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Kelp v. State

Court of Appeals of Indiana

February 14, 2019

Joshua J. Kelp, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Court of Appeals Case No. 18A-CR-1719 Appeal from the Tippecanoe Superior Court The Honorable Steven Meyer, Judge Trial Court Cause No. 79D02-1802-F4-2

          Attorney for Appellant Brian A. Karle Ball Eggleston, P.C. Lafayette, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

          May, Judge.

         [¶1] Joshua J. Kelp appeals following his convictions of Level 4 felony child exploitation, [1] Level 5 felony child exploitation, [2] and Level 5 felony possession of child pornography.[3] Kelp argues:

(1)the trial court abused its discretion by considering a material element of his crime as an aggravator;
(2)his ten-year sentence is inappropriate; and
(3)the language in Special Probation Condition 12 is overly broad and vague.

         We affirm in part and remand in part with instructions.

         Facts and Procedural History

         [¶2] From July 1, 2016, to August 31, 2017, Kelp collected pornographic images of children under the age of eighteen, some of whom had not yet reached puberty. Kelp also traded these images with people on the internet. When confronted by law enforcement, Kelp admitted to collecting and distributing the pornographic images. Kelp said he had been in possession of child pornography for five years and he might possess as many as one thousand pornographic images of children.

         [¶3] On September 7, 2017, the State charged Kelp with one count of Level 4 felony child exploitation. On February 8, 2018, under a separate cause number, the State charged Kelp with one count of Level 4 felony child exploitation, two counts of Level 5 felony child exploitation, one count of Level 5 felony possession of child pornography, two counts of Level 6 felony possession of child pornography, [4] and one count of Class D felony possession of child pornography.[5] On the State's motion, the trial court consolidated the two cause numbers.

         [¶4] Kelp pled guilty to one count of Level 4 felony child exploitation, one count of Level 5 felony child exploitation, and one count of Level 5 felony possession of child pornography, in exchange for the dismissal of the remaining charges. The trial court sentenced Kelp to ten years for Level 4 felony child exploitation, five years for Level 5 felony child exploitation, and five years for Level 5 felony possession of child pornography. The trial court ordered the sentences be served concurrently, with seven years executed and three years suspended to ...


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