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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. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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