                                                                               FILED
                                                                           Jul 24 2018, 9:51 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                      Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                    Attorney General of Indiana
Brooklyn, Indiana                                          Lee M. Stoy, Jr.
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Anthony A. Keith,                                          July 24, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           33A01-1712-CR-2981
        v.                                                 Appeal from the Henry Circuit
                                                           Court
State of Indiana,                                          The Honorable Kit C. Dean Crane,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           33C02-1603-F4-2



Brown, Judge.




Court of Appeals of Indiana | Opinion 33A01-1712-CR-2981 | July 24, 2018                           Page 1 of 17
[1]   Anthony A. Keith appeals his conviction for possession of child pornography

      involving Snapchat1 images as a level 6 felony. Keith raises one issue which we

      revise and restate as whether the evidence is sufficient to sustain his conviction.

      We affirm.


                                        Facts and Procedural History

[2]   H.T. was born on May 14, 2001. She and her family camped at Yogi Bear

      Jellystone Park in Knightstown, Indiana, where her father worked on the

      equipment, “every weekend when [she] had school, and then . . . all summer.”

      Transcript Volume 2 at 50. While camping, H.T. met Keith, who was

      employed by the campground, and knew him for three to four years before they

      “bec[a]me friends.” Id. H.T. would ride along with him on the campground’s

      “chuck wagon” to assist while Keith worked on equipment or campers that

      required maintenance. Id.


[3]   At some point, Keith asked H.T. for her cellular phone number, and the two

      exchanged numbers. Keith and H.T. would text each other on a daily basis.

      They also communicated via Snapchat, which H.T. had requested Keith to join

      on April 5, 2015.


[4]   On October 24, 2015, H.T participated in the campground’s haunted trail. At

      the end of the night, Keith, who was wearing a bear costume, approached H.T.




      1
       Snapchat is a cellular phone application used to “message people . . . and send pictures.” Transcript
      Volume 2 at 53.

      Court of Appeals of Indiana | Opinion 33A01-1712-CR-2981 | July 24, 2018                          Page 2 of 17
      and asked her to help turn off the generators. When the two were alone, he

      asked H.T. to “play with his [penis]” and if he could fondle her. Transcript

      Volume 2 at 61. He also took pictures of H.T.’s uncovered vagina with his

      phone.


[5]   On October 25, 2015, Keith and H.T. communicated via text message as

      follows:


              Keith: Good Morning sweetie. Thanks for your help last night

              H.T.: Your [sic] welcome

              H.T.: Are you still out here at the campground

              Keith: Yep. I’ll come see you when Teresa leaves

              H.T.: Ok tell me when she leaves so I know

                                                 *****

              H.T.: Are you going to come see me before I leave

              H.T.: Will you come see me before I leave please

              Keith: I’m heading up now. She is or has just left


      State’s Exhibit 1 at 3.


[6]   At some point, Keith and H.T. again exchanged text messages as follows:


              Keith: I’m trying

              Keith: Try snapchatting me

              H.T.: Ok


      Court of Appeals of Indiana | Opinion 33A01-1712-CR-2981 | July 24, 2018   Page 3 of 17
               H.T.: What do you want me to snapchat you

               Keith: I don’t care, I don’t even have you as a friend

               Keith: I ain’t seeing or receiving anything WTF

               H.T.: What is your username

               Keith: Oh wait. Did you just send “who is this”

               H.T.: Yes

               Keith: D--- it. Is there another app that only you and me can
               chat. I’m afraid Teresa could be monitoring snap chat. My
               Friends are people I don’t even know.

               H.T.: Not that I know of,[]but you can unfriend the people you
               you don’t want on there.


      Id. at 6.


[7]   On November 4, 2015, Keith and H.T. shared the following exchange by text

      message:


               H.T.: What’s up

               Keith: Jake[2]

               H.T.: Yes

               H.T.: Yes I want Jake

               Keith: Really




      2
       At trial, H.T. testified that “Jake” was the name of Keith’s penis, that at some point he told her he referred
      to his penis as Jake, and that, whenever he would text her about Jake, he was texting her about his penis.
      Transcript Volume 2 at 66-67.

      Court of Appeals of Indiana | Opinion 33A01-1712-CR-2981 | July 24, 2018                            Page 4 of 17
              H.T.: Yeah really

              Keith: I don’t believe ya

              H.T.: Why

              Keith: You haven’t seen him

              H.T.: Well I have played with him and I want to see him

              Keith: We’ll see

              H.T.: I want to see him

              H.T.: If that’s alright

              Keith: Absolutely


      Id. at 7-8.


[8]   At some other point, Keith and H.T. again text messaged about “Jake,” as

      follows:


              Keith: Hey sweetie

              H.T.: What’s up

              Keith: Jake

              H.T.: Yes

              H.T.: I want Jake

              Keith: You can’t handle Jake

              H.T.: Yes I can

              Keith: Jake will hurt you

              H.T.: No he won’t

      Court of Appeals of Indiana | Opinion 33A01-1712-CR-2981 | July 24, 2018   Page 5 of 17
               H.T.: I want to see Jake

               Keith: What do you call yours?[3]


       Id. at 9.


[9]    On December 10, 2015, H.T. sent a message which stated, “. . . nothing much

       just sitting in my room playing on my phone what you up to,” and Keith

       responded, “Playing with your what. Oh nevermind. I thought you said

       something else. I was gonna say. Take a video. Lol.” Id. at 10. H.T. then

       replied, “If I was doing that how was I going to send you the video.” Id.


[10]   On December 15, 2015, Keith and H.T. communicated via text message as

       follows:


               H.T.: What’s up

               Keith: I’m s[i]tting here look [sic] at your photo

               H.T.: Which one

               Keith: Both

               H.T.: Do you like them that much


       Id. at 11.




       3
        At trial, H.T. was asked what Keith meant when he asked, “[w]hat do you call yours,” she responded she
       thought he was talking about her vagina, and she testified that she ended up having the name “Bonnie” for
       her vagina. Transcript Volume 2 at 95-96.

       Court of Appeals of Indiana | Opinion 33A01-1712-CR-2981 | July 24, 2018                       Page 6 of 17
[11]   On December 28, 2015, Keith sent H.T. a message which stated that he was

       “[t]rying to get a deleted pix [sic] of Bonnie,” H.T. sent Keith a message which

       stated, “[d]o you need me to send you one,” and Keith responded, “I would

       like that. Is it possible to do a video? I’ve never done that,” and indicated after

       H.T. messaged affirmatively that he “might try that.” Id. at 17.


[12]   At some point, Keith sent H.T. a text message which stated, “[f]or some reason

       the photos you sent last night got on my computer through ICloud. . [.] She

       questioned the h--- out of me about who sent them. I told her it was 1 of my

       buddies and it was a female puller. I have since turned off iCloud on my

       phone.” Id. at 28. After more messaging, he sent H.T. a message which stated,

       “[k]inda freaked me out. I had to be fast on my feet with an answer that I knew

       she would accept. You can still send all the photos you want. Nobody will see

       them now.” Id.


[13]   On March 10, 2016, the State charged Keith with sexual misconduct with a

       minor as a level 4 felony, vicarious sexual gratification as a level 5 felony, child

       solicitation as a level 5 felony, and possession of child pornography, a level 6

       felony. On May 12, 2017, the State amended the first two counts to attempted

       sexual misconduct with a minor as a level 4 felony and sexual misconduct with

       a minor as a level 5 felony.


[14]   At trial, H.T. testified that, at the time she and Keith “were becoming friends . .

       . and texting and Snapchatting each other,” Keith knew her age because they

       “shared the same birthday,” meaning the same month and date. Transcript


       Court of Appeals of Indiana | Opinion 33A01-1712-CR-2981 | July 24, 2018   Page 7 of 17
       Volume 2 at 54. She testified she did not know his birth year but that she knew

       he was approximately “[f]orty-six.” Id. at 55. She stated that at some point in

       the relationship, Keith started asking her to send him photographs of herself

       and that “[h]e wanted pictures of . . . my [breasts] and vagina.” Id. When

       asked how he asked for those photographs, she replied that he “would . . . ask

       me, ‘Will you send me, like, pictures of your [breasts] and vagina,’” and that he

       did so in person at the campground. Id. She indicated that she sent him

       multiple unclothed pictures of her breasts and vagina through Snapchat “more

       than ten times.” Id. at 56.


[15]   H.T. testified that, on October 29, 2015, she and Keith discussed “what his

       Snapchat username [was],” that she knew what his screen name was “[b]ecause

       he had – it had . . . shown up on my thing where I searched it,” and that she

       thought she and Keith were connected on Snapchat. Id. at 91. She also

       testified that she went to the campground after the November 4, 2015 text

       messages and accompanied Keith alone to a barn, Keith made advances

       towards her, he “kept on asking me if I would play with his [penis],” and that

       he took pictures when she had her pants pulled down of her uncovered vagina.

       Id. at 71. When asked what she meant by “If [I] was doing that” in her

       December 10, 2015 message, H.T. stated that she meant playing with herself, or

       playing with her breasts or vagina. Id. at 96. With respect to Keith’s December

       15, 2015 message that he was sitting and looking at her photos, H.T. testified

       that she had sent him photos of her uncovered breasts and vagina. She




       Court of Appeals of Indiana | Opinion 33A01-1712-CR-2981 | July 24, 2018   Page 8 of 17
       answered affirmatively when asked if, “when he refers to both, did you send

       separate photos.” Id. at 98.


[16]   H.T. was shown the twelfth page of State’s Exhibit 1, which was a photograph

       of an undated text message conversation between herself and Keith, and

       answered, when asked what the text message conversation referred to, “[l]ike,

       his wife finding out.” Id. at 98. In response to “[d]id he have some reason why

       he thought his wife found something out,” she stated, “[b]ecause I think his

       phone connected to his laptop.” Id.


[17]   H.T. was shown the thirteenth page of State’s Exhibit 1, which was a

       photograph of an undated text message conversation between herself and Keith,

       was asked to read it, and stated:


               “I’m sorry, I didn’t mean it.” “I deleted everything from the –
               from – I deleted everything from pics to text and rebooted my
               phone. It’ll probably – it probably won’t – wouldn’t be a bad
               idea for you to do the same. I didn’t realize that when I deleted
               pics I also had to go into the file of deleted stuff and delete them
               again.” “Okay. Will do.” “I love you, but I don’t want to get
               into trouble, and when we will – then we will never be able to see
               each other again.”


       Id. at 99. She then testified that she meant “[l]ike, him – like, me sending, like,

       pictures to him,” when she had texted “I’m sorry, I didn’t mean that.” Id. She

       answered affirmatively when she was asked, “[s]o you sent some pictures, and –

       and they possibly got discovered.” Id. After the prosecutor stated, “he talks




       Court of Appeals of Indiana | Opinion 33A01-1712-CR-2981 | July 24, 2018   Page 9 of 17
       about deleting stuff . . . asking you to delete stuff,” and asked H.T. if she deleted

       photographs, and she responded affirmatively. Id. at 100.


[18]   H.T. was shown the fourteenth page of State’s Exhibit 1, which was a

       photograph of an undated text message conversation between herself and Keith,

       was asked to read it, and stated:


               “I might be coming to New Castle.” “Oh, really? Why?”
               “Walmart.” “Why are you – why here in New Castle?”
               “Looking for a red sweatshirt.” “Okay.” “How’s Bonnie?”
               “She is doing good, but she could be better.” “Oh, she will. I
               promise.” “Okay. How’s Jake?” “Had a great night. Doing
               good but could do – could be better, also.” “He’ll get better once
               camping gets here. I promise.”


       Id. When asked about what Keith was referring when he inquired, “How’s

       Bonnie,” H.T. stated, “[m]y vagina.” Id. at 101.


[19]   When shown the fifteenth page of State’s Exhibit 1, or a photograph of a text

       message displaying a picture of H.T.’s face and a picture of Keith’s face, H.T.

       indicated that she was in her room when she took her picture. When shown the

       photographs of the December 28, 2015 text message conversation between

       herself and Keith, H.T. testified that, when Keith referred to deleted pictures of

       Bonnie, he was referring to “[t]he pictures that he had deleted off of his phone”

       and that when he asked in the message if it was possible “to do a video,” she

       believed it meant “one like on Snapchat. Like, a short one.” Id. at 103-104.

       When shown the photographs of the January 5, 2016 text message conversation

       between herself and Keith, H.T. testified that she was referring to her breasts

       Court of Appeals of Indiana | Opinion 33A01-1712-CR-2981 | July 24, 2018   Page 10 of 17
       when she messaged “before long, you will get to see them in person.” Id. at

       108.


[20]   After H.T. was shown photographs of the conversation in which Keith had

       messaged her that “the photos you sent last night got on my computer” and

       read the conversation, she testified that she had sent more photos of her breasts

       and vagina. Id. at 111. She also testified that she continued to send pictures of

       herself throughout October, November, December, 2015 and January, 2016

       because she believed she was in a relationship with Keith, and that she was

       fourteen at the time. She answered affirmatively when asked if Keith ever sent

       her photographs of his penis, that she knew it was his “[b]ecause you could see .

       . . his face in the picture,” and that he would send the photographs whenever

       she sent him one. Id. at 56-57. With respect to his photographs, she testified

       that she received them through Snapchat, she saved the photographs “[a]

       couple of time[s], but . . . deleted them,” Keith would say that she needed to

       delete them before his wife found out, and that he would talk about deleting

       items “[a]t least once a week, or every time we – he sent a picture.” Id. at 57.


[21]   On direct examination, the following exchange occurred concerning Snapchat:


               [Prosecutor]: Okay. And the messages and the pictures that you
               send, are those saved anywhere in the app, that you –

               [H.T.]: No.

               [Prosecutor]: – know of? Is that one of the features of Snapchat?

                [H.T.]: Yeah.


       Court of Appeals of Indiana | Opinion 33A01-1712-CR-2981 | July 24, 2018   Page 11 of 17
       Id. at 54. When asked to explain her basic understanding of how Snapchat

       works, she stated that it was “[l]ike sending pictures of . . . what you’re around

       and . . . where you’re at” and that “they deleted on their own.” Transcript

       Volume 2 at 121, 122. She responded, “ten seconds,” when asked if she knew

       what the normal time limit for a Snapchat is, and answered affirmatively when

       then questioned, “if you don’t save a picture within that ten seconds, it deletes”

       and “as far as you know there’s no way to recover that.” Id. at 138-139. She

       testified that she saved photos “off of Snapchat” which were “saved to [her]

       hard drive of [her] iPhone,” and answered affirmatively when asked if it was

       possible to save those images onto a wireless device or computer and if she had

       ever saved images with Keith to her phone. Id. at 129.


[22]   On redirect examination, the following exchange occurred between the court,

       the prosecutor, and Keith’s counsel:


               [Prosecutor]: When you sent pictures of your breast or vagina to
               [Keith], did you ever get a notice that he saved the picture?

               [Keith’s Counsel]: I would object.

                                                      *****

               [Keith’s Counsel]: I think it calls for [] hearsay – it’s not her
               statement. I think it calls for a – something that’s an out of court
               statement from the app itself. So I’m going to object.

               THE COURT: Out of court statement from?

               [Keith’s Counsel]: From the – from the Snapchat app itself.

               THE COURT: Response, [Prosecutor]?

       Court of Appeals of Indiana | Opinion 33A01-1712-CR-2981 | July 24, 2018   Page 12 of 17
               [Prosecutor]: Your Honor, I think that it’s an observation that
               she can testify that she made that the app gave her a notification
               that a photo was saved.

               [Keith’s Counsel]: I’ll –

               THE COURT: Well, I . . . guess it’s not being offered that the
               photo was saved, it’s being offered that she received a
               notification. So I’ll deny – overrule your objection. You can
               answer the question, ma’am.

               [H.T.]: Yes.

               [Prosecutor]: Yes you got notifications?

               [H.T.]: Yes, I did.


       Id. at 140. During recross-examination, H.T. testified that, in her experience

       with Snapchat, the images saved to the phone.


[23]   Detective Sergeant Anthony Wayne Darling of the Henry County Sheriff’s

       Department testified that he interviewed Keith on March 14, 2016, that he had

       very little experience with Snapchat gained through training and in consulting

       with the Cyber Crimes Unit of the Indiana State Police Lab, and that it was his

       “understanding that with Snapchat that the way . . . a photo is saved is if

       someone – for instance, whether who receives it would take a screenshot of

       that.” Id. at 185. The court admitted and played for the jury an audio

       recording of the interview, in which Keith admitted that H.T. had sent him

       pictures of her breasts and vagina.




       Court of Appeals of Indiana | Opinion 33A01-1712-CR-2981 | July 24, 2018   Page 13 of 17
[24]   At the conclusion of trial, the jury found Keith guilty of sexual misconduct with

       a minor as a level 5 felony, child solicitation as a level 5 felony, and possession

       of child pornography, a level 6 felony.


                                                       Discussion

[25]   The issue is whether the evidence is sufficient to sustain Keith’s conviction for

       possession of child pornography as a level 6 felony. When reviewing claims of

       insufficiency of the evidence, we do not reweigh the evidence or judge the

       credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g

       denied. We look to the evidence and the reasonable inferences therefrom that

       support the verdict. Id. The conviction will be affirmed if there exists evidence

       of probative value from which a reasonable jury could find the defendant guilty

       beyond a reasonable doubt. Id.


[26]   At the time of the offense, Ind. Code § 35-42-4-4(c) provided in relevant part

       that “[a] person who knowingly or intentionally possesses . . . a photograph . . .

       that depicts or describes sexual conduct by a child who the person knows is less

       than eighteen (18) years of age or who appears to be less than eighteen (18)

       years of age, and that lacks serious literary, artistic, political, or scientific value

       commits possession of child pornography, a Level 6 felony.”4 For purposes of

       Indiana criminal law, a party engages in knowing conduct “if, when he engages




       4
           Subsequently amended by Pub. L. No. 13-2016, § 15 (eff. July 1, 2016).



       Court of Appeals of Indiana | Opinion 33A01-1712-CR-2981 | July 24, 2018     Page 14 of 17
       in the conduct, he is aware of a high probability that he is doing so.” Ind. Code

       § 35-41-2-2(b). A party engages in intentional conduct “if, when he engages in

       the conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2(a).


[27]   Possession can be either actual or constructive. Eckrich v. State, 73 N.E.3d 744,

       746 (Ind. Ct. App. 2017) (citing Sargent v. State, 27 N.E.3d 729, 732-733 (Ind.

       2015) (“Although arising in a different context our jurisprudence on the issue of

       ‘possession’ is rather straightforward: it can be either actual or constructive.”)),

       trans. denied. Constructive possession occurs when a “person has (1) the

       capability to maintain dominion and control over the item; and (2) the intent to

       maintain dominion and control over it.” Id. (quoting Gray v. State, 957 N.E.2d

       171, 174 (Ind. 2011)). The capability requirement is met “when the State shows

       that the defendant is able to reduce the [contraband] to the defendant’s personal

       possession.” Perry v. State, 956 N.E.2d 41, 61 (Ind. Ct. App. 2011) (citing

       Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999)), reh’g denied.


[28]   Keith argues that merely receiving an image sent by somebody else that is

       automatically deleted by the application is not possession under Indiana law

       and that he did not “intentionally point a web browser to certain websites to

       view them.” Appellant’s Brief at 7, 11. He asserts that the “issue of whether

       receiving child pornography through Snapchat is knowing or intentional

       ‘possession’ is an issue of first impression in Indiana” and that the child

       pornography statute in effect at the time of the offense prohibited only

       possession, and not viewing, of child pornography. Id. at 9. He also argues

       that, while he could save pornographic images by taking a screenshot of the

       Court of Appeals of Indiana | Opinion 33A01-1712-CR-2981 | July 24, 2018   Page 15 of 17
       Snapchat, police did not find any image on his computer or cellular phone and

       that the court ruled that H.T.’s testimony, i.e., she believed Keith had saved the

       images she sent him based on her receipt of a notice from Snapchat, was not

       offered as proof that the image was saved.


[29]   The State argues that Keith asked H.T. to send him images of her uncovered

       breasts and vagina through Snapchat, points to H.T.’s receipt of notification

       from Snapchat, and maintains that, although Snapchat automatically deleted

       the images, Keith could still control what happened to the images in the brief

       interim before they were deleted by saving them to his phone and reducing

       them to his personal possession.


[30]   The record reveals that Keith took pictures of H.T.’s uncovered vagina with his

       phone, that he made numerous references to H.T., a person he knew was under

       the age of eighteen, and to obtaining photographs of her depicting sexual

       conduct, including those on December 28, 2015, and that he was trying to

       obtain a deleted picture of her vagina and was wondering if it was “possible to

       do a video.” State’s Exhibit 1 at 17. We note H.T.’s testimony that he started

       asking her to send him photographs of herself, that “[h]e wanted pictures of . . .

       my [breasts] and vagina,” and that, when she had sent pictures of her breasts or

       vagina to Keith, she received a notification from Snapchat at least once that a

       photo had been saved. Transcript Volume 2 at 55. We also note Keith’s

       message that “[f]or some reason the photos you sent last night got on my

       computer through ICloud.” State’s Exhibit 1 at 28.



       Court of Appeals of Indiana | Opinion 33A01-1712-CR-2981 | July 24, 2018   Page 16 of 17
[31]   We further observe that Keith requested via text message that H.T. “try

       snapchatting [him]” and later reassured her that she could “still send all the

       photos [she] want[ed]” and “[n]obody will see them now,” statements which

       ultimately resulted in H.T. sending multiple unclothed pictures through

       Snapchat over multiple occurrences. Id. at 6, 28. The trial testimony regarding

       Snapchat reveals that images sent through the Snapchat application may be

       saved onto a wireless device or computer and that there is a time limit of

       around ten seconds in which to save a picture. Based upon the record, the State

       presented evidence of probative value from which a reasonable jury could find

       Keith guilty beyond a reasonable doubt of possession of child pornography as a

       level 6 felony.5


                                                       Conclusion

[32]   For the foregoing reasons, we affirm Keith’s conviction for possession of child

       pornography as a level 6 felony.


[33]   Affirmed.


       Bailey, J., and Crone, J., concur.




       5
         To the extent that Keith argues that the statute’s 2017 amendment reflects that “prior to July 1, 2017 . . .
       ‘possession’ did not include merely accessing images with an intent to view them,” we affirm on the basis of
       whether Keith “knowingly or intentionally possess[ed]” the images and not based on the 2017 amendment
       language.

       Court of Appeals of Indiana | Opinion 33A01-1712-CR-2981 | July 24, 2018                          Page 17 of 17
