Opinion
23A-CR-1975
06-27-2024
Kegan Kline, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Mark F. James, Mark James Legal, LLC ATTORNEYS FOR APPELLEE Theodore E. Rokita, Steven J. Hosler, Thomas Tuck Certified Legal Intern.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Miami Circuit Court The Honorable Timothy P. Spahr, Judge Trial Court Cause No. 52C01-2008-F4-254.
ATTORNEY FOR APPELLANT Mark F. James, Mark James Legal, LLC
ATTORNEYS FOR APPELLEE Theodore E. Rokita, Steven J. Hosler, Thomas Tuck Certified Legal Intern.
MEMORANDUM DECISION
Mathias, Judge.
[¶1] Kegan Kline appeals the Miami Circuit Court's sentence following his multiple felony convictions involving child exploitation and related offenses. He raises a single issue for our review, which we restate as whether the trial court erred when it sentenced him.
[¶2] We affirm.
Facts and Procedural History
[¶3] On August 19, 2020, the State charged Kline with multiple felonies, and the State later amended the information and charged him with: one count of Level 5 felony child solicitation, eight counts of Level 5 felony child exploitation, four counts of Level 5 felony possession of child pornography, seven counts of Level 6 felony possession of child pornography, two counts of Level 6 felony synthetic identity deception, and three counts of Level 6 felony obstruction of justice. On March 30, 2023, Kline pleaded guilty as charged without a plea agreement.
[¶4] During the plea hearing, the trial court took judicial notice of the probable cause affidavit, which is thirty-two pages long. The facts of Kline's offenses are more than abhorrent, and, given the narrow scope of Kline's appeal, we need not detail them here. In short, among other things, Kline solicited sexually explicit videos from young girls when he knew their ages. He manipulated the girls and stalked them. He sought very young girls of specific age ranges. He masturbated to the videos he obtained. An investigation uncovered "thousands and thousands" of messages between Kline and young girls. Tr. at 67.
[¶5] Following a sentencing hearing, the trial court found the following aggravators and mitigator:
(1) The harm, injury, loss, or damage suffered by the victims of the Defendant was significant and greater than the elements necessary to prove the commission of the offenses; (2) The Defendant has a history of criminal and delinquent behavior; (3) The victims of some of the offenses were less than twelve (12) years of age; (4) The Defendant was in a position having control of some of his victims; and (5) The Defendant's sexual behavior and attitudes and selfish, manipulative character support the imposition of additional sentencing consequences upon him. The Court FINDS the following mitigator: The Defendant entered a plea of guilty, saving the State the time and expense of a trial and sparing the victims from having to testify (though that is tempered to some extent by the fact that there was substantial evidence of the Defendant's guilt).Appellant's App. Vol. 2, p. 185. And the trial court found that, for purposes of Indiana Code section 35-50-1-2(b), Kline had committed a total of thirteen episodes of criminal conduct. In its sentencing statement, the trial court delineated the episodes as follows:
• EPISODE 1 (Count 1);
• EPISODE 2 (Count 2);
• EPISODE 3 (Count 3);
• EPISODE 4 (Counts 4, 5, 6, and 7);
• EPISODE 5 (Counts 8 and 9);
• EPISODE 6 (Counts 10, 16, and 17);
• EPISODE 7 (Counts 13, 18, 19, and 20);
• EPISODE 8 (Counts 11 and 12);
• EPISODE 9 (Count 14);
• EPISODE 10 (Count 15);
• EPISODE 11 (Count 21);
• EPISODE 12 (Count 22); and
• EPISODE 13 (Counts 23, 24, and 25).Id. The trial court sentenced Kline to an aggregate term of forty-three years, with three years suspended to probation. This appeal ensued.
Discussion and Decision
[¶6] Kline argues that his sentence is manifestly unreasonable. As the State points out, that is no longer a valid argument on appeal. To the extent Kline purports to argue that his sentence is inappropriate in light of the nature of the offenses and his character, that issue is waived for a complete lack of cogent argument under Indiana Appellate Rule 7(B).
Kline also argues that the trial court considered an improper aggravator. But the alleged aggravator was not, in fact, identified as an aggravator by the trial court. Rather, it was just one of several comments the trial court made before moving on to the aggravators and mitigator. Thus, Kline's contention on this issue is without merit.
Kline makes no argument on either prong of the rule. Waiver notwithstanding, the nature of his offenses, alone, support the forty-three-year sentence. This Court has rarely had occasion to consider a more heinous set of facts than those here.
[¶7] Instead, we will only address Kline's argument under Indiana Code section 3550-1-2, which authorizes the imposition of consecutive sentences and limits "the total of the consecutive terms of imprisonment to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct[,]" which is defined as "offenses or a connected series of offenses that are closely related in time, place, and circumstance."
[¶8] Kline asserts that the offenses underlying Counts 10 through 20 of his convictions constitute an episode of criminal conduct because he maintains that the State alleged that each offense occurred on the same day and they are, therefore, closely related in time, place, and circumstance. See id. Accordingly, he maintains that the trial court erred when it imposed consecutive sentences on each of those counts. Kline is incorrect.
These were four Level 5 and seven Level 6 counts of possession of child pornography.
[¶9] It is true that, for Counts 10 through 20, the amended information alleged that Kline possessed the images on February 25, 2017. But that was merely the date that the images were seized. As the State points out, the evidence shows that the offenses underlying Counts 10 through 20 constitute five episodes of criminal conduct because the pornographic images underlying those counts were created on media managed by Kline on five separate dates. Specifically, the State presented evidence that the pornographic image supporting Count 14 was created on September 14, 2015; the same for Count 15 was created on March 17, 2016; the same for Counts 11 and 12 were created on May 4, 2016; the same for Counts 10, 16, and 17 were created on May 14, 2016; and the same for Counts 13, 18, 19 and 20 were created on May 17, 2016.
[¶10] Our Supreme Court has explained that,
"[w]hether certain offenses constitute a 'single episode of criminal conduct' is a fact-intensive inquiry" determined by the trial court. Schlichter v. State, 779 N.E.2d 1155, 1157 (Ind. 2002). While "the ability to recount each charge without referring to the other" offers "guidance on the question of whether a defendant's conduct constitutes an episode of criminal conduct," we focus our analysis on "the timing of the offenses" and "the simultaneous and contemporaneous nature of the crimes," if any. Reed v. State, 856 N.E.2d 1189, 1200 (Ind. 2006) (internal citations and quotation marks omitted).Fix v. State, 186 N.E.3d 1134, 1144 (Ind. 2022).
[¶11] Kline does not dispute that the images supporting these charges were created on five separate dates. His sole argument on appeal is that his possession of those images on the same date means that his offenses constitute an episode of criminal conduct under the statute. But the evidence shows that the offenses were neither simultaneous nor contemporaneous. Accordingly, the trial court did not err when it found that Counts 10 through 20 were comprised of five episodes of criminal conduct under Indiana Code section 35-50-1-2, and we affirm Kline's sentence.
[¶12] Affirmed.
Riley, J., and Brown, J., concur.