                                                                               FILED
                                                                           Apr 26 2019, 8:31 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Jane H. Ruemmele                                            Curtis T. Hill, Jr.
      Hayes Ruemmele, LLC                                         Attorney General
      Indianapolis, Indiana                                       Stephen R. Creason
                                                                  Chief Counsel
                                                                  Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Brian Siebenaler,                                           April 26, 2019
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  18A-CR-1381
              v.                                                  Appeal from the
                                                                  Delaware Circuit Court
      State of Indiana,                                           The Honorable
      Appellee-Plaintiff                                          Marianne L. Vorhees, Judge
                                                                  Trial Court Cause No.
                                                                  18C01-1605-F5-104



      Vaidik, Chief Judge.



                                            Case Summary
[1]   Pursuant to Indiana Code section 35-42-4-4, Brian Siebenaler was charged with

      four counts of possession of child pornography based on photographs he

      possessed on a flash drive and four counts of child exploitation based on GIFs

      Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019                           Page 1 of 18
      he created from videos and then uploaded to an image-sharing website. All but

      one of the images show the uncovered genitals of boys; the other one shows one

      boy fondling another boy underneath his clothing. Siebenaler was found guilty

      on all eight counts.


[2]   Siebenaler now appeals, arguing that the images do not depict “sexual conduct”

      as required by Section 35-42-4-4. We affirm three of Siebenaler’s possession-of-

      child-pornography convictions because the photographs depict either fondling

      or nudity that suggests that sexual activity has occurred or is about to occur; we

      reverse the fourth conviction because it depicts mere nudity. In addition, we

      affirm two of Siebenaler’s child-exploitation convictions because he edited

      videos into GIFs in such a way that highlighted the boys’ genitals; we reverse

      the other two convictions because those GIFs, although showing uncovered

      genitals, are not focused on the genitals or otherwise sexually suggestive.



                             Facts and Procedural History
[3]   On April 4, 2016, Ball State University’s computer software indicated that a

      user was accessing images of nude children on a Russian website on a

      university-owned computer. Tr. p. 18. In response, Ball State set up a

      notification system so “that if anybody accessed those .ru websites, a[n alert]

      would be sent” to the Ball State University Police Department. Id. at 19.


[4]   At 1:16 p.m. on May 7, Detective Ryan Porkorny was alerted to Room 118 in

      Robert Bell Building on the Ball State campus. He arrived at Room 118 within


      Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019       Page 2 of 18
      minutes. When Detective Porkorny looked through the door window, he “saw

      an empty classroom” with Siebenaler, a Ball State math instructor, at “the front

      of the classroom at the computer.” Id. Detective Porkorny entered the

      classroom, at which point Siebenaler began “frantically closing windows [on

      the computer] and pulling up another window.” Id. at 20. Detective Porkorny

      saw an orange and black USB flash drive plugged into the computer. Detective

      Porkorny told Siebenaler that he had received an alert that inappropriate

      content was being accessed in that room and asked Siebenaler to go to the

      police station for questioning. Siebenaler agreed.


[5]   During his interview, Siebenaler admitted that he possessed photographs of

      nude boys on his flash drive and that he uploaded to the image-sharing website

      “imgsrc.ru” GIFs1 of nude boys under the username “lostboardies.” Ex. 1

      (1:04-1:05); Tr. pp. 30-31. Siebenaler said that the images he had were mainly

      of boys ten to fifteen years old but that he also had images of boys five to ten

      years old. He said he found the images by going to Google and searching the

      terms “pantsed” (getting shorts or pants pulled down) and “skinny dipping.”

      Ex. 1 (12:08-12:14, 1:06). Siebenaler explained that he found the “vast

      majority” of the videos on YouTube. Id. (1:04-1:05). He would then create

      GIFs from these videos and post them to imgsrc.ru. According to Siebenaler,




      1
        GIFs (Graphics Interchange Format) are “multiple variations of [a] still image, which c[an] be strung
      together to create a looping video, like a flipbook.” Lorraine Boissoneault, A Brief History of the GIF, from
      Early Internet Innovation to Ubiquitous Relic, Smithsonian.com (June 2, 2017),
      https://www.smithsonianmag.com/history/brief-history-gif-early-internet-innovation-ubiquitous-relic-
      180963543/

      Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019                                   Page 3 of 18
      the images excited, “mentally aroused,” and “amused” him—but not in a

      sexual way. Id. (13:27-15:11, 1:20-1:21). Siebenaler admitted that his behavior

      “wasn’t appropriate” and was “wrong” but said he kept doing it because the

      images “amused” him. Id. (1:06, 1:17). Siebenaler consented to a search of his

      flash drive, his office in Robert Bell Building, and his home. The police found

      about 2,000 images on his flash drive. Tr. p. 37. Siebenaler was arrested on

      May 13.


[6]   The State ultimately charged Siebenaler with four counts of Level 5 felony child

      exploitation (Counts 1-4) and four counts of possession of child pornography,

      three as a Level 6 felony and one as a Class D felony (Counts 5-8).2

      Specifically, Counts 1-4 alleged that Siebenaler knowingly managed a digitized

      image of any performance or incident that includes “sexual conduct” (defined

      as the exhibition of the uncovered genitals intended to satisfy or arouse the

      sexual desires of any person) by a child under eighteen years old. Ind. Code §

      35-42-4-4(a)(4)(C)(i), (b)(1). Counts 5-8 alleged that Siebenaler knowingly

      possessed digitized images that depict or describe “sexual conduct” by a child

      who appears to be less than eighteen years of age for Counts 6-8 and less than

      sixteen years of age for Count 5 and that lack serious literary, artistic, political,




      2
       The dates for seven of the counts are from 2015 and 2016. Count 5, the Class D felony, alleges that
      Siebenaler possessed the digitized image in 2011. In 2014, Indiana changed its felony classifications from
      “classes” (A, B, C, and D) to “levels” (1, 2, 3, 4, 5, and 6). See P.L. 168-2014.

      Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019                               Page 4 of 18
       or scientific value. I.C. § 35-42-4-4(d); Ind. Code Ann. § 35-42-4-4(c) (West

       2011).3


[7]    Siebenaler had a bench trial in March 2018. The trial was brief; the State

       presented the testimony of three police officers and introduced ten exhibits

       containing photographs and GIFs to support the eight counts. See Tr. pp. 4-54

       (entire trial, from preliminary matters to closing arguments).


[8]    Specifically, the State introduced Exhibits 7, 8, 9, and 10 to support the

       possession-of-child-pornography counts—Counts 5, 6, 7, and 8. Id. at 44.

       Exhibits 7-10 are photographs from Siebenaler’s flash drive. Id. at 37-38.


[9]    Exhibit 7 depicts two nude boys; one boy is older and has gone through puberty

       while the other boy is younger. The older boy is standing with the younger boy

       hanging from his neck. The younger boy’s legs are wrapped around the older

       boy’s hips, with the older boy’s turgid penis hanging just below the younger

       boy’s buttocks.4


[10]   Exhibit 8 depicts two nude boys around ten years old on an inflatable raft in a

       body of water. The boy on the front of the raft is lying on his stomach, with his

       legs hanging down the side of the raft and his buttocks exposed. The second




       3
        Again, Count 5 alleges that the possession occurred in 2011. At that time, the statute provided that the
       child must be under sixteen years of age. Ind. Code Ann. § 35-42-4-4(c) (West 2011).
       4
        The State describes the boy’s penis as “erect.” Appellee’s Br. p. 17; see also Tr. p. 44 (describing the boy’s
       penis as “turgid” or “erect”). Siebenaler does not dispute the State’s description but rather asserts that the
       boys were “not engaged in sexual activity.” Appellant’s Br. p. 19.

       Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019                                   Page 5 of 18
       boy is sitting about a foot behind the first boy’s buttocks, with his legs hanging

       down the side of the raft. The second boy’s penis is pointing in the direction of

       the first boy’s buttocks,5 and one of his hands is on the first boy’s lower

       back/upper buttocks. He is smiling.


[11]   Exhibit 9 depicts a nude boy, around the age of ten, standing outside in a grassy

       area. He is facing the camera from a distance and holding a towel behind him.

       His penis is visible. He is not looking at the camera but rather down and to the

       side. There is a second boy, about the same age, who is shirtless and appears to

       be sitting on the grass with a towel wrapped around his lower half. His back is

       facing the camera. He is looking to the side as well. It is difficult to determine

       the distance between the boys, but they could be several feet apart.


[12]   Finally, Exhibit 10 depicts a boy standing outside wearing no shirt and shorts

       and a second boy sitting in front of him on the ground with his hand up the

       standing boy’s shorts. The boys are looking longingly at each other.


[13]   The State then introduced Exhibits 13, 14, 15, 16, 17, and 18 to support the

       child-exploitation counts—Counts 1, 2, 3, and 4. Exhibits 13-18 contain GIFs

       that Siebenaler created and then posted to imgsrc.ru under the username

       “lostboardies.” The GIFs were password-protected on imgsrc.ru and required a

       password from Siebenaler to access them.




       5
        The State describes the boy’s penis as “erect.” Appellee’s Br. p. 17. Again, Siebenaler does not dispute the
       State’s description but asserts that the boys were not engaged in sexual activity.

       Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019                               Page 6 of 18
[14]   Exhibit 13, which was used to support Count 1, see Appellant’s App. Vol. III

       pp. 66-67, is a recording of four GIFs that Siebenaler uploaded to his imgsrc.ru

       account under the heading “Stripped of his speedo.” The setting of the GIFs is

       a beach. All four GIFs focus on the genitals of a boy who is being depantsed.

       For example, the first GIF depicts two boys, appearing to be between the ages

       of twelve and fourteen, on the beach. The first boy, wearing shorts and a shirt,

       is trying to remove the second boy’s speedo. The second boy’s penis is briefly

       exposed as the boys struggle for control of the speedo. As the struggle

       continues, the second boy falls to the sand. The first boy pulls down the second

       boy’s speedo to around his knees and then drags him through the sand by his

       speedo. The camera zooms in on the second boy, who is lying on his back in

       the sand with his legs in air, exposing his buttocks and genitals. The GIF ends

       with a closeup of the second boy’s hand dusting off sand from his buttocks.

       The second GIF picks up where the first GIF ended. The first boy finally

       succeeds in removing the second boy’s speedo. The second boy then sits on his

       knees in the sand, exposing his genitals. As the camera zooms in on the second

       boy, his head briefly disappears from the frame. The GIF ends with the second

       boy still sitting in the sand on his knees with his genitals displayed in the

       bottom-center of the frame.


[15]   Exhibit 14, which was used to support Count 2, see id. at 67, is a recording of six

       GIFs that Siebenaler uploaded to his imgsrc.ru account under the heading

       “FKK Scouts.” The setting of the GIFs is a campsite on the shore of a body of

       water. The six GIFs show the genitals of several boys while they are skinny


       Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019         Page 7 of 18
       dipping. For example, the fourth GIF shows a boy who appears to be a

       teenager running out of the water with his penis bouncing up and down. The

       GIF ends with a brief freezeframe of his penis pointing straight out and

       prominently featured in the center of the frame. The fifth GIF appears to pick

       up where the fourth GIF ended. The teenager’s penis is briefly visible in the

       center of the frame before he turns and starts running in place and then runs

       into the water with his buttocks in the center of the frame. The GIF then cuts

       to a side view of a boy, who also appears to be a teenager, in a push-up pose at

       the edge of the water, his buttocks exposed. The GIF ends as he brings his left

       leg forward, exposing his genitals in the center of the frame.


[16]   Exhibits 15-18, which each contain only one GIF, were used to support Counts

       3 and 4. The State did not specify how these four GIFs applied to the two

       counts. Id. at 64.


[17]   Exhibit 15 is a recording of a GIF that Siebenaler uploaded to his imgsrc.ru

       account called “naked prank.” In the GIF, multiple boys, who appear to be

       teenagers, are outside playing in their underwear. One boy’s underwear is

       stolen from him, exposing his penis. He covers his penis with his hands as he

       tries to get his underwear back. He eventually gets his underwear back.


[18]   Exhibit 16 is a recording of a GIF that Siebenaler uploaded to his imgsrc.ru

       account called “accidental flash.” In the GIF, three shirtless boys are dancing

       in a garage, thrusting their hips. The youngest boy, who is in the front, appears

       to be three or four years old. The other two boys, who appear to be around ten


       Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019         Page 8 of 18
       years old, are standing behind the younger boy. As the boys are dancing, one

       of the older boys pulls down his pants, exposing his underwear. The other

       older boy tries to do the same thing, but he accidentally pulls down his

       underwear too, briefly exposing his penis. Embarrassed, he quickly pulls up his

       pants and runs into the house.


[19]   Exhibit 17 is a recording of a GIF that Siebenaler uploaded to his imgsrc.ru

       account called “nice.” The GIF shows what appears to be three teenagers on a

       beach. All of them are wearing shorts. While two of the teenagers are posing

       for a photo, the third teenager, who is standing behind them, pulls down one of

       the teenager’s shorts, exposing his penis. The teenager quickly pulls up his

       shorts.


[20]   Finally, Exhibit 18 is a recording of a GIF that Siebenaler uploaded to his

       imgsrc.ru account called “mua bung tut quan—Haivl LeDuc.” The GIF shows

       a boy, who appears to be around twelve years old, outside flexing his muscles

       for the camera. An older boy is behind him. The older boy sneaks up and pulls

       down the younger boy’s shorts, briefly exposing his penis. The younger boy

       quickly pulls up his shorts and runs off.


[21]   Following trial, the trial court took the matter under advisement. The court

       later issued an order finding Siebenaler guilty on all eight counts. Appellant’s

       App. Vol. III pp. 63-65.


[22]   At the sentencing hearing in May, the judge indicated that she “really did

       struggle” with this case. Tr. p. 76. The judge noted that there was no “sexual

       Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019         Page 9 of 18
       activity” in any of the images; rather, the images showed “boys being

       depantsed, losing pants, that type of thing[.]” Id. The judge said she “had

       problems determining whether, as a matter of law, these images were crimes,

       possessing these images, making these images was actually a crime.” Id.

       Accordingly, the judge “invite[d] the Court of Appeals to look at this” case

       because she believed “that there’s room for the Court of Appeals to . . . possibly

       reverse me on my determination.” Id. at 76-77. The judge then sentenced

       Siebenaler to four years on each count, all suspended to probation, to be served

       concurrently.


[23]   Siebenaler now appeals.



                                   Discussion and Decision
[24]   Siebenaler contends that the evidence is insufficient to support his convictions.

       In order to convict Siebenaler of child exploitation (Counts 1-4) as charged in

       this case, the State had to prove that he knowingly managed a digitized image

       of an incident that includes sexual conduct by a child under eighteen years of

       age. Ind. Code § 35-42-4-4(b)(1); Appellant’s App. Vol. II pp. 23-26. In order

       to convict Siebenaler of possession of child pornography (Counts 5-8) as

       charged in this case, the State had to prove that he knowingly possessed

       digitized images that depict or describe sexual conduct by a child who appears

       to be less than eighteen years of age for Counts 6-8 and less than sixteen years

       of age for Count 5 and that lacks serious literary, artistic, political, or scientific



       Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019           Page 10 of 18
       value. I.C. § 35-42-4-4(d); Ind. Code Ann. § 35-42-4-4(c) (West 2011);

       Appellant’s App. Vol. II pp. 27-30. “Sexual conduct” means:


               (A) sexual intercourse;


               (B) other sexual conduct (as defined in IC 35-31.5-2-221.5);


               (C) exhibition of the:


                        (i) uncovered genitals; or


                        (ii) female breast with less than a fully opaque covering of
                        any part of the nipple;


               intended to satisfy or arouse the sexual desires of any person;


               (D) sadomasochistic abuse;


               (E) sexual intercourse or other sexual conduct (as defined in IC
               35-31.5-2-221.5) with an animal; or


               (F) any fondling or touching of a child by another person or of
               another person by a child intended to arouse or satisfy the sexual
               desires of either the child or the other person.


       I.C. § 35-42-4-4(a)(4).


[25]   We begin by addressing Siebenaler’s conviction on Count 8 (possession of child

       pornography). Count 8 is based on Exhibit 10, which does not depict

       uncovered genitals. Rather, Exhibit 10 depicts a boy standing outside wearing


       Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019          Page 11 of 18
       no shirt and shorts and a second boy sitting in front of him on the ground with

       his hand up the standing boy’s shorts. The boys are looking longingly at each

       other. The State argued at trial that Exhibit 10 depicts sexual conduct based on

       fondling, not on the exhibition of uncovered genitals. See Tr. p. 47 (“The boy

       has his hand in the other boy’s pants and it looks, what appears, to be fondling

       is going on. I think that’s clearly sexual conduct in and of itself, fondling.”).

       While Section 35-42-4-4(a)(4)(C)(i) defines sexual conduct as the exhibition of

       uncovered genitals intended to satisfy or arouse the sexual desires of any

       person, Section 35-42-4-4(a)(4)(F) defines sexual conduct as “any fondling or

       touching of a child by another person or of another person by a child intended

       to arouse or satisfy the sexual desires of either the child or the other person.” In

       his Appellant’s Brief, Siebenaler argues that Counts 5-8 are based on the

       exhibition of uncovered genitals. But in its Appellee’s Brief, the State points

       out that Siebenaler’s conviction on Count 8 is based on fondling pursuant to

       subsection (a)(4)(F), not the exhibition of uncovered genitals pursuant to

       subsection (a)(4)(C)(i). Siebenaler does not address the State’s argument in his

       reply brief. Accordingly, because Siebenaler’s conviction on Count 8 is based

       on fondling, we affirm Siebenaler’s conviction on Count 8.


[26]   As for Counts 1-7, Siebenaler argues that the images depict not “sexual

       conduct” but rather “mere nudity,” which is protected by the First Amendment




       Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019        Page 12 of 18
       and therefore not sufficient to convict him.6 Appellant’s Reply Br. p. 5. We

       review de novo whether an image is constitutionally protected. See Brewington

       v. State, 7 N.E.3d 946, 955 (Ind. 2014), reh’g denied.


[27]   Freedom of speech is generally regarded as one of our most cherished rights in

       American society. Logan v. State, 836 N.E.2d 467, 470 (Ind. Ct. App. 2005),

       trans. denied. In Miller v. California, the United States Supreme Court held that

       adult pornography is protected by the First Amendment unless it is obscene.

       413 U.S. 15, 23 (1973). The Court explained that state statutes regulating

       obscene material must be limited to “works which, taken as a whole, appeal to

       the prurient interest in sex, which portray sexual conduct in a patently offensive

       way, and which, taken as a whole, do not have serious literary, artistic,

       political, or scientific value.” Id. at 24.


[28]   Almost ten years later, in New York v. Ferber, 458 U.S. 747 (1982), the United

       States Supreme Court held that child pornography, even that which is not

       obscene under the Miller test, is not protected by the First Amendment. The

       Court found that the Miller test for obscenity was inadequate to address child

       pornography because it did “not reflect the State’s particular and more

       compelling interest in prosecuting those who promote the sexual exploitation of

       children.” Id. at 761. The Court therefore adjusted the Miller test to apply to

       child pornography as follows: “A trier of fact need not find that the material



       6
        Siebenaler suggests in passing that Indiana Code section 35-42-4-4 is “unconstitutionally vague,” but he
       does not develop this argument. Appellant’s Br. p. 22.

       Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019                              Page 13 of 18
       appeals to the prurient interest of the average person; it is not required that

       sexual conduct portrayed be done so in a patently offensive manner; and the

       material at issue need not be considered as a whole.” Id. at 764. The Court

       explained that conduct involving child pornography could be criminalized so

       long as the offense was “limited to works that visually depict sexual conduct by

       children below a specified age” and “the category of ‘sexual conduct’ proscribed

       must also be suitably limited and described.” Id.


[29]   Siebenaler is correct that mere nudity is not enough to convict him. That is,

       “depictions of nudity, without more, constitute protected expression.” Osborne

       v. Ohio, 495 U.S. 103, 112 (1990); Ferber, 458 U.S. at 765 n.18 (“[N]udity,

       without more[,] is protected expression.”); id. at 773 (observing that protected

       expressions of child nudity could be found in materials “ranging from medical

       textbooks to pictorials in the National Geographic”); United States v. Johnson,

       639 F.3d 433, 439 (8th Cir. 2011) (describing “mere nudity” as “innocent

       family photos, clinical depictions, or works of art”); United States v. Wallenfang,

       568 F.3d 649, 657 (8th Cir. 2009) (holding that “[n]udity alone” does not satisfy

       the definition of “lascivious exhibition of the genitals” (one of the definitions of

       “sexually explicit conduct” under federal law)7 and explaining that a

       photograph is “lascivious” only if it is “sexual in nature” (quotations omitted));

       United States v. Griesbach, 540 F.3d 654, 656 (7th Cir. 2008) (“[M]ore than mere



       7
        Siebenaler concedes that “lascivious exhibition of the genitals” is equivalent to “exhibition of the uncovered
       genitals intended to satisfy or arouse the sexual desires of any person” under Section 35-42-4-4(a)(4)(C)(i).
       See Appellant’s Br. p. 27.

       Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019                               Page 14 of 18
       nudity is required to make an image lascivious; the focus of the image must be

       on the genitals or the image must be otherwise sexually suggestive.”). With this

       in mind, we now address Siebenaler’s remaining convictions.


               I.       Possession of Child Pornography (Counts 5-7)
[30]   The State used Exhibit 7 to support Count 5. Exhibit 7 depicts an older boy

       standing with a younger boy hanging from his neck. The younger boy’s legs are

       wrapped around the older boy’s hips, with the older boy’s turgid penis hanging

       just below the younger boy’s buttocks. Contrary to Siebenaler’s claim, Exhibit

       7 involves more than mere nudity. The positioning of the boys is sexually

       suggestive, especially considering the older boy’s turgid penis, and implies that

       sexual activity between the boys has occurred or is about to occur.8 We

       therefore affirm Siebenaler’s conviction on Count 5.


[31]   The State used Exhibit 8 to support Count 6. Exhibit 8 depicts two nude boys

       on an inflatable raft in a body of water. Exhibit 8 also involves more than mere

       nudity. The position of the boys is highly suggestive of anal intercourse and

       implies that sexual activity between the boys has occurred or is about to occur.

       We therefore affirm Siebenaler’s conviction on Count 6.




       8
         As explained above, Count 5 requires the image to depict or describe sexual conduct by a child who appears
       to be less than sixteen years of age (as opposed to less than eighteen years of age). Siebenaler makes no
       argument about the boys’ ages.

       Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019                            Page 15 of 18
[32]   Finally, the State used Exhibit 9 to support Count 7. Exhibit 9 depicts a nude

       boy standing outside in a grassy area with a towel behind him. There is a

       second boy sitting on the grass with a towel wrapped around his lower half.

       We agree with Siebenaler that Exhibit 9 depicts mere nudity. Although the

       State argued at trial that Exhibit 9 shows that the boys were “about to engage in

       oral sex” because the sitting boy’s head is at the level of the standing boy’s

       penis, Tr. p. 46, we cannot agree with the State’s characterization of this image.

       First, it is hard to tell the distance between the boys. Second, the boys are not

       touching each other or even looking at or acknowledging each other; rather,

       they just happen to be in the same photograph. We therefore reverse

       Siebenaler’s conviction on Count 7.


                             II. Child Exploitation (Counts 1-4)
[33]   Exhibits 13-18 are recordings of GIFs that Siebenaler created from videos and

       then uploaded to his imgsrc.ru account. Several courts have held that cropping

       or editing an otherwise innocent image can result in child pornography. See

       State v. Bolles, 541 S.W.3d 128, 136 (Tex. Crim. App. 2017) (collecting cases).

       For example, in United States v. Stewart, 729 F.3d 517 (6th Cir. 2013), the Sixth

       Circuit held that child pornography can result from image manipulation and

       that such images are not afforded First Amendment protection. In that case,

       the court found that “[t]he jury could have reasonably inferred that the act of

       image editing, combined with the peculiar composition of the resultant

       images”—a close-up of a child’s genitals—“demonstrated that the images were

       designed or intended to elicit a sexual response in the viewer.” Id. at 527.

       Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019       Page 16 of 18
[34]   In addition, in United States v. Horn, 187 F.3d 781 (8th Cir. 1999), the Eighth

       Circuit held that freeze-framed images of videotapes were “lascivious” because:


               Shots of young girls are freeze-framed at moments when their
               pubic areas are most exposed, as, for instance, when they are
               doing cartwheels; and these areas are at the center of the image
               and form the focus of the depiction. . . . [The defendant] argues
               that an otherwise innocent video tape of nude children cannot be
               made into a lascivious exhibition of the genitals by freeze-
               framing. We disagree. By focusing the viewer’s attention on the
               pubic area, freeze-framing can create an image intended to elicit
               a sexual response in the viewer. The “lascivious exhibition” is
               not the work of the child, whose innocence is not in question, but
               of the producer or editor of the video.


       Id. at 790.


[35]   The State used Exhibits 13 and 14 to support Counts 1 and 2. We have little

       difficulty concluding that the GIFs in Exhibits 13 and 14 depict “sexual

       conduct” and not “mere nudity.” It is true that the activities in the GIFs show

       boys depantsing one another and skinny dipping—activities that are not

       necessarily sexually suggestive. However, when Siebenaler created these GIFs

       from videos, he edited them in such a way that highlights the boys’ genitals.

       Oftentimes, the GIFs start and end with genitals. For example, in Exhibit 13,

       the first GIF ends with a closeup of a nude boy lying on his back in the sand

       with his legs in the air and his genitals and buttocks exposed. The second GIF

       picks up where the first one left off and then ends with the boy sitting on the

       sand on his knees with his genitals displayed in the bottom-center of the frame.

       In Exhibit 14, the fourth GIF shows a nude boy running out of the water with

       Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019       Page 17 of 18
       his penis bouncing up and down; the GIF ends with a brief freezeframe of the

       boy’s penis pointing straight out and prominently featured in the center of the

       frame. The fifth GIF picks up where the fourth GIF ended and then cuts to a

       side view of a nude boy in a push-up pose at the edge of the water. The fifth

       GIF ends as the boy brings his left leg forward, exposing his genitals in the

       center of the frame. By editing the videos into GIFs that focus the viewers’

       attention on the boys’ genitals, Siebenaler created GIFs “intended to satisfy or

       arouse the sexual desires of any person.” See Stewart, 729 F.3d at 527; Horn,

       187 F.3d at 790. We therefore affirm his convictions on Counts 1 and 2.


[36]   Exhibits 15-18, which the State used to support Counts 3 and 4, are markedly

       different from Exhibits 13 and 14. The GIFs in Exhibits 15-18 depict boys

       getting depantsed and then quickly covering themselves or pulling up their

       pants or shorts. Unlike the GIFs in Exhibits 13 and 14, these GIFs are not

       focused on the genitals or sexually suggestive. In fact, in some of the GIFs, the

       genitals are barely visible. In addition, none of these GIFs end with genitals.

       We therefore reverse Siebenaler’s convictions on Counts 3 and 4.


[37]   We affirm Siebenaler’s convictions on Counts 1, 2, 5, 6, and 8 and reverse his

       convictions on Counts 3, 4, and 7.


[38]   Affirmed in part, reversed in part.


       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-1381 | April 26, 2019      Page 18 of 18
