FILED Sep 29 2023, 9:55 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Linda L. Harris Theodore E. Rokita Kentland, Indiana Attorney General of Indiana Evan M. Comer Deputy Attorney General David P. Dekold Erika N. Helding Certified Legal Interns Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Israel Hernandez, September 29, 2023 Appellant-Defendant, Court of Appeals Case No. 23A-CR-219 v. Appeal from the Pulaski Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Crystal A. Kocher, Judge Trial Court Cause No. 66D01-2207-CM-164
Opinion by Judge Foley Chief Judge Altice and Judge May concur.
Foley, Judge.
Court of Appeals of Indiana | Opinion 23A-CR-219 | September 29, 2023 Page 1 of 7 [1] Israel Hernandez (“Hernandez”) moved to dismiss a charging information for
invasion of privacy, claiming that the information is facially defective because
the facts stated therein do not constitute a criminal offense. The trial court
denied the motion, and Hernandez now brings this interlocutory appeal.
Concluding that the charging information is not facially defective, we affirm.
Facts and Procedural History [2] On July 12, 2022, the State charged Hernandez with Class A misdemeanor
invasion of privacy, alleging that Hernandez “did knowingly violate an order
issued under I.C. 35-33-8-3.2 by the Jasper Circuit Court under cause number
37C01-2204-F3-000324” (“the 324 cause”). Appellant’s App. Vol. II p. 17.
[3] The associated probable cause affidavit incorporates a police report prepared by
Deputy Matthew Scott (“Deputy Scott”) of the Pulaski County Sheriff’s Office.
See id. at 11. In the police report, Deputy Scott stated that he went to a
residence on July 11, 2022, meeting with a person (“Father”) who contacted
Jasper County about the violation of a protective order issued in the 324 cause
(“the Protective Order”). The protected person was Father’s daughter (“the
Protected Person”). Deputy Scott reported that, according to the INcite system,
the Protective Order was served on Hernandez on April 12, 2022. He further
reported that the Protective Order contained the following language:
[Hernandez] is ordered to have no contact with [the Protected Person] in person, by telephone or letter, through an intermediary, or in any other way, directly or indirectly, except through an attorney of record, while released from custody pending trial. This includes, but is not limited to, acts of Court of Appeals of Indiana | Opinion 23A-CR-219 | September 29, 2023 Page 2 of 7 harassment, stalking, intimidation, threats, and physical force of any kind.
Id. at 14. According to the police report, Father told Deputy Scott that the
Protected Person has multiple social media accounts, including an account on
Instagram. Deputy Scott then spoke to the Protected Person, who related that
the Protected Person and Hernandez “are not ‘friends’ on Instagram,” such
that, for Hernandez “to view [the Protected Person’s] account, he has to search
it every time he wants to view it.” Id. She also said that, when she “creates a
post,” the Instagram platform “shows who is viewing the post.” Id. The
Protected Person reported that Hernandez had been viewing her Instagram
posts, and she “was alarmed to find out . . . Hernandez has been watching her
posts on a platform that informs the user of who’s viewing the posts.” Id.
[4] On October 19, 2022, Hernandez moved to dismiss the charging information.
The trial court held a hearing on November 7, 2022, and eventually denied the
motion on November 21. Hernandez then perfected this interlocutory appeal.
Discussion and Decision [5] According to Hernandez, the charging information should have been dismissed.
Hernandez directs us to Indiana Code Section 35-34-1-4(a)(5), which provides
for dismissal of the charging information, upon motion, where “[t]he facts
stated do not constitute an offense.” In general, “[w]e review a ‘ruling on a
motion to dismiss a charging information for an abuse of discretion, which
occurs only if a trial court’s decision is clearly against the logic and effect of the
Court of Appeals of Indiana | Opinion 23A-CR-219 | September 29, 2023 Page 3 of 7 facts and circumstances.’” State v. Katz, 179 N.E.3d 431, 440 (Ind. 2022)
(quoting Gutenstein v. State, 59 N.E.3d 984, 994 (Ind. Ct. App. 2016), trans.
denied.). To the extent the motion turns on a pure question of law, we review
that question of law de novo. See id. Moreover, where, as here, the defendant’s
motion to dismiss alleges the charging information is factually deficient under
Indiana Code Section 35-34-1-4(a)(5), the motion tests the facial adequacy of
the charging information, ultimately presenting a pure question of law. See id.;
cf. Tanoos v. State, 137 N.E.3d 1008, 1015 (Ind. Ct. App. 2009), trans. denied.
[6] As our Supreme Court recently explained: “The purpose of the charging
information is to provide a defendant with notice of the crime of which he is
charged so that he is able to prepare a defense.” Katz, 179 N.E.3d at 441
(quoting State v. Laker, 939 N.E.2d 1111, 1113 (Ind. Ct. App. 2010), trans.
denied). For the charging information to be sufficient, the information generally
need “only contain a statement of the essential facts constituting the offense
charged, as well as the statutory citation, the time and place of the commission
of the offense, [and] the identity of the victim.” Id. (alteration in original)
(quoting Pavlovich v. State, 6 N.E.3d 969, 975 (Ind. Ct. App. 2014), trans.
denied.). “A court may dismiss a charging information if the ‘facts stated do not
constitute an offense,’ but this only occurs when the information is facially
deficient in stating an alleged crime.” Id. (quoting I.C. § 35-34-1-4(a)(5)).
[7] “In deciding whether a charging ‘information fails to state facts constituting an
offense, we take the facts alleged in the information as true.’” Id. (quoting
Pavlovich, 6 N.E.3d at 974). We may also take as true the facts alleged in the Court of Appeals of Indiana | Opinion 23A-CR-219 | September 29, 2023 Page 4 of 7 supporting probable cause affidavit. Tanoos, 137 N.E.3d at 1015; see also I.C. §
35-34-1-8 (setting forth procedures on a motion to dismiss the charging
information, contemplating consideration of “documentary evidence”). To
assess the facial adequacy of the charging information, we compare the factual
allegations to the substance of the criminal statute cited in the information. See,
e.g., Tanoos, 137 N.E.3d at 1015. The charging information is facially deficient
when the factual allegations do not map onto a criminal statute. See, e.g., State
v. Isaacs, 794 N.E.2d 1120, 1123 (Ind. Ct. App. 2003). For example, in Isaacs,
we affirmed an order dismissing a criminal count where (a) the State alleged the
defendant violated a statute that prohibited operating a vehicle with a schedule
I or II controlled substance in the body, but (b) the substances alleged to be in
the defendant’s body were not schedule I or II controlled substances, and (c) it
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FILED Sep 29 2023, 9:55 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Linda L. Harris Theodore E. Rokita Kentland, Indiana Attorney General of Indiana Evan M. Comer Deputy Attorney General David P. Dekold Erika N. Helding Certified Legal Interns Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Israel Hernandez, September 29, 2023 Appellant-Defendant, Court of Appeals Case No. 23A-CR-219 v. Appeal from the Pulaski Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Crystal A. Kocher, Judge Trial Court Cause No. 66D01-2207-CM-164
Opinion by Judge Foley Chief Judge Altice and Judge May concur.
Foley, Judge.
Court of Appeals of Indiana | Opinion 23A-CR-219 | September 29, 2023 Page 1 of 7 [1] Israel Hernandez (“Hernandez”) moved to dismiss a charging information for
invasion of privacy, claiming that the information is facially defective because
the facts stated therein do not constitute a criminal offense. The trial court
denied the motion, and Hernandez now brings this interlocutory appeal.
Concluding that the charging information is not facially defective, we affirm.
Facts and Procedural History [2] On July 12, 2022, the State charged Hernandez with Class A misdemeanor
invasion of privacy, alleging that Hernandez “did knowingly violate an order
issued under I.C. 35-33-8-3.2 by the Jasper Circuit Court under cause number
37C01-2204-F3-000324” (“the 324 cause”). Appellant’s App. Vol. II p. 17.
[3] The associated probable cause affidavit incorporates a police report prepared by
Deputy Matthew Scott (“Deputy Scott”) of the Pulaski County Sheriff’s Office.
See id. at 11. In the police report, Deputy Scott stated that he went to a
residence on July 11, 2022, meeting with a person (“Father”) who contacted
Jasper County about the violation of a protective order issued in the 324 cause
(“the Protective Order”). The protected person was Father’s daughter (“the
Protected Person”). Deputy Scott reported that, according to the INcite system,
the Protective Order was served on Hernandez on April 12, 2022. He further
reported that the Protective Order contained the following language:
[Hernandez] is ordered to have no contact with [the Protected Person] in person, by telephone or letter, through an intermediary, or in any other way, directly or indirectly, except through an attorney of record, while released from custody pending trial. This includes, but is not limited to, acts of Court of Appeals of Indiana | Opinion 23A-CR-219 | September 29, 2023 Page 2 of 7 harassment, stalking, intimidation, threats, and physical force of any kind.
Id. at 14. According to the police report, Father told Deputy Scott that the
Protected Person has multiple social media accounts, including an account on
Instagram. Deputy Scott then spoke to the Protected Person, who related that
the Protected Person and Hernandez “are not ‘friends’ on Instagram,” such
that, for Hernandez “to view [the Protected Person’s] account, he has to search
it every time he wants to view it.” Id. She also said that, when she “creates a
post,” the Instagram platform “shows who is viewing the post.” Id. The
Protected Person reported that Hernandez had been viewing her Instagram
posts, and she “was alarmed to find out . . . Hernandez has been watching her
posts on a platform that informs the user of who’s viewing the posts.” Id.
[4] On October 19, 2022, Hernandez moved to dismiss the charging information.
The trial court held a hearing on November 7, 2022, and eventually denied the
motion on November 21. Hernandez then perfected this interlocutory appeal.
Discussion and Decision [5] According to Hernandez, the charging information should have been dismissed.
Hernandez directs us to Indiana Code Section 35-34-1-4(a)(5), which provides
for dismissal of the charging information, upon motion, where “[t]he facts
stated do not constitute an offense.” In general, “[w]e review a ‘ruling on a
motion to dismiss a charging information for an abuse of discretion, which
occurs only if a trial court’s decision is clearly against the logic and effect of the
Court of Appeals of Indiana | Opinion 23A-CR-219 | September 29, 2023 Page 3 of 7 facts and circumstances.’” State v. Katz, 179 N.E.3d 431, 440 (Ind. 2022)
(quoting Gutenstein v. State, 59 N.E.3d 984, 994 (Ind. Ct. App. 2016), trans.
denied.). To the extent the motion turns on a pure question of law, we review
that question of law de novo. See id. Moreover, where, as here, the defendant’s
motion to dismiss alleges the charging information is factually deficient under
Indiana Code Section 35-34-1-4(a)(5), the motion tests the facial adequacy of
the charging information, ultimately presenting a pure question of law. See id.;
cf. Tanoos v. State, 137 N.E.3d 1008, 1015 (Ind. Ct. App. 2009), trans. denied.
[6] As our Supreme Court recently explained: “The purpose of the charging
information is to provide a defendant with notice of the crime of which he is
charged so that he is able to prepare a defense.” Katz, 179 N.E.3d at 441
(quoting State v. Laker, 939 N.E.2d 1111, 1113 (Ind. Ct. App. 2010), trans.
denied). For the charging information to be sufficient, the information generally
need “only contain a statement of the essential facts constituting the offense
charged, as well as the statutory citation, the time and place of the commission
of the offense, [and] the identity of the victim.” Id. (alteration in original)
(quoting Pavlovich v. State, 6 N.E.3d 969, 975 (Ind. Ct. App. 2014), trans.
denied.). “A court may dismiss a charging information if the ‘facts stated do not
constitute an offense,’ but this only occurs when the information is facially
deficient in stating an alleged crime.” Id. (quoting I.C. § 35-34-1-4(a)(5)).
[7] “In deciding whether a charging ‘information fails to state facts constituting an
offense, we take the facts alleged in the information as true.’” Id. (quoting
Pavlovich, 6 N.E.3d at 974). We may also take as true the facts alleged in the Court of Appeals of Indiana | Opinion 23A-CR-219 | September 29, 2023 Page 4 of 7 supporting probable cause affidavit. Tanoos, 137 N.E.3d at 1015; see also I.C. §
35-34-1-8 (setting forth procedures on a motion to dismiss the charging
information, contemplating consideration of “documentary evidence”). To
assess the facial adequacy of the charging information, we compare the factual
allegations to the substance of the criminal statute cited in the information. See,
e.g., Tanoos, 137 N.E.3d at 1015. The charging information is facially deficient
when the factual allegations do not map onto a criminal statute. See, e.g., State
v. Isaacs, 794 N.E.2d 1120, 1123 (Ind. Ct. App. 2003). For example, in Isaacs,
we affirmed an order dismissing a criminal count where (a) the State alleged the
defendant violated a statute that prohibited operating a vehicle with a schedule
I or II controlled substance in the body, but (b) the substances alleged to be in
the defendant’s body were not schedule I or II controlled substances, and (c) it
was not a crime to operate a vehicle with the alleged substances in the body. Id.
[8] Here, the State alleged that Hernandez committed invasion of privacy by
violating Indiana Code Section 35-46-1-15.1(a)(11). Under this statute, a
person who knowingly or intentionally violates “an order issued under IC 35-
33-8-3.2” commits Class A misdemeanor invasion of privacy. Ind. Code § 35-
46-1-15.1(a)(11). The statute referenced therein, Section 35-33-8-3.2, sets forth
procedures for bail in criminal cases, allowing a court to impose conditions for
pre-trial release. One permissible condition is that the defendant “refrain from
any direct or indirect contact with an individual[.]” I.C. § 35-33-8-3.2(a)(4).
[9] The charging information in this case, together with the probable cause
affidavit, states that Hernandez was subject to a protective order issued under
Court of Appeals of Indiana | Opinion 23A-CR-219 | September 29, 2023 Page 5 of 7 Section 35-33-8-3.2 that prohibited him from contacting the Protected Person
“in person, by telephone or letter, through an intermediary, or in any other
way, directly or indirectly, except through an attorney of record, while released
from custody pending trial[.]” Appellant’s App. Vol. II p. 14. The State alleged
that Hernandez violated the protective order by viewing public content that the
Protective Person posted “on a [social media] platform that informs the user of
who’s viewing the posts.” Id. The State further alleged that, through the
platform, the Protected Person became aware that Hernandez viewed her posts.
[10] Hernandez points out that he was prohibited from direct or indirect contact
with the Protected Person. According to Hernandez, there is no way that
viewing a public post on social media could constitute contact, so the State
failed to allege facts constituting an offense. We disagree. The State does not
allege that Hernandez simply viewed the Protected Person’s social media posts.
Rather, the State alleges that Hernandez knowingly or intentionally contacted
the Protected Person by viewing her posts on the Instagram social media
platform in such a manner that Hernandez caused a notice to be created that
informed the Protected Person that he was viewing her posts. At trial, the fact-
finder will be tasked with determining whether Hernandez knew about the
technical workings of the platform or the way the Protected Person used the
platform such that Hernandez acted with the requisite mens rea. See Katz, 179
N.E.3d at 441 (noting that “an evidentiary question for the jury” is “not
properly raised by a motion to dismiss”). But as to the facial validity of the
Court of Appeals of Indiana | Opinion 23A-CR-219 | September 29, 2023 Page 6 of 7 charging information, we are not persuaded the State failed to allege adequate
facts regarding contact. 1
[11] Because the charging information sufficiently states a criminal offense, the trial
court did not abuse its discretion in denying Hernandez’s motion to dismiss.
[12] Affirmed.
Altice, C.J., and May, J., concur.
1 Concluding as such, we do not address the parties’ alternative arguments regarding whether the alleged conduct could amount to stalking or harassment, which were also acts prohibited by the protective order.
Court of Appeals of Indiana | Opinion 23A-CR-219 | September 29, 2023 Page 7 of 7