BARNES, J.
The evidence most favorable to the conviction is that on April 29, 2006, twenty-year-old Neff, who resided in Anderson, Madison County, logged on to Yahoo! Instant Messenger under the screen name “stud18_20022002.” Ex. 5, p. 1. He initiated an exchange of instant messages (“IMs”) with “lizzy_izzygrrl4512,” whose Yahoo! profile indicated she was a twelve-year-old girl living near Indianapolis. Id. However, “lizzy_izzygrrl4512” was actually Monique Bedard, an adult woman living in Georgia. She volunteered for an organization called Perverted Justice, whose volunteers pose as children in Internet chat rooms and endeavor to snare adults attempting to prey on children.
During the April 29, 2006 online chat, Neff asked for pictures of “Lizzy” (Bedard). He then asked if “Lizzy” would want to meet “somewhere we could hangout talk . . . .” Id. He also said, “would u wanan [sic] kiss . . . .” Id. Finally, using graphic language he indicated that he wanted to have sexual intercourse with “Lizzy.” “Lizzy” indicated that she might be willing to meet Neff sometime in the next week.
On May 1, 2006, Neff and “Lizzy” again chatted. “Lizzy” stated that she lived in Carmel, in Hamilton County, and the two discussed meeting at a Dairy Queen in Carmel. Although Neff repeatedly asked “Lizzy” to send him more pictures of herself, there was no explicit sexual talk during this chat.
On May 2, 2006, Neff and “Lizzy” again chatted and this time finalized plans to meet at the Carmel Dairy Queen that evening, and afterwards to go to “Lizzy’s” apartment while her mother was gone. . . . .
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Bedard had been in contact with Carmel Police Detective John Pirics regarding her chats with Neff and informed him of the planned meeting at the Dairy Queen. At approximately 8:20 p.m., Detective Pirics observed a black Pontiac with a Madison County plate drive into a parking lot next to the Dairy Queen, stay there for a minute or two, then drive away. Detective Pirics pulled the car over. Neff was driving. Neff admitted to police that he had driven to the Dairy Queen to meet a twelve-year-old girl he had been chatting with online.
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Neff also contends the State failed to prove that proper venue existed in Hamilton County, since all of the IM chats occurred between him at his computer in Madison County and Bedard, who was in Georgia. The State contends that Neff’s traveling to Hamilton County, in accordance with his and “Lizzy’s” plans, establishes venue there. A defendant has a constitutional and statutory right to be tried in the county in which an offense allegedly was committed. Baugh v. State, 801 N.E.2d 629, 631 (Ind. 2004). Venue is not an element of the offense, however, and the State may establish venue by a preponderance of the evidence and need not be prove it beyond a reasonable doubt. Id. . . . [Footnote 3: The State contends Neff waived any challenge to venue by not raising the issue until his closing argument. As the State acknowledges, however, our supreme court, citing Indiana Code Section 35-32-2-5(a), has noted that venue may be challenged at any time before a verdict or guilty finding. See Wurster v. State, 715 N.E.2d 341, 348 (Ind. 1999). Additionally, although Wurster held that a challenge to venue may be made by pretrial motion, it did not say that it must be challenged in a pretrial motion.] . . . .
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The case that is the closet [sic] to being on point to this case is Laughner v. State, 769 N.E.2d 1147 (Ind. Ct. App. 2002), trans. denied, cert. denied, abrogated on other grounds by Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007). In Laughner, the defendant was in Marion County and sent sexually explicit IMs to a police detective located in Vanderburgh County, and who was portraying himself as a thirteen-year-old child living in Vanderburgh County. The defendant eventually drove to Vanderburgh County for a pre-arranged meeting with the “child” that he had been chatting with online. The defendant was arrested, tried, and convicted for attempted child solicitation in Vanderburgh County. [Footnote omitted.]
On appeal the defendant argued that the State failed to prove that venue in Vanderburgh County was proper, rather than in Marion County. [Footnote omitted.] We disagreed, finding it critical that the defendant, by sending the IMs to someone in Vanderburgh County, had taken “action directed at” Vanderburgh County. Laughner, 769 N.E.2d at 1157 (quoting Wurster v. State, 715 N.E.2d 341, 350 (Ind. 1999)). This court continued, “Further showing ‘action directed at’ Vanderburgh County are the facts that he (1) arranged a meeting in Evansville in furtherance of the attempt that was the subject of the conversation, and (2) did immediately travel to that county.” Id.
Here, unlike in Laughner, Neff did not send any IMs directed to any person actually existing in Hamilton County, although he believed “Lizzy” lived there. As in Laughner, Neff did arrange a meeting in Hamilton County and drove there in accordance with the plan. We do not believe, however, that the Laughner panel would have found venue in Vanderburgh County for attempted child solicitation if not for the crucial fact that the defendant had sent IMs to an actual person in that county. That crucial and determinative fact is missing here.
We further observe that “the crime of child solicitation is completed at the time of the utterance.” LaRose v. State, 820 N.E.2d 727, 732 (Ind. Ct. App. 2005), trans. denied. There need not be any attempt to carry out the solicited act at any time in the immediate future. Id. That means that in the present case, Neff completed all the conduct that was required to establish the crime of child solicitation when he sat at his computer in Madison County and typed vulgar messages that were sent to and received by someone in Georgia. Although venue for a chain of criminal events may lay in any county in which any of the events occurred, see, e.g., Davis v. State, 520 N.E.2d 1271, 1273 (Ind. 1988), Neff did not engage in any conduct in furtherance of child solicitation in Hamilton County. [Footnote 6: Such conduct might have been relevant to a charge of attempted child molesting, which the State originally did bring against Neff but which was dismissed apparently because the trial court found probable cause lacking for that charge.] To the extent the trial court concluded that Neff did commit an act in furtherance of child solicitation in Hamilton County, and thus venue there was proper under Indiana Code Section 35-32-2-1(f), it erred.
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Aside from transportation issues, the State’s view would permit it to engage in “forum shopping.” That is, in order to obtain a trial before a prosecutor, trial court, and/or potential jury pool that law enforcement believes would be “harsher” on criminal defendants, the State could direct Perverted Justice or other out-of-state volunteers to make their child “victim” a resident of whatever county they wished. This would be improper. See Travis v. U.S., 364 U.S. 631, 634, 81 S. Ct. 358, 360 (1961) (holding that statutory venue provisions “should not be so freely construed as to give the Government the choice of ‘a tribunal favorable’ to it”).
For all these reasons, we conclude the State failed to present sufficient evidence that proper venue for Neff’s prosecution lay in Hamilton County. Madison County is the only county in Indiana where venue would be proper. Having reached that conclusion, we turn to the question of whether Neff can be retried in Madison County for this offense if the prosecutor in that county so chooses. Neither party addressed this question in their briefs, but we did explore the issue at oral argument and we must address it.
Our research has revealed that in Williams v. State, 634 N.E.2d 849 (Ind. Ct. App. 1994), a panel of this court addressed a case where a trial court entered judgment on the evidence, after the State’s presentation of evidence, in favor of the defendant based on alleged lack of proof of proper venue. This court treated the judgment on the evidence as an acquittal for double jeopardy purposes and held that the defendant “may not now be retried.” Williams, 634 N.E.2d at 853; see also Elkins v. State, 754 N.E.2d 643, 644-45 (Ind. Ct. App. 2001) (citing Williams for proposition that double jeopardy precluded State from attempting to present additional evidence to establish venue after trial court entered directed verdict in defendant’s favor), trans. denied. Additionally, we held the trial court erred in refusing to dismiss those counts of the information for which venue was lacking. Williams, 634 N.E.2d at 853.
Williams has never been explicitly questioned or overruled. However, it arguably is inconsistent with Wurster. In that case, our supreme court held that a challenge to the venue of a criminal prosecution could be raised by pretrial motion. Wurster, 715 N.E.2d at 348. It went on to state, however, that a proper motion would be “a motion to transfer [to a different county] rather than a motion to dismiss.” Id. It also stated, “concerns for judicial economy and fairness dictate that defendants should be permitted to challenge venue in a pretrial motion. . . . In the vast majority of cases, a challenge to venue at an early stage will serve not only the interests of the parties but also those of judicial economy.” Id. at 348-49. All of this language suggests it is preferable for defendants to challenge venue before trial, with the result of a successful challenge being transfer to the proper county, not dismissal of the charges. If waiting until after trial to make a claim of insufficient venue results in acquittal and a double jeopardy bar on retrial, however, it begs the question of why a defendant would ever choose to make a pretrial challenge to venue. The vagaries of when a defendant chooses to challenge venue should not determine whether he or she can completely escape prosecution for a crime.
We also conclude that permitting retrial of a defendant in the proper county after the State failed to prove venue in another county is consistent with double jeopardy jurisprudence. [Footnote omitted.] . . . .
The question here, then, is whether our reversal of Neff’s conviction due to improper venue is an acquittal based upon insufficient evidence or a reversal based on legal error for double jeopardy purposes. We conclude it is the latter. An acquittal is a ruling that “actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” U.S. v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354-55 (1977). Venue is not an “element” of a crime. Baugh, 801 N.E.2d at 631. The State’s failure here to prove venue in Hamilton County was not a failure to prove an element of the offense and “implies nothing” with respect to Neff’s guilt or innocence. See Burks, 437 U.S. at 15, 98 S. Ct. at 2149. As such, we conclude Neff may be retried in Madison County. To the extent Williams and Elkins would suggest otherwise, we decline to follow them.
CRONE, J., and BRADFORD, J., concur.