Justices hear man’s appeal in ‘obscene matter’ case

Indiana Supreme Court justices heard argument Tuesday in the revocation of a man’s placement in community corrections when a cellphone in his possession was found to contain “obscene matter” that he was prohibited from having.

Justices heard Nathaniel Bennett v. State of Indiana, 18S-CR-538, in which Bennett’s probation was revoked after officers found sexually explicit photos and videos on a cellphone in Bennett’s possession. The Indiana Court of Appeals affirmed this summer in a memorandum decision.

Bennett appealed to the high court, arguing the judge’s statements during the sentencing hearing indicate the court found the phone did not contain “obscene” matter as defined by Indiana statute.

Specifically, Bennett’s counsel, Valerie Boots, argued that Bennett’s community corrections placement was revoked based on possession of obscene matter, “despite the trial court’s factual finding that the photos in question did not meet the statutory definition of obscene matter.”

Boots also made the argument that the high court should grant transfer to Bennett’s case to ensure that the COA would not improperly limit the holding of Kribs vs. State, 917 N.E.2d 1249 (Ind. Ct. App. 2009). Boots argued Kribs should be extended to any case in which a trial court judge makes a comment contrary to its ultimate finding.

“It can’t be ignored in any scenario,” Boots said. “The trial court ‘ultimately’ affirmed or ultimately reaffirmed, but the COA was ignoring that the court stated on the record that the photos were not found to be patently offensive.

To support her argument, Boots contended that the trial court should have specifically prohibited Bennett from possessing sexually explicit material, engaging in sexual conduct or having an intimate partner in the home with him.

“But it didn’t do that,” she said.

Justice Geoffrey Slaughter then asked opposing state counsel Caroline Templeton where the line should be drawn in such a scenario.

Noting that the woman in the videos and photos Bennett possessed were more likely than not his girlfriend, Templeton confirmed that Bennett was, in fact, permitted to engage in such activity with his intimate partner.

“How does a picture of that contact make any difference?” Slaughter countered. “He’s allowed to engage in that activity but not allowed to have photos of that said event? I don’t get it.”

Templeton argued that Bennett should have previously and explicitly asked his probation officers if he could possess sexually explicit content and have sexual relations with his girlfriend during the time of his probation in order to differentiate it from the possession of “obscene” matter.

Later during the oral argument, Boots brought the focus back to the trial court judge’s commentary on the statutory definition of “obscene” matter. In her petition to transfer, Boots argued that even though the trial court admitted that it found Bennett possessed the phone and knew what contents were on it, it did not say explicitly that he possessed obscene matter, which he was prohibited from having.

“Unless they depict sexual conduct ‘in a patently offensive way,’ such photographs cannot meet the statutory definition of obscene matter,” she wrote in the petition to transfer.

“The Court of Appeals concluded, ‘There is ample evidence Bennett violated the terms of his placement.’ To the extent that in reaching its conclusion, the court was assessing for itself whether the matter on Bennett’s phone was obscene under the statutory definition, the court was improperly making its own factual determination with the trial court’s factual finding.”