Katie Stancombe for www/theindianalawyer.com

The ability to take a screenshot and save images on Snapchat is probative evidence in charging a man with child pornography, the Indiana Court of appeals ruled.

Anthony A. Keith was convicted with Level 6 felony possession of child pornography involving Snapchat images after he requested via text message that a then-14-year-old girl send him nude images, saying “[n]obody will see them now.”

H.T. met Keith at Yogi Bear Jellystone Park in Knightstown while she was camping with her family. At some point, Keith asked H.T. for her cell phone number, and the two exchanged numbers. Keith and H.T. would text each other daily. They also communicated via Snapchat, a cellphone app used to message and send pictures with limited viewing times. The images disappear after a certain number of seconds.

In October 2015, Keith asked H.J. to “play with his [penis]” and if he could fondle her. He also took pictures of H.T.’s vagina with his phone.

H.T continued to send pictures of herself from October 2015 to January 2016 because she believed she was in a relationship with him. She confirmed Keith sent her pictures as well.

At trial, H.T. testified that, at the time she and Keith “were becoming friends … and texting and Snapchatting each other,” Keith knew her age because they “shared the same birthday,” meaning the same month and date. She testified she did not know his birth year but that she knew he was about 46.

H.T. received Keith’s images through Snapchat and saved the photographs to her phone “[a] couple of time[s], but … deleted them” because Keith would say that she needed to delete them before his wife found out, and that he would talk about deleting items “[a]t least once a week, or every time we – he sent a picture.”

Keith argued whether there was sufficient evidence to sustain his convictions, stating that merely receiving an image sent by somebody else that is automatically deleted by the application is not possession under Indiana law. He asserted that the “issue of whether receiving child pornography through Snapchat is knowing or intentional ‘possession’ is an issue of first impression in Indiana” and that the child pornography statute in effect at the time of the offense prohibited only possession, and not viewing, of child pornography.

Keith also argued that police did not find any images on his computer or cell phone.

The appellate court found that regardless of whether Snapchat automatically deleted the photos, Keith could still control what happened to the images in the brief interim before they were deleted by saving them to his phone and reducing them to his personal possession.For those reasons, it affirmed Keith’s conviction for possession of child pornography as a level 6 felony in Anthony A. Keith v. State of Indiana, 33A01-1712-CR-2981.