dissenting.
I respectfully dissent. An "attempt" occurs when a person, acting with the eulpability required for commission of the crime, engages in conduct that constitutes a substantial step toward commission of the erime. Ind.Code § 35-41-5-1(a) (West 1986). As a matter of law, Shahan's solicitation of his daughter did not constitute a substantial step toward commission of the offense of child molesting.
The majority relies on Ward v. State, 528 N.E.2d 52 (Ind.1988), to support its conclusion that Shahan's conduct rose above mere invitation and thus satisfies the substantial step requirement. In Ward, our Supreme Court developed two related tests for determining when solicitation may be a substantial step. First, it must be determined "(I) whether the solicitation takes the form of urging, (2) whether the solicitation urges the commission of the crime at some immediate time and not in the future, and (8) whether the cooperation or submission of the person being solicited is an essential feature of the substantive crime." Id. at 54. If all three of the above factors are satisfied, then it is necessary to move to the second test, which involves analyzing the specific erime and the wrongful human conduct the legislature sought to sanction to determine where in the chain of events solicitation rises to the level of attempt. Id.
The second and third factors of the first test are satisfied here. At issue is the first factor-whether Shahan's actions took the form of urging.1 The Supreme Court in Ward applied the newly developed tests to two fact situations, both involving Ward, but each involving a different juvenile.
The first conduct examined involved the solicitation of D.D. Ward followed and approached eleven-year-old D.D. on the streets of downtown Greentown. Ward, who was thirty-seven years old at the time, approached D.D. by saying that the sheriff would get D.D. in trouble and that the sheriff was a "pervert." Ward asked D.D. if he would like Ward to perform fellatio on him.2 Ward made three such requests. In finding *1015that Ward's solicitation of D.D. was a substantial step toward commission of the offense of child molesting, the Court noted that Ward's solicitation was in a "context that amounted to urging or persuasion rather than mere invitation." Id. at 55. In making that determination, the court found relevant the "pursuit, the approach, the multiple requests, and Ward's initial statements to D.D., which were provocative and authoritative...." Id.
In contrast, the Supreme Court held that Ward's conduct with respect to R.C. did not rise to the level of an attempt. Id. At the urging of police, R.C. sought out and approached Ward. Id. Ward offered R.C. a beer and told R.C. that if he would not tell anybody, Ward would perform fellatio on him. Id. at 58. When R.C. refused the offer, Ward suggested that if R.C. were ever in a nearby town, he should visit Ward at his house. Id. The Court noted that Ward neither followed nor approached R.C., Ward solicited R.C. only one time and Ward's solicitation of R.C. was not an urging or persuasion. Id. at 55.
When compared with the two fact situations in Ward, Shahan's actions in the instant case are comparable to Ward's solicitation of R.C. and do not rise above the level of an invitation. The entirety of the evidence presented in support of the attempted child molesting conviction is as follows:
A. He came in there and he goes, would, ub, will you touch my dick and I go, no, he goes well, if you don't do it, I'm going to have to do it, because I'm going to have to go in the bathroom and do it, and I go, I'm not going to do it, you can just go ahead and go in there, and so as far as I know he went into the bathroom and done it.
Can you recall your father saying anything else on that occasion?
A. Uh, he, he just said that, and said, well, if you don't do it I'm going to have to go into the bathroom.
There is but a single encounter, with no urging, no persuasion, and no exercise of inherent authority.
I agree with the majority that Ward is determinative of the outcome of this case. However, an examination of Ward leads me to a conclusion opposite that reached by the majority. Shahan's statements to his daughter were a mere invitation to engage in the conduct. While the invitation/solicitation itself is abhorrent, it is accompanied by no additional factors that would elevate it to the status of a substantial step towards the offense of child molesting. For this reason, I would reverse the conviction.
. As for the second test, which we do not reach here, the Supreme Court in Ward had little difficulty determining that the nature of the offense of child molesting was sufficiently serious to justify drawing a fairly early line to identify and sanction behavior as an attempt. 528 N.E.2d at 54.
. D.D. testified that Ward said: "Would you like to have your peter sucked?" D.D. then asked "namely who (?)" and Ward responded by saying "namely me."