Robert Roth, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Robert Roth brings this interlocutory appeal from the trial court's order denying his motion to dismiss a charge of invasion of privacy filed against him. We conclude that the trial court erred by denying Roth's motion. Thus, we reverse and remand.

Facts and Procedural History

[2] Sheldon Holmes was arrested and charged in a case assigned to Tippecanoe Superior Court. On December 11, 2024, the court, in that case, issued a no-contact order, prohibiting Holmes from contacting Kara Teague,

in person, by telephone or letter, through an intermediary, or in any other way, directly or indirectly, except through an attorney of record, while this case is pending․ This Order remains in effect until this case has been tried and the Defendant has been sentenced if found guilty.

Appellant's App. Vol. 2, p. 46 (emphasis added). On December 13, 2024, two days after the order was issued, Roth filed his appearance on behalf of Holmes.

[3] According to the probable cause affidavit in Roth's case, on March 5, 2025, Kara Teague contacted the Lafayette Police Department about a voicemail message she had received the day before, on March 4. She informed Officer Ian Shell that “a lawyer for Holmes had called her the day before and asked her to contact [Holmes] at the jail. She believed that the communication was a violation of the [No] Contact Order but was uncertain as it was a call from a lawyer.” Id. at 15. Officer Shell listened to the communication, which was a voicemail message Roth had left for her. Roth stated the following in the voicemail message:

Good afternoon. This message is for Kara Teague.

Ms. Teague, my name is Robert Roth. I'm an attorney representing Sheldon Holmes. He provided me with your number. He wanted me to reach out to you, uh, to discuss some things, and also to have, uh, to request that you call him, uh, at the Tippecanoe County Jail, uh, at your earliest convenience.

Again, this is attorney Robert Roth calling for Sheldon Holmes, and he wants you to contact him at the Tippecanoe County Jail. Thank you.

Id.

[4] Next, Officer Shell contacted Roth by phone. He was told that Roth “called Teague ‘to get availability for depositions.’ ” Id. Shell then interviewed Holmes at the jail, and Holmes “denied telling Roth to tell Teague to call him at the [jail].” Id. Based on this investigation, the State charged both Holmes and Roth with Class A misdemeanor invasion of privacy for violating the court's no-contact order. The charging information reads as follows:¹

On or about March 4, 2025, in Tippecanoe County, State of Indiana, Sheldon Pierre Holmes and Robert Roth, did knowingly or intentionally violate a no contact order issued as a condition of pretrial release, including release on bail or personal recognizance, or pretrial diversion, and including a no contact issued under IC 35-33-8-3.6 by the Superior Court IV in Tippecanoe County, State of Indiana, under cause number 79D04-2412-F6-0010770, to protect Kara Teague[.]

Id. at 26.

[5] The State dismissed the charge against Holmes, but pursued the charge against Roth. Roth filed a motion to dismiss, memorandum in support of his motion, and two exhibits. The first exhibit was the no-contact order, and the second was Roth's formal appearance as an attorney of record in Holmes’ criminal case. Id. at 36-59. After the State responded, the trial court denied Roth's motion to dismiss. Roth moved for certification of that ruling for purposes of an interlocutory appeal. The trial court granted the motion, and this Court accepted jurisdiction.

Discussion and Decision

[6] “In general, ‘[w]e review a 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.’ ” Hernandez v. State, 220 N.E.3d 68, 70-71 (Ind. Ct. App. 2023) (quoting State v. Katz, 179 N.E.3d 431, 440 (Ind. 2022) (internal quotations omitted)). But, where the “motion to dismiss alleges the charging information is factually deficient under Indiana Code [section] 35-34-1-4(a)(5), the motion tests the facial adequacy of the charging information, ultimately presenting a pure question of law.” Hernandez, 220 N.E.3d at 71. “To the extent the motion turns on a pure question of law, we review that question of law de novo.” Id.

[7] “ ‘The purpose of the charging information is to provide a defendant with notice of the crime of which he is charged so that he is able to prepare a defense.’ ” Katz, 179 N.E.3d at 441 (quoting State v. Laker, 939 N.E.2d 1111, 1113 (Ind. Ct. App. 2010), trans. denied). “To be sufficient, an information ‘generally need[ ] only contain a statement of the essential facts constituting the offense charged, as well as the statutory citation, the time and place of the commission of the offense, [and] the identity of the victim.’ ” Id. (quoting Pavlovich v. State, 6 N.E.3d 969, 975 (Ind. Ct. App. 2014) (internal quotations omitted), trans. denied). “A court may dismiss a charging information if the ‘facts stated do not constitute an offense,’ but this only occurs when the information is facially deficient in stating an alleged crime.” Id. (quoting I.C. § 35-34-1-4(a)(5)). “In deciding whether a charging ‘information fails to state facts constituting an offense, we take the facts alleged in the information as true.’ ” Id. (quoting Pavlovich, 6 N.E.3d at 974).

[8] Roth argues that the charging information alleging that he committed invasion of privacy does not sufficiently state facts constituting the offense. We agree.

[9] A person commits invasion of privacy by knowingly or intentionally violating a no-contact order issued, in this situation, under Indiana Code section 35-33-8-3.6 (2010) (defendant charged with violent crime resulting in bodily injury). The no-contact order was entered by the trial court and provided, generally, that Holmes—the restrained person—was prohibited from communicating with Teague—the protected person “in person, by telephone or letter, through an intermediary, or in any other way, directly or indirectly[.]” Appellant's App. Vol. 2, p. 46.

[10] But the explicit language of the no-contact order further provided Holmes with an unlimited exception to his restraint on communication with Teague. The order's unlimited exception allows Holmes to communicate with Teague about any subject at all as long as the communication is “through an attorney of record[.]” Id. Roth is only implicated in this situation because he was Holmes’ attorney of record. The communication brought to the attention of law enforcement was Holmes’ communication through Roth to Teague. Assuming, arguendo, that Holmes asked Roth to communicate with Teague, he did not violate the order because the communication was allowed under the unlimited exception explicitly provided for in the order. Thus, Holmes did not violate the no-contact order. And if Holmes did not violate the order, he did not commit the offense of invasion of privacy. Thus, there was no crime.

[11] Additionally, Roth was not a party to the no-contact order. Again, he is only implicated in this situation because he was Holmes’ attorney of record, and Holmes was subject to the no-contact order's restraints. Roth had no opportunity to negotiate the terms of the order, and had no input as to its terms and conditions. And Roth was not restrained from communicating with Teague. Therefore, his act of contacting Teague, in and of itself, was neither in violation of the order nor did it constitute a crime. His position as Holmes’ counsel of record is the only thing implicating him in this matter. If Holmes could communicate with Teague about any subject at all through his counsel of record, Roth, then Roth, who was not restrained, and who was Holmes’ counsel of record, similarly could transmit a message from Holmes to Teague about any subject at all without committing a crime.

[12] If Teague had contacted Holmes at the jail, as requested by Holmes and communicated by Roth, no violation of the order, and thus, no offense would have been committed. Under Patterson v. State, the no-contact order, as between Holmes and Teague, applies to the restrained person, Holmes. 979 N.E.2d 1066, 1069 (Ind. Ct. App. 2012) (“[t]he statute's prohibitions are explicitly addressed only to the actions of the restrained party.”). Under caselaw and the explicit and clear terms of the no-contact order, Holmes could not have asked a family member, cellmate, best friend, or anyone of that or similar nature to communicate with Teague. But, he could ask Roth, his attorney of record, to communicate with her without violating the order. Therefore, Roth could not have aided or abetted either Holmes or Teague in committing a crime because there was no crime.²

[13] The dissent maintains that “[i]t is quite obvious that the purpose of this exception is to provide for legitimate legal communication between a represented defendant and the protected person.” Roth v. State, ---N.E.3d ---, ---- . However, the plain language of the no-contact order provides an unlimited exception for Holmes to communicate with Teague through his attorney of record while his criminal case was pending. Appellant's App. Vol. 2, p. 46. Despite the dissent's contention that the purpose of the exception is obvious, the court speaks through its orders. The court could have expressly limited the types of communication Holmes could make through his attorney. However, that is not the case here. The clear and unambiguous language of the no-contact order does not prohibit the communication that occurred in this case.

[14] We conclude that the trial court erred as a matter of law when it denied Roth's motion to dismiss the information. Therefore, we reverse and remand.

Conclusion

[15] The invasion of privacy statute, as between the restrained person and the protected person, addresses the conduct of the restrained person. Roth was not the restrained person but was the counsel of record for the restrained person. The protective order allowed Holmes, the restrained person, to communicate through Roth, his counsel of record to the protected person, Teague. Thus, Roth's communications to Teague on behalf of Holmes are not subject to criminal sanction through the invasion of privacy statute.

[16] Reversed and remanded.

[17] I must respectfully dissent from the majority's conclusion that the trial court erred as a matter of law in denying Roth's motion to dismiss.

[18] First, I believe that the majority's determination that Patterson v. State, 979 N.E.2d 1066 (Ind. Ct. App. 2012), directs us to reverse is flawed. The Patterson Court addressed a narrow question: whether the protected person could be charged with aiding and abetting the respondent's violation of a protective order that the protected person herself had obtained. Patterson, 979 N.E.2d at 1067-1068. The Court's statement that the invasion of privacy statute focuses on the “restrained party” was simply to explain why the victim of a protective order cannot be held criminally responsible for the respondent's actions. Id. at 1068-1069. The Patterson Court did not consider, and therefore did not resolve, whether a third party outside the protective relationship—someone who is neither the restrained person nor the protected person—may be held liable for knowingly facilitating a violation of the order. The plain language of Ind. Code § 35-46-1-15.1 specifies that it applies to “a person,” and provides no limitation in its application to, or even mentions, a “restrained person.”

[19] The trial court here properly limited Patterson to its facts in observing that “it did not extend so far as to prohibit all non-restrained persons from falling within the class of persons to whom the statute was not intended to apply.” Appellant's Appendix Volume II at 75. The trial court further aptly observed that reading Patterson to immunize all non-restrained persons would permit a restrained person “to endlessly enlist others to contact [the] protected person on his behalf,” while leaving those intermediaries free from prosecution under any theory of criminal liability. Id. at 76. I agree with the trial court's reasoning and disagree with the majority's broad declaration that the invasion of privacy statute addresses only “the actions of the restrained party, in this case Holmes.” Slip op. at 7.

[20] Second, I disagree with the majority's determination that the no-contact order here does not apply to Roth because it provides an exception allowing Holmes to communicate with Teague through an attorney of record, in this case Roth, while his criminal case was pending. It is quite obvious that the purpose of this exception is to provide for legitimate legal communication between a represented defendant and the protected person. This is not carte blanche allowing an attorney of record to serve as a messaging service for personal requests by the restrained client to the protected person. Indeed, Roth's recorded message to Teague indicated no legitimate legal communication and instructed Teague to call Holmes personally at the jail at her earliest convenience. As noted by the trial court, “[c]ertainly a Defendant operating in his capacity as counsel for a restrained party may communicate with both the restrained party and the protected party,” but said communication would “not be meant to include facilitation of unlawful contact between the two.” Appellant's Appendix Volume II at 76. I believe that whether Roth's contact with Teague falls within the scope of the attorney-of-record exception is, at a minimum, a factual question not amenable to resolution on a motion to dismiss.

[21] It is well established that dismissal for failure to state an offense is warranted “only when an information is facially deficient in stating an alleged crime.” Pavlovich v. State, 6 N.E.3d 969, 974 (Ind. Ct. App. 2014), trans. denied. As noted by the State, to withstand a motion to dismiss, an information need only “contain a statement of the ‘essential facts constituting the offense charged,’ as well as the statutory citation, the time and place of the commission of the offense, the identity of the victim (if any), and the weapon used (if any).” Appellee's Brief at 13 (quoting State v. Sturman, 56 N.E.3d 1187, 1196 (Ind. Ct. App. 2016) (quoting Pavlovich, 6 N.E.3d at 975)). The charging information here, on its face, meets these requirements.

[22] For the foregoing reasons, I respectfully dissent from the majority's conclusion that the no-contact order at issue does not apply to Roth as a matter of law. I would affirm the trial court's order denying the motion to dismiss.

FOOTNOTES

1.   The charging information was amended without objection to add the date of the commission of the alleged offense.

2.   Holmes allegedly denied asking Roth to request that Teague contact him at the jail. And we offer no opinion as to the conflict between the contents of Roth's voicemail message left for Teague and his response to Officer Shell's questioning per the narrative of the probable cause affidavit. Our concern is with the factual sufficiency of the charging information.

Crone, Senior Judge.

DeBoer, J., concurs. Brown, J., dissents with separate opinion.