Tavitas, J.
Larry Warren appeals the trial court’s partial denial of his motion for return of property. We reverse and remand.
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.
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 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.” 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 disseminate these items.”
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.”
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. Warren listed hundreds of video tapes, DVDs, CDs, and photographs that were retained by the State. The trial court denied the motion to reconsider.
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.” …
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On December 14, 2017, the trial court entered an order requiring the State to release Warren’s weapons, family photos, military medals, and family mementos. Regarding the other recordings and photos, the trial court denied Warren’s motion as follows:
Any CD’S, DVD’s, Diskettes, tapes or other recordings (collectively referred to herein as “videos”) shall not be returned as the Court cannot tell what Mr. Warren (as a sex offender) can legally possess and what he can’t. Further, even if Mr. Warren doesn’t want to “possess” the videos (he is serving a lengthy prison sentence) and he just wants to sell them using a third party, the Court cannot tell which videos are innocuous (such as videos of Hurricane Katrina) and which are filmed under questionable consensual circumstances.
On April 16, 2018, Warren filed a third motion for return of his property. The trial court denied the motion. The trial court noted that it had previously ruled on the motion and that it had informed Warren to pursue an appeal but he had not done so. On June 19, 2018, Warren filed a petition for permission to file a belated notice of appeal, which the trial court granted.
The return of property following the final disposition of a criminal cause is governed by Indiana Code Section 35-33-5-5, which provides in relevant part: “Property which may be lawfully possessed shall be returned to its rightful owner, if known. If ownership is unknown, a reasonable attempt shall be made by the law enforcement agency holding the property to ascertain ownership of the property.” Thus, the issue before us is whether Warren is the “rightful owner” of the recordings and photographs and whether Warren can “lawfully possess” the materials. See Merlington v. State, 839 N.E.2d 260, 263 (Ind. Ct. App. 2005) … If Warren is the rightful owner of the materials and can lawfully possess the materials, the trial court “shall” return the property. Warren must demonstrate his claim by a preponderance of the evidence. …
The parties do not seem to dispute that Warren is the rightful owner of the materials. The question remains, however, whether the materials are property that may lawfully be possessed. …
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The trial court’s first basis for denying Warren’s motion was that Warren is unable to possess such materials due to his child molesting convictions and current incarceration. Warren, however, designated other persons to take possession of several other items that had been seized, including firearms. Despite Warren’s incarceration and status as a sex offender, the materials could have been released to his mother or agent. …
Next, the trial court denied Warren’s request due to the “questionable consensual circumstances” found in the materials. The trial court here issued a blanket order denying Warren’s request regarding the “CD’S, DVD’s, Diskettes, tapes or other recordings.” …
We recognize, as the trial court did, the time involved in cataloguing Warren’s materials. The State, however, cannot take a person’s property, not use the property in a prosecution, and then refuse to return the property because doing so is burdensome. Warren was not charged with any crimes related to these materials, and he is entitled to the return of his property that he can lawfully possess. The trial court’s blanket order fails to specifically identify the materials Warren can and cannot lawfully possess.
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We do note that the burden here is on Warren to prove by a preponderance of the evidence that the materials can be lawfully possessed. Of the recordings containing sexually explicit materials, Warren must demonstrate that the materials do not violate the obscenity statutes. See Ind. Code Chapter 35-49-3. Warren must also show that the participants in the sexual activity were aware of or consented to the recordings. …
The trial court’s blanket order regarding the materials is clearly erroneous. We reverse and remand for proceedings consistent with this opinion.
Reversed and remanded.
Baker, J., and May, J., concur.