Clifford Dale Koch, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Clifford Koch (“Koch”) appeals his conviction, following a jury trial, of Level 4 felony child solicitation ¹ and the sentence imposed thereon. He argues that: (1) the evidence is insufficient to support his conviction; and (2) his sentence is inappropriate. Concluding that: (1) there is sufficient evidence to support Koch's conviction; and (2) Koch has failed to show that his sentence is inappropriate, we affirm the trial court's judgment.

[2] We affirm.

Issues

1. Whether there is sufficient evidence to support Koch's conviction for Level 4 felony child solicitation

2. Whether Koch's sentence is inappropriate.

Facts

[3] In December 2023, thirty-nine-year-old Koch, who lived in Ohio, saw a profile for Summer Parker (“Summer”) on Facebook. The profile clearly provided that Summer was thirteen years old and included a photograph of an individual who looked thirteen years old. Unbeknownst to Koch, the Facebook profile for Summer was not for an actual person. Rather, Joshua Davis (“Davis”), who operates Online Predator Intervention (“OPI”) in Illinois, created Summer's profile to expose online child predators. The photograph on Summer's profile was a photograph of Davis’ thirty-three-year-old wife, with “AI altering her ․ to look younger.” (Tr. Vol. 2 at 208).

[4] In February 2024, Koch used his cell phone to send Summer a message through Facebook Messenger. Specifically, Koch asked Summer if she had a boyfriend and if she would date someone older. Summer used her cell phone to respond to Koch through Facebook Messenger. Specifically, Summer told Koch that she was only thirteen years old. Koch responded that he did not mind that Summer was thirteen years old and told her that he was thirty-eight years old. He further told Summer that she was beautiful and asked her if she wanted to be his girlfriend. Summer responded that that would be “cool[.]” (Ex. Vol. 5 at 20). In addition, Summer told Koch that she lived in Indiana.

[5] Koch's messages to Summer immediately became sexual. Specifically, in one message, Koch told Summer that he was “horny a lot” and asked her if she would send him “[n]ude pics[.]” (Ex. Vol. 5 at 20). Summer responded that she did not “send those ever.” (Ex. Vol. 5 at 20). In another message, Koch asked Summer if she had ever seen a “dick.” (Ex. Vol. 5 at 33). When Summer responded that she had not, Koch sent Summer several photographs of his erect penis. Koch also told Summer that he would like to have sexual intercourse with her and that just thinking about that was making him “hard.” (Ex. Vol. 5 at 38).

[6] During February and March 2024, Koch continued to message Summer about having sexual intercourse with her and told her that he would “guide [her] through everything.” (Ex. Vol. 5 at 49). Koch also told Summer that he was glad that she was “ok with [their] age difference” but that they would have to “hide [their] relationship” because he “could actually get into a lot of trouble” and “go to prison if anyone found out[.]” (Ex. Vol. 5 at 58, 59).

[7] In March 2024, Koch messaged Summer that he was going to visit her in Indiana the following weekend and asked her if she was ready to lose her virginity. In addition, Koch told Summer that after paying for a hotel room for two nights, he would have $500 to spend for the weekend. Koch further told Summer to “practice giving a blow job ․ on a banana.” (Ex. Vol. 5 at 76). Specifically, Koch instructed Summer to “suck on [the banana], without scraping it with [her] teeth, and [to] try to get as much of it in [her] mouth as [she could].” (Ex. Vol. 5 at 77).

[8] Koch also asked Summer if she wanted to video chat and “watch [him] cum[.]” (Ex. Vol. 5 at 79). Summer responded that she was unable to video chat on her cell phone, and at some point, Koch, using Facebook Messenger, sent her close up videos of his erect penis while he masturbated and ejaculated. Koch also asked Summer if she had ever masturbated. When she responded that she had not, Koch told her that he would telephone her and would “talk [her] through it on the phone.” (Ex. Vol. 5 at 102). When Koch made that telephone call using Facebook Messenger, Summer audiotaped it.² Koch also sent Summer a photograph of a naked woman sitting on top of a man's face.

[9] Koch was not able to visit Summer in March 2024 because his car had broken down. In May 2024, Koch messaged Summer that he was going to pick up a car in Chicago and would be able to stop in Indiana on his way back to Ohio. Koch and Summer agreed to meet at the Walmart in Bluffton, Indiana. In addition, Koch told Summer that he did not have enough money to pay for a hotel room so they would “have to find a secluded place to park and have sex in the car.” (Ex. Vol. 5 at 145). Summer responded that that would be okay.

[10] After Koch and Summer had arranged to meet at Walmart, Davis contacted Eric Schmutte (“Schmutte”), who is the president of Predator Catchers, Inc. (“PCI”), an Indiana organization that is similar to OPI. Davis explained that he lived in Illinois and asked Schmutte if he could go to the Bluffton Walmart to meet Koch. Schmutte agreed, and he and the two PCI vice presidents went to Walmart and waited for Koch to arrive.

[11] When Koch walked into Walmart expecting to meet Summer, Schmutte approached Koch. After Schmutte had told Koch who he was and what organization that he was representing, Koch became “very nervous” and turned around to exit the store. (Tr. Vol. 3 at 191). Schmutte followed Koch, videotaped him, and broadcast the video on Facebook and YouTube. When Koch reached the exit doors, he began running through the parking lot.

[12] At the same time, Bluffton Police Department officers, who had been dispatched to Walmart, arrived and ordered Koch to stop. Koch ignored the officers and ran into a nearby wooded area. The officers chased Koch into the woods, apprehended him, and took him to the police department for questioning. During a recorded interview, Koch told two officers that Summer had told him that she was fifteen years old, that he had suspected that she was an adult, and that he had stopped at Walmart to confirm his suspicion.

[13] In November 2024, the State filed an amended information charging Koch with Level 4 felony child solicitation and Class A misdemeanor resisting law enforcement. At Koch's April 2025 jury trial, the trial court admitted into evidence the Facebook Messenger messages between Koch and Summer, including the photographs of Koch's erect penis, two videos of Koch masturbating and ejaculating, and the photograph of the naked woman sitting on the man's face. The trial court also admitted into evidence an audiotape of the telephone call wherein Koch instructed Summer how to masturbate. In addition, the trial court admitted into evidence the video Schmutte took of Koch at Walmart and the video of Koch's interview with the two Bluffton Police Department officers.

[14] Also, during the trial, Ryan Welbaum (“Welbaum”), a digital forensics examiner, testified that he had examined Koch's cell phone and had discovered that Koch and Summer had communicated by cell phones using the Facebook Messenger app. Welbaum agreed that “Facebook Messenger ․ goes over the Internet when you use it[.]” (Tr. Vol. 3 at 216). Further, according to Welbaum, both Wi-Fi and cellular data connections “go over the Internet.” (Tr. Vol. 3 at 216).

[15] The jury convicted Koch of both charges. At his May 2025 sentencing hearing, the trial court reviewed Koch's pre-sentence investigation report, which revealed that Koch has a more than twenty-year criminal history in Ohio. Specifically, Koch has two convictions for 4th degree felony unlawful sexual misconduct with a minor, two convictions for 3rd degree felony failure to provide change of address, and one conviction each for 4th degree felony failure to provide change of address, 5th degree felony breaking and entering, and 4th degree felony importuning.³ Koch has served several years in the Ohio Department of Rehabilitation and Correction for these felony convictions, and he also has a history of violating the terms and conditions of his community corrections placement. In addition, Koch has a misdemeanor conviction for indecent exposure and was on “intensive supervised probation” for that conviction when he committed the offenses in this case. (App. Vol. 2 at 150).

[16] Thereafter, the trial court found the following aggravating factors: (1) Koch's lengthy criminal history, which revealed that he was unwilling to comply with the law; (2) the particularly serious nature of the offense, which included Koch sending Summer multiple pictures of his genitalia and videos of himself masturbating; and (3) Koch's history demonstrated that he had a “compulsion” to seek out minors. (Tr. Vol. 4 at 56). The trial court sentenced Koch to twelve (12) years executed in the Department of Correction for the Level 4 felony conviction and 180 days in the county jail for the Class A misdemeanor resisting law enforcement conviction. Further, the trial court ordered the sentences to run concurrently with each other.

[17] Koch now appeals.

Decision

[18] Koch argues that: (1) there is insufficient evidence to support his conviction; and (2) his sentence is inappropriate. We address each of his contentions in turn.

1. Sufficiency of the Evidence

[19] Koch first argues that there is insufficient evidence to support his conviction for Level 4 felony child solicitation. We disagree.

[20] “Our standard for reviewing evidentiary sufficiency challenges is well established, as we have made clear that 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.” Konkle v. State, 253 N.E.3d 1068, 1090 (Ind. 2025) (cleaned up). “A conviction is supported by sufficient evidence if there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Id. (cleaned up). We review only the evidence most favorable to the verdict and the reasonable inferences therefrom and will reverse “only where it is shown that no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Id. at 1090-91 (cleaned up).

[21] To convict Koch of Level 4 felony child solicitation, the State had to prove beyond a reasonable doubt that Koch, who was eighteen years of age or older, knowingly or intentionally solicited an individual who Koch believed to be a child under fourteen years of age to engage in sexual intercourse or other sexual conduct by using a computer network (as defined by Indiana Code § 35-43-2-3(a)) and traveled to meet the individual who Koch believed to be a child. See I.C. § 35-42-4-6(b). Further, Indiana Code § 35-43-2-3(a) provides, in relevant part, that “ ‘[c]omputer network’ means the interconnection of communication lines or wireless telecommunications with a computer or wireless telecommunication device through ․ the Internet.”

[22] Koch's sole argument is that the State failed to prove beyond a reasonable doubt that he used a “computer network” to solicit Summer. (Koch's Br. 14). However, our review of the evidence reveals that Welbaum testified that Koch and Summer used cell phones, which are wireless telecommunications devices, to communicate. Welbaum further testified that Koch and Summer used the Facebook Messenger app to communicate. According to Welbaum, the Facebook Messenger app “goes over the Internet when you use it[.]” (Tr. Vol. 3 at 216). Accordingly, the State presented evidence that Koch and Summer communicated using wireless telecommunication devices through the internet. This evidence is sufficient to prove beyond a reasonable doubt that Koch used a computer network to solicit Summer. Accordingly, there is sufficient evidence to support Koch's conviction.

2. Inappropriate Sentence

[23] Koch also argues that his twelve-year sentence for Level 4 felony child solicitation is inappropriate. He specifically asks this Court to “reduce [his] sentence[.]” (Koch's Br. 24).

[24] Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized by statute if, after due consideration of the trial court's decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. The defendant bears the burden of persuading this Court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate turns on the “culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Sentence modification under Rule 7(B) is reserved for a “rare and exceptional case.” Skeens v. State, 191 N.E.3d 916, 923 (Ind. Ct. App. 2022) (cleaned up).

[25] When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence is the starting point the Legislature has selected as an appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081. Here, the trial court convicted Koch of Level 4 felony child solicitation. The sentencing range for a Level 4 felony is between two (2) and twelve (12) years, and the advisory sentence is six (6) years. See I.C. § 35-50-2-5.5. The trial court sentenced Koch to twelve years, which is the maximum sentence.

[26] With regard to the nature of the offense, Koch argues that his communications with Summer “were not more egregious than what was necessary to meet the statutory definition” of child solicitation. (Koch's Br. 18). However, our review of the record reveals that Koch did not merely solicit Summer, who he believed to be thirteen years old, to engage in sexual intercourse. In addition to that solicitation, he: (1) asked her to send him nude photographs of herself; (2) sent her several photographs of his erect penis; (3) sent her a photograph of a naked woman sitting on a man's face; (4) instructed her to practice fellatio on a banana; (5) sent her close-up videos of his erect penis while he was masturbating and ejaculating; and (6) attempted to teach her how to masturbate during a telephone call. Such actions shock the conscience and merit an enhanced sentence.

[27] With regard to his character, Koch argues that his “moderate criminal history in no way supports the maximum sentence he received[.]” (Koch's Br. 20). However, our review of the record reveals that Koch has more than a moderate criminal history. Specifically, we note that he has a more than twenty-year criminal history in Ohio, which includes seven felony convictions and one misdemeanor conviction. Two of the felony convictions were for unlawful sexual conduct with a minor, and one of the felony convictions was for importuning, which is Ohio's version of child solicitation. In addition, Koch has a misdemeanor conviction for indecent exposure and was on intensive supervised probation for that offense when he committed the offenses in this case. These convictions reveal Koch's proclivity for perpetrating sexual offenses against minors and reflect poorly on his character.

[28] Based on the nature of the offense and his character, Koch has failed to persuade this Court that his twelve-year sentence is inappropriate. We further note that this is simply not one of those rare and exceptional cases for which a sentence modification under Rule 7(B) is reserved. Therefore, we affirm Koch's sentence.⁴

[29] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-6. The jury also convicted Koch of Class A misdemeanor resisting law enforcement. However, he does not appeal that conviction or sentence.

2.   Davis’ wife spoke with Koch during the telephone call and spoke with “a higher pitch” to disguise her voice. (Tr. Vol. 3 at 25).

3.   In Ohio, the offense of importuning is similar to the Indiana offense of child solicitation. Specifically, importuning is soliciting a person by means of a communication device to engage in sexual activity. See Ohio Rev. Code Ann. § 2907.07. The degree of the felony depends, in part, on the age of the child.

4.   Koch also argues that this Court should, as a matter of “public policy[,]” “modify [his] sentence to time served” to “take a stand against vigilante justice that OPI, PCI, and other similar organizations[ ] are undertaking[.]” (Koch's Br. 12, 23). First, Koch has waived appellate review of this argument because he has failed to support it with legal authority. See Ind. Appellate Rule 46(A)(8). Second, the right and responsibility to determine public policy “falls to the legislature, not the courts.” Parsley v. MGA Family Group, Inc., 103 N.E.3d 651, 657 (Ind. Ct. App. 2018) (cleaned up), reh'g denied.

Pyle, Judge.

Vaidik, J., and Mathias, J., concur.