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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. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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