Pontius v. State Of Ind.

• Decision Date: 20 July 2010
• Docket Number: No. 29A04-1001-CR-24.,29A04-1001-CR-24.
• Parties: John Thomas PONTIUS, Appellant-Defendant,v.STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

930 N.E.2d 1212

John Thomas PONTIUS, Appellant-Defendant,v.STATE of Indiana, Appellee-Plaintiff.

No. 29A04-1001-CR-24.

Court of Appeals of Indiana.

July 20, 2010.

COPYRIGHT MATERIAL OMITTED

Dori E. Newman, Newman & Newman, PC, Noblesville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BRADFORD, Judge.

Following a bench trial, Appellant-Defendant John Thomas Pontius appeals his convictions for five counts of Possession of Child Pornography, a Class D felony,¹ for which he received an aggregate sentence of three years in the Department of Correction, with 545 days executed and 550 days suspended to probation. Upon appeal Pontius claims that two of his convictions violate double jeopardy and that he received ineffective assistance of trial counsel. We affirm.

FACTS AND PROCEDURAL HISTORY

In May of 2007, Indiana State Police Detective Andy Byers, who investigates internet crimes involving child exploitation, detected the transmission of certain suspect images to an Internet Protocol (“IP”) address in Carmel. The dates of the transmission of these images ranged between February 19, 2007, and March 14, 2007. Detective Byers provided this information to Noblesville Police Detective Charles Widner, who determined the specific IP address to which the images had been transmitted.

Authorities later executed a search warrant at the home of Pontius's grandparents, who were the subscribers of the IP address at issue. Pontius had lived with his grandparents at certain times in 2007. The computer seized from the home contained a Maxtor 300 gigabyte hard drive (“Maxtor 300”). A search of the Maxtor 300 discovered four videos with the following names: “8 Best little girl in a pink dress, r@ygold hello video (illegal underage lolita preteen pedo).mpg” (“Video 1”), which was downloaded on February 17 2007; “Best Incest about 14yo cute pigtail german lolita tiny puffies, hairless coochie lots of positions(r@ ygold underage pedo).mpg” (“Video 2”), which was downloaded on February 17, 2007; “fdsa3-4yo girl pedo r@ygold hussyfan lolitaguy lsm pthc babyshivid.mpg” (“Video 3”), which was downloaded on February 16, 2007; and “Kid-Dee & Desi-Young Little Kiddy Childs-NOBULL 2 naked midteen girls affectionate, yg man has bit part few sec 1.42(pedofilia)(lez).mpeg” (“Video 4”), which was downloaded on February 16, 2007. All four videos were stored in a single folder.

Authorities ultimately located Pontius at a residence in Westfield. Upon speaking to Pontius, authorities learned that he had downloaded certain materials on two separate computers using search words such as “illegal” and “preteen.” Tr. p. 64. Authorities then executed a search warrant at his parents' home in Sheridan and seized the computer there, which contained a Maxtor 80 gigabyte hard drive (“Maxtor 80”). A search of the Maxtor 80 discovered the following two additional videos: “little girls mix (lolitas- pre teens- reel kiddymov- r@ ygold- hussy fans- underage - girls- children pedofilia- pthc- ptsc- xxx- sexy). mpg” (“Video 5”), which was downloaded on July 16, 2007; and “8 Best little girl in a pink dress, r@ygold hello video (illegal underage lolita preteen pedo).mpg” (“Video 6”), which was downloaded on July 16, 2007. Both videos were stored in a single folder.

On July 27, 2007, the State charged Pontius with six counts of possession of child pornography. Counts 1-4 corresponded to Videos 1-4 on the Maxtor 300. Counts 5 and 6 corresponded to Videos 5 and 6 on the Maxtor 80. There is no dispute that Videos 1 and 6, which have the same name, are identical in content.

The charging informations alleged, consistent with the statute, that Pontius had possessed videos of a child whom he “knew to be less than sixteen (16) years of age or who appear[ed] to be less than sixteen (16) years of age.” App. p. 10; see Ind.Code § 35-42-4-4(c). At Pontius's bench trial, which was held on May 6 and May 20, 2009, the State's expert witness testified that the persons pictured in the videos were “certainly ... under the age of 18.” Tr. p. 83. At the close of trial, defense counsel stated that he had not watched the videos in question. The trial court ultimately convicted Pontius of Counts 1-3 and 5-6, and it acquitted him of Count 4 on the basis that the individuals pictured “could be persons who might be 18 years of age.” Tr. p. 122. At his July 22, 2009 sentencing hearing, the trial court sentenced Pontius to concurrent sentences of three years on each count, with 545 days executed-365 of which were to be served at the Department of Correction and 180 at Hamilton County Community Corrections Work Release-and 550 days suspended to probation. This appeal follows.

DISCUSSION AND DECISION

Upon appeal, Pontius points to the identical content of Videos 1 and 6 and contends that his convictions for Counts 1 and 6 violate double jeopardy under both the federal and Indiana constitutions. Pontius also contends that his trial counsel was ineffective for failing to view these videos, causing prejudice by (1) permitting Pontius to be convicted of two allegedly identical counts, (2) impeding defense counsel's ability to cross-examine witnesses regarding the age of the participants in the video, and (3) undermining defense counsel's argument that Pontius's possession of the videos was not knowing or intentional.

I. Double Jeopardy

A. Federal Double Jeopardy

The Federal Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. This constitutional provision includes protection from multiple punishments for the same offense. Brown v. State, 912 N.E.2d 881, 892 (Ind.Ct.App.2009) trans. denied.

Pontius claims that his dual convictions pursuant to Indiana Code section 35-42-4-4(c) for Counts 1 and 6, which are based upon the same video, constitute impermissible multiple convictions in violation of double jeopardy principles. Pontius's argument in this regard presents an issue of statutory interpretation, which is an issue of law we review de novo. Brown, 912 N.E.2d at 893. The classic test for multiplicity is whether the legislature intended to punish individual acts separately or to punish the course of action which they make up. Id. (citing Blockburger v. United States, 284 U.S. 299, 302, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). Unless there appears in the statute a clear intent to fix separate penalties for the possession of each image of child pornography, the issue should be resolved against turning a single transaction into multiple offenses. Id. (citing Am. Film Distribs., Inc. v. State, 471 N.E.2d 3, 5 (Ind.Ct.App.1984)).

Legislative intent in enacting a statute is the key consideration when determining whether the double jeopardy clause protects against multiple punishments for the same offense under a particular statute. Specifically, the whole point of whether multiple offenses of the same statute are committed during a single transaction focuses on the definition of the crime involved. Thus, the touchstone of whether the double jeopardy clause is violated is the legislature's articulated intent.

Id. (quoting Robinson v. State, 835 N.E.2d 518, 521 (Ind.Ct.App.2005) (internal citations omitted)). “ ‘In analyzing double jeopardy claims based on multiple punishments, we utilize a method of statutory interpretation in which the court is asked to determine whether the legislature intended to impose separate sanctions for multiple offenses arising in the course of a single act or transaction.’ ” Id. (quoting Robinson, 835 N.E.2d at 522).

The crime of possession of child pornography is defined as follows:

A person who knowingly or intentionally possesses:

(1) a picture;

(2) a drawing;

(3) a photograph;

(4) a negative image;

(5) undeveloped film;

(6) a motion picture;

(7) a videotape;

(8) a digitized image; or

(9) any pictorial representation;

that depicts or describes sexual conduct by a child who the person knows is less than sixteen (16) years of age or who appears to be less than sixteen (16) years of age, and that lacks serious literary, artistic, political or scientific value commits possession of child pornography, a Class D felony.

Ind.Code § 35-42-4-4(c).

This court has recently evaluated this statute in the context of a double jeopardy challenge. See Brown, 912 N.E.2d at 896. In determining whether an investigating detective's one-time, seven-minute Lime Wire ² search, which uncovered five distinct images of child pornography, could sustain the defendant's five separate convictions for possessing it, this court first considered the plain language of the statute. Id. at 893, 896. Specifically, the General Assembly had defined the crime of possession of child pornography by referencing objects in the singular (“a picture,” “a videotape,” “any pictorial representation,” etc.), suggesting that its clear intent was to make the possession of each separate picture or video a distinct occurrence of offensive conduct in violation of statute. See id. at 896. In addition, this court considered the policies behind this statute, including preventing the victimization of children and obstructing the growth of the child pornography industry. Id. at 895-96. In light of the statutory language and the policies behind it, the Brown court held that “multiple convictions and punishments for possession of child pornography distinguished only by the image so possessed do not violate federal double jeopardy principles.” Id. at 896.

As evidenced by the above language, however, the Brown court's holding rested largely upon the fact that the five images at issue were separate and distinct. Here, the two digital video files at issue are identical and can be distinguished only by the computers they were contained on, the location of those computers, and the time of their downloads.

The State argues that these...