Vaidik, C.J.
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 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.
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.
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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, or scientific value. I.C. § 35-42-4-4(d); Ind. Code Ann. § 35-42-4-4(c).
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. …
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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. …
Accordingly, because Siebenaler’s conviction on Count 8 is based on fondling, we affirm Siebenaler’s conviction on Count 8.
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 and therefore not sufficient to convict him. 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.
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Siebenaler is correct that mere nudity is not enough to convict him. That is, “depictions of nudity, without more, constitute protected expression.” … With this in mind, we now address Siebenaler’s remaining convictions.
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. We therefore affirm Siebenaler’s conviction on Count 5.
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.
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, 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.
Exhibits 13-18 are recordings of GIFs that Siebenaler created from videos and then uploaded to his imgsrc.ru account. …
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.” … We therefore affirm his convictions on Counts 1 and 2.
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.
We affirm Siebenaler’s convictions on Counts 1, 2, 5, 6, and 8 and reverse his convictions on Counts 3, 4, and 7.
Affirmed in part, reversed in part.
Mathias, J., and Crone, J., concur.