Luke Paul Eckrich v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 05 2017, 7:03 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joel C. Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Luke Paul Eckrich, April 5, 2017
Appellant-Defendant, Court of Appeals Case No.
84A01-1610-CR-2343
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable Michael J. Lewis,
Appellee-Plaintiff. Judge
Trial Court Cause No.
84D06-1511-F6-2893
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 84A01-1610-CR-2343 | April 5, 2017 Page 1 of 6
Case Summary
[1] Following a bench trial, Luke Paul Eckrich (“Eckrich”) was convicted of
Possession of Child Pornography, as a Level 6 felony,1 and the charge was
enhanced because Eckrich was found to be a repeat sexual offender.2 Eckrich
now challenges the sufficiency of the evidence supporting his conviction.
[2] We affirm the conviction and remand for correction of the sentencing order.
Facts and Procedural History
[3] Around 9:30 p.m. on September 29, 2015, Eckrich was using a library computer
at Indiana State University. Later that night, a library patron saw Eckrich
viewing child pornography on the computer. The patron took photos of
Eckrich and alerted staff. Someone contacted the police.
[4] Officer Michael Eldred (“Officer Eldred”) of the Indiana State University Police
responded to the library around 12:37 a.m. Officer Eldred approached Eckrich,
and could see that Eckrich was viewing child pornography. When Eckrich saw
Officer Eldred, Eckrich immediately turned off the computer. Eckrich was
warned that he was trespassing, and the police later returned to collect the
1
Ind. Code § 35-42-4-4(c). We refer throughout to the substantive provisions of the Indiana Code in effect at
the time of Eckrich’s offense.
2
I.C. § 35-50-2-14.
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computer. A forensic examination of the computer confirmed that Eckrich had
accessed child pornography websites.
[5] On November 24, 2015, the State charged Eckrich with one count of Possession
of Child Pornography. The State also filed an enhancement, alleging that
Eckrich was a repeat sexual offender. A bench trial was conducted on July 29,
2016, and Eckrich stipulated to certain facts. The trial court took the matter
under advisement and later found Eckrich guilty as charged.
[6] A sentencing hearing was held on September 12, 2016. The trial court
sentenced Eckrich to one year for Possession of Child Pornography and
enhanced the sentence by one year, purportedly imposing the enhancement as a
consecutive sentence to that of Possession of Child Pornography.
[7] Eckrich now appeals.3
Discussion and Decision
[8] When reviewing the sufficiency of the evidence to support a conviction, we
neither reweigh the evidence nor assess witness credibility. Drane v. State, 867
N.E.2d 144, 146 (Ind. 2007). We consider only the evidence supporting the
judgment and any reasonable inferences that can be drawn from that evidence.
Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). We must affirm the
3
Subsequent to filing his appeal, Eckrich filed a motion requesting that this Court accept his supplemental
appendix. We hereby grant this motion.
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conviction if there is “substantial evidence of probative value supporting each
element of the offense such that a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt.” Willis v. State, 27 N.E.3d 1065,
1066 (Ind. 2015).
[9] To convict Eckrich of possession of child pornography, the State had to prove
that Eckrich “knowingly or intentionally possess[ed] . . . any pictorial
representation” of child pornography. I.C. § 35-42-4-4(c). In challenging the
sufficiency of the evidence, Eckrich does not dispute that he intentionally
accessed and viewed websites that contained child pornography. Rather,
Eckrich argues that his actions did not amount to possession under Indiana law.
[10] To prove that a defendant possessed an item, the State may prove either actual
possession or constructive possession. Sargent v. State, 27 N.E.3d 729, 733 (Ind.
2015). Actual possession occurs when a person has direct physical control over
an item. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). Constructive
possession occurs when a “person has (1) the capability to maintain dominion
and control over the item; and (2) the intent to maintain dominion and control
over it.” Id.
[11] Eckrich focuses his argument on a computer caching process that automatically
stored images from websites he visited. Those images were retrieved during the
forensic analysis of the computer. Eckrich argues that there was no evidence
that he knew of the caching process or that he controlled any of the images
stored through that process. Here, however, no such evidence was necessary.
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Rather, the stipulated evidence indicates that Eckrich intentionally pointed a
web browser to certain websites containing images of child pornography, and
intentionally viewed the pornographic images therein. In doing so, Eckrich
controlled when images of child pornography would appear on the computer
screen, and for how long. Moreover, while an image was on the screen,
Eckrich “was free to use the image as he desired.” (Appellee’s Br. at 11.)
These actions constitute sufficient control over the pornographic images such
that Eckrich possessed them under Indiana law. Thus, the evidence is sufficient
to support Eckrich’s conviction.
[12] Finally, the State directs us to a brief sentencing matter. That is, in sentencing
Eckrich, the trial court purportedly ordered that Eckrich serve consecutive
sentences for the possession conviction and the repeat sexual offender finding.
However, a repeat sexual offender finding does not itself generate a separate
conviction for which a defendant can be separately sentenced, rather it allows
the trial court to impose an enhanced sentence on a proper conviction. See, e.g.,
Young v. State, 57 N.E.3d 857, 860-61 (Ind. Ct. App. 2016), trans. denied. The
instant sentencing order is therefore inaccurate. Accordingly, on remand, the
trial court should amend its sentencing order to reflect that Eckrich’s possession
sentence is enhanced by one year, with no separate consecutive sentence.
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Conclusion
[13] The evidence was sufficient to support Eckrich’s conviction of possession of
child pornography, but the sentencing order inaccurately characterized the
repeat sexual offender enhancement as a separate consecutive sentence.
[14] Affirmed and remanded.
Vaidik, C.J., and Robb, J., concur.
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