from the Delaware Circuit Court The Honorable Marianne L.
Vorhees, Judge Trial Court Cause No. 18C01-1605-F5-104
ATTORNEY FOR APPELLANT Jane H. Ruemmele Hayes Ruemmele, LLC
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
Stephen R. Creason Chief Counsel Indianapolis, Indiana
Vaidik, Chief Judge.
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.
and Procedural History
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.
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 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.
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"
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, 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 ¶ash 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.
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).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) (West
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
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.
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.
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 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,  and one of his hands is on the first
boy's lower back/upper buttocks. He is smiling.
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.
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.
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
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. ...