Albrecht v. State

185 N.E.3d 412

Nathan C. ALBRECHT, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 21A-CR-1560

Court of Appeals of Indiana.

FILED March 14, 2022

Attorney for Appellant: Bernadette A. Kovacs, Rahman Law Office, Ferdinand, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General, Tyler Banks, Supervising Deputy Attorney General, Indianapolis, Indiana

Bradford, Chief Judge.

Case Summary

[1] After a bench trial, the court found Nathan C. Albrecht guilty of ten counts of Level 5 felony possession of child pornography and sentenced him to twenty-one years of incarceration. On appeal, Albrecht argues that the trial court erred in admitting evidence, that his convictions are not supported by sufficient evidence, and that the trial court erred in sentencing him. We affirm.

Facts and Procedural History

[2] On August 23, 2019, Dubois County Prosecutor's Office Investigator Richard Chambers sought a telephonic warrant to search Albrecht's apartment. Chambers was placed under oath and told the judge that during a forensic interview he observed earlier that day, twelve-year-old R.R. stated that he "had been touched inappropriately in the past six to nine months" by Albrecht, who was involved with the Mentors for Youth program. Tr. Vol. II p. 28. R.R. stated that Albrecht "had placed his mouth on R.R.’s penis on multiple occasions while he was at Mr. Albrecht's apartment in Ferdinand." Tr. Vol. II p. 28. According to Chambers, R.R. further stated that

on more than one occasion Mr. Albrecht would put something on his penis that was clear in nature, and he would slide it over his penis and that -- on occasion R.R. would use his hand to help put the item on Mr. Albrecht's penis and R.R. then made a motion with his hand that he was going up and down with his hand. And he said then white stuff would come out of Nathan's penis and the clear plastic thing would catch it.

Tr. Vol. II p. 29. R.R. also stated that Albrecht "would commonly get these items from this bathroom in the apartment." Tr. Vol. II p. 29.

[3] Based on R.R.’s statements, Chambers requested a warrant authorizing police to search Albrecht's apartment for "[a] condom or packages of condoms or similar instrumentality believed to be located in the bathroom of the residence as well as to take photographs or video of the residence that was described by [R.R.]" and "to examine such property, or any part thereof, found on such search." Appellant's App. Vol. II pp. 28, 30. Chambers read the proposed warrant to the judge, who found probable cause to issue it and approved it as written.

[4] Later that day, Ferdinand Police Department Captain Robert Randle and another officer executed the warrant and searched Albrecht's bathroom. On a shelf in a cabinet above the toilet, they found a "sandwich baggie" that had "condoms in it that appeared to have been used or had a human substance inside of them." Tr. Vol. II p. 61. On the same shelf, they "found a large box of condoms where it had been opened, a few had been removed but there's still a lot in there." Tr. Vol. II p. 61. And on a ledge above the bathroom sink mirror, they found another baggie that contained an external computer hard drive, which they seized. Police obtained a second warrant to search the hard drive, which was found to contain thousands of motion pictures and photos of "prepubescent children performing sexual acts." Tr. Vol. II p. 88. Police then obtained three additional warrants to search Albrecht's apartment and other media devices found during those searches.

[5] In October 2019, the State charged Albrecht with ten counts of Level 5 felony possession of child pornography based on ten separate "motion picture[s]" found on the hard drive recovered from his bathroom. Appellant's App. Vol. II pp. 52–54.¹ Albrecht challenged the validity of the last four search warrants in a motion to suppress, which the trial court denied. Another panel of this Court affirmed that ruling. Albrecht v. State , 159 N.E.3d 1004 (Ind. Ct. App. 2020), trans. denied.²

[6] A bench trial was held in May 2021. Albrecht objected to the admission of the motion pictures, asserting that the initial search warrant "lacked probable cause" and thus the search that resulted in the seizure of the hard drive violated his state and federal constitutional rights. Tr. Vol. II p. 67. The trial court overruled the objection and found Albrecht guilty as charged. The court sentenced him to three years executed on each count, with the sentences for counts one through four to run concurrently and the sentences for counts five through ten to run consecutively to those sentences and to each other, for an aggregate term of twenty-one years.

Albrecht now appeals his convictions and sentence.

Discussion and Decision

I. Admission of Evidence

[7] Albrecht first contends that the trial court abused its discretion by admitting the motion pictures found on the hard drive seized during the execution of the initial search warrant, claiming that the warrant lacked the requisite probable cause. We typically review a trial court's ruling on the admissibility of evidence for an abuse of discretion. Cartwright v. State , 26 N.E.3d 663, 667 (Ind. Ct. App. 2015), trans. denied. "When we review a trial court's ruling on the admissibility of evidence resulting from an allegedly illegal search, we do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court's ruling." Id. But we review de novo the trial court's determination regarding the existence of probable cause to support a search warrant. Smith v. State , 982 N.E.2d 393, 405 (Ind. Ct. App. 2013), trans. denied.

[8] Both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution require probable cause for the issuance of a search warrant. Id. at 404. The Fourth Amendment provides,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article 1, Section 11 contains nearly identical language. State v. Spillers , 847 N.E.2d 949, 953 (Ind. 2006). The warrant requirement is a principal protection against unnecessary intrusions into private dwellings. Chiszar v. State , 936 N.E.2d 816, 825 (Ind. Ct. App. 2010), trans. denied. To generally deter law enforcement officers from violating citizens’ Fourth Amendment rights, the United States Supreme Court has established the exclusionary rule, which prohibits the admission of evidence seized in violation of the Fourth Amendment. Reinhart v. State , 930 N.E.2d 42, 48 (Ind. Ct. App. 2010). Indiana also prohibits the admission of evidence seized in violation of Article 1, Section 11. Wright v. State , 108 N.E.3d 307, 313–14 (Ind. 2018).

[9] These constitutional rights are codified in Indiana Code section 35-33-5-2, which details the information that a search warrant affidavit must contain. Spillers , 847 N.E.2d at 953. Among other things, the affidavit must particularly describe "the house or place to be searched and the things to be searched for[,]" allege "substantially the offense in relation thereto and that the affiant believes and has good cause to believe that ... the things sought are concealed there[,]" and set "forth the facts known to the affiant through personal knowledge or based on hearsay, constituting the probable cause." Ind. Code § 35-33-5-2(a). When the affidavit is based on hearsay, it "must either: (1) contain reliable information establishing the credibility of the source and of each of the declarants of the hearsay and establishing that there is a factual basis for the information furnished; or (2) contain information that establishes that the totality of the circumstances corroborates the hearsay." Ind. Code § 35-33-5-2(b). Indiana Code section 35-33-5-8(a) provides that a judge may issue a search warrant without an affidavit "if the judge receives testimony subject to the penalties for perjury of the same facts required for an affidavit ... orally by telephone or radio[,]" as happened here.

[10] In determining whether to issue a search warrant, " ‘[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ " Jaggers v. State , 687 N.E.2d 180, 181 (Ind. 1997) (quoting Illinois v. Gates , 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ) (brackets and ellipsis in Jaggers ). "The duty of the reviewing court is to determine whether the magistrate had a ‘substantial basis’ for concluding that probable cause existed." Id. (quoting Gates , 462 U.S. at 238–39, 103 S.Ct. 2317 ). "Probable cause is a fluid concept incapable of precise definition and must be decided based on the facts of each case." Smith , 982 N.E.2d at 404. "The level of proof necessary to establish probable cause is less than that necessary to establish guilt beyond a reasonable doubt." Jellison v. State , 656 N.E.2d 532, 534 (Ind. Ct. App. 1995). "Probable cause means a probability of criminal activity, not a prima facie showing." Fry v. State , 25 N.E.3d 237, 244 (Ind. Ct. App. 2015), trans. denied. It "may be established by evidence that would not be admissible at trial." Jellison , 656 N.E.2d at 534. Such evidence may include hearsay, which is an out-of-court statement offered to prove the truth of the matter asserted. Ind. Evidence Rule 801(c).

[11] When we review whether probable cause supported the issuance of a search warrant, we "afford ‘significant deference to the magistrate's determination’ " and "focus on whether reasonable inferences drawn from the totality of the evidence support...