Dave Davies v. State of Indiana (mem. dec.) ( 2019 )

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
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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
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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
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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).
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(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
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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.
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