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Improper venue doesn't require acquittal

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Even though the Hamilton Superior Court erred in concluding it was the proper venue for a felony child solicitation charge, the error doesn't warrant an acquittal of the conviction, the Indiana Court of Appeals concluded today. The case was remanded for retrial in the proper venue of Madison County.

In Dustin Neff v. State of Indiana, No. 29A02-0904-CR-332, Dustin Neff challenged his conviction of Class C felony child solicitation. Neff chatted with "Lizzy" online, whom he believed to be a 12-year-old girl in Carmel. "Lizzy" was actually a woman from Georgia who volunteered for Perverted Justice, an organization in which volunteers try to catch adults in Internet chat rooms who try to prey on children.

In his chats with Lizzy, Neff asked for pictures, asked her if she'd want to kiss and indicated he wanted to have sexual intercourse with her. They arranged to meet at Dairy Queen in Carmel. After driving from his home in Madison County, Carmel police - who were tipped off by the volunteer from Georgia - arrested Neff after he admitted to driving there to meet Lizzy.

At closing argument, he argued Hamilton County wasn't the proper venue; the Hamilton Superior Court disagreed and he was convicted of the charge at a bench trial.

Neff challenged his conviction, arguing there isn't sufficient evidence because the information on the case alleged that "on or about May 2, 2006," Neff committed child solicitation. Neff relied on the contents of the May 2 chat, and he claimed the conversation didn't rise to the level of child solicitation. But the contents of an April 29 chat provided sufficient evidence of child solicitation, wrote Judge Michael Barnes. The precise date of the alleged solicitation isn't of the essence of the offense of child solicitation, nor was Neff misled into believing the state wouldn't rely on evidence related to the April 29 chat.

The appellate court agreed with Neff that Hamilton County wasn't the proper venue since he was in Madison County while chatting with the woman from Georgia. Neff completed all the conduct required to establish child solicitation when he sat at his computer in Madison County.

"Although venue for a chain of criminal events may lay in any county in which any of the events occurred, Neff did not engage in any conduct in furtherance of child solicitation in Hamilton County," wrote the judge.

Then the issue arose whether the venue error would lead to an acquittal of the charges or if he could be retried in Madison County.

"The question here, then, is whether our reversal of Neff's conviction due to improper venue is an acquittal based upon insufficient evidence or a reversal based on legal error for double jeopardy purposes. We conclude it is the latter," Judge Barnes wrote.

The state's failure to prove venue in Hamilton County was not a failure to prove an element of the offense and implies nothing with respect to Neff's guilt or innocence. The case is to be transferred to Madison County for further proceedings.

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  1. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

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