BURKETT v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Jason Burkett pled guilty to one count of Class D felony voyeurism in January of 2013. In March of 2014, Burkett requested the return of a cellular telephone that had been seized from him at the time of his arrest. The trial court issued an order granting Burkett's request, but Burkett's representatives never retrieved the cellular telephone from the Logansport Police Department. Nearly eleven years later, in January of 2025, Burkett filed a second request for the release of his cellular telephone. Following a hearing, the trial court denied this motion on April 29, 2025. Burkett contends on appeal that the trial court erred in denying his motion. We affirm.

Facts and Procedural History

[2] In August of 2012, the State charged Burkett with two counts of Class D felony voyeurism. The probable-cause affidavit listed nine recordings, most of which had been made in a bathroom and showed the victims’ pubic areas, buttocks, or both. Of the videos not recorded in a bathroom, one depicted two individuals engaging in sexual intercourse, and one depicted a male masturbating. On January 10, 2013, Burkett pled guilty to one count of Class D felony voyeurism, stipulating to the “factual basis as outlined in the probable cause affidavit combined with any court testimony.” Appellant's App. Vol. II p. 17. In exchange for Burkett's guilty plea, the State agreed to dismiss the remaining charge and to refrain from filing additional charges relating to another victim. The trial court accepted Burkett's guilty plea and sentenced Burkett to a three-year term in the Department of Correction.

[3] On March 20, 2014, Burkett filed a verified motion for the return of a cellular telephone that had been seized from him at the time of his arrest. On April 10, 2014, the trial court conducted a hearing on Burkett's motion for the return of his cellular telephone. During this hearing, the State indicated that it had “no objection to [Burkett's] Motion for [the] return of the cell phone.” Tr. Vol. II p. 4. The trial court granted Burkett's motion on April 15, 2014, ordering the release of the cellular telephone to Burkett's counsel. Having never agreed to take possession of the cellular telephone and apparently unable to find any associate of Burkett who was willing to take possession of the cellular telephone, Burkett's counsel never retrieved the cellular telephone.

[4] On November 7, 2024, Burkett's trial counsel sent him a letter stating the following:

I received your letter dated November 6, 2024, wherein you request that I turn your cell phone over to you through a third party.

I would like to confirm once again that I have never had possession of your cell phone. At your request, upon completion of the above criminal case, I filed a motion for release of your personal property that had been taken into evidence. The Judge (for an unknown reason) issued an order releasing the phone to me. However, I did not agree to take possession of your property so we made arrangements for a female friend of yours to receive the cell phone upon release. The plan was that she would accompany me to retrieve the property from law enforcement and it would be immediately turned over to her. By the time the order came through, she told me that she was no longer willing to take possession of your property, so I never picked it up. I do not know what has happened to the phone in the last 10 plus years, but I can assure that I do not now, nor have I ever, had possession of your cell phone.

Appellant's App. Vol. II p. 26.

[5] On January 10, 2025, Burkett filed a second motion for the release of his cellular telephone. The trial court conducted a hearing on Burkett's motion on January 15, 2025, at which the State indicated that it did not have an objection returning the cellular telephone to Burkett but that it could not “confirm a cell phone, cell phone from over 10 years ago would still be kept.” Tr. Vol. II p. 9. The trial court instructed the State to “check with the police department” on the status of the cellular telephone and to “file a report as to what it finds[.]” Tr. Vol. II p. 9. On January 17, 2025, the State objected to the return of the cellular telephone to Burkett, noting that it was believed that Burkett had used the cellular telephone in the commission of his underlying crimes and expressing fears that the cellular telephone may contain child pornography.

[6] The trial court conducted a second hearing on Burkett's request for the return of his cellular telephone on April 7, 2025. During this hearing, Logansport Police Sergeant Brad Smith testified that he had been the investigating officer on Burkett's underlying criminal case. Sergeant Smith further testified that a Sanyo cellular telephone, which had had recording capabilities, had been seized from Burkett and that the videos in question “appeared to have come from the phone.” Tr. Vol. II p. 17. Sergeant Smith testified that the police had not searched the cellular telephone at the time of Burkett's arrest because they had not had the necessary technology at the time. Sergeant Smith stated that the probable-cause affidavit had indicated that one of the victims had believed that at least one of the videos may have been recorded on Burkett's cellular telephone. Because some of the recordings included child victims, the State expressed concerns that the cellular telephone may contain child pornography, stating that “the State just believes that under Indiana Code 35-33-5-5, the State's not allowed to return property that is illegal to possess and if there is videos of a child with their private areas exposed the State does not believe that it legally can return the property to” Burkett. Tr. Vol. II p. 24. The trial court denied Burkett's request for the release of his cellular telephone on April 29, 2025.

Discussion and Decision

[7] Initially, we note that Burkett proceeds pro se.

A litigant is not given special consideration by virtue of his pro se status. Rather, it is well settled that pro se litigants are held to the same legal standards as licensed attorneys. This means that pro se litigants are bound to follow the established rules of procedure and must be prepared to accept the consequences of their failure to do so.

Kelley v. State, 166 N.E.3d 936, 937 (Ind. Ct. App. 2021) (internal brackets, citation, and quotation omitted).

[8] Burkett contends that the trial court erred in denying his motion for the return of the cellular telephone. “When we review the denial of a motion for return of property, we will affirm unless the decision is clearly erroneous and cannot be sustained on any legal theory supported by the evidence.” Warren v. State, 120 N.E.3d 285, 288 (Ind. Ct. App. 2019). “Clear error is that which leaves us with a definite and firm conviction that a mistake has been made.” Hitch v. State, 51 N.E.3d 216, 226 (Ind. 2016) (internal quotation omitted).

[9] A criminal defendant has the right to the return of any seized lawful property following the final disposition of his cause at the trial level. Ind. Code § 35-33-5-5(c).

(1) 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. After ninety (90) days from the time:

(A) the rightful owner has been notified to take possession of the property; or

(B) a reasonable effort has been made to ascertain ownership of the property;

the law enforcement agency holding the property shall, at a convenient time, dispose of this property at a public auction. The proceeds of this property shall be paid into the county general fund.

(2) Except as provided in subsection (e),[1] property, the possession of which is unlawful, shall be destroyed by the law enforcement agency holding it sixty (60) days after final disposition of the cause.

Ind. Code § 35-33-5-5(c).

I. Burkett's Initial Request

[10] Burkett claims that the trial court's initial order for the return of his cellular telephone remains and his instant request was essentially that the trial court enforce that order. Specifically, Burkett argues that

the trial court was deprived of its inherent power to reconsider, vacate, or modify the previous order granting the return of [his] property by the court on April 15, 2014, because such order resulted in a final judgment and the State had failed to make a timely objection or pursue any available procedural tools allowed by the trial rules to set aside a final judgment.

Appellant's Br. p. 18. For its part, the State claims that Burkett “waived his opportunity to collect his property when he failed to do so within the 90-day period designated by statute.” Appellee's Br. p. 10.

[11] With regard to Burkett's initial request for the return of his cellular telephone, which again was granted by the trial court in April of 2014, it is undisputed that Burkett failed to take possession, or to have an associate take possession, of the cellular telephone within ninety days of the trial court's order. After the ninety-day window closed, Burkett was no longer entitled to the property and, pursuant to Indiana Code section 35-33-5-5(c)(1), the State could have disposed of the property. Given that Indiana Code section 35-33-5-5(c)(1) limits an individual's right to the return of property to a period of ninety days following an order for the release of said property coupled with the fact that more than a decade has passed since the trial court's initial order, we conclude that the initial order was no longer in effect and, as a result, the trial court was not bound by it.

II. Burkett's 2025 Request

[12] Burkett's second motion for the release of the cellular telephone was filed on January 10, 2025, nearly eleven years after the initial request had been granted on April 15, 2014. Burkett makes no attempt to explain why he waited nearly eleven years to make his second request for the return of his property. Burkett merely claims that the State “had waived any opposing argument with respect to the return of property because it had failed to raise a timely objection for more than a decade, following the trial court's order granting that the property in question be returned on April 15, 2014.” Appellant's Br. p. 17. The State, however, had no reason to contest the original order after Burkett failed to retrieve the property in the ninety-day window set forth in Indiana Code section 35-33-5-5(c).

[13] Although it did not raise the argument before the trial court, the State argues on appeal that Burkett's request should be deemed barred by the doctrine of laches. While the State's argument regarding the doctrine of laches may be plausible given the nearly eleven-year delay in Burkett's request,² we choose to dispose of Burkett's appeal on the merits.

[14] While the State initially stated that it did not have an objection to Burkett's second motion for release of the cellular telephone, it made this statement before the deputy prosecutor had had the opportunity to review the records relating to the cellular telephone. Once it did, the State objected to the return of the cellular telephone to Burkett, noting that it was believed that Burkett had used the cellular telephone in the commission of his underlying crimes and expressing fears that the cellular telephone may contain child pornography.

[15] During a hearing on Burkett's motion, Sergeant Smith testified that a Sanyo cellular telephone, which had had recording capabilities, had been seized from Burkett and that the videos in question had “appeared to have come from the phone.” Tr. Vol. II p. 17. Sergeant Smith acknowledged that the probable-cause affidavit, the contents of which Burkett had stipulated to as being true at the time of his underlying guilty plea, had indicated that one of the victims had believed that at least one of the videos had been recorded on Burkett's cellular telephone. Also, at least one of the videos had shown a child's buttocks and pubic area as the child used the restroom. Moreover, the recordings that had been provided to Sergeant Smith and had been the basis for the underlying charges, appeared to have been derived from an SD card from a Sanyo cellular telephone.

[16] Sergeant Smith's testimony indicates that the cellular telephone was likely to contain images that could qualify as child pornography, i.e., a video of a child's buttocks and pubic area. Burkett has failed to present any persuasive evidence or argument that the cellular telephone does not contain any videos which would constitute child pornography. Given that the recordings in question, which appeared to have been recorded on the cellular telephone, included a recording of a child victim's pubic area, we conclude that the State demonstrated that the cellular telephone may contain child pornography, which is illegal to possess, meaning that the State could not, pursuant to Indiana Code 35-33-5-5, return the cellular telephone to Burkett.

[17] The judgment of the trial court is affirmed.

FOOTNOTES

1.   Subsection (e) deals with the destruction of chemicals, controlled substances, or chemically-contaminated equipment.

2.   In Kearney v. State, 2008 WL 2673227 *2 (Ind. Ct. App. 2008), trans. denied, we noted that the State had raised “a plausible argument that Kearney's claim” for the return of his property “should be barred by the doctrine of laches. We explained thatKearney waited almost nine years to seek return of the money and offers no explanation or justification for the long delay. Not surprisingly, in view of that significant lapse of time, the judge who presided over Kearney's trial has since retired and the deputy prosecutor in charge of the case can locate only limited records concerning Kearney's case. Clearly, these consequences of the long delay prejudiced the State's ability to prove its claim that it sent notice to Kearney. Thus, even if the trial court's determination was not sustainable on the merits, it may be affirmed by application of the doctrine of laches.Id. at *3.

Bradford, Judge.

Weissmann, J., and DeBoer, J., concur.