PARR v. STATE (2026)

MEMORANDUM DECISION

Case Summary

[1] Following a jury trial, Tommy W. Parr was convicted of one count of Level 1 felony child molesting, two counts of Level 4 felony child molesting, two counts of Level 5 felony child solicitation, two counts of Level 6 felony sexual battery, and one count of Level 6 felony dissemination of material harmful to minors. On appeal, he challenges only his Level 1 felony conviction, claiming that the charging information did not allege the mens rea element. Parr also challenges the order of restitution to the Daviess County Security Center (the Jail), which was not a victim of the underlying offenses.

[2] We affirm in part, reverse in part, and remand with instructions.

Facts & Procedural History

[3] Since the age of six, M.V.L. grew up as a neighbor and family friend of Parr and his wife, Hope. In June 2019, Hope and Parr had their first child together, and they moved a few months later. M.V.L.’s family also moved around this time to a location about five blocks from the Parrs.

[4] M.V.L. enjoyed spending time with the Parrs’ baby, and in late 2019 she began babysitting while Hope worked around the house. M.V.L., who was thirteen at the time, babysat a few more times in early 2020. Hope was pregnant again and not feeling well. Parr was usually on the property working in his garage when M.V.L. babysat. On a couple of occasions, Hope left the home and ran errands while M.V.L. was there with the baby.

[5] On one occasion around January 2020, while Hope was away from the home and the baby was sleeping, Parr came inside and sat next to M.V.L. on the couch. He started rubbing her back underneath her clothes. She told him to stop and that she felt uncomfortable, but he continued and then started touching her breasts with one hand. M.V.L. moved to another couch and the baby started crying, so Parr stopped.

[6] At one point, it is unclear when, Parr also showed M.V.L. a video of a naked woman “sucking a guy's d*ck” and told her that he wanted her to do that to him. Transcript Vol. 3 at 63. She told him no. He also told M.V.L. that she had “a good body” and was “pretty for a teenager.” Id. at 67-68.

[7] Thereafter, M.V.L. became reluctant to babysit and began ignoring messages from Hope in January and February. Hope was persistent though, as she was sick and did not have other options for babysitters. Because the Parrs had done much for M.V.L.’s family over the years, M.V.L.’s mother, unaware of the greater situation, encouraged her to start babysitting again for them.

[8] M.V.L. returned to the Parrs’ home sometime in March to babysit again. One evening, Hope left the home while Parr was working outside and the baby was with M.V.L. sleeping. Parr came inside and started rubbing M.V.L.’s back and touching her breasts again. He then began touching his penis with his other hand before telling her to touch it. M.V.L. refused, but he grabbed her hand and forced her to touch his penis. Parr pulled his and her pants down. She pulled her pants back on but then he forced her to get on top of him while his pants were off. “He went up and down.” Id. at 66. After M.V.L. got off him, Parr pulled down her pants and had her sit down. He then got on his knees and licked her vagina. When he was done and she had pulled her pants up, Parr tried to forcibly kiss her. She prevented him by placing her hand between their lips. Parr stopped upon hearing Hope's car door slam shut.

[9] M.V.L. did not initially disclose the abuse, but she stopped responding to Hope's requests and never returned to their home after the incident in March 2020. Hope's text messages to M.V.L. then became increasingly mean, with Hope calling her a “[l]azy f**king Mexican” and “f**king worthless” by early June. Exhibits Vol. 5 at 23, 24.

[10] On June 5, 2020, M.V.L. showed her aunt (Aunt) the recent messages from Hope. Aunt then sent text messages to Hope as if she were M.V.L., telling Hope that she did not appreciate being called worthless, that caring for Hope's daughter was not M.V.L.’s responsibility, and that Hope should stop messaging her. Hope indicated that she would be talking with M.V.L.’s mom.

[11] Shortly thereafter, Parr showed up at M.V.L.’s home and began yelling at her about refusing to help Hope. M.V.L. stood behind Aunt “like she was scared.” Transcript Vol. 3 at 199-200. When Aunt stood up for M.V.L. and told him to read the messages Hope had been sending, Parr left. He sent an apology to M.V.L. the next day.

[12] Later that month, M.V.L. disclosed to Aunt that Parr had inappropriately touched her and that was why she did not want to go to his house anymore. M.V.L. decided to make this disclosure because she “kept waking up crying” and having “bad dreams” about what Parr had done to her. Id. at 71. Aunt informed M.V.L.’s mother that same evening, and a police report was made on June 27, 2020.

[13] On July 14, 2020, the State charged Parr with nine counts – three based on events in January and six based on events in March. The State also alleged that Parr was a habitual offender. At the conclusion of a three-day jury trial on May 15, 2025, the jury found Parr guilty as charged of the nine counts. He then acknowledged being a habitual offender.

[14] At the sentencing hearing on June 24, 2025, the trial court vacated one of the convictions and then imposed an aggregate sentence of 52 years in prison. Parr's most significant term was 40 years for Level 1 felony child molesting (Count I), which was enhanced for being a habitual offender. The trial court also ordered Parr to pay restitution in the amount of $2200 to the Jail.

[15] Parr now appeals, challenging only his conviction on Count I and the order of restitution. Additional information will be provided below as needed.

Discussion & Decision

1. Failure to Allege a Mens Rea Element in the Charging Information

[16] Parr challenges his conviction on Count I, Level 1 felony child molesting, because the charges for that count omitted the mens rea element. He contends that this omission violated his rights to due process and fundamental fairness because he was not sufficiently put on notice of the crime for which he was being charged.

[17] For Count I, the charging information cited Ind. Code § 35-42-4-3(a) and alleged:

On or about March of 2020, in Daviess County, State of Indiana, Tommy W. Parr, a person of at least twenty-one (21) years of age, did perform other sexual conduct as defined in Indiana Code Section 35-31.5-2-221.5, with [M.V.L.], a child under the age of fourteen years (14), that is, 13 years of age.

Appellant's Appendix Vol. II at 52.

[18] To be sure, the State was required to prove, among other things, that Parr acted “knowingly or intentionally” when he performed other sexual conduct. I.C. § 35-42-4-3(a). The State erroneously omitted mens rea, an essential statutory element, from the charge.

[19] In Miller v. State, 634 N.E.2d 57 (Ind. Ct. App. 1994), this court addressed an instance in which the charging information was defective for failing to include an essential element of the offense, but the defendant failed to raise the defect to the trial court. We affirmed the conviction, explaining:

Both the Sixth Amendment to the United States Constitution and Article I, § 13 of the Indiana Constitution require that a defendant be informed of the nature and cause of the accusation against him. This mandate is given effect through IC 35-34-1-2(a)(4) which requires that the information be in writing “setting forth the nature and elements of the offense charged in plain and concise language without unnecessary repetition․” The information should state the offense in the language of the statute or in words that convey a similar meaning. Minor variances from the language of the statute do not make an information defective, so long as the defendant is not misled or an essential element of the crime is not omitted. The information charging Miller with Resisting Law Enforcement was defective for not alleging the forcible nature of the act, an essential element of the crime; however, Miller did not challenge this defect until appeal.

The proper method to challenge deficiencies in a charging information is to file a motion to dismiss the information, no later than twenty days before the omnibus date. IC 35-34-1-4(b)(1). Failure to timely challenge the omission ordinarily would result in waiver of the issue, unless the omission was so prejudicial to Miller's rights that fundamental error resulted.

For omission of the word “forcibly” from the information to constitute fundamental error, it must mislead the defendant or fail to give him notice of the charges against him so that he is unable to prepare a defense to the accusation. In this case, the information specified the date of the offense, the officer Miller resisted, and the statute which made that resistance a crime. At trial, Miller did not object to testimony by the state that his resistance was forcible; instead, he contended that he had not resisted at all. On appeal, Miller has not demonstrated that he was misled or unable to prepare a defense.

Miller was aware of the events constituting the crime and was able to defend against the accusation. Therefore, although an essential element of the crime was omitted from the information, we conclude that omission did not prevent Miller from presenting a defense to the charge and was not fundamental error.

Id. at 60-61 (citations omitted and emphases added); see also Uk v. State, 231 N.E.3d 207, *2-3 (Ind. Ct. App. Feb. 14, 2024) (mem.) (affirming despite omission of mens rea element in information charging Level 1 child molesting because defect did not constitute fundamental error); cf. Smith v. State, 465 N.E.2d 702, 705 (Ind. 1984) (affirming attempted murder conviction where charging information did not state that defendant acted with the intent to kill, as defendant failed to show that he was “actually misled by the phraseology employed”).

[20] Similarly, here, Parr did not challenge the defect in the charging information until this appeal. He must therefore establish fundamental error, which is an extremely narrow exception to the waiver rule that applies where the error “made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018).

[21] “The purpose of a charging information is to advise the accused of the particular offense charged so that he can prepare a defense.” Truax v. State, 856 N.E.2d 116, 123 (Ind. Ct. App. 2006); see also State v. Katz, 179 N.E.3d 431, 441 (Ind. 2022). An error in a charging information is fundamental only if it misleads the defendant or fails to give him notice of the charges against him so that he is unable to prepare a defense to the accusation. See Grimes v. State, 84 N.E.3d 635, 640 (Ind. Ct. App. 2017), trans. denied.

[22] Parr concedes on appeal that “[he] did not prove he was misled by the charge, and his defense did not include a specific challenge to the mens rea for the offense.” Appellant's Reply Brief at 4. Indeed, Parr's defense to Count I was that he did not perform other sexual conduct with M.V.L., not that he did so accidentally or otherwise without knowledge or intent. Parr has failed to establish that omission of the mens rea from the charging information resulted in fundamental error.¹

2. Restitution

[23] Parr next argues, and the State concedes, that the trial court erred by ordering Parr to pay restitution to the Jail for damage to property that Parr allegedly committed while confined. Ind. Code § 35-50-5-3(a) permits a sentencing court to “order the [defendant] to make restitution to the victim of the crime, the victim's estate, or the family of a victim who is deceased” for damages incurred because of the crime. See Morgan v. State, 49 N.E.3d 1091, 1094 (Ind. Ct. App. 2016) (observing that a restitution order must reflect a loss sustained by the victim as a direct and immediate result of the defendant's criminal acts).

[24] The Jail was not a victim of any of the crimes for which Parr was being sentenced, and the damages sought were entirely unrelated to those crimes. The court exceeded its statutory authority when it ordered restitution to the Jail. See Green v. State, 811 N.E.2d 874, 877-80 (Ind. Ct. App. 2004) (reversing restitution order for reimbursement to the Adams County Prosecuting Attorney's deferral fund for a forensic sexual assault examination performed on the defendant following his arrest).

Conclusion

[25] We affirm Parr's conviction on Count I, as Parr failed to establish that the defective charging information amounted to fundamental error. However, we reverse the restitution order entered in favor of the Jail. On remand, the trial court is directed to vacate the restitution order.

[26] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   Parr's reliance on Yarbrough v. State, 497 N.E.2d 206 (Ind. 1986), is misplaced. That case dealt with a defendant being convicted of a crime that was not an included offense of the crime charged. That is, he was charged with battery resulting in bodily injury but convicted of criminal recklessness resulting in serious bodily injury. The Yarbrough court held that it was fundamental error to convict the defendant “for an offense which includes an element not included in the charge.” Id. at 209. In the case at hand, Parr was not convicted of a different crime from which he was charged and thus Yarbrough is inapposite.

Altice, Judge.

Brown, J. and DeBoer, J., concur.