[Copyrighted Material Omitted]
APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Lisa F. Borges, Judge. Cause No. 49G04-1302-FB-8855.
ATTORNEYS FOR APPELLANT: DANIEL CUELLER, AMY L. CUELLER, The Cueller Law Office, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; BRIAN REITZ, Deputy Attorney General, Indianapolis, Indiana.
BROWN, Judge. ROBB, J., concurs. BARNES, J., concurs in part and dissents in part with separate opinion.
Matthew Pavlovich appeals his convictions for child solicitation as a class D felony and patronizing a prostitute as a class A misdemeanor. Pavlovich raises three issues, which we revise and restate as:
I. Whether the trial court properly denied Pavlovich's motion to dismiss the child solicitation charge;
II. Whether the trial court properly admitted certain text messages and emails into evidence and properly permitted their authentication as having been written by Pavlovich; and
III. Whether the trial court properly denied Pavlovich's motion for a directed verdict with respect to the child solicitation charge.
FACTS AND PROCEDURAL HISTORY
On November 9, 2011, Pavlovich contacted twenty-one-year-old S.Y. after seeing an Internet ad she had placed for escort services. Pavlovich communicated with S.Y. using a cell phone to make calls and send text messages. The last four digits of the number Pavlovich used were 2662. S.Y.'s then-boyfriend (now-husband) and " pimp," Bradford Pugh, would respond to texts from potential clients, such as Pavlovich, pretending to be S.Y., and S.Y. would speak on the phone with potential clients. Transcript at 147. Via text, Pugh arranged for S.Y. to meet Pavlovich at a Carmel hotel, and S.Y. spoke with Pavlovich over the phone to confirm the arrangements. Thereafter, Pugh stored in his cell phone the 2662 number Pavlovich had used, under the name " Matt." Exhibit 6. S.Y. went to the hotel room where Pavlovich had indicated he would be. At first, the two made small talk, and S.Y. mentioned that she had a nine-year-old sister, P.Y. Pavlovich then expressed an interest in P.Y., asking what she looked like and if " she [would] be interested in doing things" that S.Y. did. Transcript at 66. S.Y. was uncomfortable with Pavlovich's questions and kept trying to change the subject, but he kept asking about P.Y. Eventually, S.Y. and Pavlovich had sex, and S.Y. left and let Pugh know that she was upset about Pavlovich's questions about P.Y.
On November 16, 2011, S.Y. and Pugh were arrested on prostitution charges unrelated to Pavlovich. S.Y. and Pugh decided to mention Pavlovich's interest in P.Y.
to the police in hopes of receiving beneficial treatment in exchange for helping in an investigation of Pavlovich. Police did not initially express much interest in investigating him. On November 20, 2011, after Pugh was released from jail, S.Y. and Pugh decided to reinitiate contact with Pavlovich and discuss P.Y. with him. Posing as S.Y., Pugh texted the 2662 number Pavlovich had used to arrange their first encounter, sad, " I had a surprise for u," and asked that he text back. Exhibit 7. Pavlovich texted back the next day from the 2662 number and asked what the surprise was. Pugh responded, " I talked to my 9 year old sister about meeting you. . . . I told her you wanted to be her boy friend." Id. Over the next several days Pugh (still acting as S.Y.) and Pavlovich exchanged a number of texts, with Pavlovich asking for nude pictures of P.Y. and suggesting that S.Y. engage in oral sex with P.Y. S.Y. and Pugh did send one non-nude picture of P.Y. to an email address that Pavlovich provided, which began " golfnutmi." Exhibit 8. Pavlovich was from Michigan and frequently traveled to Indiana on business. Over the course of the exchange, Pavlovich offered to pay $900 to spend two hours with both S.Y. and P.Y.
On November 30, 2011, S.Y. and Pugh met with Detective Darin Odier of the Indianapolis Metropolitan Police Department and showed him the text messages and emails they had been exchanging with Pavlovich. At that time Detective Odier decided to take over Pugh's cell phone and email accounts and continued using them to communicate with Pavlovich, posing as S.Y. All of the communication between Detective Odier and Pavlovich occurred through the email address Pavlovich had earlier provided. At one point, Detective Odier mentioned having an eleven-year-old niece and Pavlovich expressed interest in the niece, saying P.Y. was " too young." Exhibit 9. Still, Pavlovich wanted to meet with S.Y. and pay her $400 for one hour to have sex and he wanted her to bring P.Y. to watch them have sex. On December 7, 2011, Pavlovich emailed S.Y. and said he was at a north side Indianapolis Marriott hotel. However, he refused to give his specific room number unless S.Y. sent him a picture of her and P.Y. together in the car on their way to meet him. Detective Odier determined that Pavlovich was a registered guest at a north side Indianapolis Marriott hotel and obtained a search warrant for his room. Before police arrived at the hotel, S.Y. attempted to call the 2662 phone number, but the call went to voice mail. S.Y. recognized Pavlovich's voice on the outgoing voice mail message as belonging to the person she had met on November 9, 2011. Police then served the search warrant and arrested Pavlovich at the hotel. Police did not attempt to search Pavlovich's cell phone. Additionally, a subpoena to the cell phone company revealed that the 2662 number was not registered under Pavlovich's name and that it was associated with an address that was " in the middle of the highway." Transcript at 206.
On February 7, 2013, the State charged Pavlovich with Count I, promoting prostitution as a class B felony;  Count II, child solicitation as a class D felony; Count III, attempted vicarious sexual gratification as a class D felony;  and Count IV, patronizing a prostitute as a class A misdemeanor. Before trial, Pavlovich sought dismissal of
the child solicitation charge, which the trial court denied. On June 3, 2013, the court commenced a jury trial in which Pavlovich repeatedly objected to introduction of the various text messages and emails because of the State's alleged failure to authenticate that Pavlovich had sent any of the messages. The trial court overruled these objections. At the conclusion of the State's case, Pavlovich moved for a directed verdict on all four counts, which the trial court denied. During closing argument, the State specifically contended that Pavlovich solicited P.Y. to engage in deviate sexual conduct--i.e. oral sex--with S.Y. The jury returned not guilty verdicts for promoting prostitution and attempted vicarious sexual gratification but guilty verdicts for child solicitation and patronizing a prostitute. On July 26, 2013, the court held a sentencing hearing and sentenced Pavlovich to 910 days on Count II, including 908 days suspended, and one year on Count IV, including 363 days suspended, to be served concurrently.
The first issue is whether the trial court properly denied Pavlovich's motion to dismiss the child solicitation charge. We review a trial court's 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 facts and circumstances.
State v. Riley, 980 N.E.2d 920, 922 (Ind.Ct.App. 2013), trans. denied. Pavlovich specifically sought dismissal of the child solicitation charge pursuant to Ind. Code § 35-34-1-4(a)(5), which permits dismissal of an information if " [t]he facts stated do not constitute an offense." In deciding whether an information fails to state facts constituting an offense, we take the facts alleged in the information as true.
State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind.Ct.App. 2003). Facts permitted to be raised in a motion to dismiss a charging information generally concern only pre-trial procedural matters, such as jurisdictional issues, double jeopardy, collateral estoppel, and the like.
See State v. King, 502 N.E.2d 1366, 1369 (Ind.Ct.App. 1987). " Questions of fact to be decided at trial or facts constituting a defense are not properly raised by a motion to dismiss."
Isaacs, 794 N.E.2d at 1122. It is only when an information is facially deficient in stating an alleged crime that dismissal for failure to state an offense is warranted. See id. at 1123 (holding dismissal of charge was warranted where information alleged defendant operated a vehicle with a schedule I or II controlled substance in the body, but substances alleged to be in defendant's body were schedule IV controlled substances or non-controlled substances, and it was not a crime to operate a vehicle with such substances in the body).
Here, the charging information for Count II, child solicitation as a class D felony, alleged as follows:
Matthew Pavlovich, on or about or between November 8, 2011 and December 7, 2011, being at least eighteen (18) years of age or older, did knowingly solicit, a child under fourteen (14) years of age, that is: [S.Y.]'s nine (9) year old sister, to engage in Deviate Sexual Conduct . . . .
Appellant's Appendix at 22-23. At the time of the offense, the child solicitation statute provided in part:
A person eighteen (18) years of age or older who knowingly or intentionally solicits a child under fourteen (14) years of age, or an individual the person believes to be a child under fourteen (14) years of age, to engage in:
(1) sexual intercourse;
(2) deviate sexual conduct; or
(3) any fondling or touching intended to arouse or satisfy the sexual desires
of either the child or the older person;
commits child solicitation, ...