MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                            Oct 25 2016, 7:07 am

this Memorandum Decision shall not be                                 CLERK
regarded as precedent or cited before any                         Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven Knecht                                            Gregory F. Zoeller
Vonderheide & Knecht, PC                                 Attorney General of Indiana
Lafayette, Indiana                                       Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Terik C. Prater,                                         October 25, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         08A02-1602-CR-406
        v.                                               Appeal from the Carroll Superior
                                                         Court
State of Indiana,                                        The Honorable Kurtis G. Fouts,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         08D01-1507-F6-59



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 08A02-1602-CR-406 | October 25, 2016    Page 1 of 9
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Terik C. Prater (Prater), appeals his conviction for

      dissemination of matter harmful to minors, a Level 6 felony, Ind. Code § 35-49-

      3-3(a)(1).


[2]   We affirm.


                                                     ISSUE

[3]   Prater raises one issue on appeal, which we restate as follows: Whether the

      State presented sufficient evidence to support his conviction for dissemination

      of matter harmful to minors.


                           FACTS AND PROCEDURAL HISTORY

[4]   In May of 2015, sixteen-year-old T.M. was living in her great uncle’s house,

      along with her father and younger siblings, in Flora, Carroll County, Indiana.

      Prater, who lived approximately one block away from T.M., was friends with

      T.M.’s father. In addition, Prater’s children are close in age to T.M.’s siblings.

      Thus, Prater and his family frequently interacted with T.M. and her family. At

      the time, T.M.’s father did not have a working phone, so Prater communicated

      with T.M.’s father via T.M.’s cellphone.


[5]   On the morning of May 18, 2015, T.M. checked her cellphone and discovered

      that between 12:35 a.m. and 2:44 a.m., Prater had sent her a series of sexually

      explicit messages—including multiple photographs of his erect penis, using the

      Facebook Messenger application. T.M., who “was shocked and scared,”


      Court of Appeals of Indiana | Memorandum Decision 08A02-1602-CR-406 | October 25, 2016   Page 2 of 9
      informed her father about the messages. (Tr. p. 15). On May 19, 2015, T.M.’s

      father reported the matter to the Flora Police Department. The Chief of Police,

      Paul Redmon (Chief Redmon), interviewed T.M. and obtained a copy of the

      messages and photographs from T.M.’s cellphone.


[6]   On May 20, 2015, at approximately 9:15 a.m., Chief Redmon and two

      representatives from the Indiana Department of Child Services arrived at

      Prater’s residence. Prater’s wife answered the door and allowed the trio inside.

      Prater, after receiving his Miranda warnings and signing a form to acknowledge

      that he was advised of his rights, agreed to speak with Chief Redmon. 1 Chief

      Redmon informed Prater about T.M.’s report that he had sent her sexually

      explicit messages and photographs. Prater explained that he typically sent

      messages of a sexual nature and nude photographs to his wife and other women

      as a means of relieving stress, but he denied that he sent any such messages to

      T.M. When Chief Redmon began reading the content of the messages aloud,

      Prater’s “wife became upset and left the room.” (Tr. p. 30). Prater eventually

      admitted that he did send the explicit messages to T.M., although he also

      indicated that it was done accidentally.


[7]   On July 31, 2015, the State filed an Information, charging Prater with Count I,

      dissemination of matter harmful to minors, a Level 6 felony, I.C. § 35-49-3-

      3(a)(1); and Count II, distribution or exhibition of obscene matter, a Class A




      1
          Chief Redmon unsuccessfully attempted to record the interview using his iPhone.


      Court of Appeals of Indiana | Memorandum Decision 08A02-1602-CR-406 | October 25, 2016   Page 3 of 9
      misdemeanor, I.C. § 35-49-3-1(2). On October 7, 2015, Prater entered into a

      plea agreement with the State, pursuant to which he agreed to plead guilty to

      Count I in exchange for the State’s dismissal of Count II. The plea agreement

      left sentencing to the discretion of the trial court, with the stipulation that the

      trial court would not impose an executed term in excess of two years.

      However, on October 29, 2015, Prater moved to withdraw his guilty plea,

      which the trial court granted over the State’s objection.


[8]   On December 29, 2015, the trial court conducted a jury trial. During the State’s

      case-in-chief, T.M. testified, in part, that she had been present during a

      conversation between her father and Prater, in which her father specifically

      informed Prater that T.M. was only sixteen years old. Chief Redmon also

      testified as to Prater’s admissions made during his interview, and the State

      offered a copy of the messages and photographs into evidence. During his case-

      in-chief, Prater testified that he had no recollection of his interview with Chief

      Redmon at 9:15 a.m. on May 20, 2015, “because “[i]t was very early in the

      morning and I was not comprehensive.” (Tr. p. 46). However, he claimed that

      he never admitted that he sent the messages to T.M. Instead, Prater testified

      that he intended to send the messages and photographs to another female

      friend, but he stated that he “was having problems with my phone. And plus I

      had been consuming a lot of alcohol in the night.” (Tr. p. 45). At the close of

      the evidence, Prater moved for a directed verdict on Count II, which the trial




      Court of Appeals of Indiana | Memorandum Decision 08A02-1602-CR-406 | October 25, 2016   Page 4 of 9
       court granted. 2 Thereafter, the jury returned a guilty verdict for Count I, and

       the trial court entered a judgment of conviction on the same. On January 25,

       2016, the trial court held a sentencing hearing and ordered Prater to execute

       two and one-half years in the Indiana Department of Correction.


[9]    Prater now appeals. Additional facts will be provided as necessary.


                                     DISCUSSION AND DECISION

[10]   Prater claims that the State presented insufficient evidence to support his

       conviction for dissemination of matter that is harmful to minors as a Level 6

       felony. When reviewing whether there is sufficient evidence to uphold a

       criminal conviction, our court does not reweigh evidence or assess the

       credibility of witnesses. Melton v. State, 993 N.E.2d 253, 255 (Ind. Ct. App.

       2013), trans. denied. “We consider only the evidence supporting the judgment

       and any reasonable inferences that can be drawn from such evidence.” Id.

       (quoting Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009)). We will affirm the

       conviction so long as “there is substantial evidence of probative value such that

       a reasonable trier of fact could have concluded the defendant was guilty beyond

       a reasonable doubt.” Id.




       2
         Indiana Code 35-49-3-1(2) provides that “[a] person who knowingly or intentionally . . . offers to distribute,
       distributes, or exhibits to another person obscene matter . . . commits a Class A misdemeanor.” The
       charging Information alleged only that Prater “knowingly or intentionally distribute[d]” photographs of his
       erect penis to T.M. (Appellant’s App. p. 10) (emphasis added). “Distribute” is statutorily defined as “to
       transfer possession for a consideration[,]” and in the present case, there was no evidence presented that Prater
       transferred the explicit photographs to T.M. in exchange for any consideration. I.C. § 35-49-1-2.

       Court of Appeals of Indiana | Memorandum Decision 08A02-1602-CR-406 | October 25, 2016              Page 5 of 9
[11]   Indiana Code section 35-49-3-3(a)(1) provides that “a person who knowingly or

       intentionally . . . disseminates matter to minors that is harmful to minors . . .

       commits a Level 6 felony.” “Matter” includes, in part, any “printed or written

       material” or any “picture, drawing, photograph, motion picture, digitized

       image, or other pictorial representation.” I.C. § 35-49-1-3(1)-(2). “Matter” will

       be considered “harmful to minors” if:


               (1) it describes or represents, in any form, nudity, sexual conduct,
               sexual excitement, or sado-masochistic abuse;
               (2) considered as a whole, it appeals to the prurient interest in sex
               of minors;
               (3) it is patently offensive to prevailing standards in the adult
               community as a whole with respect to what is suitable matter for
               or performance before minors; and
               (4) considered as a whole, it lacks serious literary, artistic,
               political, or scientific value for minors.


       I.C. § 35-49-2-2. Additionally, in this case, Prater was alleged to have

       disseminated sexually explicit messages to T.M. via Facebook Messenger. The

       statute governing the dissemination of matter harmful to minors


               does not apply if a person disseminates, displays, or makes
               available the matter [that is harmful to minors] through the
               Internet, computer electronic transfer, or a computer network
               unless:
               (1) the matter is obscene under [Indiana Code section] 35-49-2-1;
               (2) the matter is child pornography under [Indiana Code section]
               35-42-4-4; or
               (3) the person distributes the matter to a child less than eighteen
               (18) years of age believing or intending that the recipient is a
               child less than eighteen (18) years of age.


       Court of Appeals of Indiana | Memorandum Decision 08A02-1602-CR-406 | October 25, 2016   Page 6 of 9
       I.C. § 35-49-3-3(b).


[12]   Prater concedes that there is sufficient evidence to establish that he

       disseminated matter that is harmful to minors to T.M. by sending “photos of

       [his] erect penis[] and texts involving explicit suggestions about what [he]

       wanted to do to and with [T.M.].” (Appellant’s Br. p. 11). On appeal, he

       contends that the State failed to prove that he did so knowingly or intentionally

       as required by Indiana Code section 35-49-3-3(a)(1). Instead, he argues that the

       evidence reveals that he intended to send the explicit messages to another

       female.


[13]   “Intent is a mental state of the actor, and as such, the trier of fact must resort to

       reasonable inferences based upon examination of the surrounding

       circumstances to determine intent. Circumstantial evidence is sufficient if an

       inference may reasonably be drawn from that evidence which supports the

       verdict.” Mitchell v. State, 557 N.E.2d 660, 664 (Ind. 1990) (citation omitted).

       The State argues that Prater’s intent to send the explicit messages and

       photographs to T.M. can be inferred from the “preliminary, non-explicit

       chitchat before Prater sent the first explicit photograph” because it “strains

       credulity to think that one party to a message series would continue to send a

       lengthy train of messages while remaining unaware of who the replying party

       was.” (State’s Br. p. 9). However, because State’s Exhibit 1, which contains a

       copy of the messages and photographs disseminated, was not submitted to our

       court, we are unable to review the messages for any context that would indicate

       Prater’s intent as to the recipient of his messages.

       Court of Appeals of Indiana | Memorandum Decision 08A02-1602-CR-406 | October 25, 2016   Page 7 of 9
[14]   Nevertheless, considering the evidence available, we find ample support for the

       jury’s finding that Prater knowingly or intentionally disseminated his messages

       to T.M. The record reveals that several hours prior to sending the first sexually

       explicit message, Prater and T.M. exchanged innocent messages on Messenger

       for T.M. to relay to her Father. According to both T.M. and Chief Redmon,

       when individuals communicate via Facebook Messenger, the name and

       photograph of the other person are displayed “beside the message.” (Tr. p. 23).

       Thus, Prater would have been able to clearly see that he was communicating

       with T.M. prior to transmitting the explicit messages. Moreover, our court

       does not reweigh evidence, and it was well within the province of the jury to

       discredit Prater’s testimony that he meant to send the messages to another

       woman but that his malfunctioning phone and alcohol consumption somehow

       caused him to inadvertently send the messages to T.M. See Melton, 993 N.E.2d

       at 255.


[15]   Finally, noting that the messages were disseminated via the Internet (i.e.,

       Facebook Messenger), Prater also asserts that the State failed to prove that he

       sent the messages to a child less than eighteen years of age with the belief that

       the recipient is less than eighteen years of age. See I.C. § 35-49-3-3(b)(3).

       Again, he argues that the State failed to “rebut [his] contention that he had

       intended to instead send the message(s) to another recipient.” (Appellant’s Br.

       p. 13). Pursuant to Indiana Code section 35-49-3-3(b)(3), the statute governing

       the dissemination of matter harmful to minors does not apply for messages

       transmitted over the Internet unless “the person distributes the matter to a child


       Court of Appeals of Indiana | Memorandum Decision 08A02-1602-CR-406 | October 25, 2016   Page 8 of 9
       less than eighteen (18) years of age believing or intending that the recipient is a

       child less than eighteen (18) years of age.” (emphasis added). As previously

       noted, Prater cannot be said to have “distribute[d]” matter to T.M. because he

       did not transfer the photographs/messages in exchange for consideration. See

       I.C. § 35-49-1-2. Nonetheless, an individual may still be liable under Indiana

       Code section 35-49-3-3 for disseminating matter via the Internet if the State

       establishes either that the matter is obscene or that the matter is child

       pornography. I.C. § 35-49-3-3(b)(1)-(2). As Prater does not assert that the State

       failed to prove either that the matter is considered obscene or that the matter

       constitutes child pornography, we find that he has waived this argument for

       appeal. See Ind. Appellate Rule 46(A)(8)(a).


                                               CONCLUSION

[16]   Based on the foregoing, we conclude that the State presented sufficient evidence

       to support Prater’s conviction for dissemination of matter that is harmful to

       minors.


[17]   Affirmed.


[18]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision 08A02-1602-CR-406 | October 25, 2016   Page 9 of 9
