Gibbs v. State

MAY, Judge,

dissenting.

Because I believe Gibbs’ convictions of attempted sexual misconduct with a minor and attempted dissemination of matter harmful to minors should be affirmed, I respectfully dissent in part. I agree with the State that Aplin was wrongly decided.1 Although an actual child victim is required for a conviction of the completed offense of sexual misconduct with a minor, Aplin did not adequately explain why an actual child is an element of an attempt offense or cite any authority in support of that proposition.

The majority, agreeing with Aplin, views the difference between the sexual misconduct with a minor statute and the child solicitation statute as a policy decision by the General Assembly not to penalize a person for attempting to engage in sexual misconduct with someone who is not a minor. However, the attempt statute applies to all offenses except crimes of recklessness, Anthony v. State, 274 Ind. 206, 409 N.E.2d 632, 636 (1980), and that statute provides that impossibility is not a defense. Ind.Code § 35 — 41—5—1(b).2

*1248It is clear that section (b) of our statute rejects the defense of impossibility. It is not necessary that there be a present ability to complete the crime, nor is it necessary that the crime be factually possible. When the defendant has done all that he believes necessary to cause the particular result, regardless of what is actually possible under existing circumstances, he has committed an attempt. The liability of the defendant turns on his purpose as manifested through his conduct. If the defendant’s conduct, in light of all the relevant facts involved, constitutes a substantial step toward the commission of the crime and is done with the necessary specific intent, then the defendant has committed an attempt.
Previous Indiana cases have sometimes narrowly interpreted an attempt as conduct ‘ “which will apparently result in the crime, unless interrupted by circumstances independent of the doer’s will.’ ” However, the new statute shows that this interpretation focusing on the result of the conduct is no longer applicable and that the law now focuses on the substantial step that the defendant has completed, not on what was left undone.

Zickefoose v. State, 270 Ind. 618, 388 N.E.2d 507, 510 (1979) (emphasis added and citations omitted).

Gibbs intended to have sex with a fifteen-year-old. He did all he believed was necessary to complete the offense of sexual misconduct of a minor, and he failed to complete the offense only because it was not possible under the circumstances.

Our court presumes the General Assembly is aware of existing rules of law when it enacts a statute. Gallagher v. Marion County Victim Advocate Program, Inc., 401 N.E.2d 1362, 1365 (Ind.Ct.App.1980). In light of the law existing when the sexual misconduct with a minor statute was enacted, I conclude the General Assembly could not have intended to foreclose prosecution under the sexual misconduct with a minor statute when the defendant erroneously believes the victim is a minor. Instead, its intent was that the State would have to proceed under attempt law and prove a substantial step, whereas an outright conviction of child solicitation would be possible under the same circumstances. Therefore, I would not apply Aplin to reverse Gibbs’ convictions of attempted sexual misconduct with a minor and attempted dissemination of matter harmful to minors.

Because I would not follow Aplin, I would address the remaining issues Gibbs raises: (1) whether there was sufficient evidence he took a substantial step towards committing attempted sexual misconduct with a minor; (2) whether he engaged in a “performance” in the meaning of the statute prohibiting dissemination of matter harmful to minors; and (3) whether he established a defense of entrapment.

1. Substantial Step

Gibbs argues arriving at the designated meeting place with condoms and rope was not a substantial step pursuant to State v. Kemp, 753 N.E.2d 47 (Ind.Ct.App.2001), trans. denied. Kemp also involved an online sting operation. A detective with the Indiana State Police used the screen name Brittney4u2 to pose as a fourteen-year-old girl. “Brittney” initiated an online conversation with Kemp, told him to “come on down,” and suggested a meeting place. Id. at 51-52. Kemp agreed to meet Brittney in a restaurant parking lot near a motel. Kemp was arrested when he ar*1249rived at the parking lot. The police found a package of condoms in his vehicle.

The panel reversed Kemp’s conviction of attempted child molesting. The panel stated the law of attempt as follows:

To attempt to commit a crime, a person must act with the culpability required for the commission of the crime and engage “in conduct that constitutes a substantial step toward the commission of the crime.” Some actual overt step must be taken or an act in furtherance of committing the crime must be done. The overt act must reach far enough towards accomplishing the attempted crime as to amount to commencement of consummation of the crime. The overt act must go beyond preparation and planning.

Id. at 50 (citations omitted). The Kemp panel concluded that the substantial step alleged by the State — agreeing to meet Brittney, driving to the meeting place, and bringing condoms — was mere preparation and planning.

The State concedes Kemp is on point, but urges us to rule differently. I believe the Kemp holding is overbroad and I would decline to follow it.

A useful case for comparison is Collier v. State, 846 N.E.2d 340 (Ind.Ct.App.2006), trans. denied 860 N.E.2d 585 (Ind.2006). Collier’s wife, Nancy, had separated from Collier, obtained a protective order, and filed for divorce. One day, while Nancy was working at a hospital, Collier went to his neighbor and said he was going to kill Nancy and then kill himself. Collier went home and a few hours later he again went to his neighbor and said he was going to kill Nancy and himself. The two drank some beer, and Collier dozed off. A few hours later, Collier asked his neighbor to take care of his pets and gave him spare keys. He grabbed an ice pick and a box cutter and said he would stab Nancy, cut her throat, and ram her with his truck. Collier left in his truck, and the neighbor contacted the police. The police found Collier parked outside the door where Nancy would exit the hospital when she finished her shift. He was asleep or passed out in his truck.

The law on attempt has been stated as follows:

We have said that a “substantial step” for purposes of the attempt statute is any overt act beyond mere preparation and in furtherance of intent to commit an offense. Whether a defendant has taken a substantial step toward the commission of a crime is generally a question of fact to be decided by the trier of fact based on all the particular circumstances of the case. In making this determination, the focus is on what acts have been completed, not what remains to be done. The completed acts must be strongly corroborative of the firmness of the defendant’s criminal intent. Stated differently, the liability of the defendant turns on his purpose as manifested through his conduct.

Id. at 344 (citations omitted).

The majority concluded Collier’s conduct was not strongly corroborative of the firmness of his intent. It relied on the fact that Collier was asleep or unconscious and that the weapons he brought with him were not an immediate threat to Nancy, given that she was inside the hospital, while Collier was outside in his van.

The majority distinguished Hampton v. State, 468 N.E.2d 1077 (Ind.Ct.App.1984), in which this Court affirmed.a conviction of attempted robbery. Hampton went to a Pizza Hut, put on a ski mask, and hid in some bushes while he waited for the assistant manager to leave with a large amount of cash. The Hampton court concluded these actions were a substantial step to*1250ward commission of robbery. The Collier majority distinguished Hampton because Hampton was conscious, made a statement to the police that he intended to rob the Pizza Hut because he needed money, was armed with a gun, and actually exited his vehicle and approached the building.

Judge Barnes dissented in Collier, emphasizing that what constitutes a substantial step is a question for the jury. Judge Barnes believed Collier’s actions corroborated his stated intent to kill Nancy. He argued the evidence of a substantial step was sufficient under Hampton and Johnston v. State, 541 N.E.2d 514 (Ind.1989), reh’g denied. Johnston was convicted of attempted child molesting. He told the intended victims’ parents that he would give them money if they allowed him to have sex with the children and explained to them how he would use lubricants and a vibrator. Johnston then arrived at their house with a vibrator, lubricants, and sedatives. Our Supreme Court upheld the conviction, considering Johnston’s conduct in light of his stated intent.

The Kemp decision does not acknowledge that what constitutes a substantial step is generally a question for the jury to determine based on all the circumstances of the case, nor does the decision take into account the defendant’s stated intent. Instead, Kemp holds that arriving at a designated meeting place with items the defendant has planned to use to commit the offense is merely preparation and planning, and therefore is insufficient as a matter of law to constitute a substantial step.3 However, that is essentially what the substantial steps in Hampton and Johnston were. In addition, the facts in Gibbs’ case are more compelling than those in Collier because he entered the room where he expected his victim to be and he was actively attempting to complete the crime when he was arrested.

The Kemp court expressed concern that if arriving at the meeting place with condoms were sufficient to establish a substantial step, there would be no limit on the reach of attempt crimes. Frequently, the State will not have concrete evidence of the defendant’s intent in arriving at a particular location. However, in Gibbs’ recorded correspondence with the State, he outlined the offenses he intended to commit. A jury could reasonably conclude that arriving at the meeting place with items specifically mentioned in his prior conversations and with no legitimate use under the circumstances was strongly corroborative of criminal intent.4 This is an *1251appropriate issue for a jury to determine in light of all the circumstances of the case.

2. Performance

I would also reject Gibbs’ argument that he did not engage in a “performance” in the meaning of the dissemination of matter harmful to minors statute. See Ind.Code § 35 — 49—3—3(a)(4); see also Ind.Code § 35-49-1-7 (defining “performance”). Gibbs compares his case to Riffel v. State, 549 N.E.2d 1084 (Ind.Ct.App.1990), trans. denied, where we reversed a conviction of engaging in an obscene performance because the acts occurred in the privacy of Riffel’s home. The rationale of Riffel is not applicable, because Gibbs believed the video was being viewed by a fifteen-year-old girl in her own home. Accordingly, I conclude Gibbs conducted a performance in the meaning of Ind.Code §§ 35-49-3-3(a)(4) and 35-49-1-7. See also Fultz v. State, 473 N.E.2d 624 (Ind.Ct.App.1985) (upholding conviction of engaging in an obscene performance where Fultz masturbated in front of a large window in a lighted room at night and therefore was visible to his neighbors), reh’g denied, trans. denied.

3. Entrapment

Finally, I would agree with the State that Gibbs did not establish an entrapment defense because the State proved predisposition beyond a reasonable doubt. See Ind.Code § 35-41-3-9. The following factors are important in determining whether a defendant was predisposed to commit the offense: (a) the character of the defendant; (b) whether the suggestion of criminal activity was originally made by the government; (c) whether the defendant was engaged in criminal activity for a profit; (d) whether the defendant evidenced reluctance to commit the offense; and (e) the nature of the inducement offered by the government. Kats v. State, 559 N.E.2d 348, 353 (Ind.Ct.App.1990), trans. denied. In the online conversations, Gibbs characterized himself as someone who “love[s] young pu* *y.” (Exhibits at 9.) The suggestion of criminal activity came from Gibbs, who, during the first conversation, brought up meeting in person. Gibbs did not show reluctance, but rather was persistent in getting directions to Samantha’s apartment. As to the nature of the inducement, the police played a primarily passive role, and for large portions of the conversations, they simply responded to Gibbs’ questions. Gibbs contacted Samantha, steered the conversation toward sex, and exposed himself on his webcam with no prompting from the police. These facts are sufficient to prove Gibbs’ predisposition beyond a reasonable doubt.

I would affirm the judgment of the trial court in full.

. The majority believes Aplin was correctly decided, "especially so since the Indiana Supreme Court denied transfer...." (Op. at 1244.) Denial of transfer has no precedential value or legal effect other than to terminate the litigation between the parties, and does not necessarily indicate the Supreme Court's agreement with this court's opinion. Wishard Memorial Hosp. v. Kerr, 846 N.E.2d 1083, 1088 n. 1 (Ind.Ct.App.2006). See Ludy v. State, 784 N.E.2d 459, 460 (Ind.2003), where our Supreme Court unanimously adopted a new rule of law one year after it had denied transfer in a case presenting precisely the same argument.

. The majority does not acknowledge the abrogation of the impossibility defense in Ind. Code § 35 — 41—5—1(b). Aplin mentioned it in a footnote:

The State alleged that Aplin attempted to engage in sexual conduct with a specified adult, not that Aplin attempted to engage in sexual misconduct with a child but that it was impossible to do so because of his misapprehension of the circumstances. It is no defense that, because of misapprehension of the circumstances, it would have been impossible for the accused to commit the crime attempted. Ind.Code § 35-41-5-1(b).

889 N.E.2d 882, 884 n. 4 (Ind.Ct.App.2008), reh’g denied. Thus, Aplin appears to acknowledge that impossibility is not a defense, but faults the State for the language of the charging instrument. However, any time a defendant fails to complete an offense because it is impossible, the State will be unable to allege facts that would ordinarily constitute an offense. “[T]he purpose of a charging instrument is to provide a defendant with notice of the crime of which he is charged so that he is able to prepare a defense." Brown v. State, 830 N.E.2d 956, 963 (Ind.Ct.App.2005). The Aplin pan el did not suggest the wording used *1248by the State failed to apprise Aplin of the charges against him.

. The Kemp pan el relied on State v. Duke, 709 So.2d 580 (Fla.Dist.Ct.App.1998), which involved an online sting operation. Florida appears to be the only other jurisdiction that has held this sort of conduct is not a substantial step. Cf. Kirwan v. State, 351 Ark. 603, 96 S.W.3d 724 (2003); People v. Reed, 53 Cal.App.4th 389, 61 Cal.Rptr.2d 658 (1996), review denied; State v. Sorabella, 277 Conn. 155, 891 A.2d 897 (2006), cert. denied, 549 U.S. 821, 127 S.Ct. 131, 166 L.Ed.2d 36 (2006); Dennard v. State, 243 Ga.App. 868, 534 S.E.2d 182 (2000), reconsideration denied, cert. denied; State v. Glass, 139 Idaho 815, 87 P.3d 302 (Ct.App.2003), review denied; People v. Scott, 318 Ill.App.3d 46, 251 Ill.Dec. 630, 740 N.E.2d 1201 (2000), appeal denied; State v. Young, 139 S.W.3d 194 (Mo.Ct.App.2004), reh’g and/or trans. denied; Van Bell v. State, 105 Nev. 352, 775 P.2d 1273 (1989), reh’g denied; Chen v. State, 42 S.W.3d 926 (Tex.Crim.App.2001); State v. Townsend, 147 Wash.2d 666, 57 P.3d 255 (2002); State v. Grimm, 258 Wis.2d 166, 653 N.W.2d 284 (Ct.App.2002).

. As noted in Collier, our attempt statute is based on the Model Penal Code. 846 N.E.2d at 346. The Model Penal Code § 5.01(2) provides an illustrative list of conduct that, if strongly corroborative of the actor's criminal purpose, may establish a substantial step as a matter of law. One example is "possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful *1251purpose of the actor under the circumstances." Model Penal Code § 5.01(2)(e).