Filed: 22972026 12:09 PM. Clerk Johnson County, Indiana STATE OF INDIANA D} IN THE JOHNSON SUPERIOR COURT 3 SS COUNTY OF JOHNSON) CAUSE NO: 41D03-2311-CM-001119 STATE OF INDIANA vs MITCHELL THOMAS WESTERMAN Defendant. BRIEF IN SUPPORT OF MOTION TO DISMISS FACTS On November 21, 2023, the State of Indiana charged the Defendant with the crime of Conversion, a class A misdemeanor. The State specifically alleges that between August 1, 2023, and October 5, 2023, Westerman did knowingly or intentionally exert unauthorized control over the property of Andrew Baldwin, to wit: images. The probable cause affidavit in this case was filed along with the information. The probable cause affidavit essentially states that at some point during the charged time frame Westerman was in the office and/or conference room of Baldwin. Westerman was alone and took photos of photographs or documents that were left on the conference room table. ‘Westerman did not have permission to take the photos and that Baldwin was not present and did not give Westerman permission to take the photos. The photos that Westerman took were photographs of crime scene photos from the Richard Allen murder case. ANALYSIS The information is defective under Ind, Code 35-34-1-4 because the information fails to recite facts that constitute an offense and must be dismissed under Ind. Code 35-34-1-4(a)(5). The Defendant contends that if every statement in the charging information and the probable cause affidavit were true, the conduct does not rise to the level of conduct necessary to support a conviction for class A misdemeanor Conversion. In order for Westerman to be found guilty of Conversion, the State would have to prove ‘The Defendant is not admitting that every fact in the probable cause affidavit and the information is true. This is| simply a necessary presumption to make when doing the analysis for a Motion to Dismissthe following elements beyond a reasonable doubt: 1. Westerman; 2. Knowingly and/or intentionally; Exerted unauthorized control over property; 4. The property was images owned by Baldwin The information in this case is deficient because it fails to show that Westerman exerted unauthorized control over property and that the property was actually owned by Baldwin, Exerted Unauthorized Control Assuming all facts in both the information and probable cause affidavit are truc, the State has failed to state when or how Westerman has ever exerted control over photographs or images found in Baldwin's office. The State has only alleged that Westerman took unauthorized photos. 1g photos is not the same as exerting control. Ind. Code 35-43-4-1 defines “exert control over property”. Sec. 1. (a) As used in this chapter, “exert control over property” means to obtain, take, carry, drive, lead away, conceal, abandon, sell, convey, encumber, or possess property, or to secure, transfer, or extend a right to property. The all tions in the probable cause affidavit and the information fail to show that Westerman did any of the actions required to meet the definition “exert control over property” The charging documents likely come closest to meeting the definition by implying that ‘Westerman “obtained” the images. This argument fails. Westerman did not obtain the actual images in Baldwin's office. Westerman only obtained images of the images. There is nothing in the charging documents that state that Westerman ever touched the photographs. There is, nothing in the charging documents that states that Westerman ever picked the photographs up ‘There is nothing in the charging documents that states that Westerman ever possessed the actual images. He simply took photos. Taking photos is not in the statutory definition of exerting control over property. There are numerous examples of analogous behavior that are obviously not conversion, ith a “no For example, if an individual goes to a museum and takes a picture of a painting photos” sign next to it, has that person committed conversion? Of course not. If someone takes a photo over their neighbor's fence of the flower garden, have they converted their neighbor's flowers? Again, of course not. Now if the museum patron takes the painting off the wall or the 2conversion, The difference in these neighbor picks the flower, then they are commit examples is whether or not control is being exerted over the property of another. In these examples, just like in Westerman’s case, simply taking a photograph does not meet the definition of exerting control over property. Property of Baldwin The State has also failed to show that Westerman exerted control over property of Baldwin, There have been no allegations made in the charging information that the images were of anything that was copyrighted or trademarked. To the contrary, the allegations are that Westerman took photos of images that were from the discovery in a murder case. ‘These are not images that are owned by Baldwin. These are images that are poss sed by other people involved in the murder case. Other attorneys may have these images. The State has, these images. The police likely have these images. These images may be possessed by the trial court, Baldwin may own the paper that these images were printed on, however, as previously stated there is nothing in the charging information to indicate that Westerman controlled the actual paper. Our Court of Appeals has analyzed a civil case involving an employee using the software 2d 397 (Ind. Ct. Apps. 2005). The Court of a former employer. Coleman v, Vukovich, 825 N. held “(former employee's possession of software did not constitute conversion or trespass to chattel, as to employer; employer did not own the software and instead licensed it, and former employee's illicit copying of the software did not impair employer's ability to use it. Westerman’s case is very similar to Coleman v. Vukovich. Baldwin is similar to the ‘company with the software license, Simply possessing something legally yourself does not mean that you own it for purposes of the conversion statute. By possessing discovery Baldwin is similarly situated to the company that has a license for the software. If anything, the company that actually pays for the software license likely has a stronger claim to ownership than an attorney that receives evidence as part of the dis covery process Conclusion For the above state reasons Westerman does not believe that the charging information of thi adequately states the grounds that an actual erime has occurred, Becaus all charges against Westerman should be dismissed.Respectfully submitted, ds Michael J. Kyle Attorney No. 28187-49 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing pleading has been provided to all counsel of record for the opposing party or parties, Bartholomew County Prosecutor's Office either by personal delivery, facsimile, or first-class mail, or electronic filing this same day of filing, Michael J. Kyle Michael J. Kyle 40% East Jefferson Street Franklin, Indiana 46131 (317) 750-2987