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Decision resolves conflicting appellate rulings

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An offense of attempted dissemination of matter harmful to minors can be committed when a defendant attempts to transmit prohibited matter by the Internet to an adult police detective posing as a minor, the Indiana Supreme Court ruled Tuesday.

The high court granted transfer to Andrew King v. State of Indiana, No. 49S04-0911-CR-507, to resolve a conflict in Indiana Court of Appeals decisions in Alpin v. State, 889 N.E.2d 882 (Ind. Ct. App. 2008), and Gibbs v. State, 898 N.E.2d 1240 (Ind. Ct. App. 2008). King argued there was insufficient evidence to support his conviction of attempted dissemination of matter harmful to minors because the material was actually received by an adult police officer. He claimed because it's not a crime to send such material over the Internet to someone who is over 18, it isn't a crime to attempt to engage in that activity. King also argued that subsection (b)(3) of the dissemination statute operates to exempt the statute from the general attempt statute and indicates the legislature's intent to not criminalize the transmission unless the recipient is actually a minor.

The justices examined the statutes defining attempt and dissemination of matter or conducting performance harmful to minors and upheld King's conviction. The general attempt statute applies to dissemination of matter harmful to minors and the crime of attempted dissemination isn't precluded when the intended minor recipient is actually an adult, wrote Justice Brent Dickson. The essence of an attempt is that one or more elements of an offense are not fully satisfied, but a defendant still has taken a substantial step toward the offense while acting with the requisite intent of that offense. If each of the elements of an offense is fully satisfied, the charged offense will be the offense, not an attempt of that offense.

In King's case, he sent the inappropriate matter to someone he thought was younger than 18 years old. The only element not met for the offense of disseminating matter harmful to minors is that the recipient was not younger than 18. Because the recipient was not a minor, the defendant was charged with attempted dissemination, rather than dissemination, of matter harmful to minors, wrote Justice Dickson.

As a result of their ruling, the justices disapproved and overruled Alpin and Gibbs to the extent that they may be read to prohibit convictions for attempted dissemination of matter harmful to minors where the supposed minor is actually an adult.

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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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