Warren v. State
| Decision Date | 11 March 2019 |
| Docket Number | Court of Appeals Case No. 18A-CR-1725 |
| Parties | Larry WARREN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Appellant Pro Se: Larry Warren, Pendleton, Indiana
Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Angela Sanchez, Deputy Attorney General, Indianapolis, Indiana
[1] Larry Warren appeals the trial court's partial denial of his motion for return of property. We reverse and remand.1
[2] Warren raises one issue, which we restate as whether the trial court properly denied Warren's motion for return of property that contained depictions of sexual conduct.
[3] In 2010, Warren was charged with multiple counts of child molesting, Class A felonies; sexual misconduct with a minor, Class B felonies; and child solicitation, Class D felonies. Search warrants were executed on Warren's residence and his mother's residence, and property was seized as a result. In December 2012, Warren was found guilty of three counts of child molesting, Class A felonies, and two counts of child solicitation, Class D felonies. The trial court sentenced Warren to an aggregate sentence of eighty years in the Department of Correction. On appeal, we remanded for resentencing based on a violation of Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). See Warren v. State , No. 49A04-1301-CR-25, 2013 WL 5532705 (Ind. Ct. App. Oct. 8, 2013). The trial court resentenced Warren to an aggregate sentence of seventy years.
[4] On March 1, 2017, Warren filed a petition for return of his seized property not used in the prosecution of his crimes, which included hundreds of items, including photographs and video recordings. The State did not object to the release of electronic devices. The State, however, objected to the release of "any tapes, recordings, film or digital and photos" because the items contained "a wealth of sexual images that seem[ ] to involve private sexual conduct probably confidential between unnamed individuals other than [Warren]," and the State had no indication that "said individuals consent to dissemination of their images to [Warren], his mother, or any other 3rd party." Appellant's App. Vol. II p. 33. On March 7, 2017, the trial court granted Warren's request to release the electronic devices but denied the request to release "tapes, films, digital, or photographic images or other recordings in that these items contain[ ] sexual-images that seem to involve private sexual conduct between un-named and un-identifiable persons and the State has no indication that the individuals depicted give their consent to dessiminate [sic] these items." Id. at 35.
[5] Warren filed a motion to correct error. Warren alleged that: (1) some of the photographs and recordings are from his childhood, family events, Hurricane Katrina, Afghanistan, and Iraq; (2) other photographs and recordings were from his work for RWG (Real Wild Girls) Media and were taken in public places or consent was given; and (3) none of the items related to his child molesting conviction. The trial court granted Warren's motion to correct error in part. In general, the trial court directed the State to release all of the property to Warren or his agent except for videos and other images containing sexual or pornographic materials. The trial court noted: "Should the State elect not to release these types of material [sic], the Defendant may petition this court for further proceedings." Id. at 89.
[6] Warren then filed a motion to reconsider and argued that the State had failed to rebut Warren's lawful ownership of the images and videos and the State's "hunch" that the images were "non-consensual and illegal" was insufficient. Id. at 93. Warren listed hundreds of video tapes, DVDs, CDs, and photographs that were retained by the State. The trial court denied the motion to reconsider.
[7] On September 15, 2017, Warren filed a motion for rule to show cause and argued that the State had failed to return his firearms. Warren also filed a second motion for return of property regarding the remainder of his property. Warren alleged that all of the recordings and photographs were provided to him or recorded by him "with full and explicit written and oral consent of the persons of whom whose [sic] likeness appears therein." Id. at 135. According to Warren, due to the seizure of the materials, he was "suffering irreparable injury" because he was "unable to sell such on the open market." Id. at 136.
[8] The trial court held a hearing to address Warren's motions. At the hearing, Warren stated that the recordings at issue were about six hundred hours long. The deputy prosecutor stated that she had previously been required to watch the videos, which were not well labeled, and that: Tr. Vol. II p. 8. Warren argued that some of the recordings were from Hurricane Katrina, spring breaks, Mardi Gras, and biker events that he recorded and that he was the "rightful owner" of the recordings. Id. at 7.
[9] On December 14, 2017, the trial court entered an order requiring the State to release Warren's weapons, family photos, military medals, and family mementos. Regarding the other recordings and photos, the trial court denied Warren's motion as follows:
Any CD'S, DVD's, Diskettes, tapes or other recordings (collectively referred to herein as "videos") shall not be returned as the Court cannot tell what Mr. Warren (as a sex offender) can legally possess and what he can't. Further, even if Mr. Warren doesn't want to "possess" the videos (he is serving a lengthy prison sentence) and he just wants to sell them using a third party, the Court cannot tell which videos are innocuous (such as videos of Hurricane Katrina) and which are filmed under questionable consensual circumstances.
Appellant's App. p. 179. Warren filed a motion to correct error, which the trial court denied.
[10] On April 16, 2018, Warren filed a third motion for return of his property. The trial court denied the motion. The trial court noted that it had previously ruled on the motion and that it had informed Warren to pursue an appeal but he had not done so. On June 19, 2018, Warren filed a petition for permission to file a belated notice of appeal, which the trial court granted.
[11] Warren appeals the trial court's partial denial of his motion for return of property. When we review the denial of a motion for return of property, we will affirm unless the decision is clearly erroneous and cannot be sustained on any legal theory supported by the evidence. Williams v. State , 952 N.E.2d 317, 319 (Ind. Ct. App. 2011). "Statutes that relate to search and seizure must be strictly construed ‘in favor of the constitutional right of the people.’ " Id. (quoting Wallace v. State , 199 Ind. 317, 327, 157 N.E. 657, 660 (1927) ). "The court, once its need for the property has terminated, has both the jurisdiction and the duty to return seized property." Id.
[12] The return of property following the final disposition of a criminal cause is governed by Indiana Code Section 35-33-5-5, which provides in relevant part: Thus, the issue before us is whether Warren is the "rightful owner" of the recordings and photographs and whether Warren can "lawfully possess" the materials. See Merlington v. State , 839 N.E.2d 260, 263 (Ind. Ct. App. 2005) ). If Warren is the rightful owner of the materials and can lawfully possess the materials, the trial court "shall" return the property. Ind. Code § 35-33-5-5. Warren must demonstrate his claim by a preponderance of the evidence. Tracy v. State , 655 N.E.2d 1232, 1236 (Ind. Ct. App. 1995), trans. denied .
[13] The parties do not seem to dispute that Warren is the rightful owner of the materials.2 The question remains, however, whether the materials are property that may lawfully be possessed. Although our court has considered whether other items may be lawfully possessed, see Matter of Prop. Located at Marriott Inn, 505 Marriott Drive, Clarksville, Ind. , 456 N.E.2d 444, 448 (Ind. Ct. App. 1983) (), we find no Indiana cases addressing a factually similar circumstance.
[14] The trial court found that Warren could not lawfully possess the materials due to his status as a sex offender and incarceration and due to the "questionable consensual circumstances" found in the materials. Appellant's App. Vol. II p. 179. Warren argues that the materials should be returned to him because the State failed to prove that the materials contain non-consensual and illegal activity. The State contends that "[t]here is nothing in this record suggesting, let alone demonstrating, that the participants in the recorded sex acts were aware that they were being recorded, let alone that they consented." Appellee's Br. p. 13. The State argues that the trial court's order is correct "based upon Defendant's inability to lawfully possess this sexually explicit material, and the unlawful dissemination of it by any third parties without consent of the persons appearing in the recordings." Id. at 12-13.
[15] The trial court's first basis for denying Warren's motion was that Warren is unable to possess such materials due to his child...
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