Andrew E. Orellana Gallegos, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] In late 2020 and early 2021, eighteen-year-old Andrew Orellana Gallegos sent eight-year-old M.M.S. Snapchat photos of a penis. Gallegos was eventually charged and found guilty of disseminating matter harmful to minors. He appeals his conviction, asserting there was insufficient evidence to support it. We affirm.

Facts and Procedural History

[2] When M.M.S. was eight years old, eighteen-year-old Gallegos was dating her older sister, F.S. Upon learning that F.S. was pregnant in mid-2020, he moved into their family's home. While living there, Gallegos asked M.M.S. for her phone number and they eventually began messaging and sending photos back and forth on Snapchat. He would often ask M.M.S. to send him photos “of [her] body ․ without clothes” on Snapchat. Transcript Vol. 4 at 95. Specifically, he once asked her to send a photo of herself and told her to “take it all off open your legs in the air and move it to the side [ ] like alll [sic] the way[.]” Exhibits at 28. In exchange for photos, Gallegos let M.M.S. use his credit card to buy things for a game she played on her phone called Roblox. He told her not to tell anyone that they texted or sent Snapchats to one another.

[3] One night, Gallegos sent M.M.S. a text telling her to come down to the kitchen. When M.M.S. went to the kitchen, Gallegos proceeded to reach into her underwear and touch and insert his fingers into her vagina. M.M.S. went back to her room and did not tell anyone what happened. Then in late 2020, Gallegos and F.S. moved out of the house and into his parents’ home. While living at his parents’, Gallegos continued to text and engage with M.M.S. on Snapchat. On one occasion, he sent M.M.S. a Snapchat photo of his penis, which she later described as brown, hairy, and “sticking straight up[.]” Tr. Vol. 4 at 127. A portion of a white and brown spotted blanket was also visible in the photo.

[4] In January 2021, Gallegos sent M.M.S. multiple text messages while she was sleeping. M.M.S.’s mother saw the messages were from a number saved in the phone as “brother-in-law” and thought it was odd that Gallegos was texting her. Id. at 48. One message told M.M.S. to look at her Snapchat, so M.M.S.’s mother accessed the application on M.M.S.’s phone. The messages told her to send him photos, so her parents sent back a photo of M.M.S.’s room. Gallegos then sent a photo of a penis and buttocks. After receiving that photo, M.M.S.’s parents called the police and confronted Gallegos about the photo. A few weeks later, they contacted the Indiana Department of Child Services (DCS) to report what had happened.

[5] In February, M.M.S. participated in two forensic interviews. She was too uncomfortable to speak during the first interview, but she returned a few days later and disclosed the incidents discussed above. As part of the investigation, police detectives obtained M.M.S.’s and Gallegos's phones to perform extractions.¹ See Ex. at 45, 106. The police found text and Snapchat messages from Gallegos's phone on M.M.S.’s phone. Gallegos's phone extraction did not produce any messages but did show that the phone and Snapchat account had previously communicated with M.M.S.’s phone. A detective also obtained a search warrant for M.M.S.’s Snapchat account, but “[h]e did not get anything in return that was noteworthy,” which was not uncommon because Snapchat routinely deletes data stored on its servers roughly every ninety days. Tr. Vol. 5 at 15.

[6] Gallegos was later charged with Count I: Child Molesting, as a Level 4 felony;² Count II: Child Solicitation, as a Level 5 felony;³ and Count III: Dissemination of Matter Harmful to Minors, a Level 6 felony.⁴ At his jury trial, M.M.S., her mother, her father, her two older sisters, a DCS case manager, and a detective testified about the facts described above. Gallegos testified in his defense that he never touched M.M.S. or communicated with her by phone or Snapchat. He also testified that “[a] long time ago” he had given his Snapchat login information to a friend because the friend did not have his own cellphone, only a computer. Tr. Vol. 5 at 184. The detective later testified that the Snapchat app could not be used on computers until 2022. Gallegos also testified that F.S. used his phone at the time because hers was broken. Given that Snapchat photos generally disappear after being opened and because none of the photos were recovered from the Snapchat warrant, no Snapchat photos were introduced at trial.

[7] After the State rested, the trial court granted the defense's motion for a directed verdict on the child solicitation charge. See Tr. Vol. 5 at 121-28. The jury found Gallegos guilty of disseminating matter harmful to minors. The jury could not come to a unanimous verdict on the child molesting charge, so the court declared a mistrial as to that count only. See Tr. Vol. 6 at 3. He was retried for child molesting in a separate jury trial and found guilty. See Tr. Vol. 9 at 48. For both convictions, he was sentenced to an aggregate term of three years, with two years executed in the Department of Correction and one year on community corrections. He only appeals his conviction for dissemination of matter harmful to minors.

Discussion and Decision

[8] Gallegos argues there was insufficient evidence to convict him of dissemination of matter harmful to minors. When reviewing a challenge to the sufficiency of the evidence, we are mindful that it is the jury's role, not ours, “to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction.” Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024) (quoting Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)). Additionally, “[w]e consider only the evidence most favorable to” the conviction. Id. We will affirm a conviction unless no reasonable jury could have found “the elements of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)).

[9] To convict Gallegos, the State had to prove that he knowingly or intentionally disseminated matter to a minor that is harmful to minors. Ind. Code § 35-49-3-3(a)(1). A matter is “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.

I.C. § 35-49-2-2. “Matter” includes “any picture, drawing, photograph, motion picture, digitized image, or other pictorial representation[.]” I.C. § 35-49-1-3(2).

[10] Gallegos argues that the State presented “insufficient reliable evidence to support [the penis picture's] existence and whether it was disseminated.” Appellant's Brief at 14. This is so, Gallegos claims, because the particular picture he was accused of sending to M.M.S. was never found, he denied sending anything to her, someone else could have accessed his Snapchat account, and M.M.S.’s testimony about “the blanket was highly inconsistent.” Id. But whether the evidence of the existence of the photograph was “reliable,” as Gallegos puts it, is not a matter for this Court's consideration. See Young v. State, 198 N.E.3d 1172, 1176 (Ind. 2022) (“When there are conflicts in the evidence, the jury must resolve them.”). Moreover, Gallegos acknowledges that “[c]ertainly, the law does not require the photo to be produced to obtain a conviction.” Appellant's Br. at 14.

[11] To be sure, a review of the record shows that the evidence presented was sufficient to allow a jury to find that the elements of the offense were proven. M.M.S. testified that when she was only eight years old, Gallegos sent her a Snapchat photo of his penis, and she described what it looked like. M.M.S. identified a blanket in the background of the photo, and her description was consistent with the appearance of a blanket later found in Gallegos's bedroom. Even during her forensic interview, M.M.S. disclosed that Gallegos had sent her this picture and described the same blanket. M.M.S.’s parents also testified that they opened another Snapchat photo sent to M.M.S.’s account from the username associated with Gallegos that depicted a penis and buttocks. Furthermore, the extraction of Gallegos's phone showed that the Snapchat account logged in on his phone “was communicating with [M.M.S.’s] Snapchat account[.]” Tr. Vol. 5 at 25. As such, Gallegos's arguments amount only to a request that we reweigh the evidence, and we will not do so. Fouts v. State, 207 N.E.3d 1257, 1263 (Ind. Ct. App. 2023), trans. denied.

Conclusion

[12] Finding there was sufficient evidence to convict Gallegos of disseminating matter harmful to minors, we affirm.

[13] Affirmed.

FOOTNOTES

1.   The detective explained that, in the simplest terms, “a phone extraction is pulling data off of a phone[.]” Tr. Vol. 5 at 19. There are three types of extractions, from the most basic to the most comprehensive: (1) logical extraction, (2) file system extraction, and (3) physical extraction. Law enforcement did a physical extraction of M.M.S.’s phone and a file system extraction of Gallegos's phone.

2.   Ind. Code § 35-42-4-3(b).

3.   I.C. § 35-42-4-6(b).

4.   I.C. § 35-49-3-3(a)(1).

DeBoer, Judge.

Bradford, J., and Weissmann, J., concur