220 N.E.3d 68
Ind. Ct. App.2023Background
- State charged Israel Hernandez with Class A misdemeanor invasion of privacy for allegedly violating a protective order issued under I.C. 35-33-8-3.2 (cause no. 324).
- The protective order prohibited Hernandez from any direct or indirect contact with the protected person while released pending trial.
- Probable cause affidavit incorporated a deputy’s report stating Hernandez repeatedly viewed the protected person’s Instagram posts and that the platform notifies users who view posts, alerting the protected person.
- Hernandez moved to dismiss the charging information under I.C. 35-34-1-4(a)(5), arguing the alleged facts could not constitute the offense because merely viewing public social-media posts is not contact.
- Trial court denied the motion; Hernandez appealed interlocutorily.
- Court of Appeals affirmed, holding the charging information was facially sufficient because it alleged knowing or intentional contact by viewing posts in a manner that notified the protected person.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the charging information is facially deficient because viewing social-media posts cannot be "contact" under a no-contact pretrial order | The information and affidavit allege Hernandez knowingly viewed posts so as to notify the protected person, constituting contact in violation of the order | Viewing public posts alone cannot be contact; facts do not map to the statute so information must be dismissed | Charging information sufficient; alleged conduct (knowing viewing that causes a notice) can constitute contact; denial of dismissal affirmed |
Key Cases Cited
- State v. Katz, 179 N.E.3d 431 (Ind. 2022) (explains purpose and sufficiency requirements for charging information)
- Pavlovich v. State, 6 N.E.3d 969 (Ind. Ct. App. 2014) (describes essential facts required in an information)
- Tanoos v. State, 137 N.E.3d 1008 (Ind. Ct. App. 2019) (probable-cause affidavit may be considered on a motion to dismiss information)
- State v. Isaacs, 794 N.E.2d 1120 (Ind. Ct. App. 2003) (example of dismissal where alleged facts did not map onto the charged statute)