Evans v. Evans

¶1concurring.

¶2I concur with the majority that the trial court did not abuse its discretion when it found Evans in contempt and that the evidence was insufficient to support the *1246money judgment. However, I write separately to address Evans's contention that the "Agreed Modification of Decree of Dissolution" executed by the parties was void ab initio and contrary to law because her compliance with the order would violate the obstruction of justice statute.

¶3The statute at issue here provides that it is a class A misdemeanor to possess child pornography. 1.C. § 85-42-4-4. The record shows that Evans believed that she and James were under investigation by the county prosecutor with regard to their possession of the photographs. In accordance with the statute of limitations, Inn. Cope § 85-41-4-2, the State had two years in which to prosecute James for possessing the photographs, assuming they constituted pornographic material under the definition set forth in In». Cope § 35-42-4-4. See Op. at 1248, n. 8.

¶4The statute of limitations provides in relevant part as follows:

(a) Except as otherwise provided in this section, a prosecution for an offense is barred unless it is commenced:

(1) within five (5) years after the commission of a Class B, Class C, or Class D felony; or (2) within two (2) years after the commission of a misdemeanor.

¶51.C. § 85-41-4-2.

¶6Here, Evans first discovered the alleged pornography in April 1995, took possession of the photographs, and retained them until May 2000. The Agreed Order became effective in 1999. Inasmuch as James was no longer in possession of the photographs sometime during 1995, our statute of limitations effectively prevented the State from prosecuting James for this offense after two years. Therefore, I would hold that the provision in the agreed modification agreement directing Evans to destroy the photographs was not void ab imitio.

¶7Additionally, I would note that rather than destroying the photos or turning them over to the State Police prior to May 2000, Evans chose to retain them for almost five years. The majority acknowledges that the photographs were a "point of contention between the parties at the time of the dissolution in 1995 and thereafter." Op. at 1242. It was pointed out at the contempt hearing that Steinway-Evans's boyfriend-informed the State police of the photographs only four days after Evans had lost custody of the parties' minor daughter and was ordered to pay child support. Tr. p. 81.

¶8Under these cireumstances, it is apparent from the record that the motivating factors justifying Evans's retention of the photographs, along with her subsequent decision to deposit them with the State Police years after the statute of limitations had expired as to James, were spite and vindictiveness. It was certainly reasonable for the trial court to infer from the evidence presented at the contempt hearing that Evans consistently used the photographs as a leverage technique when matters arose involving support and custody issues with regard to their daughter. Put another way, the record supports a conclusion that it was much more than Evans's purported belief that she might be hindering a criminal investigation or obstructing justice if she destroyed the photographs.

¶9As an aside, it is also apparent to me that if Evans reasonably believed that she was being investigated by the police for her involvement in the offense, her compliance with the agreed order to destroy the materials might well have amounted to an abandonment of the offense in accordance with Ind.Code section 35-41-3-10.9 As *1247our supreme court observed in Norton v. State, 273 Ind. 635, 408 N.E.2d 514, 535-36 (1980), the abandonment defense is available to one who, through his own actions, withdraws aid and encouragement and wholly and effectively detaches from the criminal enterprise. Thus, had Evans destroyed the photographs in accordance with the agreed order, she may not have faced any fear of prosecution for her involvement in the offense. And clearly she could not have been prosecuted two years after the destruction of the materials as discussed above. This is yet another reason for my view that the agreed modification was not void ab imitio. For these reasons, I concur.