COOK v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] Neil Cook appeals his convictions for Level 6 felony possession of child pornography,¹ arguing his two convictions stemming from one act of possession violate our state constitutional protection against double jeopardy. We affirm.

Facts and Procedural History

[2] On September 2, 2018, Cook's eleven-year-old daughter, L.C., was visiting his house for the weekend. L.C. had her own cell phone, but it did not have internet access. While her father slept, she used his cell phone to browse the internet and watch videos. L.C. “started going through” Cook's phone and discovered saved images she thought were child pornography. Tr. Vol. 2 at 85. L.C. got out her own cell phone and took a video of what she saw. L.C. then called her mother, who called police. Police officers came to Cook's home and collected his phone as evidence. During a forensic examination of the device, an examiner discovered twelve images of child pornography saved to a SD card ² inside the phone.

[3] The State charged Cook with two counts of possession of child pornography. The information for Count 1 alleges: “between November 15, 2017 and September 2, 2018 in Delaware County ․ Cook did knowingly possess a digitized image that depicts or describes sexual conduct by a child who appears to be less than eighteen (18) years of age and that lacks serious literary, artistic, political or scientific value[.]” Appellant's App. Vol. 2 at 22 (emphasis added). Count 2 is identical except the alleged mens rea is “knowingly or intentionally.” Id. at 23.

[4] A jury trial was held on May 30, 2025. At trial, the State introduced the video recording L.C. took of Cook's phone and physical copies of six images L.C. saw on the phone that day. In closing arguments, the State explained its rationale for the two charges:

Now, why two counts? Because you saw six images, or you have six exhibits, as well as the video full, filled with all the other images of child porn and adult porn. I submit to you that at least two of those photos are child pornography that are separate and distinct images that he should be held accountable for.

Tr. Vol. 2 at 133. The jury found Cook guilty as charged. The trial court sentenced Cook to consecutive terms of two and one-half years on each count, with one year of each sentence executed and the remainder of each suspended to supervised probation.

Cook's convictions do not violate double jeopardy principles.

[5] Cook claims his multiple convictions violate the state constitutional prohibition against double jeopardy because they relied on a single act of possessing digitized images of child pornography.

[6] Article 1, Section 14 of the Indiana Constitution provides, in relevant part: “No person shall be put in jeopardy twice for the same offense.” Ind. Const. Art. 1, § 14. “Substantive double-jeopardy claims principally arise in one of two situations: (1) when a single criminal act or transaction violates multiple statutes with common elements, or (2) when a single criminal act or transaction violates a single statute and results in multiple injuries.” Powell v. State, 151 N.E.3d 256, 263 (Ind. 2020). Cook's substantive double jeopardy claim falls into the second category. When faced with such a claim, we look to whether and to what extent “the applicable statute permits the fragmentation of a defendant's criminal act into distinct units of prosecution.” Id. at 264 (internal quotation and citation omitted). This analysis is a two-step process:

First, we review the text of the statute itself. If the statute, whether expressly or by judicial construction, indicates a unit of prosecution, then we follow the legislature's guidance and our analysis is complete․ But if the statute is ambiguous, then we proceed to the second step of our analysis.

Under this second step, a court must determine whether the facts—as presented in the charging instrument and as adduced at trial—indicate a single offense or whether they indicate distinguishable offenses.

Id. (footnote omitted).

[7] At all relevant times, the statute under which Cook was convicted provided:

(d) A person who knowingly or intentionally possesses or accesses with intent to view:

(1) a picture;

(2) a drawing;

(3) a photograph;

(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).

[8] Applying the Powell framework, this Court has previously held the text of the child pornography statute expressly indicates a unit of prosecution because the legislature defined the crime by listing objects—such as “a digitized image”—in the singular. Koetter v. State, 158 N.E.3d 820, 825 (Ind. Ct. App. 2020). This indicates a legislative intent to criminalize possession of each object of child pornography as a distinct violation. Id. Accordingly, Cook's two convictions based on possessing at least two distinct digitized images of child pornography does not violate the double jeopardy prohibition in our state constitution. See id. (affirming six convictions of Level 6 felony possession of child pornography based on six distinct images).

[9] Cook acknowledges this authority but attempts to distinguish it by pointing to the differing mens rea charged in Count 1 (“knowingly”) and Count 2 (“knowingly or intentionally”). He claims Count 1 was a “misstatement” of the mens rea element of the statute. Appellant's Br. at 12. And because the statute was “misrepresented” to the jury, it “naturally becomes ambiguous which leads to the second step of the double jeopardy analysis.” Id. at 14.

[10] The charging information contains no misstatement. The mens rea element in the statute is written in the disjunctive, and so the requirement may be satisfied by proving the defendant's state of mind was either knowing or intentional. See Runyon v. State, 939 N.E.2d 613, 616 (Ind. 2010) (holding that because the statutory phrase “recklessly, knowingly, or intentionally” appears in the disjunctive and prescribes alternative considerations, the mens rea requirement may be satisfied by adequate evidence that a defendant's act was either reckless, knowing, or intentional). In Count 1, the State charged Cook only with knowing possession, but that does not render the charge legally deficient. It simply means that to secure a conviction, the State was required to prove the specific mens rea that Cook “knowingly” engaged in the prohibited conduct.³ Count 2 tracks the statutory language exactly, making it an accurate statement of law. And in either case, we fail to see how the State's charging decisions create a statutory ambiguity that would require us to depart from precedential case law and engage in step two of the Powell analysis, as Cook suggests it does. Cook possessed two distinct images of child pornography and the statute under which he was charged permitted two separate convictions.

[11] In a related argument, Cook contends that because of the charged mens rea, “the jury was left free to believe that [he] could be found guilty of possession of the same digital image for Count I under the ‘knowingly’ standard and also found guilty of the same digital image for Count II under the ‘intentionally’ standard.” Appellant's Br. at 12–13. He argues this placed him in double jeopardy. Having reviewed the jury instructions ⁴ and closing arguments, we conclude the risk of confusion on this point was insubstantial. The trial court read Count 2 (“knowingly or intentionally”) as written and provided the jury with a definition of “intentionally.” See Tr. Vol. 2 at 72–73, 126–27. But in both the preliminary and final instructions, the trial court (a) defined the offenses in terms of “a person who knowingly possesses” child pornography, and (b) instructed the jury that to convict Cook of each charge, it was required to find he “knowingly possessed” a digitized image of child pornography. See id. at 72–73; 125–26. After final instructions, the State explained its rationale for the two counts, arguing “at least two of those photos are child pornography that are separate and distinct images that he should be held accountable for.” Id. at 133. The record does not support Cook's argument that the jury erroneously believed it could convict him of two offenses based on the same image possessed with different mens rea.⁵

Conclusion

[12] Cook's two convictions for two distinct digitized images of child pornography do not violate our state constitutional protection against double jeopardy.

[13] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-4(d) (2017). As of July 1, 2025, the statute uses the phrase “child sex abuse material” rather than “child pornography.” See I.C. § 35-42-4-4(d) (2025). We refer to the version of the statute in effect at the time of Cook's offenses.

2.   A SD card is a small “wafer type of chip that you just insert into the side of the phone and it expands the memory of the phone.” Tr. Vol. 2 at 105.

3.   This is not a case, for example, where the State's charging information or the jury instructions stated a lesser mens rea than the statute required. See, e.g., Hall v. State, 937 N.E.2d 911, 913 (Ind. Ct. App. 2010) (holding it was fundamental error to instruct the jury that it could convict based on a lesser mens rea than provided in the statute). Even if the charging information here were flawed, the failure to timely challenge an allegedly defective charging information results in waiver of the issue. Vest v. State, 930 N.E.2d 1221, 1224 (Ind. Ct. App. 2010), trans. denied.

4.   Cook did not provide a copy of the jury instructions in the appendix, but the trial court read them aloud and they appear in the jury trial transcript.

5.   Cook does not frame his argument as a unanimity problem or cite related case law. But to the extent Cook's argument implies such a problem, he has waived this issue. See Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006) (“If an issue was known and available but not raised on appeal, it is waived.”).

Kenworthy, Judge.

Tavitas, C.J., and Bailey, J., concur.