Michael Koetter v. State of Indiana

M
                                                                                      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,

      [email protected] 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

      [email protected] While searching for attribution evidence, which

      aided Detective Smith in determining ownership of the Gmail account,

      Court of Appeals of Indiana | Opinion 20A-CR-504 | November 19, 2020     Page 3 of 11
      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

      Court of Appeals of Indiana | Opinion 20A-CR-504 | November 19, 2020          Page 4 of 11
              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
      Court of Appeals of Indiana | Opinion 20A-CR-504 | November 19, 2020          Page 5 of 11
              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.




      Court of Appeals of Indiana | Opinion 20A-CR-504 | November 19, 2020         Page 6 of 11
       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

       [email protected] 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.”)

       Court of Appeals of Indiana | Opinion 20A-CR-504 | November 19, 2020                               Page 7 of 11
       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


       Court of Appeals of Indiana | Opinion 20A-CR-504 | November 19, 2020         Page 8 of 11
       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

       Court of Appeals of Indiana | Opinion 20A-CR-504 | November 19, 2020          Page 9 of 11
               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

.

       Court of Appeals of Indiana | Opinion 20A-CR-504 | November 19, 2020          Page 10 of 11
[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.




       Court of Appeals of Indiana | Opinion 20A-CR-504 | November 19, 2020    Page 11 of 11

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