dissenting.
I respectfully dissent and part ways with the majority’s decision to affirm the denial of Delagrange’s motion to dismiss the charges of attempted child exploitation. As the majority acknowledges, Indiana Code section 35-34-l-4(a) provides that the trial court may dismiss the charging information if “[t]he facts stated do not constitute an offense.”
In my view, Delagrange’s activity at the mall does not satisfy the definition of “sexual conduct” as set forth in Indiana Code section 35-42-4-4. Indeed, nothing that Delagrange did that day could be reasonably considered to have involved the “exhibition of the uncovered genitals intended to satisfy or arouse the sexual desire of any person,” as the statute requires. Id.
The State alleged that Delagrange walked around the mall and tried to take photographs or videos underneath the dresses or skirts of adults and teenagers. Such “up-skirt” photographs may, indeed, be morally unacceptable and alarming to many. Moreover, Delagrange’s conduct, as noted by defense counsel, may be labeled “weird, odd, or uncommon,” at the very least. Appellant’s Br. p. 5. However, I do not believe that Delagrange’s actions amounted to the criminal offense of attempted child exploitation under the current version of Indiana Code sections 35-41-5-1 and -42-4-4(b). See Herron v. State, 729 N.E.2d 1008, 1011 (Ind.Ct.App.2000) (observing that conduct, however, reprehensible, is not a crime unless the General Assembly has exercised its au*597thority to define it as such). As a result, I vote to reverse the trial court’s denial of Delagrange’s motion to dismiss the charges of attempted child exploitation.