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Judges differ in interpretation of earlier ruling

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A panel of Indiana Court of Appeals judges disagreed today as to whether a man's convictions of attempted sexual misconduct with a minor and attempted dissemination of matter harmful to minors should be reversed because his intended victim was actually a police officer conducting an online sting operation.

In Randy Gibbs v. State of Indiana, No. 49A02-0712-CR-1017, the majority determined in light of Alpin v. State, 889 N.E.2d 882 (Ind. Ct. App. 2008), two of Randy Gibbs' convictions should be overturned. Gibbs had communicated over the Internet with someone that he believed to be a 15-year-old girl, had graphic sexual conversations with her, sent her illicit pictures, and then arranged to meet her at an apartment complex. Gibbs was arrested at the apartment complex and had brought rope and condoms with him.

The majority affirmed his conviction of child solicitation, but reversed his other two convictions based on the wording of the statutes for those crimes. The majority disagreed with the state's argument that Alpin was decided incorrectly, noting that it had to be decided correctly since the Indiana Supreme Court denied transfer. Citing Alpin, the majority noted that to be convicted of child solicitation, a person has to "believe" the victim is a child whereas to be convicted of sexual misconduct with a child requires the victim to be a child.

As a result of the ruling in Alpin, the majority in the instant case concluded that attempted sexual misconduct with a minor also requires the intended victim be a child. They noted that if the General Assembly wanted to penalize defendants for attempting to commit the offense when the victim is actually an adult the defendant believed to be a minor, it could have chosen similar language as used in the child solicitation statute, wrote Judge Nancy Vaidik.

Judge Melissa May dissented, finding the attempt statute to be applicable in this case, which provides that impossibility is not a defense. Gibbs intended to have sex with a minor and did all he could to complete the offense, but failed because it wasn't possible under the circumstances since he was part of an online sting operation, wrote the judge. Judge May doesn't believe the General Assembly would have intended to prevent prosecution under the sexual misconduct with a minor statute when the defendant erroneously believed the victim was a minor. She would affirm Gibbs' convictions, finding sufficient facts to support each of them.

Judge May also noted that the Supreme Court's denial of transfer has no precedential value or legal effect other than to terminate the litigation between the parties and doesn't imply the high court's agreement with the Court of Appeals in a ruling.

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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