MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 17 2017, 8:52 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Chad A. Montgomery Curtis T. Hill, Jr. Montgomery Law Office Attorney General of Indiana Lafayette, Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Maddox Macy, August 17, 2017 Appellant-Defendant, Court of Appeals Case No. 12A02-1703-CR-440 v. Appeal from the Clinton Circuit Court State of Indiana, The Honorable Bradley K. Mohler, Appellee-Plaintiff. Judge Trial Court Cause No. 12C01-1606-F6-512
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 12A02-1703-CR-440 | August 17, 2017 Page 1 of 7 Case Summary [1] Maddox Macy (“Macy”) was convicted of Dissemination of Matter Harmful to
Minors, as a Level 6 felony,1 and Distribution or Exhibition of Obscene Matter,
as a Class A misdemeanor.2 She now appeals, raising for our review the sole
issue of whether there was sufficient evidence to sustain her convictions.
[2] We affirm.
Facts and Procedural History [3] Sometime in late May or early June of 2016, in Frankfort, Ashley Anderson’s
(“Anderson”) attention was drawn to several pornographic pictures that were
visible in the window of the residence next door to her own. Macy and two of
her children lived at that residence, and the window in which the pictures were
placed faced the bedroom window of Anderson’s children. The children’s
bedroom window was only a few feet from the window where the pictures were
displayed.
[4] Initially, Anderson tried to keep the curtains closed in her children’s room,
hoping that Macy would eventually take the pictures down. The photographs
eventually exacerbated an ongoing conflict between Anderson and Macy, and
Anderson called police on June 6, 2016. Frankfort Police Department Sergeant
1 Ind. Code § 35-49-3-3(a)(2). 2 I.C. § 35-49-3-1(2).
Court of Appeals of Indiana | Memorandum Decision 12A02-1703-CR-440 | August 17, 2017 Page 2 of 7 Mark Schilling (“Sergeant Schilling”) was dispatched to respond to Anderson’s
complaint.
[5] When Sergeant Schilling arrived, he spoke with Anderson. From the sidewalk
that ran in front of Macy’s and Anderson’s house, Sergeant Schilling could see
the photographs in the window of Macy’s house. As he got closer, Sergeant
Schilling could see that the photographs were clearly of a pornographic nature,
and decided to try to make contact with someone in Macy’s home.
[6] Sergeant Schilling knocked on the door of Macy’s home and encountered
Macy’s older daughter. The girl said that Macy had put the pictures there, and
told Sergeant Schilling that he would have to speak with Macy. Sergeant
Schilling waited at Macy’s home and eventually contacted her. When Sergeant
Schilling confronted Macy about the pictures, she told him that her attorney
had said the pictures were permissible, that Sergeant Schilling should contact
her attorney, and that she did not have time to speak with Sergeant Schilling
that day. Macy then got in her car and drove away.
[7] While investigating at Macy’s home, Sergeant Schilling had taken photographs
of the images in Macy’s windows and used these to obtain a search warrant.
Sergeant Schilling and two other police officers went to Macy’s home to
execute the warrant. No one was home, and the officers forced the front door
open, went inside, and took the photographs down from the windows and
collected them as evidence.
Court of Appeals of Indiana | Memorandum Decision 12A02-1703-CR-440 | August 17, 2017 Page 3 of 7 [8] On June 6, 2016, the State charged Macy with Dissemination of Matter
Harmful to Minors, as a Level 6 felony, and Distribution or Exhibition of
Obscene Matter, as a Class A misdemeanor. Macy was arrested the next day.
[9] On February 6, 2017, a bench trial was conducted. At the conclusion of the
trial, the court found Macy guilty as charged.
[10] On February 10, 2017, a sentencing hearing was conducted. The trial court
entered judgments of conviction against Macy on both counts, and sentenced
her to 365 days for each offense, with the sentences run concurrently and with
all but two days suspended to probation.
[11] This appeal ensued.
Discussion and Decision [12] Macy’s appeal challenges the sufficiency of the evidence supporting her
convictions. Our standard of review in such cases is well settled.
This court will not reweigh the evidence or assess the credibility of witnesses. Cox v. State,774 N.E.2d 1025, 1028 (Ind. Ct. App. 2002). Only the evidence most favorable to the judgment, together with all reasonable inferences that can be drawn therefrom will be considered. Id. If a reasonable trier of fact could have found the defendant guilty based on the probative evidence and reasonable inferences drawn therefrom, then a conviction will be affirmed. Id. at 1028–29.
Sargent v. State, 875 N.E.2d 762, 767 (Ind. Ct. App. 2007)
Court of Appeals of Indiana | Memorandum Decision 12A02-1703-CR-440 | August 17, 2017 Page 4 of 7 [13] Here, Macy was charged with Dissemination of Matter Harmful to Minors and
Distribution or Exhibition of Obscene Matter. To convict Macy of
Dissemination of Matter Harmful to Minors, as charged, the State was required
to prove beyond a reasonable doubt that Macy knowingly or intentionally
displayed matter that is harmful to minors, namely, images portraying male
nudity or sexual conduct, in an area to which minors, namely, Anderson’s
children, had visual, auditory, or physical access, unless each minor was
accompanied by the minor’s parent or guardian. See I.C. § 35-49-3-3(a)(2);
App’x Vol. II at 9. To convict Macy of Distribution or Exhibition of Obscene
Matter, as charged, the State was required to prove that Macy knowingly or
intentionally exhibited obscene matter to another person, namely, Anderson
and her children. See I.C. § 35-49-3-1(2); App’x Vol. II at 10.
[14] Macy challenges the sufficiency of the evidence with respect to the scienter
element of the charged offenses. For purposes of Indiana criminal law, a party
engages in knowing conduct “if, when he engages in the conduct, he is aware of
a high probability that he is doing so.” I.C. § 35-41-2-2(b). A party engages in
intentional conduct “if, when he engages in the conduct, it is his conscious
objective to do so.” I.C. § 35-41-2-2(a).
[15] Our review of the record discloses the following evidence that supports the
judgment. Anderson testified that several days before she contacted police, two
of her children drew her attention to the pictures in Macy’s window, which was
only four or five feet from her children’s bedroom window. Anderson testified
she could see clearly the content of the pictures from her children’s bedroom.
Court of Appeals of Indiana | Memorandum Decision 12A02-1703-CR-440 | August 17, 2017 Page 5 of 7 Sergeant Schilling, who responded to Anderson’s report, testified that he could
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 17 2017, 8:52 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Chad A. Montgomery Curtis T. Hill, Jr. Montgomery Law Office Attorney General of Indiana Lafayette, Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Maddox Macy, August 17, 2017 Appellant-Defendant, Court of Appeals Case No. 12A02-1703-CR-440 v. Appeal from the Clinton Circuit Court State of Indiana, The Honorable Bradley K. Mohler, Appellee-Plaintiff. Judge Trial Court Cause No. 12C01-1606-F6-512
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 12A02-1703-CR-440 | August 17, 2017 Page 1 of 7 Case Summary [1] Maddox Macy (“Macy”) was convicted of Dissemination of Matter Harmful to
Minors, as a Level 6 felony,1 and Distribution or Exhibition of Obscene Matter,
as a Class A misdemeanor.2 She now appeals, raising for our review the sole
issue of whether there was sufficient evidence to sustain her convictions.
[2] We affirm.
Facts and Procedural History [3] Sometime in late May or early June of 2016, in Frankfort, Ashley Anderson’s
(“Anderson”) attention was drawn to several pornographic pictures that were
visible in the window of the residence next door to her own. Macy and two of
her children lived at that residence, and the window in which the pictures were
placed faced the bedroom window of Anderson’s children. The children’s
bedroom window was only a few feet from the window where the pictures were
displayed.
[4] Initially, Anderson tried to keep the curtains closed in her children’s room,
hoping that Macy would eventually take the pictures down. The photographs
eventually exacerbated an ongoing conflict between Anderson and Macy, and
Anderson called police on June 6, 2016. Frankfort Police Department Sergeant
1 Ind. Code § 35-49-3-3(a)(2). 2 I.C. § 35-49-3-1(2).
Court of Appeals of Indiana | Memorandum Decision 12A02-1703-CR-440 | August 17, 2017 Page 2 of 7 Mark Schilling (“Sergeant Schilling”) was dispatched to respond to Anderson’s
complaint.
[5] When Sergeant Schilling arrived, he spoke with Anderson. From the sidewalk
that ran in front of Macy’s and Anderson’s house, Sergeant Schilling could see
the photographs in the window of Macy’s house. As he got closer, Sergeant
Schilling could see that the photographs were clearly of a pornographic nature,
and decided to try to make contact with someone in Macy’s home.
[6] Sergeant Schilling knocked on the door of Macy’s home and encountered
Macy’s older daughter. The girl said that Macy had put the pictures there, and
told Sergeant Schilling that he would have to speak with Macy. Sergeant
Schilling waited at Macy’s home and eventually contacted her. When Sergeant
Schilling confronted Macy about the pictures, she told him that her attorney
had said the pictures were permissible, that Sergeant Schilling should contact
her attorney, and that she did not have time to speak with Sergeant Schilling
that day. Macy then got in her car and drove away.
[7] While investigating at Macy’s home, Sergeant Schilling had taken photographs
of the images in Macy’s windows and used these to obtain a search warrant.
Sergeant Schilling and two other police officers went to Macy’s home to
execute the warrant. No one was home, and the officers forced the front door
open, went inside, and took the photographs down from the windows and
collected them as evidence.
Court of Appeals of Indiana | Memorandum Decision 12A02-1703-CR-440 | August 17, 2017 Page 3 of 7 [8] On June 6, 2016, the State charged Macy with Dissemination of Matter
Harmful to Minors, as a Level 6 felony, and Distribution or Exhibition of
Obscene Matter, as a Class A misdemeanor. Macy was arrested the next day.
[9] On February 6, 2017, a bench trial was conducted. At the conclusion of the
trial, the court found Macy guilty as charged.
[10] On February 10, 2017, a sentencing hearing was conducted. The trial court
entered judgments of conviction against Macy on both counts, and sentenced
her to 365 days for each offense, with the sentences run concurrently and with
all but two days suspended to probation.
[11] This appeal ensued.
Discussion and Decision [12] Macy’s appeal challenges the sufficiency of the evidence supporting her
convictions. Our standard of review in such cases is well settled.
This court will not reweigh the evidence or assess the credibility of witnesses. Cox v. State,774 N.E.2d 1025, 1028 (Ind. Ct. App. 2002). Only the evidence most favorable to the judgment, together with all reasonable inferences that can be drawn therefrom will be considered. Id. If a reasonable trier of fact could have found the defendant guilty based on the probative evidence and reasonable inferences drawn therefrom, then a conviction will be affirmed. Id. at 1028–29.
Sargent v. State, 875 N.E.2d 762, 767 (Ind. Ct. App. 2007)
Court of Appeals of Indiana | Memorandum Decision 12A02-1703-CR-440 | August 17, 2017 Page 4 of 7 [13] Here, Macy was charged with Dissemination of Matter Harmful to Minors and
Distribution or Exhibition of Obscene Matter. To convict Macy of
Dissemination of Matter Harmful to Minors, as charged, the State was required
to prove beyond a reasonable doubt that Macy knowingly or intentionally
displayed matter that is harmful to minors, namely, images portraying male
nudity or sexual conduct, in an area to which minors, namely, Anderson’s
children, had visual, auditory, or physical access, unless each minor was
accompanied by the minor’s parent or guardian. See I.C. § 35-49-3-3(a)(2);
App’x Vol. II at 9. To convict Macy of Distribution or Exhibition of Obscene
Matter, as charged, the State was required to prove that Macy knowingly or
intentionally exhibited obscene matter to another person, namely, Anderson
and her children. See I.C. § 35-49-3-1(2); App’x Vol. II at 10.
[14] Macy challenges the sufficiency of the evidence with respect to the scienter
element of the charged offenses. For purposes of Indiana criminal law, a party
engages in knowing conduct “if, when he engages in the conduct, he is aware of
a high probability that he is doing so.” I.C. § 35-41-2-2(b). A party engages in
intentional conduct “if, when he engages in the conduct, it is his conscious
objective to do so.” I.C. § 35-41-2-2(a).
[15] Our review of the record discloses the following evidence that supports the
judgment. Anderson testified that several days before she contacted police, two
of her children drew her attention to the pictures in Macy’s window, which was
only four or five feet from her children’s bedroom window. Anderson testified
she could see clearly the content of the pictures from her children’s bedroom.
Court of Appeals of Indiana | Memorandum Decision 12A02-1703-CR-440 | August 17, 2017 Page 5 of 7 Sergeant Schilling, who responded to Anderson’s report, testified that he could
see the pictures from the sidewalk in front of Anderson’s and Macy’s homes.
Sergeant Schilling further testified that when he tried to contact Macy, he
initially encountered Macy’s daughter, who told him that Macy had put the
pictures up and that he would have to speak with Macy about them. When
Sergeant Schilling finally spoke with Macy and told her, “I need to talk to you
about the pictures in the window,” Macy responded, “I don’t have time” and “I
talked to my attorney and he said they’re fine.” (Tr. at 19.) When Sergeant
Schilling informed Macy that the prosecutor’s office disagreed with that
assessment, Macy told Sergeant Schilling to contact her attorney.
[16] In her brief before this Court, Macy does not dispute the nature of the pictures
in her window. She disputes Sergeant Schilling’s testimony, seeking to draw
our attention to her and her children’s testimony at trial, and suggesting that
because her children often had guests, we should conclude that there was
insufficient evidence of Macy’s knowledge. We decline Macy’s invitation to
reweigh evidence, which this Court is not permitted to do. To the extent Macy
argues that we should rely upon Mediate v. State, 498 N.E.2d 391 (Ind. 1986),
we think that case is inapposite because it has no bearing upon Sergeant
Schilling’s testimony, which supports an inference that Macy was aware of the
images in her windows before police were called, and chose not to take action
about them. Anderson’s and Sergeant Schilling’s testimonies are sufficient to
sustain the convictions.
Court of Appeals of Indiana | Memorandum Decision 12A02-1703-CR-440 | August 17, 2017 Page 6 of 7 [17] Affirmed.
Baker, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 12A02-1703-CR-440 | August 17, 2017 Page 7 of 7