Bradford, C.J.
In early 2019, Kevin Edwards was determined to be in possession of ten pornographic images of minors and eventually pled guilty to ten counts of possession of child pornography, three as Level 5 felonies and seven as Level 6 felonies. The trial court imposed an aggregate sentence of thirteen and one-half years of incarceration with one and one-half years suspended to probation. Edwards contends that because his ten possession charges constituted a single episode of criminal conduct, the trial court erred in imposing an aggregate sentence of longer than seven years. Because the State failed to produce enough evidence to allow a finding that Edward’s crimes did not constitute an episode of criminal conduct, we affirm Edwards’s convictions but remand for the imposition of a sentence of no longer than seven years.
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All the convictions in this case were for possession of child pornography, ten items of which, the parties seem to agree, were discovered to be in Edwards’s possession at the same time. Edwards argues that this simultaneity renders all ten possessions a single episode of criminal conduct, even if all ten items acquired at different times. Edwards also argues that, even if the time of acquisition matters, the record indicates that he acquired all images at the same time. The State argues that, despite the Reed Court’s emphasis on the simultaneous nature of the crimes at issue, simultaneous possession is not determinative if the images were acquired separately, as it argues they were.
…[I]n March of 2012, we issued our opinion in Akers v. State, 963 N.E.2d 615 (Ind. Ct. App. 2012), trans. denied. Following Deshazier and Ratliff, we concluded that Indiana Code section 35-50-1-2(b) did not apply to Akers’s case because, inter alia, his crimes were not all part of an episode of criminal conduct:
Here, Akers’ possession of paraphernalia conviction is related to his other convictions only in the sense that his possession was discovered by police officers immediately after or during his other criminal acts. However, as in Deshazier, it is unclear from the evidence when Akers came into possession of the paraphernalia, making the timing of the offenses more distinguishable than at first glance. Further, unlike in Johnican, where the criminal actions of resisting law enforcement and pointing a firearm at another person resulted largely due to Johnican’s possession of cocaine, here there is no evidence to suggest that Akers’ battery of the victim or resisting arrest were fueled by his possession of paraphernalia. Thus, even putting chronological relation aside, Akers’ conviction for possession of paraphernalia was not related in circumstance to his other convictions. There is no nexus between the acts of battery and the subsequent resisting arrest, and Akers’ possession of paraphernalia.
Id. at 619–20. [13] Because “[p]ossession is inherently a continuing offense, which occurs from the time the defendant comes into possession of the contraband until the time he relinquishes control[,]” Deshazier, 877 N.E.2d at 212 (citation omitted), such crimes require an approach different than the one used to evaluate more ephemeral crimes. We conclude that the approach laid out by the majority in Ratliff and followed in Deshazier and Akers is the correct one. Indeed, we believe that that approach is mandated by Indiana Code section 35-50-1-2(b)’s requirement that a number of crimes which constitute an episode of criminal conduct must be “a connected series of offenses that are closely connected in time, place, and circumstance[,]” not just time and place. (Emphasis added). With this requirement in mind, we agree with the Akers court’s conclusion that what is required is a “nexus” between the illegal possession and another crime—that the crimes must be “related in circumstance” as well as time and place. 963 N.E.2d at 620.
In cases where a nexus does exist between a possession crime and another offense is committed while the possession continues, it is appropriate to find that the crimes are connected in time, place, and circumstance.
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As for cases where there is no nexus between a continuing possession and another continuing possession, there is still a way to evaluate whether those possessions are part of an episode of criminal conduct. While we agree with Judge Mathias’s observation in his Ratliff dissent that continued possession does not require any volitional action, each possession necessarily involves at least one volitional act, the act of acquisition. See Medina-Ramos, 834 F.2d at 876 (“[T]he acts that define the crime [of unlawful possession of a controlled substance] are the acts by which a defendant possesses the drug.”). So, in cases where the illegal possession at issue is completely passive and has no relation in circumstance with other continuing, illegal possessions, we believe that it is the act of acquisition that should be used to evaluate whether those offenses were part of an episode of criminal conduct.
There does not seem to be a dispute that the images are connected by place of possession. There is, however, no indication of any nexus between any of the ten possessions at the time of their discovery; they were ten unconnected images which happened to be in Edwards’s possession at the same time. That leaves us with timing, and because there was no indication of any nexus between any of the offenses on the date of their discovery, it is the date of acquisition that is of paramount importance to us. Common sense dictates that the simultaneous, or near-simultaneous, acquisition of several of the images would most likely constitute a single episode of criminal conduct, while the acquisition of the same images separately over the course of several days, weeks, or months would most likely not. Edwards argues that the record supports an inference that he acquired all of the images simultaneously or near simultaneously, because the CyberTip reports only indicate that two suspicious incidents occurred within four minutes of one another on December 7, 2018, shortly before his account was deactivated. The State maintains that the record supports an inference that Edwards acquired the images through ten distinct acts. We conclude that neither inference is warranted on the record before us.
That said, because the State was seeking the imposition of a harsher penalty, we believe that it had the burden to produce evidence to justify that penalty, see, e.g., J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011) (concluding that “the juvenile court failed to recognize that the State held the burden to establish” the amount of restitution), a burden that it failed to carry. To the extent that the State could have produced evidence that Edwards acquired some or all of the ten images separately, it did not do so. In the absence of sufficient evidence to sustain a finding that Edwards acquired the ten images during more than one episode of criminal conduct, we remand for the imposition of a sentence of no longer than seven years of incarceration.
We affirm in part, reverse in part, and remand with instructions.
Baker, J., and Pyle, J., concur.