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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. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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