ROBB, C.J.
Yao and Lin are friends and residents of Houston, Texas. Lin operates Generation Guns, a business in Houston that imports airsoft toy guns from Taiwan and sells them. Airsoft guns resemble actual handguns, but shoot plastic pellets. Yao is a vice president at a bank in Houston. As a favor to Lin, Yao helped her set up a bookkeeping system and a computer system for the business. Yao has also accompanied Lin to some trade shows.
Heckler & Koch, Inc. (“H&K”) is a firearms manufacturer which manufactures, among other firearms, the MP5 submachine gun. H&K holds state and federally registered trademarks in the shape and design of the MP5. H&K engaged Continental Enterprises, an intellectual property consulting firm based in Indiana, to investigate possible trademark infringement claims. As part of this investigation, on June 25, 2009, employees of Continental posed as potential customers and contacted Generation Guns by phone to place orders for various airsoft guns, including the GA-112, which allegedly resembles the MP5 in design. The orders were to be delivered to three different Indiana addresses, including an address in Huntington County. On July 1, 2009, a package was delivered to the Huntington County address that contained, among other things, a GA-112 airsoft gun. On August 18, 2009, an employee of Continental placed an order by e-mail for additional airsoft guns, including two GA-112s, to be delivered to the same Huntington County address. The Continental employee followed up his e-mail with a phone call to Generation Guns to confirm his order. He later received an e-mail receipt which listed the salesperson for the transaction as “Andy Yao.” Appendix to [Yao’s] Brief at 72. On August 26, 2009, a package was delivered to the Huntington County address that contained, among other things, two GA-112 airsoft guns. Finally, a Continental investigator visited Generation Guns in Houston on three occasions. During these visits, an employee known to the investigator as “Jackson” referred to “Jo Jo Lin” as his boss and “Andy Yao” as the “money man.” Id. at 73. Jackson showed the investigator around the warehouse which was stacked with airsoft guns, including the GA-112. Jackson also told the investigator that if he wished to purchase more than 100 airsoft guns, only Jo Jo or Andy was able to make him a deal. The investigator met with Jo Jo, who referred to Andy as her “partner in the business.” Id. The investigator also met someone in the office during one of his visits who introduced himself as “Andy Yao.” Id.
Continental relayed this information to an Indiana State Police detective who filed a case report detailing Continental’s investigation. The detective met with the investigator who had visited Generation Guns in Houston, and the investigator identified Yao and Lin from driver’s license photos as being the persons he knew as Andy and Jo Jo from his dealings at the business. Based on this case report, the State charged both Yao and Lin with three counts of counterfeiting, three counts of theft, and one count of corrupt business influence in Huntington County Circuit Court based upon the similarities between the GA-112 airsoft guns and H&K‟s MP5 firearm.
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Territorial jurisdiction is a fact the State must prove beyond a reasonable doubt because “where the law has established the necessity of a certain fact for an accused to be guilty of an offense, the existence of that fact is treated much like an element of the offense.” Ortiz, 766 N.E.2d at 374 (quoting McKinney v. State, 553 N.E.2d 860, 863 (Ind. Ct. App. 1990), trans. denied). Because the State must prove territorial jurisdiction, “the issue must be submitted to the jury unless the court determines no reasonable jury could fail to find territorial jurisdiction beyond a reasonable doubt.” McKinney, 553 N.E.2d at 863. In other words, the issue of territorial jurisdiction must be submitted to the jury with an appropriate instruction if resolution of the issue depends upon disputed facts, but if there is no serious evidentiary dispute that the trial court has territorial jurisdiction, then a special jurisdictional instruction need not be given to the jury. Ortiz, 766 N.E.2d at 375-76. In so stating the point, our supreme court made clear that in Indiana, the issue is a factual question as opposed to a legal one. . . . .
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Our research has disclosed only a few Indiana cases addressing territorial jurisdiction, and, as in Ortiz and McKinney above, all either hold there is no serious evidentiary dispute that Indiana has territorial jurisdiction or there is a serious evidentiary dispute requiring a jury determination. However, given that Indiana Code section 35-34-1-4(a)(10) provides that the trial court may dismiss an information if there is a jurisdictional impediment to the prosecution, we believe the converse of the rule announced in Ortiz is also true: if there is no serious evidentiary dispute that Indiana does not have territorial jurisdiction, the trial court may dismiss the information as a matter of law and the issue need not be submitted to the jury.
In this analysis, we find it appropriate to look to the principles governing a motion for directed verdict. Pursuant to Trial Rule 50, a trial court may decide issues as a matter of law “[w]here some or all of the issues . . . are not supported by sufficient evidence . . . .” Ind. Trial Rule 50(A). . . . Likewise, on a motion to dismiss an information for lack of territorial jurisdiction, if the trial court – without weighing evidence or judging credibility – concludes the defendant has met his or her burden of proving there is a total lack of evidence that any element of the crime was committed in Indiana, the trial court may grant the motion as a matter of law and dismiss the information.
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The facts are undisputed: Generation Guns is a Texas business, receiving its wares from Taiwan. Continental investigators initiated contact with Generation Guns by telephone, by e-mail, and by personally visiting the warehouse in Texas. There is no indication Generation Guns has even a minimal internet presence, let alone a significant or interactive one aside from the use of e-mail to confirm orders. [Footnote omitted.] There is no indication that Generation Guns attended trade shows in Indiana or otherwise specifically marketed its products to customers in Indiana. Generation Guns’ sole contact with Indiana was answering a few phone calls from Indiana, receiving an e-mail originating in Indiana, sending an e-mail to a customer in Indiana, and addressing packages to be delivered to Indiana at the direction of the customer. Even assuming the allegations of the informations are true, Yao and Lin committed no purposeful conduct in or directed to Indiana.
. . . [A]s between the two choices – one, Yao and Lin committed a separate crime in every jurisdiction to which they sent airsoft guns, or two, they committed a crime only in the place where they actually possessed the airsoft guns – we find the second choice to be the more reasonable, and the one that comports with due process. These are not crimes which are intended to result in harm to people in Indiana such that Indiana would have an interest in protecting its citizens through the exercise of extra-territorial jurisdiction; the harm, if any, is to H&K, and there is no evidence that H&K has a presence in Indiana. Accordingly, we hold Yao and Lin have met their burden of proving there is no evidence that any element of the alleged crimes was committed in Indiana, and the trial court should have granted Yao’s and Lin’s motions to dismiss as a matter of law for lack of territorial jurisdiction. . . . .
. . . There is no significant evidentiary dispute that no element of the crimes alleged occurred in Indiana, and the informations should have been dismissed as a matter of law because of a lack of territorial jurisdiction. The judgment of the trial court is affirmed in part, reversed in part, and this case is remanded for entry of an order granting the motions to dismiss as to all charges.
BARNES, J., and CRONE, J., concur.