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.
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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.
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[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.
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[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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