The defense counsel for a Kokomo Fire Department firefighter charged with a felony for allegedly exposing himself to a minor filed a motion for dismissal in the case recently, arguing that the incident wasn’t criminal according to Indiana statute.

Thomas Granson II faces a charge of performance before a minor that is harmful to minors, a level 6 felony, for allegedly exposing his genitals to his children’s then-14-year-old babysitter last year. His defense attorney, Stephanie Doran, filed a motion to dismiss in Howard Superior IV, arguing that the incident itself didn’t constitute a performance before a minor and also wasn’t harmful to the minor in question.

The four-page filing made by Granson’s attorney on March 14 focuses on the alleged event that led to the Howard County Prosecutor’s Office filing of a charge against the firefighter.

The event in question, according to a probable cause affidavit, occurred in Granson’s home last year on July 20, 2018. At that time, Granson arrived home at about 11 a.m. after a shift at the fire department. The 14-year-old babysitter told investigators that she handed Granson his infant child, and he then told her “she had really pretty eyes.” Then Granson showered, and afterward, clothed in just a towel, he approached the babysitter, who was folding laundry. Court documents indicated that while standing about a foot away from the minor, the firefighter allegedly said, “This is for your fantasies,” and dropped the towel, exposing his genitals to the young girl.

Doran argued in her motion to dismiss that “the facts stated do not constitute an offense, or in the alternative, do not state the offense with sufficient certainty, and therefore, should be dismissed as a matter of law.”

In her arguments, Granson’s attorney wrote that “based upon the statutory definition of performance, the dropping of one’s towel for mere seconds does not constitute a performance.”

Support Local Journalism Now, more than ever, the world needs trustworthy reporting—but good journalism isn’t free. Please support us by making a contribution. Contribute

She cited Indiana code, which defined performance as meaning “any play, motion picture, dance, or other exhibition or presentation, whether pictured, animated, or live, performed before an audience of one or more persons.”

She went on to claim that even if the incident did constitute a performance, “the performance was not harmful to minors as that term is defined by statute.”

Again, she cited Indiana code, claiming that a matter or performance is harmful to minors if it “describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sadomasochistic abuse … considered as a whole, it appeals to the prurient interest in sex of minors … is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for or performance before minors; and … considered as a whole, it lacks serious literary, artistic, political, or scientific value for minors.”

The “flashing,” Doran claimed, didn’t rise to those levels.

“Clearly, ‘flashing’ someone for a matter of seconds does not constitute conduct which is harmful to minors as that term is defined by statute,” wrote Doran. “Nudity alone is not enough to make material legally obscene.”

A hearing on Granson’s motion to dismiss is scheduled for May 16, and a jury trial remains scheduled for May 23. Granson remains on unpaid leave from KFD.