Opinion
22A-CR-1271
02-17-2023
Jesy A. Evitts, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Attorney for Appellant Stacy R. Uliana Bargersville, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Tyler Banks Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Pike Circuit Court The Honorable Jeffrey L. Biesterveld, Judge Trial Court Cause No. 63C01-2105-F4-136
Attorney for Appellant
Stacy R. Uliana Bargersville, Indiana
Attorneys for Appellee
Theodore E. Rokita Attorney General of Indiana
Tyler Banks Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE
[¶1] Jesy A. Evitts appeals the trial court's order denying his motion to dismiss the charges of child exploitation as a level 4 felony and child exploitation as a level 5 felony. We affirm.
Facts and Procedural History
[¶2] On May 14, 2021, the State charged Evitts with Count I, child exploitation as a level 4 felony, and Count II, child exploitation as a level 5 felony. On January 21, 2022, Evitts filed a Motion to Dismiss pursuant to Ind. Code § 35-34-1-4 alleging that the photo in question did not show his genitalia touching the face of the minor but only in close proximity to the child's face. He asserted that, "[a]s appalling as the photograph is, it does not meet the statutory definition of child exploitation." Appellant's Appendix Volume II at 31.
[¶3] On February 17, 2022, the State filed a Response to Defendant's Motion to Dismiss in which it asserted that "it is the trier of fact that must determine if a photograph of an exposed, erect penis, positioned over the face of a young child at least near or over her mouth, is sexual conduct and is indeed what is deemed unlawful as child exploitation." Id. at 33. It asserted that "[t]he facts as provided in the Information do establish the offense alleged . . . ." Id. at 34.
[¶4] On March 10, 2022, the court held a hearing. The court admitted a photograph of a penis and a child's face as Joint Exhibit 1. On April 25, 2022, the court entered an order denying Evitts's motion to dismiss. Specifically, the order states:
That evidence of the purported crimes is sufficient to be decided by a trier of fact to determine if the defendant did in fact create a digitized image of any performance or incident that includes sexual conduct by a child under eighteen years of age said child being alleged to be less than twelve years of age.Id. at 41.
Discussion
[¶5] Evitts argues that the image does not include sexual conduct by a child, an element of child exploitation. He contends the State conceded that the photograph did not include any touching or fondling in its response to his motion to dismiss. Specifically, he points to certain statements in the State's response to his motion to dismiss including that the State referred to the penis as being "over" the child's face or that the child's face was "behind" the erect penis. Appellant's Brief at 9 (quoting Appellant's Appendix Volume II at 33-35). The State argues that the charging information was not facially deficient, it unequivocally charged that Evitts's penis was "on" R.H.'s face, and whether his penis touched R.H. is precisely the type of factual dispute that is left to a jury. Appellee's Brief at 8 (quoting Appellant's Appendix Volume II at 11).
[¶6] "We review a 'ruling on a motion to dismiss a charging information for an abuse of discretion, which occurs only if a trial court's decision is clearly against the logic and effect of the facts and circumstances.'" State v. Katz, 179 N.E.3d 431, 440 (Ind. 2022) (quoting Gutenstein v. State, 59 N.E.3d 984, 994 (Ind.Ct.App. 2016), trans. denied). Ind. Code § 35-34-1-4(a)(5) provides that "[t]he court may, upon motion of the defendant, dismiss the indictment or information upon any of the following grounds: . . . The facts stated do not constitute an offense." Ind. Code § 35-34-1-8 governs motions to dismiss by a defendant and provides in part that "[t]he defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion."
[¶7] "The purpose of the charging information is to provide a defendant with notice of the crime of which he is charged so that he is able to prepare a defense." Katz, 179 N.E.3d at 441 (quoting State v. Laker, 939 N.E.2d 1111, 1113 (Ind.Ct.App. 2010), trans. denied). "To be sufficient, an information 'generally need[ ] only contain a statement of the essential facts constituting the offense charged, as well as the statutory citation, the time and place of the commission of the offense, [and] the identity of the victim.'" Id. (quoting Pavlovich v. State, 6 N.E.3d 969, 975 (Ind.Ct.App. 2014) (internal quotation marks omitted), trans. denied). "A court may dismiss a charging information if the 'facts stated do not constitute an offense,' but this only occurs when the information is facially deficient in stating an alleged crime." Id. (quoting Ind. Code § 35-34-1-4(a)(5); Gutenstein, 59 N.E.3d at 994). "In deciding whether a charging 'information fails to state facts constituting an offense, we take the facts alleged in the information as true.'" Id. (quoting Pavlovich, 6 N.E.3d at 974).
[¶8] Count I, child exploitation as a level 4 felony, alleged that on or about May 13, 2021, Evitts "did knowingly create a digitized image of a performance involving sexual conduct by a child under the age of twelve, to-wit: Victim 1, (age 4), [he] did knowingly photograph his exposed penis on the face of the said child, and all of which is contrary to the form of the statutes in such cases made and provided by I.C. 35-42-4-4(b)(1) and I.C. 35-42-4-4(c)(2) . . . ." Appellant's Appendix Volume II at 11. Count II, child exploitation as a level 5 felony, alleged that on or about May 13, 2021, Evitts "did knowingly create a digitized image of a performance involving sexual conduct by a child under the age of eighteen, to-wit: Victim 1, (age 4), [he] did knowingly photograph his exposed penis on the face of the said child, contrary to the form of the statutes in such cases made and provided by I.C. 35-42-4-4(b)(1) . . . ." Id. at 12.
[¶9] At the time of the alleged offenses, Ind. Code § 35-42-4-4 provided:
(b) A person who:
(1) knowingly or intentionally manages, produces, sponsors, presents, exhibits, photographs, films, videotapes, or creates a digitized image of any performance or incident that includes sexual conduct by a child under eighteen (18) years of age;
* * * * *
commits child exploitation, a Level 5 felony.
(c) However, the offense of child exploitation described in subsection (b) is a Level 4 felony if:
* * * * *
(2) the child less than eighteen (18) years of age:
(A) engages in bestiality (as described in IC 35-46-3-14);
(B) is mentally disabled or deficient;
(C) participates in the sexual conduct, matter, performance, or incident by use of force or the threat of force;
(D) physically or verbally resists participating in the sexual conduct, matter, performance, or incident;
(E) receives a bodily injury while participating in the sexual conduct, matter, performance, or incident; or
(F) is less than twelve (12) years of age.(Subsequently amended by Pub. L. No. 172-2022, § 14 (eff. July 1, 2022); Pub. L. No. 105-2022, § 47 (eff. July 1, 2022)). At the time of the offenses, Ind. Code § 35-42-4-4(a)(4) provided:
"Sexual conduct" means:
(A) sexual intercourse;
(B) other sexual conduct (as defined in IC 35-31.5-2-221.5);
(C) exhibition of the:
(i) uncovered genitals; or
(ii) female breast with less than a fully opaque covering of any part of the nipple; intended to satisfy or arouse the sexual desires of any person;
(D) sadomasochistic abuse;
(E) sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) with an animal; or
(F) any fondling or touching of a child by another person or of another person by a child intended to arouse or satisfy the sexual desires of either the child or the other person.(Subsequently amended by Pub. L. No. 172-2022, § 14 (eff. July 1, 2022); Pub. L. No. 105-2022, § 47 (eff. July 1, 2022)).
Ind. Code § 35-31.5-2-221.5 provides that "'[o]ther sexual conduct' means an act involving: (1) a sex organ of one (1) person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object."
[¶10] To the extent Evitts argues that the State conceded that the photograph did not include evidence of any touching, we note the State's response quoted the charging information alleging Evitts photographed "his exposed penis on the face" of the child and asserted that "[t]he facts as provided in the Information do establish the offense alleged . . . ." Appellant's Appendix Volume II at 34 (emphasis added). We cannot say the State conceded that the photograph did not include evidence of touching. The photograph depicts an erect penis and a child's face. Based on the record, we conclude the trial court did not err in denying Evitts's motion to dismiss. See Katz, 179 N.E.3d at 441-442 (holding that whether an image sufficiently depicted an "intimate image" was an evidentiary question for the jury at trial and was not properly raised by a motion to dismiss, the charging information sufficiently alleged the offense, and the trial court did not abuse its discretion in denying the defendant's motion to dismiss).
[¶11] For the foregoing reasons, we affirm the trial court's order.
[¶12] Affirmed.
Bailey, J., and Weissmann, J., concur.