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Warren v. State

Court of Appeals of Indiana

March 11, 2019

Larry Warren, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Marion Superior Court The Honorable Clark Rogers, Judge The Honorable David Hooper, Magistrate Trial Court Cause No. 49F25-1001-FA-1153

          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

          TAVITAS, JUDGE.

         Case Summary

         [¶1] Larry Warren appeals the trial court's partial denial of his motion for return of property. We reverse and remand.[1]

         Issue

         [¶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.

         Facts

         [¶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 (2004). See Warren v. State, No. 49A04-1301-CR-25 (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 ...


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