

ATTORNEY FOR APPELLANT

Brian A. Karle

BALL EGGLESTON, PC

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

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 Case No.

18A-CR-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-CR-2627 | April 25, 2019 Page 2 of 9

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 conditions of probation.

Issues

[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 not 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 § 35-42-4-4(b).

2

I.C. § 35-42-4-4(d).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2627 | April 25, 2019 Page 3 of 9

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 genitalia 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 sentences 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 35-50-2-6 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 35-50-2-7 provides 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.
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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 offender.” 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 

mitigators 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 circumstances 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. at 1225. Whether we regard 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. at 1224.

[8] Deference to the trial 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 persistent 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, the 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2627 | April 25, 2019 Page 5 of 9

severity of the pattern of offenses, and the admitted 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 issues

(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, he 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, his collection of child pornography appeared to be prolific and longterm. 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 plead guilty indicates 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 sum, Custance has failed to demonstrate that his sentence is inappropriate in 

light of the nature of his offenses and his character.
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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 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, DVDs, and 

material downloaded from the internet. You shall not visit strip 

clubs, adult bookstores, motels specifically 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. denied. However, conditions imposed must be 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 conduct 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. denied, a panel of 

this Court considered a challenge to a probationary term that, like Probation 

Condition 12 here, 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-CR-2627 | April 25, 2019 Page 7 of 9

as it could encompass entry to a drug store. Id. at 714. The matter was 

remanded for clarification of the probationary term. Subsequently, our Indiana 

Supreme Court agreed with the rationale of Collins regarding the overly broad 

provision. See Bleeke, 6 N.E.3d at 921; see 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 63 and 19, Custance was prohibited from establishing a new 

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 preapproved for the benefit of a victim. Custance argues:

Because Custance does not know the identity 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 

Custance.

Appellant’s Brief at 16. 

[14] Custance does not otherwise 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 35-38-2-2.5(e), which requires the imposition of this 

restriction upon a sex offender.
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not to contact or live near one of the children depicted in the pornography he

possessed or disseminated. Rather, his 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 court 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 reply brief, Custance appears to recognize that 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.
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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 challenged 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.” Bleeke, 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.