MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Jan 11 2019, 9:25 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Zachary J. Stock                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dave Davies,                                             January 11, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1098
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Annie Christ,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G24-1508-FD-28429



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1098 | January 11, 2019              Page 1 of 8
                                               Case Summary

[1]   Dave Davies appeals his conviction for dissemination of a matter harmful to

      minors, a Class A misdemeanor. We affirm.


                                                      Issue

[2]   Davies raises one issue on appeal, which we restate as whether the evidence is

      sufficient to convict Davies of dissemination of a matter harmful to minors, a

      Class A misdemeanor.


                                                      Facts

[3]   Davies was a teacher at Emma Donnan Middle School in Indianapolis. The

      school emphasized to teachers that the teachers “were there to try to build

      special relationships with the students in order to make them feel more secure

      within the educational process . . . .” Tr. Vol. IV p. 128. Generally, the school

      encouraged the teachers to “build relationships with kids who[m] [the teachers]

      felt [the teachers] could become positive mentors to . . . .” Id. The school,

      however, also emphasized limitations in relationship building, such as: (1)

      teachers should not be alone with students while traveling; and (2) teachers

      should avoid traveling with students in the teachers’ personal vehicles.


[4]   Davies taught biology and Future Farmers of America (“FFA”) in the seventh

      and eighth grades. Davies also was considered one of C.W.’s mentors. Over

      the two years that Davies taught C.W., C.W. would see Davies every day for

      “about [forty] minutes” in class. Id. at 76. Davies and C.W. would also

      interact often outside of class. C.W. would stay after school roughly three to

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1098 | January 11, 2019   Page 2 of 8
      four times a week and talk to Davies about “work that [C.W.] needed to make

      up,” or about C.W.’s goals and future plans. Id. at 77. C.W. thought Davies

      was a “nice guy” and someone C.W. could look up to. Id. C.W. also thought

      Davies would help C.W. continue on a path towards college.


[5]   C.W. considered himself to have a good relationship with Davies, and at

      school, Davies would “do this motion that was kinda [sic] like a ball tap,”

      where Davies would do a “flicking motion” with the back of his hand in the

      area of C.W.’s groin. Id. Davies did this on more than one occasion, and it

      was considered in a “joking manner.” Id. at 77-78. C.W. just laughed it off

      even though this made him uncomfortable because he did not want his

      relationship with Davies to end. A classmate of C.W. testified that he saw

      Davies often touch C.W. by “pokin[g] [C.W.’s] neck, and like pokin[g] at

      [C.W.’s] sides and stuff.” Id. at 57.


[6]   Toward the end of C.W.’s eighth grade year, Davies also assisted C.W. with

      several home projects. For example, Davies helped C.W. renovate his

      bedroom. C.W. testified that his mother was home when Davies came to

      C.W.’s house one to two times per week.


[7]   On one occasion around May 2014, C.W. and Davies went to Lowes to pick up

      supplies to continue the renovations in C.W.’s room. While leaving Lowes,

      Davies indicated to C.W. that he wanted to make C.W. breakfast at Davies’

      apartment. C.W. and Davies went to K-Mart to pick up food to make breakfast

      and then went to Davies’ apartment. Davies and C.W. made breakfast and


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1098 | January 11, 2019   Page 3 of 8
      then sat down at the table to eat. After Davies sat down, Davies told C.W. that

      he had to get something. Davies got his laptop and brought it over to the table.

      When Davies opened his laptop, C.W. testified that Davies’ laptop was

      “playing porn.” Id. at 84. During the trial, C.W. described what he saw as a

      “Hispanic girl and a Hispanic guy, and she was layin’ [sic] on a table, and they

      were doing sexual acts.” Id. C.W. testified that he just continued to eat his

      food and looked down—not wanting to look at the computer. C.W. was

      “really uncomfortable and [] just hoped that [Davies] would just close [the

      laptop]” and remove it from the table. Id. at 85.


[8]   While Davies had his laptop at the table, Davis said to C.W., “I thought I heard

      you like Hispanic girls” and said: “You just watch it. Just watch it.” Id. C.W.

      told Davies that he did not want to watch and that he was uncomfortable.

      After about ten minutes of having the laptop at the table, Davies took the laptop

      away from the table and said, “‘I’ll just save it for later’ and said that [C.W.]

      must be gay or something.” Id. After finishing breakfast, Davies offered to

      watch a movie with C.W., but C.W. declined, so Davies took C.W. home and

      they worked on C.W.’s bedroom.


[9]   C.W. continued to communicate with Davies for approximately two months

      after the incident. C.W. wanted to “cut it off because [he] felt like it was best

      for [him].” Davies, however, continued email contact with C.W. C.W. did not

      report the incident; C.W. testified that he would “usually joke around about it

      [with friends] to try and get it off [his] mind and try to forget about it.” Id. at

      86. A few years later, C.W.’s band teacher overheard C.W. discussing the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1098 | January 11, 2019   Page 4 of 8
       incident with his friends. C.W.’s band teacher reported what he heard to the

       school principal. The principal reported the allegations to law enforcement to

       investigate. There was no evidence presented regarding any video on Davies’

       computer; nor was any video played at the trial. There was no additional

       context given to the video C.W. claims Davies showed him.


[10]   Davies was charged with Count I, dissemination of a matter harmful to minors,

       a Class D felony; Count II, battery, a Class B misdemeanor; Count III, battery,

       a Class B misdemeanor; and Count IV, battery, a Class B misdemeanor. A jury

       found Davies guilty of Count I, not guilty of Counts II and III, and the State

       dismissed Count IV. At sentencing, the trial court acknowledged that the jury

       found Davies guilty of a Class D felony, but the Court reduced Davies’

       conviction to a Class A misdemeanor and entered judgment accordingly.

       Davies was sentenced to 365 days in jail, with 361 days suspended.


                                                    Analysis

[11]   Davies challenges the sufficiency of the evidence on his conviction for

       dissemination of a matter harmful to minors, a Class A misdemeanor. When

       there is a challenge to the sufficiency of the evidence, “[w]e neither reweigh

       evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210

       (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985)). Instead, “we

       ‘consider only that evidence most favorable to the judgment together with all

       reasonable inferences drawn therefrom.’” Id. (quoting Bieghler, 481 N.E.2d at

       84). “We will affirm the judgment if it is supported by ‘substantial evidence of

       probative value even if there is some conflict in that evidence.’” Id. (quoting
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1098 | January 11, 2019   Page 5 of 8
       Bieghler, 481 N.E.2d at 84); see also McCallister v. State, 91 N.E.3d 554, 558 (Ind.

       2018) (holding that, even though there was conflicting evidence, it was “beside

       the point” because that argument “misapprehend[s] our limited role as a

       reviewing court”). Further, “[w]e will affirm the conviction unless no

       reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007)).


[12]   Davies does not challenge every element of the offense. 1 Instead, Davies only

       challenges the sufficiency of the evidence regarding the harmfulness of the

       disseminated material. Indiana Code Section 35-49-3-3 states, “[e]xcept as

       provided in subsection (b), a person who knowingly or intentionally: (1)

       disseminates matter to minors that is harmful to minors; . . . commits a Level 6

       felony.” Whether the material is harmful to minors is determined by Indiana

       Code Section 35-49-2-2, which states:


                  A matter or performance is harmful to minors for purposes of this
                  article if:




       1
           In fact, Davies concedes that the first two elements were met, and specifically states:

                  In this case, the State was required to prove three material elements, but it only succeeded
                  in proving two. The elements of the crime at issue are (1) knowingly or intentionally (2)
                  disseminating matter to a minor (3) that is harmful to the minor.


       Appellant’s Br. p. 8 (emphasis supplied).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1098 | January 11, 2019                      Page 6 of 8
               (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.


[13]   Davies seems to be arguing that it was wrong for the jury to accept C.W.’s

       classification of the video as pornography without any other evidence. C.W.

       testified that the video he was shown was “porn.” Tr. Vol. IV p. 84. C.W. also

       testified that the video he saw was of a Hispanic male and Hispanic female who

       were engaged in “sexual acts.” Id. Further, the State introduced emails from

       Davies to C.W. that said:


               I now know through a few people that you have blocked me and
               are not returning messages because I have done something to
               aggravate you or have “turned weird.” I can respect that and am
               okay with that. However, I do ask this, if you would, let me
               explain a few things and ask that you can look past it when you
               see it through my eyes.


       State’s Ex. 2.


[14]   Davies’ argument that C.W.’s description of “sexual acts” or “porn” is not

       descriptive enough is simply an invitation for us to reweigh the evidence, which

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1098 | January 11, 2019   Page 7 of 8
       we cannot do. 2 See Gibson, 51 N.E.3d at 210. Under these circumstances, the

       jury could reasonably have found that Davies showed C.W. material that was

       harmful to a minor, as defined by Indiana Code Section 35-49-2-2.

       Accordingly, the evidence was sufficient.


                                                     Conclusion

[15]   Based on the foregoing, we find the evidence was sufficient to convict Davies of

       dissemination of a matter harmful to minors, a Class A misdemeanor. We

       affirm.


       Affirmed.


       Brown, J., and Altice, J., concur.




       2
        Although we find that the evidence was sufficient to convict Davies of disseminating matter harmful to
       minors, we encourage the State to elicit more facts regarding each element of the offense charged during trial.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1098 | January 11, 2019                   Page 8 of 8
