Roger Michael, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] After Roger Michael was found to have been in possession of three photographs depicting an individual under the age of eighteen engaged in sexual conduct, the State charged him with three counts of Level 6 felony possession of child pornography. A jury found Michael guilty as charged, and the trial court sentenced him to an aggregate, four-year sentence. On appeal, Michael challenges the constitutionality of Indiana Code section 35-42-4-4(d), i.e., the statute that prohibited him from possessing child pornography.¹ Alternatively, Michael contends that the trial court abused its discretion in sentencing him. We affirm.

Facts and Procedural History

[2] K.C. was born on January 5, 2005. Throughout school, K.C. “was in the special needs class all day” because she is “a slow learner.”² Tr. Vol. II p. 175. K.C. first met Michael, who was born in 1973, when he was living across the street from her family.

[3] In August of 2022, K.C. went on a road trip with Michael, his then-wife, and their children. During this road trip, Michael assured K.C. that he cared about and loved her, and the two began a sexual relationship. Also during the road trip, Michael asked K.C. to send him sexual pictures, telling her that it would “make him happy.” Tr. Vol. II p. 179. K.C. ultimately took three pictures of herself in “[a] truck stop gas station shower room.” Tr. Vol. II p. 180. The pictures were “sexual” in nature and depicted K.C. in a state of undress with her “private parts” visible. Tr. Vol. II p. 178.

[4] K.C. sent two photographs to Michael's cellular telephone on September 21, 2022, and a third photograph on September 24, 2022. Michael's then-wife, also in a state of undress, posed with K.C. in two of the photographs. Upon receiving one of the photographs of K.C. and his then-wife, Michael responded by text message, “Dam girls I need a cool shower and a bj.” Tr. Vol. II p. 231. Michael described another one of the photographs in a text message to K.C. as “beautiful and sexy.” Tr. Vol. II p. 236. In another text message, Michael told K.C., “I love you and no one is going to hurt my baby girl.” Tr. Vol. II p. 233.

[5] At some point during the summer or fall of 2022, the Indiana Department of Child Services (“DCS”) became involved with Michael's children. DCS also received reports that Michael had been sexually abusing K.C. In October or November of 2022, Michael told DCS regional manager Harmony Jensen that K.C. and her then-boyfriend had been manufacturing allegations against him to distract from K.C.’s alleged crime of molesting the boyfriend, who Michael alleged was younger than K.C. Michael made statements to Jensen indicating that he knew that K.C. “was not of age, like that she was under the age of eighteen (18), she was seventeen (17) at that time.” Tr. Vol. II p. 188.

[6] On November 29, 2022, Michael claimed in a conversation with Jensen outside of the Vigo County courthouse that K.C. had been sending him text messages and sending his then-wife photographs. During this conversation Michael showed Jensen contents of his cellular telephone. Jensen read messages from K.C. to Michael, “something along the lines of hey, daddy when are you going to come home and see the baby and there was a picture of a hand like holding a stomach.” Tr. Vol. II p. 191. Michael also showed Jensen the photograph that K.C. had sent to him on September 24, 2022, depicting K.C. and his then-wife nude. Jensen was “kind of shocked for a minute, and [ ] said you can't have that on your phone.” Tr. Vol. II p. 192. Michael placed his telephone back in his pocket and “went back into the courthouse.” Tr. Vol. II p. 192. Jensen reported the photograph to police. Vigo County Sheriff's Deputy Khristopher Morris stopped Michael and seized his cellular telephone after he left the courthouse. Michael's telephone was later subjected to forensic analysis, revealing the three images depicting K.C.

[7] On March 27, 2023, the State charged Michael with three counts of Level 6 felony possession of child pornography. Following trial, a jury found Michael guilty as charged. In sentencing Michael, the trial court ordered that “Counts 2 and 3 shall run concurrent with one another and Count 1 shall run consecutive to Counts 2 and 3 for an aggregate sentence of 4 years[.]” Appellant's App. Vol. II p. 77.

Discussion and Decision

I. Constitutional Questions

[8] Michael was convicted of three counts of Level 6 felony possession of child pornography in violation of Indiana Code section 35-42-4-4(d), which provides that “[a] person who, with intent to view the image, knowingly or intentionally possesses or accesses an image that depicts or describes sexual conduct: (1) by a child who the person knows is less than eighteen (18) years of age․ commits possession of child pornography, a Level 6 felony.” “ ‘Sexual conduct’ means: ․ (C) exhibition of the: (i) uncovered genitals; or (ii) female breast with less than a fully opaque covering of any part of the nipple; intended to satisfy or arouse the sexual desires of any person[.]” Ind. Code § 35-42-4-4(a)(5). Michael challenges the constitutionality of Indiana Code section 35-42-4-4(d) under both the First Amendment to the United States Constitution (“the First Amendment”) and Article 1, Section 9, of the Indiana Constitution (“Article 1, Section 9”).

[9] Michael concedes that he has waived his constitutional challenges by failing to raise them in the trial court but argues that “Indiana reviewing Courts have routinely addressed constitutional issues that may otherwise be waived[.]” Appellant's Br. p. 7. The State, although arguing waiver, acknowledges that both this court and the Indiana Supreme Court have “regularly reviewed” waived constitutional challenges on the merits. Appellee's Br. p. 11 (citing McBride v. State, 94 N.E.3d 703, 709–10 (Ind. Ct. App. 2018) (noting that while failure to raise a constitutional challenge in the trial court results in waiver, both the Indiana Supreme Court and Court of Appeals have considered the merits of waived constitutional challenges)).

[10] With regard to waiver of a constitutional challenge, we have noted that while a failure to file a motion to dismiss which raises the constitutional challenge generally results in waiver, the Indiana Supreme Court “has also held that the constitutionality of a statute may be raised at any stage of the proceeding including raising the issue sua sponte by this Court.” Coleman v. State, 149 N.E.3d 313, 318 (Ind. Ct. App. 2020) (internal quotation omitted, emphasis in original), trans. denied. “Essentially, [Morse v. State, 593 N.E.2d 194 (Ind. 1992)] stands for the proposition that appellate courts are not prohibited from considering the constitutionality of a statute even though the issue otherwise has been waived, and indeed a reviewing court may exercise its discretion to review a constitutional claim on its own accord.” Id. (internal quotation and brackets omitted). While we choose to address the merits of Michael's constitutional claims, we reiterate our “prudent warning” from Coleman “that our 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.” Id. (internal quotation omitted).

[11] Turning to the merits, we note that

[t]he constitutionality of statutes is reviewed de novo. 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. If 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.

A fundamental aspect of our nation's jurisprudence is that criminal statutes must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden so that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed. Due process requires that a penal statute clearly define its prohibitions.

Id. at 318–19 (emphasis in original; internal citation, quotations, and brackets omitted).

A. First Amendment

[12] In challenging his convictions, Michael contends that Indiana Code section 35-42-4-4(d) is unconstitutionally overbroad and vague, as applied to him, under the First Amendment.

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.․ A statute, however, need only inform the individual of the generally proscribed conduct; it need not list with exactitude each item of prohibited conduct. 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. A statute is void for vagueness only if it is vague as applied to the precise circumstances of the present case. Additionally, a defendant is not at liberty to devise hypothetical situations which might demonstrate vagueness.

Coleman, 149 N.E.3d at 319 (internal quotations and brackets omitted).

[13] In addition, with regard to an allegation that a statute is overbroad,

the [United States] Supreme Court has vigorously enforced the requirement that a statute's overbreadth be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep. Invalidation for overbreadth is strong medicine that has been employed sparingly and only as a last resort. The mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.

State v. Katz, 179 N.E.3d 431, 460 (Ind. 2022) (emphasis in original, internal quotations omitted).

[14] In arguing that Indiana Code section 35-42-4-4(d) is both vague and overbroad, Michael asserts that the statute “prohibits legal conduct” because depictions “ ‘of nudity, without more, are protected expression’ ” under the First Amendment. Appellant's Br. p. 9 (quoting Osborne v. Ohio, 495 U.S. 103, 112 (1990)). In order to qualify as child pornography, however, the statute required more than nudity, also requiring that the images “depict[ ] or describe[ ] sexual conduct” and depict an individual who the possessor knows to be under the age of eighteen. Ind. Code § 35-42-4-4(d). As such, the statute did not prohibit possession of images depicting mere nudity, and there is no dispute that the images at issue here did not merely depict nudity but, rather, depicted sexual conduct by a child under the age of eighteen.

[15] Moreover, while a statute outlawing pornographic images in general may not pass constitutional muster, the United States Supreme Court has upheld laws outlawing possession of pornographic images of children. See Osborne, 495 U.S. at 109. In rejecting a constitutional challenge to a statute outlawing the possession of child pornography, the United States Supreme Court recognized the significant States’ interest in protecting victims of child pornography, stating

[i]t is evident beyond the need for elaboration that a State's interest in safeguarding the physical and psychological well-being of a minor is compelling. ․ The legislative judgment, as well as the judgment found in relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. That judgment, we think, easily passes muster under the First Amendment.

Id. (ellipses in original, internal quotations omitted).

[16] Michael argues that K.C. could not qualify as a victim of child pornography for three reasons: (1) the images were privately and consensually exchanged, (2) K.C. was “37 days from her 18th birthday[,]” and (3) K.C. “took the photos herself.” Appellant's Br. p. 10. We disagree. At all relevant times, K.C. was, and Michael knew that she was, under the age of eighteen. In addition, K.C. testified that she had been in special-needs classes while in high school, indicating that she is “a slow learner.” Tr. Vol. II p. 175. The jury could have inferred that Michael had been aware that K.C. suffered from mental deficiencies, which could place her at a higher risk of victimization, given that he had been her neighbor and had spent a significant amount of time with her. The evidence also supports the inference that the photographs were taken at Michael's suggestion, with K.C. indicating that she had taken the photographs during the month-plus road trip that she had taken with Michael and his then-wife after Michael had indicated that such photographs would make him happy.

[17] Michael also argues that the statute was vague and overbroad because it “does not inform” him that he was precluded from possessing sexually explicit photographs of K.C. despite the fact that he could, and did, engage in a sexual relationship with her. Appellant's Br. p. 6. The Indiana Supreme Court rejected a similar argument in State v. S.T., 82 N.E.3d 257, 260 (Ind. 2017), in which it held that Indiana Code section 35-42-4-9, which outlaws dissemination of sexually-explicit images to minors under the age of eighteen, was not unduly vague or otherwise unconstitutional despite the fact that a sixteen-year-old could view an erect penis in person as part of consensual sexual activity in Indiana but could not receive an image depicting the same.

[18] The plain language of Indiana Code section 35-42-4-4(d) expressly stated that it was unlawful to possess sexually-explicit images of an individual who was under the age of eighteen. Any person of reasonable intelligence could understand what conduct was prohibited under the statute. It is not, therefore, vague ³ or overly-broad under the Federal Constitution. See Coleman, 149 N.E.3d at 319.

B. Article 1, Section 9

[19] Michael also argues that Indiana Code section 35-42-4-4(d) violates his constitutional rights as set forth in Article 1, Section 9. “For Article 1, Section 9 to apply, the state action must have restricted [Michael's] opportunity to engage in expressive activity.” Katz, 179 N.E.3d at 443.

[Article 1, Section 9] forbids the General Assembly from passing any law restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever. However, [Article 1, Section 9] is not absolute, and provides that: but for the abuse of that right, every person shall be responsible. Under this freedom-and-responsibility standard, the legislature's sole authority over expression is to sanction individuals who commit abuse. To challenge state action as violating this clause, a claimant must first demonstrate that the state action has, in the concrete circumstances of the case, restricted his or her opportunity to engage in expressive activity. If it has, we must decide whether the restricted activity constituted an abuse.

Id. at 442 (internal quotations omitted).

[20] In reviewing constitutional claims under Article 1, Section 9, we limit “ourselves to the narrow role of determining whether challenged state action has some reasonable relation to or tendency to promote the state's legitimate interests.” Whittington v. State, 669 N.E.2d 1363, 1369 (Ind. 1996) (footnotes omitted). In upholding the constitutionality of statutes prohibiting possession of child pornography under Article 1, Section 9, we have previously concluded that “[c]hild pornography is not political expression, and we cannot say it is a ‘core’ value under the Indiana Constitution.” Logan v. State, 836 N.E.2d 467, 474 (Ind. Ct. App. 2005), trans. denied. Applying a rationality review to determine whether the State could reasonably conclude that possessing child pornography constitutes “a threat to peace, safety, and well-being[,]” we determined that “[t]he State's interest in protecting child welfare easily passes this standard.” Id. (internal quotation omitted). As such, we concluded that statutes outlawing possession of child pornography do “not contravene the right to free expression as guaranteed by Article 1, Section 9.” Id.

[21] In challenging his convictions under Indiana Code section 35-42-4-4(d), Michael restates his argument that

the application of [Indiana Code section 35-42-4-4(d)] to the facts in this case leads to an absurd result because ․ [w]hile [Michael] is punished for having nude photos of K.C., it was perfectly legal for him to see her naked in person, and engage in sexual intercourse because she was over the age of 16 years.

Appellant's Br. p. 13. Michael states that he “is now obligated to register as a sex offender” and asserts that “his punishment for possessing the nude photos is excessive and would have an extremely negative impact on the rest of his life.” Appellant's Br. pp. 13–14. We again reject Michael's argument that application of the statute leads to an absurd result. The clear language of the statute clearly describes what conduct is prohibited, and we will not usurp the General Assembly's role in determining what conduct is prohibited in Indiana. See S.T., 82 N.E.3d at 260 (providing that we will not usurp the General Assembly's role in determining that disseminating sexually-explicit photographs of an erect penis to a sixteen-year-old is prohibited despite the fact that the same sixteen-year-old could lawfully observe an erect penis during sexual intercourse). Indiana Code section 35-42-4-4(d) is not unconstitutional under Article 1, Section 9.

II. Sentencing Challenge

[22] Alternatively, Michael contends that the trial court abused its discretion in sentencing him to an aggregate, four-year sentence. Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh'g, 875 N.E.2d 218 (Ind. 2007). “An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Id. (quotation omitted).

[23] Michael was convicted of three counts of Level 6 felony possession of child pornography. “A person who commits a Level 6 felony ․ shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 1/212) years, with the advisory sentence being one (1) year.” Ind. Code § 35-50-2-7(b). The trial court sentenced Michael to a term of two years for each conviction and ordered that “Counts 2 and 3 shall run concurrent with one another and Count 1 shall run consecutive to Counts 2 and 3 for an aggregate sentence of 4 years[.]” Appellant's App. Vol. II p. 77.

[24] In arguing that the trial court abused its discretion in sentencing him, Michael argues that the trial court should not have ordered two of his sentences to run consecutively because his act of acquiring the photographs in question reflected, at most, a single episode of criminal conduct. Indiana Code section 35-50-1-2(c) provides that “[e]xcept for crimes of violence, the total of the consecutive terms of imprisonment ․ to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the period described in subsection (d).” Indiana Code section 35-50-1-2(d)(1) provides that “[i]f the most serious crime for which the defendant is sentenced is a Level 6 felony, the total of the consecutive terms of imprisonment may not exceed four (4) years.”

[25] We need not decide whether Michael's possession of multiple pornographic images reflected a single episode of criminal conduct because, even if so, Michael's sentence did not exceed the maximum penalty allowed by statute. Again, Indiana Code section 35-50-1-2(d)(1) allows for a sentence not to exceed four years, and the trial court imposed an aggregate four-year sentence. A trial court “may impose any sentence that is ․ authorized by statute.” Ind. Code § 35-38-1-7.1(d). That is precisely what the trial court did here, and Michael has failed to convince us that the trial court abused its discretion in sentencing him.

[26] The judgment of the trial court is affirmed.

FOOTNOTES

1.   In reviewing Michael's contention that Indiana Code Section 35-42-4-4(d) is unconstitutional, we note that we have previously found a different subsection of this statute, which had outlawed possession of an image depicting child pornography but did not include actual children, to be unconstitutional. See F.G. v. State, 244 N.E.3d 972, 974–76 (Ind. Ct. App. 2024). It is uncontested that the images at issue in this case depicted K.C., i.e., an actual child. Our opinion in F.G. therefore does not control.

2.   K.C. graduated high school on May 24, 2024.

3.   Michael cites to Hale v. State, 171 N.E.3d 141, 148 (Ind. Ct. App. 2021), trans. denied, in his reply brief for the contention that “[t]here are two types of constitutional vagueness challenges that can be made to a given criminal statute: as-applied and facial.” To the extent that Michael also raised a facial challenge, we reach the same conclusion, i.e., that the statute is not unconstitutionally vague.

Bradford, Judge.

Judges Pyle and Kenworthy concur. Pyle, J., and Kenworthy, J., concur.