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Tuesday, February 17, 2009

Ind. Decisions - "Court drops child molesting charge: Appeals judges allow solicitation conviction to stand in Internet sting"

The NFP Court of Appeals decision Monday in the case of Justin Hicks v. State of Indiana is the subject of a story today in the Lafayette Journal Courier, reported by Sophia Voravong. Some quotes:

A New Castle man is not guilty of attempted child molesting for traveling to Lafayette to have a sexual encounter with someone he believed was a 13-year-old girl, Indiana's higher court has ruled.

Justin W. Hicks was found guilty of two counts of attempted child molesting and five counts of child solicitation, all felonies, after a jury trial in November 2007. He was sentenced to 14 years in prison.

Hicks, now 26, appealed the convictions for attempted child molesting, arguing that the offense could not have occurred since the victim was actually Tom Davidson, a detective with the Lafayette Police Department.

The Indiana Court of Appeals agreed in a unanimous ruling issued Monday.

"Here, there was no actual child under the age of 14," Judge James Kirsch wrote. "Rather, Sgt. Davidson had assumed the online persona of a 13-year-old girl for the purposes of an Internet solicitation investigation." * * *

Hicks was one of three men arrested in late 2006 and early 2007 by detectives with the Lafayette Police Department who had been posing as teenagers on various Internet Web sites.

All three men traveled to Lafayette to meet with "teens" they chatted with online.

From Judge Kirsch's NFP opinion Monday:
[O]ne issue is dispositive: whether Hicks can be convicted of attempted child molesting when the intended victim is not actually a minor. Hicks does not challenge his convictions for child solicitation. We reverse and remand with instructions. * * *

Hicks argues we must reverse his convictions for attempted child molesting because the State failed to allege or prove that an actual child existed and that the child was under fourteen years of age. We agree.

In Aplin v. State, 889 N.E.2d 882 (Ind. Ct. App. 2008), reh’g denied, trans. denied, the defendant was charged with child solicitation and attempted sexual misconduct with a minor for engaging in sexual communications via the Internet with a police officer posing as a fifteen-year-old girl, arranging to meet the “girl,” and then going to the location of the meeting. We held that for the offense of attempted sexual misconduct with a minor, the intended victim must be a minor. Id. at 884-85. We noted that the appropriate charge in those circumstances was child solicitation, where “the State is not required to prove the actual age of the victim but may prove the solicitor’s belief that the solicitee is a minor.” Id.

More recently, in Gibbs v. State, No. 49A02-0712-CR-1017, 2008 WL 5413081, at *1 (Ind. Ct. App. Dec. 31, 2008), following the holding in Aplin, we held that a defendant cannot be convicted of attempted sexual misconduct with a minor and attempted dissemination of matter harmful to minors where the intended victim is not actually a minor. There, as here, the State argued that Aplin was incorrectly decided. However, as noted by this court in Gibbs, our Supreme Court denied transfer in Aplin. Id. at *4.

We believe that Aplin was correctly decided and guides our decision here.

See the July 11, 2008 ILB summary in the case of Matthew J. Aplin v. State of Indiana here. The ILB summary of Randy Gibbs v. State of Indiana is here, along with discussion of the effect of a denial of transfer -- whether or not it has the effect of an affirmation of the lower court opinion. There is more on Gibbs in this Jan. 4, 2009 ILB entry.

Posted by Marcia Oddi on February 17, 2009 09:05 AM
Posted to Ind. App.Ct. Decisions