MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Aug 08 2018, 9:02 am
regarded as precedent or cited before any
                                                                              CLERK
court except for the purpose of establishing                              Indiana Supreme Court
                                                                             Court of Appeals
the defense of res judicata, collateral                                        and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Victoria Bailey                                          Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         J.T. Whitehead
Michael G. Moore                                         Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David Freeman,                                           August 8, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1710-CR-2297
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Mark D. Stoner, Judge
                                                         Trial Court Cause No.
                                                         49G06-1604-F5-12303



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2297 | August 8, 2018             Page 1 of 17
[1]   Following a bench trial, David Freeman (“Freeman”) was convicted of Level 5

      felony child solicitation,1 Level 5 felony conspiracy to commit child

      exploitation,2 and Level 6 felony dissemination of material harmful to minors. 3

      Freeman appeals and raises the two following restated issues:


                 I. Whether the evidence was sufficient to support Freeman’s
                 conviction for child solicitation; and


                 II. Whether the evidence was sufficient to support Freeman’s
                 conviction for conspiracy to commit child exploitation.


[2]   We affirm.


                                      Facts and Procedural History
[3]   During the period of time between February 2015 and March 2016, A.G. was

      eleven and twelve years old, and Freeman was eighteen and nineteen years old.

      State’s Ex. 8. During this time, A.G. lived with her mother (“Mother”) and

      exercised parenting time with her father (“Father”), sometimes splitting her

      time equally between them. Tr. Vol. II at 9, 15. A.G. first became acquainted

      with Freeman when A.G.’s step-sister (“Sister”), who was five years older than

      A.G., was communicating with Freeman via FaceTime on Sister’s cell phone,

      and A.G. was sitting nearby. Another time, Sister’s phone battery was dead, so




      1
          See Ind. Code § 35-42-4-6(b).
      2
          See Ind. Code §§ 35-42-4-4(b), 35-41-5-2.
      3
          See Ind. Code § 35-49-3-3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2297 | August 8, 2018   Page 2 of 17
      Sister used A.G.’s phone to communicate with Freeman, and it was by this

      means that A.G. learned Freeman’s phone number. A.G. and Freeman began

      communicating with each other on various phone apps and social media

      platforms, including FaceTime, Snapchat, and Instagram. A.G. initially

      believed Freeman was fifteen or sixteen years of age, but later learned he was

      older. A.G. told Freeman her age in one of their first conversations. Id. at 21.


[4]   The two communicated by text and developed what A.G. believed was a

      romantic relationship. Freeman told A.G. that she was “pretty” and said things

      to A.G. such as “I love you” and “I can’t wait until we can be together.” Id. at

      24, 29. On one occasion, A.G. told Freeman that another boy was “asking

      [her] out[,]” and Freeman told her to tell the boy that she already had a

      boyfriend. Id. at 29. Freeman told A.G. that he was grateful for her, that he

      was upset because he was not allowed to hold her and touch her, that he

      wanted her to know he would always want her, and that he would always be

      there for her. State’s Ex. 1A at 24. A.G. told Freeman that she knew “a lot of

      older men are attracted to younger women,” and she hoped that Freeman did

      not like her only because of her looks and her body, and he told her that he

      liked her “a lot more than that.” Id. at 22.


[5]   In the course of their ongoing conversations on social media, Freeman asked

      A.G. to send him photographs of herself, and she “repeatedly told him no”

      because she “was completely uncomfortable doing it.” Id. at 24-25. When she

      would tell him no, “[h]e would get upset” and act in what she felt was a

      “passive aggressive way” by blocking her or not answering her. Id. at 25, 26.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2297 | August 8, 2018   Page 3 of 17
      A.G. eventually sent nude photos of herself “because [she] really liked

      [Freeman]” and believed that “the only reason he would ever like me” is if she

      sent the pictures. Id. at 27. A.G. estimated that she sent “more than fifteen”

      nude photographs of herself to Freeman, and, although she saved some of their

      text communications, she did not save any of the photographs. Id. at 28, 30,

      31-34, 37; State’s Exs. 3, 4, 5, 6. Freeman sent “probably about the same”

      number of pictures of his penis to A.G. Tr. Vol. II at 28, 51.


[6]   Freeman and A.G. talked about meeting in person, although they never did,

      other than seeing each other at church on a few occasions, and at those times

      they either did not speak to each other or only said “hi.” Id. at 38. A.G.

      testified that “[Freeman] would talk about meeting me and having sex.” Id. at

      30, 50. Freeman wrote to A.G. stating, “I want to make love to you[,]” and for

      their relationship to go where he already knew it was going, “and that is love”

      and “after love, sex[.]” State’s Ex. 1A at 23; State’s Ex. 3 at 4.


[7]   In March 2016, Father discovered some text messages on A.G.’s phone

      between her and Freeman, including one or more requests from Freeman for

      A.G. to send him nude photographs of herself. Father contacted Freeman,

      telling Freeman that he was A.G.’s father. Freeman “volunteered that if this

      was in regards to A.G., that he would stop communicating with her.” Tr. Vol.

      II at 11. Father asked Freeman how old he was, and Freeman said he was

      seventeen. Id. At some later date, Father discovered on A.G.’s phone more

      “inappropriate messages” between her and Freeman, and through online

      research, Father located a phone number for the Freeman household and

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2297 | August 8, 2018   Page 4 of 17
       contacted Freeman’s father. Id. at 12. Father learned through Freeman’s father

       that Freeman was not seventeen years old, as he had said he was. Father also

       contacted Mother, the police, and the prosecutor’s office. Mother also

       contacted and spoke with the police.


[8]    Indianapolis Metropolitan Police Department (“IMPD”) Detective David

       Miller (“Detective Miller”) made a police report, and he contacted cybercrimes

       Detective Laura Smith (“Detective Smith”), who worked in the sex crimes

       division. Father provided Detective Smith with a screenshot of some of the

       communications with Freeman on A.G.’s phone. In a screenshot from July

       2015, Freeman told A.G. that he was not jealous about her boyfriend anymore,

       and A.G. replied, “Great. Have fun being a perv and trying to get other 12 year

       olds to send you nudes.” State’s Ex. 7.


[9]    Detective Smith interviewed A.G. and Father, and she collected various devices

       that A.G. had used to communicate with Freeman, including her phone, iPad,

       and a laptop. Father gave his consent to a forensic search, which was

       conducted by IMPD Detective Grant Melton (“Detective Melton”). Detective

       Smith also obtained and executed a search warrant on Freeman and his

       residence, recovering Freeman’s iPhone and two iPods. She also interviewed

       Freeman.


[10]   During his interview, Freeman stated that he knew A.G. was twelve years old

       and admitted that he asked A.G. to engage in sexual activity but denied that he

       intended to act on it. Tr. Vol. II at 50. He admitted that A.G. complied with


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2297 | August 8, 2018   Page 5 of 17
       his request that she send him photographs and that she sent him one in shorts in

       which her bottom was arousing to him, so he complimented her and requested

       nudes, which she sent. Id. A.G. also sent photographs revealing her breasts.

       Id. at 51. Freeman admitted sending pictures of his penis to A.G.


[11]   On April 5, 2016, the State charged Freeman with four counts: Count I, Level

       5 felony child solicitation, alleging that Freeman knowingly or intentionally

       solicited A.G., who was under age fourteen, to engage in sexual intercourse;

       Count II, Level 5 felony conspiracy to commit child exploitation, alleging that

       Freeman asked A.G. to take a nude photo of herself and send it to him on his

       phone, which she did; Count III, Level 6 felony possession of child

       pornography, alleging that Freeman knowingly or intentionally possessed a

       digitized image that depicted or described sexual conduct by a child who

       Freeman knew to be less than eighteen years of age; and Count IV, Level 6

       felony dissemination of material harmful to minors, alleging that Freeman

       knowingly or intentionally disseminated to A.G. matter harmful to minors by

       sending an image of his penis to A.G. Appellant’s App. at 27-28. Freeman

       waived his right to a jury trial, and on April 26, 2017, a bench trial was held.


[12]   Prior to trial, the parties stipulated to a number of facts, including that Freeman

       was, at the relevant times, nineteen and twenty years old and A.G. was eleven

       and twelve years old, and that Freeman was aware of A.G.’s age throughout

       the entirety of their communications. State’s Ex. 8. The parties also stipulated

       to the admission of certain evidence, including printed reports that were

       produced following the forensic examination of A.G.’s and Freeman’s

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2297 | August 8, 2018   Page 6 of 17
       respective cell phones and other devices that the two had used to communicate

       with each other. Id.


[13]   At trial, A.G. was asked about her conversations with Freeman in which they

       talked about having sex. A.G. was asked, “Did he ask you to have sex?” and

       she replied, “Yes.” Id. at 30. She said Freeman’s request made her feel

       “[u]ncomfortable” but she believed that “it was the only way he would ever like

       me.” Id. at 30. The trial court inquired further on the subject as follows:


               Q: I’m sorry. By sex in your terminology are you referring to
               sexual intercourse or oral sex? What are you -- What do you take
               sex to be?


               A: When two people have sex.


               Q: Which sexual act are you referring to that you assumed you
               were talking about?


               A: Just sex in general.


               Q: Intercourse?


               A: Yeah.


               Q: Okay.


               A: I don’t think it was ever specific.


       Id. at 30-31.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2297 | August 8, 2018   Page 7 of 17
[14]   Detective Smith testified that after she became involved in the case, she

       submitted A.G.’s phone and other devices for forensic examination and that,

       pursuant to a search warrant of Freeman’s home, she recovered devices he had

       used and also submitted those for forensic examination. Detective Smith also

       testified to interviewing Freeman. She said that, initially, Freeman said that he

       thought A.G. “was fifteen or sixteen years old[,]” but later, when confronted

       with the text messages, “he conceded that yes, he knew she was twelve years

       old at the time he was communicating with her.” Id. at 48-49. Freeman

       admitted that he asked A.G. for naked pictures of herself and that she sent him

       naked pictures. Id. at 89, 96. Freeman said that the first picture A.G. sent to

       him was her with shorts on, which was “arousing” to Freeman, so he

       complimented A.G. and asked her to send him more, which she did, including

       a “full nude.” Id. Freeman admitted to sending A.G. pictures of his penis, and

       he estimated that they exchanged photograph more than ten times. When

       Detective Smith asked Freeman if he had asked A.G. to engage in sexual

       activity, Freeman said “Yes” but continued that he “wouldn’t actually have

       done it.” Id. at 50, 94.


[15]   During his interview with Detective Smith, Freeman indicated that he had

       received at least some pictures from A.G. via Snapchat on his iPod. Id. at 95.

       In her experience, Detective Smith knew that some people, in particular, often

       juveniles, had been known to take a picture, using a separate device, of the sent

       photograph, so that the Snapchat sender would not be alerted that a screenshot

       had been taken. With that in mind, Detective Smith asked Freeman whether he


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2297 | August 8, 2018   Page 8 of 17
       had ever taken pictures of any of the photos that A.G. had sent him, and he

       replied that he had not. Id. at 91. However, during subsequent forensic

       examination of Freeman’s iPhone, a photo of A.G. in a towel was found on it.4

       Id. at 81, 91, 95. Detective Melton, who performed the forensic examination of

       the devices, explained that Freeman had received the image of A.G. in a towel

       on another handheld device and that Freeman had used his iPhone to take a

       picture of that image. Id. at 82. Detective Smith said that, during the interview,

       Freeman provided her with passcodes for his iPhone and two iPods, and while

       IMPD eventually received results for the forensic examination of Freeman’s

       iPhone, the passcodes given for his iPods were not correct, and IMPD was not

       able to “get into” the iPods. Id. at 51.


[16]   At the trial court’s request, the parties thereafter submitted written argument in

       support of their respective positions, and, subsequently, the trial court entered

       judgment of conviction as to Counts I, Level 5 felony child solicitation; Count

       II, Level 5 felony conspiracy to commit child exploitation; and Count IV, Level

       6 felony dissemination of material harmful to minors. The trial court entered

       an acquittal as to count III, Level 6 felony possession of child pornography.

       Following a September 2017 sentencing hearing, the trial court sentenced

       Freeman to five years on Counts I and II and to two years on Count IV,

       ordering that the sentences be served concurrently, but suspending the three



       4
        Although the forensic examination of Freeman’s phone revealed other images of exposed female body
       parts, Detective Melton indicated that the only image that he was “able to identify of A.G. on [Freeman]’s
       phone” was the one of her in a towel. Tr. Vol. II at 81; State’s Ex 2A at 15-18.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2297 | August 8, 2018           Page 9 of 17
       sentences to probation, which included a period of home detention. Appellant’s

       App. Vol. II at 18. Freeman now appeals.


                                        Discussion and Decision
[17]   Freeman contends that the State failed to present sufficient evidence to convict

       him of Level 5 felony child solicitation and of Level 5 felony conspiracy to

       commit child exploitation.5 When reviewing a claim of sufficiency of the

       evidence, we do not reweigh the evidence or judge the credibility of witnesses.

       Kuypers v. State, 878 N.E.2d 896, 898 (Ind. Ct. App. 2008), trans. denied; Riehle v.

       State, 823 N.E.2d 287, 292 (Ind. Ct. App. 2005), trans. denied. We look only to

       the probative evidence supporting the judgment and the reasonable inferences

       from that evidence, and we will uphold the conviction if there is substantial

       evidence of probative value to support it. Riehle, 823 N.E.2d at 292. “We will

       affirm unless ‘no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt.’” Delagrange v. State, 5 N.E.3d 354, 356

       (Ind. 2014) (quoting Drane v. State, 867 N.E.2d 144, 146-67 (Ind. 2007)).


                                            I.       Child Solicitation
[18]   Freeman argues that the evidence was insufficient to convict him of child

       solicitation. Indiana Code section 35-42-4-6(b) provides, in relevant part:




       5
        Freeman does not challenge his conviction for Level 6 felony dissemination of matter harmful to minors,
       asking for reversal only of the child solicitation and conspiracy to commit child exploitation convictions.
       Appellant’s Br. at 13.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2297 | August 8, 2018           Page 10 of 17
               A person eighteen (18) years of age or older who knowingly or
               intentionally solicits a child under fourteen (14) years of age, or
               an individual the person believes to be a child under fourteen (14)
               years of age, to engage in sexual intercourse, other sexual
               conduct [], or any fondling or touching intended to arouse or
               satisfy the sexual desires of either the child or the older person,
               commits child solicitation, a Level 5 felony.


       The term “solicit” as used in the section, means “to command, authorize, urge,

       incite, request, or advise” a child to commit the act. Ind. Code § 35-42-4-6(a).

       However, “[t]here is no requirement that a solicitor actually complete the act of

       meeting with his or her victim to commit the crime of child solicitation.”

       Kuypers, 878 N.E.2d at 899. “Furthermore, the statute does not require that the

       solicitor inject details into the conversation such as the time and place of the

       act.” Id. Here, to convict Freeman as charged, the State was required to prove

       that he knowingly or intentionally solicited A.G., who was less than fourteen

       years of age, to engage in sexual intercourse. Appellant’s Confid. App. Vol. II at

       27.


[19]   Freeman’s argument on appeal is that, although he and A.G. had text

       conversations that included discussions of intimacy and sex, “[t]he record is

       unclear as to what [he] intended when he used the term ‘sex’” because no

       specific sex act was discussed. Appellant’s Br. at 7, 9. “Given the lack of

       specificity,” Freeman claims the State did not prove that he intended to have

       sexual intercourse with A.G., and his conviction must be reversed. Id. at 10.

       We disagree.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2297 | August 8, 2018   Page 11 of 17
[20]   In her testimony, A.G. testified that “[Freeman] would talk about meeting me

       and having sex.” Id. at 30, 50. Freeman admitted to Detective Smith that he

       asked A.G. to engage in sexual activity, but told Detective Smith that he

       “wouldn’t actually have done it.” Id. at 50, 94. The text messages admitted at

       trial included Freeman’s messages to A.G. stating, “I want to make love to

       you[,]” and “I want this to go where I already know it’s going and that is love”

       and “after love, sex[.]” State’s Ex. 1A at 23. He also said, “Surprised you were

       cool w sex this early. You must really like me … [.]” Id. The trial court

       specifically asked A.G. about her understanding of the term sex and whether it

       meant “[i]ntercourse,” and she responded, “Yeah.” Tr. Vol. II at 30-31. She

       thereafter added, “I don’t think it was ever specific.” Id. A.G.’s testimony

       reflects her belief and understanding that Freeman’s texts about sex and making

       love meant sexual intercourse or, at the very minimum, included sexual

       intercourse. “The absence of details does not make him any less guilty.”

       Kuypers, 878 N.E.2d at 899. Based on the record before us, we find that the

       State presented sufficient evidence to sustain his conviction for child solicitation

       as charged.


                    II. Conspiracy to Commit Child Exploitation
[21]   Freeman next argues that the evidence is insufficient to support his conviction

       for Level 5 felony conspiracy to commit child exploitation. Indiana Code

       section 35-42-4-4(b)(1) provides, in relevant part, that a person who knowingly

       or intentionally produces, photographs, or creates a digitalized image of any



       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2297 | August 8, 2018   Page 12 of 17
       performance or incident that includes sexual conduct6 by a child under eighteen

       years of age commits Level 5 felony child exploitation. A person conspires

       when, with the intent to commit a felony, the person agrees with another

       person to commit the felony. Ind. Code § 35-41-5-2(a). The State must allege

       and prove that either the person or the person with whom he or she agreed

       performed an overt act in furtherance of the agreement. 7 Ind. Code § 35-41-5-

       2(b). In Indiana, the crime of conspiracy to commit an offense is a separate

       offense from the underlying offense. Coleman v. State, 952 N.E.2d 377, 382

       (Ind. Ct. App. 2011). “The agreement itself constitutes the criminal act.” Id.


[22]   An agreement can be inferred from circumstantial evidence, which may include

       the overt acts of the parties in furtherance of the criminal act. Hightower v. State,

       866 N.E.2d 356, 368 (Ind. Ct. App. 2007), trans. denied. “‘It is sufficient if the

       minds of the parties meet understandingly to bring about an intelligent and

       deliberate agreement to commit the offense.’” Id. at 368-69 (quoting Dickenson

       v. State, 835 N.E.2d 542, 552 (Ind. Ct. App. 2005)), trans. denied.


[23]   Here, the State’s charging information alleged:


               [T]hat Freeman did agree with another person, A.G.[,] to
               commit the felony of Child Exploitation, which is to knowingly
               or intentionally produce[] a performance or incident that



       6
         “Sexual conduct” includes exhibition of the uncovered genitals or uncovered female breast, intended to
       satisfy or around the sexual desires of any person. Ind. Code § 35-42-4-4(a)(4).
       7
        We note that the State does not have to prove that the felony was actually committed or even attempted.
       Riehle v. State, 823 N.E.2d 287, 293 (Ind. Ct. App. 2005), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2297 | August 8, 2018          Page 13 of 17
                included sexual conduct by A.G. and/or disseminate an image of
                a child under the age of eighteen, said sexual conduct being
                described as a nude photograph of A.G. and the following overt
                act was performed in the furtherance of said agreement: []
                Freeman requested A.G. take a nude photo of herself and send it
                to [] Freeman, A.G. took the photo and sent the image[.]


       Appellant’s Confid. App. Vol. II at 27-28. On appeal, Freeman’s argument is that

       “[i]n essence, the State alleges that Freeman engaged in conspiracy with A.G.,

       making A.G. both the victim and the co-conspirator[,]” and that “A.G.

       certainly did not agree, nor did she have the intent, to commit the criminal

       offense of child exploitation of herself.”8 Appellant’s Br. at 11-12.


[24]   While we agree that A.G. may not have intended to commit “the criminal

       offense of child exploitation,” the evidence showed that Freeman asked A.G. to

       take nude pictures of herself and send them electronically to Freeman, and that

       A.G., at Freeman’s requests, intended to, and did, take pictures of herself in

       nude and semi-nude states, and she sent them to Freeman. That is, she agreed

       with him that she would take and send him the pictures.9




       8
         Freeman also argues that under what is known as Wharton’s Rule, his conviction must be reversed.
       Appellant’s Br. at 12. “Simplified, Wharton’s Rule states: ‘An agreement by two persons to commit a
       particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily
       require the participation of two persons for its commission.’” Snow v. State, 560 N.E.2d 69, 75 (Ind. Ct. App.
       1990), trans. denied. Because the offense of child exploitation does not require more than one person for its
       commission, we decline to apply Wharton’s Rule to the present case. See id. (defendant was convicted of
       conspiracy to commit dealing in cocaine, and appellate court declined to apply Wharton’s Rule because
       “[t]he offense of dealing in cocaine does not require more than one person for its commission”).
       9
        Although A.G. at age twelve may not have known that doing so was criminal, their text message
       conversations reflect that A.G. knew that she was “seven years younger” than Freeman, that he was “in

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2297 | August 8, 2018            Page 14 of 17
[25]   Freeman asserts, without citation to authority, “[T]he victim to a crime cannot

       also be the co-conspirator to the crime.” Appellant’s Br. at 11. The State argues

       that the language of the conspiracy statute does not support Freeman’s position,

       particularly referring to Subsection (c) of the statute, which reads:


               It is no defense that the person with whom the accused person is
               alleged to have conspired:


               (1) has not been prosecuted;


               (2) has not been convicted;


               (3) has been acquitted;


               (4) has been convicted of a different crime;


               (5) cannot be prosecuted for any reason; or


               (6) lacked the capacity to commit the crime.


       Ind. Code § 35-41-5-2(c). The State offers that being a victim is “consistent

       with” Subsection (c)’s language, providing that it is not a defense to conspiracy

       if the other person to the agreement cannot be prosecuted, has not been

       convicted, or lacked the capacity to commit the offense, and, the State argues,

       under the plain language of the statute, A.G.’s status as a victim is not a bar to




       college,” that society would judge their relationship, and they would have to wait “awhile” before they could
       “do anything serious.” State’s Exs. 1A at 6, 2A at 9, 3 at 1.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2297 | August 8, 2018           Page 15 of 17
       prosecution. Appellee’s Br. at 15. We agree that Indiana Code section 35-41-5-2

       does not preclude the State from prosecuting Freeman for conspiring with A.G.

       to commit a felony.10


[26]   As to whether the evidence supports the conspiracy conviction, A.G. testified

       that Freeman asked her to take nude photos of herself and send them to him,

       and Freeman admitted to Detective Smith that he asked A.G. to take and send

       nude photos of herself to him. A.G. agreed to take and send the pictures of

       herself to Freeman, and there is no dispute that, in furtherance of the

       agreement, A.G. eventually complied and, on multiple occasions, electronically

       transmitted the images of herself to Freeman via Snapchat or another social

       media platform. “The crime of conspiracy to commit a felony has three

       elements: ‘1) the intent to commit a felony, 2) an agreement with another

       person to commit a felony, and 3) an overt act, performed by either the

       defendant or the person with whom the defendant has entered into the

       agreement.’” Owens v. State, 929 N.E.2d 754, 756 (Ind. 2010) (citing I.C. § 35-

       41-5-2 and quoting Jester v. State, 724 N.E.2d 235, 239 (Ind. 2000)). We find

       that the evidence presented supported a determination that Freeman, with the

       intent to commit a felony, entered into an agreement with A.G. for her to




       10
          We note that whether allowing a defendant to conspire with a victim is advisable is a matter for the
       legislature. See State v. Thakar, 82 N.E.3d 257, 261 (Ind. 2017) (in recognizing the existence of inconsistent
       treatment of minors in statutes, Court recognized that “[w]hether this inconsistent statutory treatment of
       minors aged 16 and 17 is advisable with respect to sexually-related activity is a matter for the legislature, and
       whether [defendant]’s alleged conduct violated the Dissemination Statute is a matter for the jury”).



       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2297 | August 8, 2018               Page 16 of 17
       produce, photograph, or create a digitalized image of herself that includes

       sexual conduct and that A.G. performed an overt act in furtherance of the

       agreement by taking and transmitting the pictures to Freeman. Ind. Code §§

       35-42-4-4(b)(1), 35-41-5-2. Accordingly, we find that the evidence presented

       was sufficient to support Freeman’s conviction for Level 5 felony conspiracy to

       commit child exploitation.


[27]   Affirmed.


[28]   Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2297 | August 8, 2018   Page 17 of 17
