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Allegations that a man viewed a protected person’s Instagram posts are sufficient to charge him with invasion of privacy, the Court of Appeals of Indiana affirmed Friday.
The case involves appellant-defendant Israel Hernandez, who was charged in July 2022 with Class A misdemeanor invasion of privacy.
One day before Hernandez was charged, Pulaski County Sheriff’s Deputy Matthew Scott met with a man who said his daughter had a protective order against Hernandez. The father and daughter said Hernandez had been viewing the daughter’s Instagram posts in a way that informed the daughter he was viewing them.
After he was charged, Hernandez moved to dismiss the charging information as facially defective for failing to state facts that constituted a crime. The Pulaski Superior Court disagreed and denied the motion.
Hernandez then filed an interlocutory appeal, but the Court of Appeals affirmed, finding the charging information sufficiently states a criminal offense.
Judge Peter Foley wrote the opinion for the appellate court.
Hernandez argued there was no way that viewing a public post on social media could constitute “contact” under the terms of the protective order, which prohibited both direct and indirect contact except through an attorney.
The appellate court disagreed.
“The State does not allege that Hernandez simply viewed the Protected Person’s social media posts,” Foley wrote. “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.”
Foley added that, at trial, the factfinder 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.
“But as to the facial validity of the charging information, we are not persuaded the State failed to allege adequate facts regarding contact,” he concluded.
Chief Judge Robert Altice and Judge Melissa May concurred in Israel Hernandez v. State of Indiana, 23A-CR-219.
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