Man loses constitutionality appeal of child-porn conviction

Indiana’s child pornography statute is not unconstitutionally vague, the Indiana Court of Appeals ruled Wednesday, rejecting a northern Indiana man’s challenge to his conviction. The appeals court also found the evidence against the defendant was supported a jury’s guilty verdict.

The appellate panel’s ruling in Robert Arthur Cutshall II v. State of Indiana, 20A-CR-838, let stand the Level 6 felony possession of child pornography conviction rendered by a Huntington Circuit Court jury against Robert Cutshall II.

Investigators found images of prepubescent children engaged in sex acts downloaded onto Cutshall’s cellphone from the website Pornhub, according to the record. The images were found after Cutshall was accused of molesting a 3-year-old child in his home, resulting in  Level 1 felony child molesting charges. Cutshall was found not guilty on one of the Level 1 felony charges but the jury deadlocked on the other, leading to a mistrial on that count after a two-day jury trial.

On appeal of his conviction for possession of child pornography, Cutshall argued the evidence against him was insufficient and the statute was unconstitutionally vague. The COA rejected both arguments.

First, Judge Rudolph Pyle III wrote for the panel, “The detective who conducted the forensic analysis (of Cutshall’s phone) testified that the girls in the images were ‘prepubescent’ females” that “were admitted and published to the jury. … 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.”

Second, the COA noted that while Cutshall had waived his argument that the statute was unconstitutionally vague because he did not raise the argument before the trial court, the court nevertheless addressed the merits of his claim.

“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,” the panel concluded.

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