Douglas C. Cherry, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

Case Summary

[1] Douglas Cherry methodically began the crime of Level 4 felony child solicitation by befriending what he thought to be a thirteen-year-old girl, known as “Sasha,” by the internet-based dating application, Tinder. Using Tinder, text messaging, and the telephone, Cherry lured “Sasha” with the goal of engaging in sexual intercourse and other sex acts with “Sasha.” The crescendo of Cherry's plan occurred when he arrived, ready for sex, at what he believed to be “Sasha's” home with pre-promised pizza, sodas, and condoms. Cherry challenges the sufficiency of the evidence to sustain his conviction. Because he began his crime on Tinder and continued using various means of electronic and telephonic communication, with the ultimate goal of luring “Sasha” and convincing her to engage in sexual intercourse with him, we affirm.

Facts and Procedural History

[2] In March of 2020, Eric Schmutte founded a nonprofit organization called PCI. PCI's goal is “to expose and catch as many online child predators as [it] can.” Tr. Vol. II p. 22. In conducting PCI's investigations, members would

set up profiles on dating apps, social media apps, anywhere where two people can message each other we set up a profile and then we basically pose as minors of the age of 15 and younger and basically we just sit there, wait for people to message our decoys. Once [an individual] message[s] us we message them back. We tell them we are of the age 15 years or younger and if they keep engaging in conversation, we keep talking to them and eventually we will set up a meet for us to meet after they had sexual conversation.

Tr. Vol. II pp. 22–23. PCI has three main rules for its investigations: (1) “we don't ever contact anyone first, they always message us first[;]” (2) the individual must “initiate any talk of sexual conversation, so we don't bring up sex in the slightest at first, it's always them[;]” and (3) the individual must “initiate wanting to meet up” in person. Tr. Vol. II p. 24. After an individual had initiated a sexual conversation and indicated a desire to meet the decoy in person, PCI would arrange a meeting. Depending on the county where the meeting was arranged, PCI would “tell police that we have a guy that's talked sexual that wants to meet and we'll inform them on what's happening. Sometimes we'll just go out and meet the guy and then call the police, it just kind of depends on the county.” Tr. Vol. II p. 24. Neither PCI's members, all of whom are volunteers and do not work for the police nor PCI had ever been asked by the police to try to expose online predators. Neither PCI nor its members were compensated for their work.

[3] At all times relevant to the instant case, PCI used the internet-based dating application Tinder to create decoy profiles. One decoy account was for a female allegedly named “Sasha.” Tr. Vol. II p. 25. Tinder's rules and regulations require users to be at least eighteen years old, but it is “[v]ery possible” for “somebody less than 18 years of age to create a profile.” Tr. Vol. II p. 26. In compliance with Tinder's rules, “Sasha's” profile indicated that she was eighteen or nineteen years old. “Sasha's” profile picture, however, depicted a much younger-looking girl. “Sasha's” profile picture was a photograph of an adult member of PCI that had been altered “to make her look like a 13[-]year[-]old girl.” Tr. Vol. II p. 31.

[4] On November 10, 2022, Cherry contacted “Sasha” on Tinder. Cherry and “Sasha” exchanged brief, innocuous, messages for a few days. Three days after the initial contact, Cherry gave “Sasha” his cellular telephone number.

[5] “Sasha” sent Cherry a text message to his cellular telephone that said, “Hey Douglas it's [“Sasha”] from Tinder[.]” Ex. Vol. p. 6. After re-establishing that they lived in relatively close proximity, Cherry invited “Sasha” to meet him for coffee. The pair exchanged photographs after which Cherry indicated that he was sixty-four and asked “Sasha” how old she was. “Sasha” stated “I'm kinda yung, u prob won't wana talk to me” and “U promise not to freak out?” Ex. Vol. p. 11. When Cherry answered in the affirmative, “Sasha” stated that she was thirteen. Cherry indicated that he was “not freaking out” before reiterating his invitation to “go out for coffee or a soda.” Ex. Vol. p. 12. When “Sasha” indicated that she did not like coffee but that she would “be down to do whatever” Cherry wanted to do, Cherry suggested they go to the park or go get sodas and talk. Ex. Vol. p. 12. “Sasha” indicated that it was too cold to go to the park and that talking over sodas was boring.

[6] Cherry assured “Sasha” that he did not “care about [her] age” and asked her “[w]hat is fun to you․ [w]ant to go out to eat[?]” Ex. Vol. p. 14. Cherry told “Sasha” that he wanted to meet her in person “first to tell u what else we could do[,] I just want to make sure everything is safe[.]” Ex. Vol. p. 15. When “Sasha” asked “[u] wana make sure I'm not a catfish is that what ur saying[,]” Cherry responded “[y]es or a trap for cops[.] A man can't be toooooo careful[.]” Ex. Vol. p. 15.

[7] Cherry and “Sasha” continued to exchange messages with Cherry eventually asking “Sasha” what grade she was in and where they could meet. Cherry suggested going to eat someplace in Madison, Seymour, or Columbus so that “Sasha” “won't be noticed by family or friends[.]” Ex. Vol. p. 21. When “Sasha” indicated that she was “kinda confused [as to] why u can't tell me what u wana do ․ til we meet” Cherry responded “I told u cop or catfish????? I have to be careful I don't get into any trouble[.]” Ex. Vol. p. 23.

[8] Sometime later, Cherry engaged in a “lengthy” telephone call with “Sasha.” Tr. Vol. II p. 36. A female member of the organization pretended to be “Sasha” during the call, which was recorded. During the call, Cherry offered to spend the night with “Sasha” while her mother was gone for the weekend. When “Sasha” asked if he really wanted to come stay with her, Cherry responded “I wouldn't have said it if I didn't want to.” Ex. 8 at 9:20–9: 24. He asked “Sasha” if she had done more than kissing or holding hands with a boy. Cherry told “Sasha” that he wanted to “go as far as I can with you.” Ex. 8 at 8:10-8:15. When “Sasha” asked what that meant, Cherry replied, “s-e-x.” Ex. 8 at 8:10–8:15. Cherry went on to say “I want to f[**]k you” and “I want to have sex with you.” Ex. 8 at 8:00-8:10. Cherry asked “Sasha” if she would be willing to have sex with him if he came over and spent the night.” Ex. 8 at 8:55–9:10. When “Sasha” expressed hesitation and a fear of getting pregnant, Cherry assured her that she would not become pregnant if they had sex because he “won't cum inside of you” and he would “pull it out” and “put it all over you.” Ex. 8 at 10:30–10:35, 11:20–11:26. Cherry expressed a desire to “play with [“Sasha's”] pu[**]y” and said they could do “all kinds” of “sex stuff,” and that he would “lick your pu[**]y. Ex. 8 at 15:39–15:49, 15:53–15:56. Cherry assured “Sasha” that she'd “like it.” Ex. 8 at 13:28–13:31. Cherry told “Sasha” that he could not say those things when he was texting because he was an adult and that someone could find the text messages, even if the messages were deleted. Ultimately, Cherry and “Sasha” arranged for Cherry to come to “Sasha's” house on December 10, 2022.

[9] After arranging a date for “Sasha” and Cherry to meet, Schmutte contacted Jennings County Sheriff's Deputy Doug Brown, to whom Schmutte had brought between five and ten prior investigations. Deputy Brown had never instructed Schmutte or PCI to carry out their investigations, and he was not a part of PCI. Deputy Brown had not considered Schmutte to be his agent. Likewise, the Jennings County Sheriff's Department had not paid Schmutte or PCI for their investigative work. At some point, Deputy Brown had explained to Schmutte and PCI that there were “specific items that they [were] not to do,” including that PCI must not initiate sexual conversations with anyone. Tr. Vol. II p. 79. Deputy Brown had explained that if PCI had initiated a sexual conversation, then he would not pursue the case or complete his own investigation into the matter.

[10] Schmutte provided Deputy Brown a copy of the Tinder and text messages and a recording of the telephone call with Cherry. After reviewing the messages and the recording of the telephone call to ensure that PCI had not initiated the sexual conversation with Cherry, Deputy Brown provided an address of a home in Jennings County that Schmutte could give to Cherry. On December 10, 2022, Schmutte, two other members of PCI, Deputy Brown, and additional police officers waited at the home for Cherry to arrive. When Cherry arrived, he exited his car and waved at a neighbor. He then retrieved a pizza and some drinks from his car and carried them toward the front door.

[11] When Cherry reached the porch, Deputy Brown “stepped outside and introduced [himself].” Tr. Vol. II p. 70. Deputy Brown was wearing his police uniform when he introduced himself to Cherry. Cherry responded, “I'm not doing anything illegal.” Tr. Vol. II p. 71. Upon searching Cherry, the police officers located two condoms in Cherry's “left breast pocket.” Tr. Vol. II p. 71. Cherry was transported to the Jennings County Sherriff's Office for an interview.

[12] During the interview, Cherry admitted that he had offered to spend the night with “Sasha” while her mother was out of town and that he could see why others might have a problem with him doing that. Cherry kept reiterating that he had only mentioned watching movies with “Sasha,” claiming that he “wasn't soliciting anybody” and that he never said he wanted to have sex with “Sasha” in the text messages. Ex. 9 at 1:57–58, 2:30–2:36. Cherry told the police that he did not care how it looked, and that he was not doing anything wrong. Although Cherry denied having ever said anything about wanting to have sex with “Sasha,” police confronted him with statements to the contrary. Cherry then admitted that he had said he wanted to have sex with “Sasha,” but indicated that “[i]t's just words. It doesn't mean anything.” Ex. 9 at 14:20–14:32. Cherry admitted afterwards that he should not have said those things to a thirteen-year-old. Cherry indicated that although he had asked “Sasha” if she was a police officer and thought that it was possible that he was being set up, he had gone to the home anyway. When asked about the condoms, Cherry, who was in his sixties, claimed that he was “too old” to have sex and that the condoms were old. Ex. 9 at 4:35–4:50. When the police confronted Cherry with the recorded phone call, Cherry stated “you know what I said” and “anything I say is going to incriminate me.” Ex. 9 at 16:40–16:50.

[13] On December 14, 2022, the State charged Cherry with Level 4 felony child solicitation. The case proceeded to a jury trial, during which Cherry testified and raised an entrapment defense. With regard to this defense, the trial court instructed the jury that

[t]he defense of entrapment has been mentioned in this case. In order to overcome this defense, the state must prove beyond a reasonable doubt that the prohibited conduct of the defendant was not the product of a law enforcement officer or a law enforcement officer's agent using persuasion or other means likely to cause the defendant to engage in the conduct, or that the defendant was predisposed to commit the offense. Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.

Tr. Vol. II p. 140. The trial court further instructed the jury as to the nature of the alleged offenses, the statutory elements that the State was required to prove in order to obtain a conviction, and relevant definitions. The jury ultimately found Cherry guilty as charged. The trial court later sentenced Cherry to 1440 days with 720 days executed and 720 days suspended to probation.

Discussion and Decision

[14] When reviewing the sufficiency of the evidence to support a conviction, “appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)․. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Wright v. State, 828 N.E.2d 904[, 906] (Ind. 2005). To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it “most favorably to the trial court's ruling.” Id. Appellate courts affirm the conviction unless “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)․. It is therefore not necessary that the evidence “overcome every reasonable hypothesis of innocence.” Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995). “[T]he evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.” Pickens v. State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001).

Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (emphasis and footnote omitted, last set of brackets in original). Stated differently, in reviewing the sufficiency of the evidence, “we consider only the evidence and reasonable inferences most favorable to the convictions, neither reweighing evidence nor reassessing witness credibility” and “affirm the judgment unless no reasonable factfinder could find the defendant guilty.” Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016).

I. Sufficiency of the Evidence

[15] Cherry also contends that the evidence is insufficient to sustain his conviction for Level 4 felony child solicitation as alleged in the charging information. At the time Cherry was alleged to have committed his criminal acts, Indiana Code section 35-42-4-6(b) provided as follows:

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 sexual intercourse, other sexual conduct (as defined in IC 35-31.5-2-221.5), or any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person, commits child solicitation, a Level 5 felony. However, the offense is a Level 4 felony if the person solicits the child or individual the person believes to be a child under fourteen (14) years of age to engage in sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) and:

(1) commits the offense by using a computer network (as defined in IC 35-43-2-3(a)) and travels to meet the child or individual the person believes to be a child;

or

(2) has a previous unrelated conviction for committing an offense under this section.

As used in the statute, the term solicit means

to command, authorize, urge, incite, request, or advise an individual:

(1) in person;

(2) by telephone or wireless device;

(3) in writing;

(4) by using a computer network (as defined in IC 35-43-2-3(a));

(5) by advertisement of any kind; or

(6) by any other means;

to perform an act described in subsection (b) or (c).

Ind. Code § 35-42-4-6(a).

[16] In charging Cherry with child solicitation as a Level 4 felony, the State alleged as follows:

The undersigned says that between November 23, 2022 and December 10, 2022 in Jennings County, State of Indiana, Douglas C. Cherry, being at least eighteen years of age, did knowingly or intentionally solicit Victim No 1, a person that Douglas C. Cherry believed to be a child under fourteen years of age, to engage in sexual intercourse or other sexual conduct intended to arouse or satisfy the sexual desires of either Victim No 1 or Douglas C. Cherry, said solicitation having been accomplished by the use of a computer network as defined in I.C. 35-43-2-3(a) and with the said Douglas C. Cherry having traveled to meet the said Victim No 1, contrary to the form of the statutes in such cases made and provided by I.C. 35-42-4-6(b) and I.C. 35-42-4-6(b)(1) and against the peace and dignity of the State of Indiana.

Appellant's App. Vol. II p. 14.

[17] Cherry argues that, given the manner in which he was charged, the State was required to prove that he solicited a child “by using a computer network.” See Ind. Code § 35-42-4-6(b)(1). At the time Cherry is alleged to have committed the charged offense, “computer network” was defined as “the interconnection of communication lines or wireless telecommunications with a computer or wireless telecommunication device through: (1) remote terminals; (2) a complex consisting of two (2) or more interconnected computers; or (3) a worldwide collection of interconnected networks operating as the Internet.” Ind. Code § 35-43-2-3. Cherry acknowledges that he initially communicated with “Sasha” via the internet-based application Tinder, but claims that “[t]he solicitation alleged by the State occurred over the phone[,]” not over a computer network. Appellant's Br. p. 17. Cherry asserts that “the State made its choice to charge [him] for solicitation by using a computer network when it could have” alleged that he committed solicitation by use of a telephone or wireless device. Appellant's Br. p. 18.

[18] For its part, the State argues that although Cherry argues that he could not be found guilty of Level 4 felony child solicitation because “the arranged meeting and sexual conversations did not occur until the phone call,” “Tinder is where the crime began, and the text messages provided the bridge to the phone call.” Appellee's Br. pp. 24, 25. The State asserts that “[a]ll Cherry was required to do was to use a computer network while he committed his crime to trigger the enhancement, which he did when he began messaging [“Sasha”] on Tinder. Appellee's Br. p. 25. We agree.

[19] The term “use” is defined as “the act or practice of using something.” Webster’s Third New International Dictionary 2523 (Phillip Babcock Gove et al. eds., G.&C. Merriam Company 1966). It is undisputed that Cherry “used” a computer network when he initiated contact with “Sasha.” While “Sasha's” age on her Tinder profile was listed as eighteen or nineteen years old, the record demonstrates that her profile picture showed a much younger girl. Nothing in the record indicates that Cherry did not have access to view “Sasha's” profile picture before reaching out to her and initiating conduct.

[20] It is undisputed that Cherry initiated contact with “Sasha” via Tinder, i.e., the internet-based application. Cherry methodically continued his crime, using various communication methods, all of which culminated in his arriving at what he believed to be “Sasha's” home, ready for sex, with the pre-promised pizza, sodas, and condoms. A reasonable jury could infer from these facts that Cherry “used” a computer network in the commission of his crime. Moreover, the jury was aware of both (1) the varying proffered interpretations of the word “use” and (2) the lesser-included Level 5 felony charge, which did not require “use” of a computer network. By finding Cherry guilty of the Level 4 felony as opposed to a Level 5 felony, the jury, after considering all of the evidence and argument presented at trial, credited the State's proffered interpretation of the word “use.” Considering the evidence presented at trial most favorable to the jury's determination, we conclude that the above-discussed evidence is sufficient to sustain the jury's determination that Cherry committed Level 4 felony child solicitation.¹ Cherry's argument to the contrary is effectively an invitation to reweigh the evidence, which we will not do. See Griffith, 59 N.E.3d at 958.

II. Cherry's Entrapment Defense

[21] In challenging the sufficiency of the evidence, Cherry first contends that the State failed to rebut his entrapment defense. Entrapment in Indiana is statutorily defined as:

(a) It is a defense that:

(1) the prohibited conduct of the person was the product of a law enforcement officer, or his agent, using persuasion or other means likely to cause the person to engage in the conduct; and

(2) the person was not predisposed to commit the offense.

(b) Conduct merely affording a person an opportunity to commit the offense does not constitute entrapment.

Ind. Code § 35-41-3-9.

A defendant does not need to formally plead the entrapment defense; rather, it is raised, often on cross-examination of the State's witnesses, by affirmatively showing the police were involved in the criminal activity and expressing an intent to rely on the defense. Wallace v. State, 498 N.E.2d 961, 964 (Ind. 1986); Fearrin v. State, 551 N.E.2d 472, 473 (Ind. Ct. App. 1990). Officers are involved in the criminal activity only if they “directly participate” in it. Shelton v. State, 679 N.E.2d 499, 502 (Ind. Ct. App. 1997) (finding, where officers merely placed deer decoy in field, they did not “directly participate in the criminal activity of road hunting,” and the defendants thus failed to raise the entrapment defense). The State then has the opportunity for rebuttal, its burden being to disprove one of the statutory elements beyond a reasonable doubt. Riley v. State, 711 N.E.2d 489, 494 (Ind. 1999); McGowan v. State, 674 N.E.2d 174, 175 (Ind. 1996) (holding because entrapment is established by the existence of two elements, it is defeated by the nonexistence of one). There is thus no entrapment if the State shows either (1) there was no police inducement, or (2) the defendant was predisposed to commit the crime. Riley, 711 N.E.2d at 494.

Griesemer v. State, 26 N.E.3d 606, 609 (Ind. 2015). “Merely affording the defendant an opportunity to commit a crime does not constitute entrapment.” Wallace, 498 N.E.2d at 964. On appeal, we will review a claim of entrapment “using the standards that apply to other challenges to the sufficiency of the evidence.” Id.

[22] In arguing that the State failed to rebut his entrapment defense, Cherry argues that PCI was acting as an agent of the State.

An agency relationship may be actual, implied, or apparent. See Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210–11 (Ind. 2000). As relevant here, apparent agency does not depend on the principal's express or implied authorization for the agent to act on the principal's behalf; rather, apparent agency exists when “a principal's manifestations induce a third party to reasonably believe there is a principal-agent relationship.” Arrendale v. Am. Imaging & MRI, LLC, 183 N.E.3d 1064, 1068 (Ind. 2022); see also Pepkowski v. Life of Ind. Ins. Co., 535 N.E.2d 1164, 1167 (Ind. 1989) (“It is essential that there be some form of communication, direct or indirect, by the principal, which instills a reasonable belief in the mind of the third party.”). “[T]he placing of the agent in a position to perform acts or make representations which appear reasonable to a third person is a sufficient manifestation to endow the agent with apparent authority.” Gallant Ins. Co. v. Isaac, 751 N.E.2d 672, 677 (Ind. 2001).

Clark v. State, 209 N.E.3d 444, 448 (Ind. Ct. App. 2023) (brackets in original), trans. denied.

[23] For its part, the State points to our prior decision in Clark, in which we concluded in a similar case that Schmutte and PCI were not agents of the State. 209 N.E.2d at 448–49. We find the rationale set forth in Clark to be persuasive and again adopt it here. In Clark, the defendant argued that an apparent agency relationship existed between Schmutte and PCI and law enforcement. Concluding otherwise, we stated as follows:

PCI is a private, civilian organization separate and apart from law enforcement. PCI receives no training, advice, or assistance from law enforcement, and receives all of its funding from private donations. PCI also does not notify law enforcement until after they “catch” someone․ Further, Detective Boggess treated the [information from PCI] merely as “a tip” from which he launched his own, independent investigation into Clark. Tr. Vol. II p. 246–47.․

Clark argues that “[b]y not doing anything to stop Schmutte and actively accepting his ‘help,’ the State of Indiana has placed him in a position to perform acts that appear to any reasonable person to endow him with the power of the [S]tate.” Appellant's Br. p. 9. Similarly, in Clark's Reply Brief, Clark makes the reference that “Batman is not the apparent agent of Commissioner Gordon simply because the Commissioner puts up the Bat Signal. Batman is an apparent agent because everyone knows Commissioner Gordon reaps the rewards for Batman's efforts.” Reply p. 6. We disagree. First, law enforcement lit no “Bat-signal” calling Schmutte and PCI to action. Rather, as we have explained, law enforcement did not become involved until after PCI livestreamed its encounter with Clark. Moreover, law enforcement agencies routinely rely on the general public for tips, evidence, and other information, and the mere collection of that information says nothing about whether the State has authorized an individual to act on its behalf. In addition, such an interpretation of our entrapment statute would seem to convert civilians into law enforcement agents only after the civilian's efforts have been completed. Cf. Drake v. Maid-Rite Co., 681 N.E.2d 734, 738 (Ind. Ct. App. 1997) (holding that franchisee lacked apparent authority in selling restaurant when purchaser “offer[ed] no evidence of any communication or contact, direct or indirect, between herself and [franchisor] prior to purchasing the restaurant from [franchisee]”).

Clark also relies on the fact that PCI does not operate in jurisdictions where law enforcement agencies do not wish them to operate. PCI's strategic decisions, however, are at most manifestations by PCI but are not manifestations by law enforcement and, therefore, cannot support a finding of apparent agency. See Pepkowski, 535 N.E.2d at 1167 (“Statements or manifestations made by the agent are not sufficient to create an apparent agency relationship.”). Law enforcement's discouragement of PCI operating in certain jurisdictions, meanwhile, manifests the opposite of an agency relationship. In short, the record simply contains no manifestations from Detective Boggess or any other law enforcement authority that suggests Schmutte or PCI were acting as agents of law enforcement.

Id. at 448–49.

[24] Similarly, in this case, Deputy Brown had not asked PCI to investigate Cherry and had not been involved in PCI's investigation into Cherry. PCI turned over records of their communications with Cherry on their own accord. Deputy Brown treated the information from PCI as a “tip” and conducted his own investigation before providing PCI with a safe location for Cherry's planned visit with “Sasha.” The fact that members of PCI were inside the residence at the time of the planned meet-up, at which Deputy Brown encountered and arrested Cherry outside the home, does not change the fact that Deputy Brown had not requested PCI take any action on the State's behalf. For the reasons set forth in Clark, we again conclude that neither Schmutte nor PCI was acting as an agent of the State.

[25] Furthermore, even if Schmutte and PCI had been acting as agents of the State, Cherry fails to demonstrate that he was not predisposed to commit the offense. “[T]he critical question regarding predisposition ‘is whether criminal intent [was] deliberately implanted in the mind of an innocent person[.]’ ” Id. at 449 (quoting Ferge v. State, 764 N.E.2d 268, 271 (Ind. Ct. App. 2002)) (brackets in Clark, internal quotation marks omitted), trans. denied. Despite Cherry's claim to the contrary, the evidence supports the reasonable inference that PCI had merely afforded him an opportunity to commit a crime. The evidence indicates that it was Cherry, and not PCI, who had initiated talk about Cherry and “Sasha” having sex. “Sasha” had informed Cherry on multiple occasions that she was only thirteen. In fact, the first time “Sasha” revealed her supposed age, Cherry immediately reiterated his invitation to meet with “Sasha” in person. In the subsequent recorded telephone call, Cherry detailed to “Sasha” the various types of sex acts that they could engage in together. When “Sasha” acted confused and clueless, Cherry would detail to “Sasha” what he meant. When “Sasha” displayed signs of hesitation, Cherry assured her that everything would be ok and that he would not hurt her or get her pregnant.

[26] Cherry admitted to “Sasha” that he had waited to say these things to her because he was concerned that police would recover the records of their Tinder and text conversations. Specifically, Cherry explained to “Sasha” that he could not discuss what he wanted to do with her via text message because those records could be recovered, even if the messages had been deleted. He also expressed concern that “Sasha” could be a set-up but nonetheless went to “Sasha's” home at the agreed-upon time. Cherry's conduct suggests that although he knew that his communications with “Sasha”—specifically those in his telephone conversation—were illegal, as she was only thirteen years old, he continued to engage with her and solicit her, going as far as showing up at her “home” at the pre-arranged time with the promised pizza, soft drinks, and condoms. The evidence at trial was sufficient to rebut Cherry's entrapment defense.

[27] The judgment of the trial court is affirmed.

FOOTNOTES

1.   We note that while Indiana Code section 35-42-4-6(a) separately lists “telephone or wireless device” and a “computer network,” other jurisdictions have found that a cellular telephone or smart phone, would qualify as a “computer network.” See Cowan v. State, 559 P.3d 627, 633 (Alaska Ct. App. 2024) (providing that a smartphone fits “well within” the statutory definition of a computer); People v. Campbell, 2021 WL 5497821 *3–4 (Mich. Ct. App. Nov. 23, 2021) (concluding that using a video chat function on a cellular telephone to communicate sexually explicit statements was sufficient to prove use of a computer), trans. denied; People v. Hastings, 2018 WL 6184892 *8 n.5 (Mich. Ct. App. Nov. 27, 2018) (providing that for the purposes of violating a similar statute, “a cellular telephone is considered a computer”), trans. denied; State v. Hamilton, 2012 WL 851230 *3 (Wis. Ct. App. March 15, 2012) (concluding that use of a cellular telephone to transmit text messages, through the cellular service carrier network qualified as “use of an organization or network of computers” to transmit messages). However, given our conclusion that the evidence is sufficient to sustain Cherry's conviction, we need not determine whether a cellular telephone or smart phone would qualify as a computer network under Indiana Code section 35-42-2-3.

Bradford, Judge.

Judges Pyle and Kenworthy concur. Pyle, J., and Kenworthy, J., concur.