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COA tackles 2 issues of first impression

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The Indiana Court of Appeals addressed two new issues in a child solicitation and prostitution case regarding authenticating emails and text messages and whether the defendant’s actions actually constituted a crime.

Matthew Pavlovich appealed his convictions of Class D felony child solicitation and Class A misdemeanor patronizing a prostitute. The charges stem from his interactions with S.Y. and her now-husband and “pimp,” Bradford Pugh. Pavlovich communicated with S.Y. through the email “golfnutmi” and a cell phone with the last four digits 2662.

When he met with S.Y. to have sex with her, S.Y. mentioned she had a 9-year-old sister, P.Y. Pavlovich suggested S.Y. and P.Y. perform sex acts on each other. S.Y. and Pugh went to police with the texts and emails Pavlovich sent regarding P.Y. He was eventually charged and convicted based on those communications.

His appeal, Matthew Pavlovich v. State of Indiana, 49A02-1308-CR-715, brings up two issues of first impression. The first is the admissibility of text or email messages where there is a complete lack of technological or documentary evidence linking a party to a particular cell number or email address. The phone Pavlovich used is registered under a different name to an address in the middle of the highway. There is also no evidence connecting Pavlovich to the email address except for when he gave it to S.Y.

The appellate court ruled the circumstantial evidence is sufficient to authenticate the texts and emails as being authorized by Pavlovich, so they were properly introduced into evidence and authenticated as being written by him. S.Y. testified that Pavlovich was the man who hired her and had sex with her on the date, she recognized his voice and that they communicated through that number and email.

Pavlovich was entitled to – and did – argue that there was insufficient evidence that he wrote the messages, but the trial court did not abuse its discretion in admitting them into evidence.

The case also presents for the first time the question of whether it is a crime under Ind. Code 35-42-4-6(b), the statute governing child solicitation, for a person to direct communications to an intermediary who the person believes is passing the communications on to the child or is acting on behalf of the child.

“Certainly communicating through an intermediary, as was done here, satisfies the ‘any other means’ method of child solicitation,” Judge Elaine Brown wrote in the majority opinion.

The majority affirmed his convictions.

Judge Michael Barnes dissented on this issue, disagreeing that Pavlovich completed the act of child solicitation under the circumstances of this case. He pointed out that he never directly communicated with P.Y., instead, urged S.Y. to urge P.Y. to engage in a sex act with her, but S.Y. never did so. As such, no illicit communications ever reached a child under 14 years old or a person pretending to be a child, so the child solicitation conviction must be reversed.

 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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