Shepard, S.J.
In this interlocutory appeal, Cory Chapman appeals the trial court’s preliminary determination that the matter he allegedly disseminated to a former student via text messages is probably harmful to minors. We affirm.
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Issues I. Whether the preliminary hearing procedure provided for in Indiana Code section 35-49-2-4 is inapplicable in this case; II. Whether the trial court erred by determining the memes are “probably harmful to minors;” and III. Whether, alternatively, Indiana Code section 35-49-3-3 violates the First Amendment.
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The State has charged Chapman with knowingly or intentionally disseminating matter that is harmful to minors. See Ind. Code § 35-49-3-3(a)(1). Indiana Code section 35-49-2-2 (1983) characterizes matter as 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 minors; and (4) considered as a whole, it lacks serious literary, artistic, political, or scientific value for minors. Following a hearing pursuant to Section 35-49-2-4 at which copies of the memes were admitted into evidence, the trial court subsequently ruled that pursuant to the criteria listed in Section 35-49-2-2, the memes are matter that is probably harmful to minors.
We caution that the pre-trial preliminary determination under Section 35-49-2-4 is just that—preliminary. As such, it does not require conclusive proof or proof beyond a reasonable doubt of the criteria listed in Section 35-49-2-2. Further, on appeal, we generally review interlocutory orders for an abuse of discretion. Yeager v. Deutsche Bank Nat’l Tr. Co., 64 N.E.3d 908 (Ind. Ct. App. 2016). An abuse of discretion occurs when the court’s decision is clearly against the logic and effect of the facts and circumstances before it, or if the court has misinterpreted the law. Id. With these standards in mind, we turn to Chapman’s challenge to the court’s determination that the memes are probably harmful to minors.
While we agree the memes do not show any nudity or sado-masochistic abuse, the same cannot be said of sexual conduct or sexual excitement. “Sexual conduct” is defined as: sexual intercourse, acts involving the sex organ of one person and the mouth or anus of another, the penetration of the sex organ or anus of a person by an object, the exhibition of uncovered genitals in the context of masturbation or other sexual activity, the exhibition of the uncovered genitals of a person under the age of sixteen, or sexual intercourse or other sexual conduct with an animal. Ind. Code § 35-49-1-9 (2014). “Sexual excitement” is the condition of human genitals in a state of sexual stimulation or arousal. Ind. Code § 35-49-1-10 (1983).
Section 35-49-2-2(1) does not require explicit depiction of the acts or condition defined in these statutes. Instead, it allows for these acts and/or condition to be described or represented in any form. “Describe” is defined as “to represent or give an account of in words” and “to represent by a figure, model, or picture.” MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriamwebster.com/dictionary/describe (last visited March 16, 2022). To “represent” is “to bring clearly before the mind”; “to serve as a sign or symbol of”; “to portray”; and “depict.” MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam-webster.com/dictionary/represent (last visited March 16, 2022). When these words are combined with the phrase “in any form,” Subsection (1) encompasses anything that causes an image in the mind, serves as a sign or symbol, represents a figure, model, or picture, or constitutes a portrayal of sexual conduct or sexual excitement. Accordingly, almost all, if not all, the memes here can be said to describe or represent sexual conduct or sexual excitement.
The parties agree that the term “prurient” refers to that which is “marked by or arousing an immoderate or unwholesome interest or desire,” especially sexual desire. MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam-webster.com/dictionary/prurient (last visited March 16, 2022). Chapman argues the memes are simply humorous and do not fit this definition. Yet, the memes all suggest or use explicit language to refer to sexual activities or sexual situations in crude, vulgar, and degrading terms. Thus, we conclude that the trial court fairly determined that the memes appeal to the prurient interest in sex of minors.
Patently offensive to prevailing standards in the adult community with respect to what is suitable matter for minors – Regarding this factor, Chapman contends the court’s determination is erroneous because of the widespread availability of the memes on social media platforms to which minors have access. However, widespread availability does not equate to being acceptable to adults of a community as it pertains to what they believe is suitable for the minors in their community. We find no error with this preliminary determination, especially given that the trial judge, a member of the community, reviewed the memes and deemed them patently offensive under this standard.
Ultimately, whether these memes are patently offensive by community standards is a question of fact for trial. See State v. Thakar, 82 N.E.3d 257 (Ind. 2017) (stating that third element of Section 35-49-2-2 is not question of law for court but fact to be determined at trial). As there apparently will be a trial in this case, the parties should provide evidence of whether and in what way the internet and social media platforms have altered the community standard on this subject in order to aid the factfinder in determining whether this particular matter violates the statute.
Finally, Chapman asserts the memes have some serious literary, artistic, political, or scientific value for minors because they comment on and/or mock current society, are popular on the internet, and require a level of artistry/creativity to create. For its part, the State maintains the memes are simply crude sexual jokes that have no such value for minors. In light of our discussion of the content of the memes, we find that the court did not abuse its discretion in preliminarily determining that this factor was fulfilled.
We therefore conclude the court was well within its discretion to determine the memes constitute matter that is probably harmful to minors. Because the ruling obtained under this statute is not final, potential prejudice must be prevented by prohibiting its disclosure to the jury. Thus, we caution that a judge’s preliminary determination under Section 35-49-2-2 is not evidence on which the parties can rely at trial or relay to the jury. The bottom line: the jury should not be made aware of the trial court’s decision.
Moreover, given the pervasive nature of the internet and social media in today’s society, especially with teens, we think it not only prudent but also necessary for our statutory scheme to reflect the existence and use of these platforms. The current version of the statute was enacted in 1983—over two decades before many popular websites and social media platforms were even created. (For example, Facebook was launched in 2004, YouTube in 2005, Twitter in 2006, Instagram in 2010, and Snapchat in 2011). It would be valuable for the General Assembly to examine the operation of this statute and give any additional guidance that would recognize the impact of the vast expansion of internet communication in the years since this statute was enacted.
We conclude the applicability of Section 35-49-2-4 cannot be entirely ruled out as a procedure for litigating cases such as this one. As to the substantive merits, the trial court did not abuse its discretion by determining, preliminarily, that the matter involved here is probably harmful to minors, and Chapman waived his constitutional challenge.
Affirmed.
Mathias, J., concurs with separate opinion.
Robb, J., dissents with opinion.
Mathias, J., concurring.
I concur fully in Senior Judge Shepard’s opinion in this case.
I write separately to point out that the statutory criterion in 35-49-2-2(3) has undergone major, and for the most part regrettable, change since it was enacted in 1983. This change should be carefully considered and weighed by judges (in a preliminary determination like the one before us in this case) and juries (when deciding whether conduct charged under this statute amounts to a crime). This change should also be considered by our General Assembly.
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We must also ask where the freedom of speech guaranteed by the First Amendment to the Constitution of the United States and by Article 1, Section 9 of the Constitution of the State of Indiana begin and end with regard to this and similar alleged criminal conduct. Are these rights the same, or are they different, Finally, under and if they are different, in what manner are they different? Article 1, Section 9 of the Constitution of the State of Indiana , what constitutes “abuse” of freedom of speech, and is defining “abuse” the most important component of defining “the prevailing standards?”
“[T]he prevailing standards . . .” must be defined as what is factual, rather than what is aspirational. Once this is done, it will be clear that “the prevailing standards in the adult community with respect to what is suitable matter for minors” in 2022 are not the same a | Opinion 21ACR s they were in 1983.
Robb, J., dissenting.
I respectfully dissent.
I begin by noting that I disagree with the majority that Chapman’s constitutional challenge is waived. Chapman’s entire argument, from the motion for preliminary determination until now, is that Indiana Code section 35-49-2-2 and the First Amendment are entwined because matter is presumptively protected by the First Amendment unless the State can prove it is matter harmful to minors as defined in section 35-49-2-2. See Appellant’s Appendix, Volume 2 at 52. Section 35-49-3-3 criminalizes dissemination of matter that meets the prerequisites listed in section 35-49-2-2. Thus, the very purpose of requesting a preliminary determination was to address whether the charge passes constitutional muster. To the extent a constitutional analysis would be necessary, I would not consider it waived.
Next, with respect to the State’s argument that Chapman is not entitled to a preliminary determination pursuant to section 35-49-2-4, I do not agree with the majority’s equivocal resolution that it “cannot entirely rule out the applicability” of that section. Slip op. at ¶ 7. First, the State did not object to the preliminary determination proceedings in the trial court. Instead, it actively participated in those proceedings by arguing the merits of whether the matter Chapman is charged with disseminating is probably harmful to minors. Thus, the State’s argument made for the first time on appeal is waived. See Groves v. State, 823 N.E.2d 1229, 1232 (Ind. Ct. App. 2005) (“Generally, a failure to object to error in a proceeding, and thus preserve an issue on appeal, results in waiver.”).
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In sum, as explained above, I would either decline to address the State’s argument as waived, or I would plainly state that the preliminary determination procedure is applicable to Chapman’s case.
The heart of my disagreement with the majority decision, however, is whether the matter is “patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors[.]” Ind. Code § 35-49-22(3).
In 1957, concerned parents sought to censor Elvis Presley based on what they considered his sexually suggestive hip gyrations. See Rolling Stone, Elvis Presley on TV: 10 Unforgettable Broadcasts (Jan. 28, 2016), https://www.rollingstone.com/music/music-news/elvis-presley-on-tv-10 unforgettable– broadcasts [https://perma.cc/TP98 225225/ (last visited Feb. 17, 2022) D9T6]. In 1985, soon after the Indiana legislature codified the statute at issue, 60 Minutes ran an episode entitled “Is Dungeons and Dragons Evil?” https://arc See 60 Minutes (Sept. 15, 1985), hive.org/details/60_minutes_on_dungeons_and_dragons (last visited Feb. 17, 2022) [https://perma.cc/2G4L were concerned that the role– V86V]. At that time, parents playing game had a morally degrading effect on youth. In 2022, most adults would consider th ese concerns quaint as material previously considered vulgar now populates most teenagers’ cell phones or is otherwise readily available in a matter of seconds. What was once considered shocking is now barely worthy of notice.
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I agree with Judge Mathias that the prevailing standards for what is suitable matter for minors in 2022 are not the same as they were when the statute was written. See slip op., concurring opinion at ¶ 11. And yet the majority wishes to pretend the influx of material regularly shared amongst modern youth has not shifted the way we should view what is suitable for minors unless and until the legislature reconsiders the statute. But I cannot ignore the se sweeping cultural changes. The sexually suggestive memes at issue are almost certainly in poor taste and I do not support the sharing of them with a seventeen-year-old. Nonetheless, I cannot find this material patently offensive to prevailing standard s in the adult community with respect to what is harmful to a teenager on the cusp of adulthood in 2022.
I would reverse the trial court’s finding that the matter involved here is probably harmful to minors and remand for further proceedings, whatever they may be.