Terik C. Prater v. State of Indiana (mem. dec.)

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,”

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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.

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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

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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.

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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

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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

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