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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. Oh, the name calling was not name calling, it was merely social commentary making this point, which is on the minds of many, as an aside to the article's focus: https://answers.yahoo.com/question/index?qid=20100111082327AAmlmMa Or, if you prefer a local angle, I give you exhibit A in that analysis of viva la difference: http://fox59.com/2015/03/16/moed-appears-on-house-floor-says-hes-not-resigning/

  2. Too many attorneys take their position as a license to intimidate and threaten non attorneys in person and by mail. Did find it ironic that a reader moved to comment twice on this article could not complete a paragraph without resorting to insulting name calling (rethuglican) as a substitute for reasoned discussion. Some people will never get the point this action should have made.

  3. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  4. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  5. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

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