NICOLE v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Heather Lee Nicole appeals her conviction of child solicitation, as a Level 4 felony,¹ and her sentence. We affirm.

Issues

[2] Nicole raises two issues on review:

I.  Whether the State provided sufficient evidence to support her conviction.

II. Whether her sentence is inappropriate in light of the nature of the offense and her character.

Facts and Procedural History

[3] On August 29, 2023, then fifty-three-year-old Nicole contacted “Katie” on a dating website for women called HERS. Tr. v. II at 162. The dating website required that participants be at least eighteen years of age. The profile page for Katie stated that she was “18[.]” Ex. v. IV at 3-6. However, unbeknownst to Nicole, the profile for Katie was not for an actual person but was created as a “decoy” by Eric Schmutte, the president of Predator Catchers, Inc. (“PCI”). Tr. v. II at 162. PCI is a nonprofit organization created to “expose” adults who try to “meet up with underage children.” Id. at 157. Schmutte created the decoy account for Katie on the HERS website and communicated with Nicole with a “burner” cell phone. Id. at 159.

[4] Nicole's first contact with Katie was through the app for the dating website on August 29 when Nicole provided Katie with her cell phone number and asked Katie to text her. Katie texted Nicole on August 30, but Nicole did not respond until October 4 when she texted Katie a picture of herself and requested that Katie text a picture of herself back. Katie did so and Nicole asked Katie her age. Katie responded, “I'm 13 but I'm pretty mature for my age[.]” Ex. v. IV at 23. Nicole texted that she “could get in trouble” if she was “seen with” Katie. Id. Nicole further texted, “If you were older I would have a long-term serious relationship with you. You know like 18[.]” Id. at 32. Nicole asked Katie to call her, but Katie responded that she could only text because she was in school.

[5] Over the following several weeks, Nicole and Katie exchanged messages through the HERS app and by text. The exchanges discussed meeting in person and became sexual in nature. For example, Nicole described several sex acts she would perform on Katie when they met in person, including oral sex and sexual intercourse.² At one point Katie texted, “Idk it wouldn't rlly [sic] be good for me to get pregnant when I'm 13 years old lol[,]” to which Nicole responded, “I know we'll [sic] I can't get any body [sic] pregnant[,] my in sides [sic] are messed up[.]” Id. at 134. When Katie asked, “Have u ever been with someone my age[,]” Nicole responded, “Your [sic] the first baby[.]” Id. at 135. When Katie asked, “U afraid someone might see our texts or something,” Nicole replied, “Yeah[.]” Id. at 73.

[6] Nicole and Katie agreed to meet at a store and then drive together to Nicole's house. When Nicole mentioned having a roommate, Katie asked, “Won't they be like who the hell is this kid lol,” to which Nicole replied, “I told them that your [sic] my niece[.]” Id. at 144-45. Nicole texted, “Are you going to get me in trouble[?]” and Katie replied, “Of course not[.]” Id. at 147. Nicole suggested that she could sell her house, marry Katie, and move with her to Alaska. Katie asked, “But u mean when I turn 18?”, and Nicole replied, “Yeah sweetie I will wait on you[.]” Id. at 161.

[7] Nicole and Katie planned to meet at a Walmart in Bluffton on October 20. Nicole texted that the Walmart had “cameras [so] we have to be very careful[.]” Id. at 195. Nicole continued texting with Katie until she arrived at the arranged location in Walmart. At that point, Schmutte and other PCI volunteers confronted Nicole and called the police. The police arrived, arrested Nicole, and seized her cell phone.

[8] The State charged Nicole with one count of child solicitation, as a Level 4 felony. Following a trial, the jury found Nicole guilty as charged. The trial court sentenced Nicole to six years executed in the Department of Correction and ordered that she “receive extensive psychological and psychiatric evaluations while incarcerated.” Appealed Order at 2. This appeal ensued.

Discussion and Decision

Sufficiency of the Evidence

[9] Nicole challenges the sufficiency of the evidence to support her conviction of child solicitation, as a Level 4 felony.

When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence. We will affirm if 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.

Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009) (citation modified).

[10] To convict Nicole of child solicitation, as a Level 4 felony, the State was required to prove beyond a reasonable doubt that (1) Nicole, (2) who was eighteen years of age or older, (3) knowingly or intentionally (4) solicited (5) a child whom Nicole believed to be under fourteen years of age (6) to engage in sexual intercourse, other sexual conduct, or any fondling or touching intended to arouse the sexual desires of either the child or the other person (7) by using a computer network (as defined in Indiana Code Section 35-43-2-3(a)), and (8) traveled to meet the child or individual Nicole believed to be a child. See Ind. Code § 35-42-4-6(b)(1). “A person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.” I.C. § 35-41-2-2(a). “A person engages in conduct ‘knowingly’ 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). “Knowledge and intent are both mental states and, absent an admission by the defendant, the jury must resort to the reasonable inferences from both the direct and circumstantial evidence to determine whether the defendant has the requisite knowledge or intent to commit the offense in question.” Konkle v. State, 253 N.E.3d 1068, 1091 (Ind. 2025) (citation modified).

[11] Here, Nicole argues that there was insufficient evidence to support the elements that she knew or believed Katie to be under age fourteen and that she used a computer network to communicate with Katie; Nicole does not dispute that the State proved the other elements of the crime beyond a reasonable doubt. The State presented substantial evidence of probative value that Nicole knew and/or believed Katie to be thirteen years old. The text and HERS app messages establish that Katie repeatedly and explicitly stated to Nicole that she was thirteen years old. The messages also establish that Nicole understood that Katie was thirteen years old. For example, when Katie first informed Nicole that Katie was only thirteen years old, Nicole responded that she could “get in trouble” if she was seen with Katie. Ex. v. IV at 23. Another example is Nicole's statement, “I know” after Katie texted that “it wouldn't rlly [sic] be good for me to get pregnant when I'm 13 years old[.]” Id. at 134. Nicole's arguments to the contrary are merely blatant requests that we reweigh the evidence, which we may not do. See, e.g., Bailey, 907 N.E.2d at 1005. Rather, considering the evidence and reasonable inferences therefrom that are most favorable to the judgment, as we must, it is clear that the State carried its burden of proof on the element of mens rea. See id.

[12] Nicole also asserts that the State failed to prove that she used a “computer network” to solicit Katie, arguing that the term applies only to “traditional desktop or laptop” computers, not cellular phones.³ Appellant's Br. at 25. However, subsection (a)(4) of Indiana Code Section 35-42-4-6 states that “computer network” is “as defined in IC 35-43-2-3(a).” And the latter statute states that a “computer network” includes “wireless telecommunications ․ with a computer or wireless telecommunication device through ․ the Internet.” I.C. § 35-43-2-3(a) (emphasis added). The State produced witness Ryan Welbaum, a digital forensic examiner, who testified that he examined Nicole's cell phone and discovered that Nicole's texts to Katie were made with the use of a “third-party messaging app” called “Text Now” that uses the “internet to transfer messages and calls” between cellular phones. Tr. v. III at 56. Welbaum then described how apps on cell phones allow wireless telecommunications through the internet. Thus, the State established that Nicole used “a wireless telecommunication device,” i.e., a cell phone, to communicate with Katie through the Internet. That is, the State presented sufficient evidence that Nicole solicited Katie “by using a computer network (as defined in IC 35-43-2-3(a)).” I.C. § 35-42-4-6(b)(1). We affirm the conviction.

Appellate Rule 7(B)

[13] Nicole contends that her sentence is inappropriate in light of the nature of the offense and her character. Article 7, Sections 4 and 6 of the Indiana Constitution “authorize[ ] independent appellate review and revision of a sentence imposed by the trial court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration in original). This appellate authority is implemented through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule 7(B) requires the appellant to demonstrate that his sentence is “inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B); see also Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).

[14] Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial court's judgment “should receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role of appellate review is to attempt to “leaven the outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the end of the day turns on “our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Id. at 1224. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[15] The advisory sentence for a Level 4 felony is six years, and that is the sentence Nicole received. I.C. § 35-50-2-5.5. In determining whether a sentence is appropriate, the advisory sentence “is the starting point the Legislature has selected as an appropriate sentence for the crime committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). Therefore, “[w]e are unlikely to consider an advisory sentence inappropriate.” Shelby v. State, 986 N.E.2d 345, 371 (Ind. Ct. App. 2013), trans. denied.

[16] When considering the nature of the offense, we look at the defendant's actions in comparison to the elements of the offense. Cannon v. State, 99 N.E.3d 274, 280 (Ind. Ct. App. 2018), trans. denied. Regarding the nature of Nicole's offense, she communicated increasingly graphic sexual conversations over a period of weeks with a person whom she believed to be a thirteen-year-old child. Nicole also suggested taking the thirteen-year-old child across state lines to Alaska. In short, Nicole has pointed to no compelling evidence of “restraint [or] regard” on her part that would overcome our deference to the trial court's determination. Stephenson, 29 N.E.3d at 122.

[17] Nor does Nicole's character warrant a sentence reduction. She has a prior conviction of a crime involving a child—specifically, a 1992 conviction of neglect of a dependent. See Prince v. State, 148 N.E.3d 1171, 1174 (Ind. Ct. App. 2020) (“Even a minor criminal history is a poor reflection of a defendant's character.”). In addition, she showed no remorse and took no responsibility for her actions. While she certainly has the right to maintain her innocence, “a defendant's lack of remorse can serve as an aggravator.” Mathews v. State, 849 N.E.2d 578, 590 (Ind. 2006). Furthermore, there was no evidence that Nicole has “substantial virtuous traits or persistent examples of good character.” Stephenson, 29 N.E.3d at 122. And, although Nicole points to her mental health issues as a mitigating factor, she “provides no evidence showing a nexus between [her mental health] diagnoses and [her] criminal conduct.” Hancz-Barron v. State, 235 N.E.3d 1237, 1249 (Ind. 2024). Nicole has failed to demonstrate that her sentence is inappropriate in light of her character.⁴ Thus, we affirm her sentence.

Conclusion

[18] The State provided sufficient evidence to support Nicole's conviction of child solicitation, as a Level 4 felony. And Nicole has failed to demonstrate that her sentence is inappropriate in light of the nature of her offense and her character.

[19] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-6(b)(1).

2.   Nicole was born a biological male named Joedy Conrad. Nicole subsequently legally changed her name to Heather Lee Nicole and “transitioned into a woman” but had “no surgerys [sic]”. Ex. v. IV at 97-98.

3.   Nicole does not dispute that the term “computer network” applies to messages sent through the HERS app but notes that “any direct solicitation for sexual intercourse or sexual conduct ․ made by Nicole to Katie” was through text messaging between cell phones rather than through the HERS app. See Appellant's Br. at 24.

4.   Nicole also contends that we should, as a matter of “public policy,” revise her sentence to discourage “third-party organizations” such as PCI from “trap[ping]” “unsuspecting adults” such as her. Appellant's Br. at 30, 31. Nicole does not provide any citation at all to evidence in the record or supporting legal authority for this argument and has therefore waived it. See Ind. Appellate Rule 46(A)(8).

Bailey, Judge.

Brown, J., and Weissmann, J., concur.