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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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