FILED
Nov 19 2020, 8:00 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Curtis T. Hill, Jr.
Nashville, Indiana Attorney General of Indiana
Valerie K. Boots Benjamin J. Shoptaw
Marion County Public Defender Agency Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Koetter, November 19, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-504
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable William J. Nelson,
Appellee-Plaintiff. Judge
The Honorable Mark F. Renner,
Magistrate
Trial Court Cause No.
49G18-1703-F6-10834
Bradford, Chief Judge.
Court of Appeals of Indiana | Opinion 20A-CR-504 | November 19, 2020 Page 1 of 11
Case Summary
[1] Following a bench trial, Michael Koetter was convicted of six counts of Level 6
felony possession of child pornography. On appeal, Koetter contends that the
evidence is insufficient to sustain his convictions. Alternatively, he contends
that his convictions violate the prohibitions against double jeopardy set forth in
Article 1, Section 14 of the Indiana Constitution. We affirm.
Facts and Procedural History
[2] In August of 2016, Indianapolis Metropolitan Police Detective Laura Smith
received a tip from the National Center for Missing and Exploited Children
(“NCMEC”) about suspected child pornography on a Gmail account,
specifically that “Google reported that a person using the Gmail account,
Michaelbkoetter@gmail.com had uploaded seven images of suspected child
pornography.” Tr. Vol. II p. 12. The tip also provided the cell phone number
that had been provided by the user and an upload IP that could be used to
pinpoint the location where the upload occurred. Detective Smith explained
that after discovering the images, Google shut down the Gmail account and
reported the occurrence to the NCMEC, which then passed along the tip to
Detective Smith. According to the tip, the images in question were uploaded
on June 23, 2016.
[3] After receiving the tip, Detective Smith searched the Indiana Bureau of Motor
Vehicles (“BMV”) records for the name “Michael Koetter.” Tr. Vol. II p. 15.
Court of Appeals of Indiana | Opinion 20A-CR-504 | November 19, 2020 Page 2 of 11
She found an individual by the name of “Michael B. Koetter” and pulled the
BMV photograph for that person. Tr. Vol. II p. 16. Detective Smith then took
the phone number “of the person who was associated with that Google
account” and “ran a query through IMPD police reports” to see if she could
find a match. Tr. Vol. II p. 18. Detective Smith found a record indicating that
a “Michael B. Koetter had filed a police report or was involved in a police
report” in 2013 and provided officers with the same phone number that had
been provided to Detective Smith by Google. Tr. Vol. II p. 18. Detective
Smith then went to the address listed for Koetter in the BMV records and found
that the home had been vacated and “there was a realty sign in the yard and a
realtor’s lockbox on the front door.” Tr. Vol. II p. 18.
[4] At that point, Detective Smith requested “a grand jury subpoena to AT&T for
the IP address that was associated with the uploads.” Tr. Vol. II p. 18. AT&T
responded to the subpoena and provided Detective Smith with the “subscriber
information for the IP address associated with the uploads of the seven files.”
Tr. Vol. II p. 20. The IP address was registered to Sandra Patterson at an
address on Eastwind Street in Indianapolis. Detective Smith learned, and the
parties later stipulated, that Koetter had been staying at Patterson’s residence on
June 23, 2016. Tr. Vol. II p. 73.
[5] During the course of her ensuing investigation, Detective Smith uncovered
additional evidence that linked Koetter’s phone and Facebook account to
Michaelbkoetter@gmail.com. While searching for attribution evidence, which
aided Detective Smith in determining ownership of the Gmail account,
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Detective Smith discovered that the account had sent an email with a copy of
Koetter’s driver’s license and an email with the subject matter “picture of me,”
which contained a picture of Koetter. Tr. Vol. II p. 72. Detective Smith also
uncovered evidence linking the Gmail account to purchases that had been made
by Koetter and delivered to the address listed in Koetter’s BMV records. As a
result of her investigation, Detective Smith determined that the Gmail account
belonged to Koetter and that “[t]here was no other persons that appeared to be
using that account.” Tr. Vol. II p. 35.
[6] On March 23, 2017, the State charged Koetter with nine counts of Level 6
felony possession of child pornography. Koetter waived his right to a jury trial
and a bench trial was held on October 23, 2017. At the conclusion of trial,
three counts were withdrawn and the trial court found Koetter guilty of the
remaining six counts. In finding Koetter guilty of the six counts, the trial court
stated the following:
I think that the State’s investigation, particularly through the
subpoena and all of the documents that came from Google, for
the attribution, who was the - not just the owner, but the user of
the account, satisfies the Court that Michael B. Koetter, the
Defendant in this case was the user, not just the owner of the
account, but was the user of the account. And there’s no
evidence that other individuals used that account.
While I understand the Defense’s argument that there’s a
possibility that somebody else did, I don’t have evidence of that,
that’s been presented in any fashion. In fact, all the evidence is,
that it was only Michael B. Koetter, the Defendant in this case,
from the evidence presented. And for that reason I do find that
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the State has met its burden of proof on Counts IV, V, VI, VII,
VIII and IX, and that Michael B. Koetter, the Defendant in this
case, did possess those items that are now in front of the Court
and the evidence in those photographs are child pornography.
That it is clear that those images depict prepubescent children,
that the images do not contain any artistic, political significance
that there’s nothing there that would exempt this from a finding
of possession of child pornography, and that is the finding the
Court makes at this time, as to those counts.
Tr. Vol. II pp. 87–88. The trial court subsequently sentenced Koetter to an
aggregate 545-day sentence, with sixty days executed in the Marion County Jail
and the remaining 485 days suspended to probation. The trial court also
ordered Koetter to register as a sex offender for ten years.
Discussion and Decision
I. Sufficiency of the Evidence
[7] Koetter contends that the evidence is insufficient to sustain his convictions for
Level 6 felony possession of child pornography.
When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the verdict. It is
the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether
it is sufficient to support a conviction. To preserve this structure,
when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the trial court’s ruling.
Appellate courts affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a
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reasonable doubt. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. The
evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (citations, emphasis, and
quotations omitted).
[8] In order to convict Koetter of Level 6 felony possession of child pornography,
the State was required to prove that Koetter knowingly or intentionally
possessed with an intent to view:
(1) a picture;
(2) a drawing;
(3) a photograph;
(4) a negative image;
(5) undeveloped film;
(6) a motion picture;
(7) a videotape;
(8) a digitized image; or
(9) any pictorial representation;
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.
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Ind. Code § 35-42-4-4(c) (2015).1 Koetter does not contend that the images in
question do not qualify as child pornography and the trial court, acting as the
trier-of-fact, specifically found that the images in question did qualify as child
pornography. In challenging his conviction, Koetter argues only that the State
failed to prove that he knowingly or intentionally possessed the images in
question.
[9] The Indiana Supreme Court has held that “[a] verdict may be sustained based
on circumstantial evidence alone if that circumstantial evidence supports a
reasonable inference of guilt.” Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000).
Further, while presence at the crime scene alone cannot sustain a conviction,
presence, when combined with other facts and circumstances, may raise a
reasonable inference of guilt. Id. In this case, while the parties stipulated that
Koetter had been staying at Patterson’s residence on June 23, 2016, the
evidence established more than Koetter’s mere presence at the location
associated with the upload IP address.
[10] The evidence established that Koetter owned the Gmail account
Michaelbkoetter@gmail.com. Emails linked Koetter’s phone and Facebook
account to the Gmail account. The Gmail account contained pictures of
1
Under the current version of Indiana Code section 35-42-4-4, the quoted language is found in subsection
(d). However, for the purpose of this appeal, we look to the version of the statute that was in effect at the
time Koetter committed the charged offenses. See Bell v. State, 654 N.E.2d 856, 858 (Ind. Ct. App. 1995)
(“Generally, the statute to be applied when arriving at the proper criminal penalty should be the one in effect
at the time the crime was committed.”)
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Koetter, including a picture of his driver’s license. The evidence also
established that Koetter regularly accessed the Gmail account and there was no
evidence indicating that anyone else “appeared to be using that account.” Tr.
Vol. II p. 35. The evidence, while circumstantial in nature, does more than
place Koetter at the location connected to the upload IP address. It connects
ownership of the Gmail account to which the images were uploaded to Koetter
and raises a reasonable inference of guilt. As such, we conclude that the
evidence is sufficient to sustain Koetter’s convictions for Level 6 felony
possession of child pornography.
[11] Furthermore, to the extent that Koetter argues that it is possible that someone
else may have uploaded and accessed the pornographic images via his Gmail
account, we reiterate that it is not necessary that the evidence overcome every
reasonable hypothesis of innocence. See Drane, 867 N.E.2d at 147. While it
might have been possible that someone else was responsible for uploading the
images to Koetter’s account, we agree with both the trial court and the State
that there is absolutely no evidence that anyone else did so. Koetter’s argument
to this effect is pure speculation and does not rebut the reasonable inference that
Koetter, himself, was responsible for uploading and possessing the
pornographic images.
II. Double Jeopardy
[12] Koetter alternatively contends that his multiple convictions violate the
prohibitions against double jeopardy set forth in Article 1, Section 14 of the
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Indiana Constitution, which provides that “[n]o person shall be put in jeopardy
twice for the same offense.” “Substantive double-jeopardy claims principally
arise in one of two situations: (1) when a single criminal act or transaction
violates multiple statutes with common elements, or (2) when a single criminal
act or transaction violates a single statute and results in multiple injuries.”
Powell v. State, 151 N.E.3d 256, 263 (Ind. 2020). Koetter’s argument involves
the second situation. Thus, the question is whether Koetter may be punished
for six counts of the same offense. Id.
[13] In Powell, the Indiana Supreme Court recently discussed when a defendant may
be punished for multiple counts of the same offense. In doing so, the Court
stated
Our legislature possesses the inherent authority, subject to certain
constitutional limitations, to define crimes and fix punishments.
This prerogative extends to defining whether a single statutory
offense will subsist for a definite period or cover successive,
similar occurrences. In resolving a claim of multiplicity, our task
is to determine whether the statute permits punishment for a
single course of criminal conduct or for certain discrete acts—the
successive, similar occurrence”—within that course of conduct.
Put differently, we ask whether—and to what extent—the
applicable statute permits the fragmentation of a defendant’s
criminal act into distinct units of prosecution.
Id. at 263–64 (internal citations, quotations, and footnotes omitted). The Court
concluded that “[t]his inquiry involves a two-step process.” Id. at 264.
First, we review the text of the statute itself. If the statute,
whether expressly or by judicial construction, indicates a unit of
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prosecution, then we follow the legislature’s guidance and our
analysis is complete. But if the statute is ambiguous, then we
proceed to the second step of our analysis.
Under this second step, a court must determine whether the
facts—as presented in the charging instrument and as adduced at
trial—indicate a single offense or whether they indicate
distinguishable offenses. To answer this question, we ask
whether the defendant's actions are so compressed in terms of
time, place, singleness of purpose, and continuity of action as to
constitute a single transaction. If the defendant’s criminal acts
are sufficiently distinct, then multiple convictions may stand; but
if those acts are continuous and indistinguishable, a court may
impose only a single conviction. Any doubt counsels against
turning a single transaction into multiple offenses.
Id. at 264–65 (internal citations, quotations, and footnotes omitted).
[14] In this case, we need only apply the first step as the relevant statute expressly
indicates a unit of prosecution. We have previously concluded that “the
legislature defined the crime of possession of child pornography listing objects
in the singular, e.g., ‘a photograph’, ‘a digitized image’, etc. This conveys the
legislature’s clear intent to make the possession of each photograph or digitized
image a distinct occurrence of offensive conduct in violation of the statute.”
Brown v. State, 912 N.E.2d 881, 896 (Ind. Ct. App. 2009). The Indiana Supreme
Court implicitly approved this conclusion in Powell, citing to our interpretation
of Indiana Code section 35-42-4-4 as an example of a statute which, by referring
to acts in the singular, indicates a legislative intent to criminalize each
possession of child pornography as a distinct violation. Powell, 151 N.E.3d at
267.
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[15] Koetter was convicted of six counts of Level 6 felony possession of child
pornography after the trial court determined that Koetter possessed six distinct
images of child pornography. Applying the Indiana Supreme Court’s decision
in Powell and our conclusion in Brown, we conclude that Koetter’s multiple
convictions do not violate the prohibitions against double jeopardy set forth in
Article 1, Section 14 of the Indiana Constitution.
[16] The judgment of the trial court is affirmed.
Kirsch, J., and May, J., concur.
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