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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. For many years this young man was "family" being my cousin's son. Then he decided to ignore my existence and that of my daughter who was very hurt by his actions after growing up admiring, Jason. Glad he is doing well, as for his opinion, if you care so much you wouldn't ignore the feelings of those who cared so much about you for years, Jason.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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