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Siebenaler v. State

Court of Appeals of Indiana

April 26, 2019

Brian Siebenaler, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

          Appeal 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 Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General Stephen R. Creason Chief Counsel Indianapolis, Indiana

          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 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 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 "" GIFs[1] 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 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.

         [¶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, 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 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 under the username "lostboardies." The GIFs were password-protected on and required a password from Siebenaler to access them.

         [¶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 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. ...

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