FILED Dec 23 2020, 8:27 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William T. Myers Curtis T. Hill, Jr. Whitehurst & Myers Law Attorney General of Indiana Marion, Indiana Jesse R. Drum Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert Arthur Cutshall II, December 23, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-838 v. Appeal from the Huntington Circuit Court State of Indiana, The Honorable Davin G. Smith, Appellee-Plaintiff. Judge Trial Court Cause No. 35C01-1905-F1-115
Pyle, Judge.
Court of Appeals of Indiana | Opinion 20A-CR-838 | December 23, 2020 Page 1 of 16 Statement of the Case [1] Robert Cutshall II (“Cutshall”) appeals his conviction, following a jury trial, for
possession of child pornography.1 Cutshall argues that there was insufficient
evidence to support his conviction and that the possession of child pornography
statute is unconstitutionally vague. Concluding that the evidence is sufficient
and that Cutshall waived his constitutional argument by failing to raise it to the
trial court, we affirm Cutshall’s conviction.
[2] We affirm.
Issues 1. Whether the evidence is sufficient to support Cutshall’s conviction.
2. Whether the possession of child pornography statute is unconstitutionally vague.
Facts [3] In 2019, Cutshall, who was fifty-nine years old, and his wife, Michelle Cutshall
(“Michelle”) had three adult daughters and one teenaged daughter. The
youngest daughter, fourteen-year-old V.C. (“V.C.”) lived with her parents.
Cutshall and Michelle also had four grandchildren, including three-year-old
Z.S., living with them at that time.
1 IND. CODE § 35-42-4-4(d).
Court of Appeals of Indiana | Opinion 20A-CR-838 | December 23, 2020 Page 2 of 16 [4] In February 2019, Cutshall broke his cellphone and then used Michelle’s old
cellphone, which was an LG phone (“the LG phone”). The LG phone was not
connected to a cellular data service, so when Cutshall wanted to have internet
access on the LG phone, he would use the Wi-Fi hotspot from Michelle’s
cellphone.
[5] On April 26, 2019, around 6:00 p.m., Michelle and two of her adult daughters
went to a concert, leaving Cutshall at home with V.C. and the four
grandchildren. Michelle left her cellphone at home so that Cutshall could use
the Wi-Fi hotspot from her cellphone. When Michelle and her daughters
returned around 11:30 p.m., V.C. told Michelle that she had seen Cutshall
engaging in inappropriate behavior with Z.S. while they were at the concert.
Specifically, V.C. told her mother that she had seen Z.S. sucking Cutshall’s
penis and Cutshall having sex with Z.S. Michelle reported the allegations to the
police. V.C. was interviewed at a child advocacy center, and a nurse examined
Z.S. at the hospital and administered a sexual assault kit. Z.S. was not
interviewed because she had delayed verbal skills. After Cutshall’s arrest, the
police searched the LG phone and discovered digital images involving
“prepubescent” females engaged in sexual intercourse and oral sex. (Tr. Vol. 3
at 196, 197).
[6] The State charged Cutshall with Count 1, Level 1 felony child molesting
(alleging sexual intercourse); Count 2, Level 1 felony child molesting (alleging
other sexual conduct); and Count 3, Level 6 felony possession of child
pornography (alleging possession of a digital image).
Court of Appeals of Indiana | Opinion 20A-CR-838 | December 23, 2020 Page 3 of 16 [7] The trial court held a two-day jury trial in March 2020. Cutshall did not
challenge the constitutionality of the possession of child pornography statute at
any time prior to or during the trial. His theory of defense for the possession of
child pornography charge was that the State could not prove that he had
knowingly possessed the images.
[8] During the trial, the State offered State’s Exhibits 65 and 66, the photographs of
“prepubescent” females that had been found on the LG phone. (Tr. Vol. 3 at
196, 197). Specifically, Exhibit 65 depicted a “prepubescent” female, with no
pubic hair, being vaginally penetrated by a male penis. (Tr. Vol. 3 at 196).
Exhibit 66 depicted two “prepubescent” females, one of whom was nude from
the waist down and had no pubic hair and did not have developed breasts,
performing oral sex on erect male penises.2 (Tr. Vol. 3 at 197). A forensic
analysis detective testified that the metadata associated with Exhibit 66 revealed
that the photograph had been downloaded to the LG phone from the Pornhub
website on March 1, 2019. Exhibit 65 did not have any metadata associated
with it that would reveal when it had been downloaded to the phone. At the
time of the forensic search, the photographs were not in the LG phone’s current
photo gallery; they had been deleted at some point in time but were still on the
phone. The LG phone also had more than 9,200 photographs that had been
2 Exhibit 66 contained a collage of four photographs, two of which depicted the prepubescent females engaged in oral sex.
Court of Appeals of Indiana | Opinion 20A-CR-838 | December 23, 2020 Page 4 of 16 deleted from it, which the detective testified was “[v]ery unusual[.]” (Tr. Vol. 3
at 198).
[9] The forensic analysis also showed that Cutshall had first used the LG phone to
login to his Facebook account on February 18, 2019 and that Cutshall’s
Facebook account was the active user on the date of the alleged events on April
26, 2019. The detective testified that the analysis of the LG phone revealed that
it had been used on April 26, 2019 between 6:22 p.m. and 7:05 p.m. to view
thirty “pornographic” websites, including Pornhub. (Tr. Vol. 3 at 198). The
State also introduced evidence to show that Cutshall had used the LG phone at
7:07 p.m. to send a Facebook Messenger message to V.C.
[10] Additionally, the detective explained that the forensic search of the LG phone
showed that there were three named accounts associated with the LG phone:
(1) the Facebook account for Cutshall; (2) a Facebook account for Michelle,
which had last been accessed on April 23, 2019; and (3) a Gmail account for
Jimmy White (“the Gmail account”) that had been accessed once on January
10, 2019. Michelle testified that she used the Gmail account, which belonged
to her boyfriend’s father, so she could login to Netflix on the LG phone in
January. Michelle testified that in February 2019 Cutshall had started using the
LG phone as his own after he broke his prior cellphone. Michelle also testified
that she had not been aware of and had never seen the child pornography
photographs on the LG phone prior to the discovery of the images during the
forensic analysis.
Court of Appeals of Indiana | Opinion 20A-CR-838 | December 23, 2020 Page 5 of 16 [11] After the State rested its case, Cutshall moved for a directed verdict on the
possession of child pornography charge. He argued that the State had failed to
prove beyond a reasonable doubt that Cutshall had knowingly possessed the
child pornography images. The trial court denied Cutshall’s motion.
[12] Cutshall testified on his own behalf. He denied that he had had sexual
intercourse or had engaged in oral sex with Z.S. Additionally, Cutshall testified
that he had never downloaded child pornography images onto the LG phone
and that he had no knowledge of the images at issue. Cutshall also denied that
he had used the LG phone to view any pornography websites on April 26, 2019
when Michelle was at the concert.
[13] During closing arguments, the State argued, in relevant part, that Cutshall was
guilty of possession of child pornography because the evidence showed that he
had actual or constructive possession of the images on the LG phone. The
State pointed to the evidence that Cutshall had started using the LG phone in
February 2019 and that the photograph that depicted “females [who] appeared
less than 18 years of age performing oral sex on adult males” had been
downloaded onto the LG phone from Pornhub shortly thereafter on March 1,
2019. Additionally, the State noted that Cutshall had used the LG phone after
Michelle had left for the concert, during which time he had used the phone to
view pornography websites, including Pornhub. (Tr. Vol. 4 at 64).
[14] During Cutshall’s closing argument, his counsel argued that the State had failed
to meet its burden of showing that he had possessed the child pornography on
Court of Appeals of Indiana | Opinion 20A-CR-838 | December 23, 2020 Page 6 of 16 the LG phone. Cutshall did not challenge whether the images at issue
constituted child pornography nor did he make any argument regarding the age
of the females depicted in the images. Cutshall’s counsel argued that there was
no evidence showing that Cutshall had downloaded the two photos or had
viewed them. Cutshall’s counsel also argued that the fact that the LG phone
had been used to view pornography on April 26 was not relevant because there
was “no evidence presented that any of it was child pornography” and that it
was presumably adult pornography. (Tr. Vol. 4 at 77).
[15] The jury found Cutshall guilty of the possession of child pornography charge
and not guilty of the child molesting charge in Count 2. The jury could not
reach a verdict on child molesting charge in Count 1, resulting in the trial court
declaring a mistrial on that charge. The trial court imposed a two and one-half
(2½) year sentence, with 180 days suspended to probation and the remaining
time to be served in the county jail. Cutshall now appeals.
Decision [16] Cutshall argues that: (1) there was insufficient evidence to support his
conviction for possession of child pornography; and (2) the possession of child
pornography statute is unconstitutionally vague. We will review each
argument in turn.
1. Sufficiency of Evidence
[17] Cutshall argues that the evidence was insufficient to support his conviction for
possession of child pornography. Court of Appeals of Indiana | Opinion 20A-CR-838 | December 23, 2020 Page 7 of 16 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 would find the elements of the crime proven beyond a 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) (internal quotation marks
and citations omitted) (emphasis in original). Additionally, our Indiana
Supreme Court has explained that “when determining whether the elements of
an offense are proven beyond a reasonable doubt, a fact-finder may consider
both the evidence and the resulting reasonable inferences.” Thang v. State,
10 N.E.3d 1256, 1260 (Ind. 2014) (emphasis in original).
[18] The possession of child pornography statute under which Cutshall was charged,
INDIANA CODE § 35-42-4-4(d), provides:
A person who knowingly or intentionally possesses or accesses with intent to view:
(1) a picture;
(2) a drawing;
(3) a photograph;
Court of Appeals of Indiana | Opinion 20A-CR-838 | December 23, 2020 Page 8 of 16 (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.
I.C. § 35-42-4-4(d). To convict Cutshall as charged, the State had the burden to
prove beyond a reasonable doubt that Cutshall “knowingly possessed a digital
picture that depicted or described sexual conduct by a child, when [Cutshall]
knew the child was less than eighteen (18) years of age, or who appeared to be
less than eighteen (18) years of age, and the picture lacked serious literary,
artistic, political or scientific value.” (App. Vol. 2 at 36).
[19] Cutshall focuses on the possession element and contends that the State failed to
prove that he knowingly possessed the digital images on the LG phone.
Cutshall argues that the evidence was insufficient because the State failed to
show that Cutshall had ever viewed the child pornography images on the LG
phone or that he knew of them. He asserts the LG phone had been used to
access other people’s accounts, such as Michelle’s accounts, and he suggests
that the images could have been attributed to her.
Court of Appeals of Indiana | Opinion 20A-CR-838 | December 23, 2020 Page 9 of 16 [20] “A person engages in conduct ‘knowingly’ if, when he engages in the conduct,
he is aware of a high probability that he is doing so.” I.C. § 35-41-2-2(b). “To
prove that a defendant possessed an item, the State may prove either actual
possession or constructive possession.” Eckrich v. State, 73 N.E.3d 744, 746
(Ind. Ct. App. 2017), trans. denied. “Actual possession occurs when a person
has direct physical control over an item.” Id. “Constructive possession occurs
when a person has[:] (1) the capability to maintain dominion and control over
the item; and (2) the intent to maintain dominion and control over it.” Id.
(internal quotation marks omitted). “[A] conviction for a possessory offense
does not depend on catching a defendant red-handed.” Gray v. State, 957
N.E.2d 171, 174 (Ind. 2011).
[21] Here, the State presented circumstantial evidence to prove that Cutshall
knowingly possessed the child pornography digital images on the LG phone.
“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.’” Koetter v. State, -- N.E.3d --, 2020 WL 6789364
at *3 (Ind. Ct. App. Nov. 19, 2020) (quoting Maul v. State, 731 N.E.2d 438, 439
(Ind. 2000)).
[22] The evidence presented during the jury trial established that the LG phone
contained two digital images of child pornography. The forensic analysis of the
LG phone did not reveal who had downloaded the digital images, but the
metadata on one of the images—the oral sex image in Exhibit 66—revealed that
it had been downloaded to the LG phone from Pornhub on March 1, 2019.
Court of Appeals of Indiana | Opinion 20A-CR-838 | December 23, 2020 Page 10 of 16 Michelle testified that in February 2019 Cutshall had started using the LG
phone as his own after he broke his previous cellphone. The forensic analysis
of the LG phone revealed that Cutshall had first used the LG phone to log into
his Facebook account on February 18, 2019. Two weeks later, on March 1,
2019, the oral sex digital image was downloaded to the phone from Pornhub.
Additionally, the State presented evidence that, after Michelle had left for the
concert around 6:00 p.m. on April 26, 2019, the LG phone had been used
between 6:22 p.m. and 7:05 p.m. to view thirty “pornographic” websites,
including Pornhub. (Tr. Vol. 3 at 198). A few minutes later, at 7:07 p.m.,
Cutshall used the LG phone to send a Facebook Messenger message to V.C.
Michelle and Cutshall, who were the relevant users of the LG phone, both
testified that they had not been aware of the child pornography photographs on
the LG phone. Cutshall’s counsel also argued this to the jury, who judged the
witnesses’ credibility, weighed the evidence, and found Cutshall guilty of
possession of child pornography. Because the jury, as finder of fact, could have
reasonably determined that Cutshall knowingly possessed the digital images on
the LG phone, we affirm Cutshall’s conviction for possession of child
pornography. See, e.g., Koetter, -- N.E.3d --, 2020 WL 6789364 at *3
(concluding that the circumstantial evidence was sufficient to support the
defendant’s possession of child pornography conviction). See also Logan v. State,
836 N.E.2d 467, 473 (Ind. Ct. App. 2005) (explaining that “the discovery of
images on a computer hard-drive is circumstantial evidence that one did
‘possess’ the images”), trans. denied.
Court of Appeals of Indiana | Opinion 20A-CR-838 | December 23, 2020 Page 11 of 16 [23] We also reject Cutshall’s suggestion that there was insufficient evidence that the
girls in the digital images appeared to be less than eighteen years old. The
detective who conducted the forensic analysis testified that the girls in the
images were “prepubescent” females. (Tr. Vol. 3 at 196, 197). Additionally,
“an assessment as to the girl’s age is not only a matter of common sense but
also the trier of fact may take into account her overall appearance, including the
developmental stage of the girl based upon her breasts, body hair, and other
anatomical features.” Bone v. State, 771 N.E.2d 710, 717 (Ind. Ct. App. 2002).
The images that the State alleged to be child pornography depicting a child
under the age of eighteen were admitted and published to the jury. Specifically,
Exhibit 65 depicted a “prepubescent” female, with no pubic hair, being
vaginally penetrated by a male penis. (Tr. Vol. 3 at 196). Exhibit 66 depicted
two “prepubescent” females, one of whom was nude from the waist down and
had no pubic hair and did not have developed breasts, performing oral sex on
erect male penises. (Tr. Vol. 3 at 197). Based on the record before us, we
conclude that a reasonable fact-finder could have found beyond a reasonable
doubt that at least one child was under the age of eighteen. See id. (affirming
the defendant’s possession of child pornography conviction where a reasonable
fact-finder could have found beyond a reasonable doubt that at least one child
was under the age of sixteen).
2. Constitutionality of the Statute
[24] Cutshall also challenges his conviction by arguing that INDIANA CODE § 35-42-
4-4(d), the possession of child pornography statute under which he was
Court of Appeals of Indiana | Opinion 20A-CR-838 | December 23, 2020 Page 12 of 16 convicted, is “unconstitutionally vague and void when applied to him.”
(Cutshall’s Br. 15). Specifically, he asserts that “[t]he focus of this argument is
that there was no proof that the photos alleged to have been ‘child
pornography’ in this case were actually of someone under the age of 18, only
that they ‘appeared’ to be photos of someone under the age of 18.” (Cutshall’s
Br. 15). He contends “[t]his is an arbitrary and vague element of the offense.”
(Cutshall’s Br. 15).
[25] Cutshall, however, has waived any constitutional challenge to INDIANA CODE §
35-42-4-4(d). “Generally, a challenge to the constitutionality of a criminal
statute must be raised by a motion to dismiss prior to trial, and the failure to do
so waives the issue on appeal.” Adams v. State, 804 N.E.2d 1169, 1172 (Ind. Ct.
App. 2004). See also I.C. §§ 35-34-1-4, 35-34-1-6. Cutshall failed to file a
motion to dismiss the charging information prior to trial. Nor did Cutshall
object to the constitutionality of the statute at trial. Accordingly, he has waived
appellate review of the argument.
[26] Waiver notwithstanding, we will review Cutshall’s argument. See McBride v.
State, 94 N.E.3d 703, 709-10 (Ind. Ct. App. 2018) (listing cases from the
Indiana Supreme Court and our Court in which constitutional challenges to a
statute were addressed despite the failure to file a motion to dismiss). Although
we will address Cutshall’s argument, we note that our decision to do so does
not equate to an endorsement of a defendant’s failure to file a motion to dismiss
when he has a constitutional challenge to a statute. Indeed, we echo the
prudent warning set forth by our Court in Tooley v. State: “We caution that our
Court of Appeals of Indiana | Opinion 20A-CR-838 | December 23, 2020 Page 13 of 16 decision to reach the merits is not an invitation to neglect to file a motion to
dismiss and then argue for the first time on appeal that the statute is
unconstitutional.” Tooley v. State, 911 N.E.2d 721, 723 n.3 (Ind. Ct. App.
2009), trans. denied.
[27] The constitutionality of statutes is reviewed de novo. Conley v. State, 972 N.E.2d
864, 877 (Ind. 2012), reh’g denied. “Such review is ‘highly restrained’ and ‘very
deferential,’ beginning ‘with [a] presumption of constitutional validity, and
therefore the party challenging the statute labors under a heavy burden to show
that the statute is unconstitutional.’” Id. (quoting State v. Moss-Dwyer, 686
N.E.2d 109, 110 (Ind. 1997)). “[I]f a statute has two reasonable interpretations,
one constitutional and the other not, we will choose the interpretation that will
uphold the constitutionality of the statute.” Morgan v. State, 22 N.E.3d 570,
573-74 (Ind. 2014) (internal quotation marks and citations omitted).
[28] “A criminal statute can be found unconstitutionally vague: (1) for failing to
provide notice enabling ordinary people to understand the conduct that it
prohibits[;] or (2) for the possibility that it authorizes or encourages arbitrary or
discriminatory enforcement.” Id. at 573 (internal quotation marks and citations
omitted). A statute, however, “need only inform the individual of the generally
proscribed conduct; it need not list with exactitude each item of prohibited
conduct.” Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008).
“No statute need avoid all vagueness, and because statutes are condemned to
the use of words, there will always be uncertainties for we cannot expect
Court of Appeals of Indiana | Opinion 20A-CR-838 | December 23, 2020 Page 14 of 16 mathematical certainty from our language.” Logan, 836 N.E.2d at 473 (cleaned
up). “A statute will not be held to be unconstitutionally vague if individuals of
ordinary intelligence would comprehend it adequately to inform them of the
proscribed conduct.” Baumgartner, 891 N.E.2d at 1136. “[A] statute is void for
vagueness only if it is vague as applied to the precise circumstances of the
present case.” Id. Additionally, a “defendant is not at liberty to devise
hypothetical situations which might demonstrate vagueness.” Id.
[29] Cutshall generally argues that the use of the word “appears” in the possession
of child pornography statute renders the statute vague and “cannot provide a
basis for his conviction in this case.” (Cutshall’s Br. 19). Cutshall does not
argue that he does not understand the meaning of the word “appears” as used
in the statutory phrase “appears to be less than eighteen (18) years of age[.]”
See I.C. § 35-42-4-4(d). Rather, to support his vagueness argument, he sets forth
multiple hypotheticals. For example, he asserts that “it is possible to envision”
that possession of child pornography charges could occur if two adults over the
age of eighteen, one of whom could have “take[] efforts to ‘appear’ younger,”
engaged in a sexual act and saved it to their phone. (Cutshall’s Br. 17).
[30] Cutshall, however, “is not at liberty to devise hypothetical situations which
might demonstrate vagueness.” Baumgartner, 891 N.E.2d at 1136. See also New
York v. Ferber, 458 U.S. 747, 767 (1982) (“The traditional rule is that a person to
whom a statute may constitutionally be applied may not challenge that statute
on the ground that it may conceivably be applied unconstitutionally to others in
situations not before the Court.”). Instead, we focus on the precise
Court of Appeals of Indiana | Opinion 20A-CR-838 | December 23, 2020 Page 15 of 16 circumstances of the present case and whether a person of ordinary intelligence
would comprehend the possession of child pornography statute to adequately
inform him that knowingly possessing a digital image that depicts sexual
conduct by a child who appears to be less than eighteen (18) years of age was
included in the proscribed conduct.
[31] Given the precise circumstances of this case, a person of ordinary intelligence
would, from the phrase “appears to be less than eighteen years of age” as used
in the possession of child pornography statute, know that having digital images
of prepubescent females engaged in sexual intercourse and oral sex was
included in the proscribed conduct of possessing a digital image that depicts
sexual conduct by a child who appears to be less than eighteen (18) years of age.
Accordingly, Cutshall has failed to meet his burden of showing that the statute
is unconstitutionally vague. See also Yoakum v. State, 95 N.E.3d 169, 173 (Ind.
Ct. App. 2018) (holding that a defendant failed to meet his burden of showing
that a synthetic drug statute was unconstitutionally vague where he did not
challenge the issue at trial and instead only challenged the possession element),
trans. denied.
[32] Affirmed.
Kirsch, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Opinion 20A-CR-838 | December 23, 2020 Page 16 of 16