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Wednesday, December 31, 2008

Ind. Decisions - COA opinion today raises interesting issue

I have singled out one of the opinions issued today because it raises an interesting issue.

In Randy Gibbs v. State of Indiana , a 22-page, 2-1 opinion, Judge Vaidik writes:

As a result of an online sting operation, Randy Gibbs was convicted of Class B felony attempted sexual misconduct with a minor, Class C felony child solicitation, and Class D felony attempted dissemination of matter harmful to minors. We hold that pursuant to Aplin v. State, 889 N.E.2d 882 (Ind. Ct. App. 2008), reh’g denied, trans. denied, Gibbs cannot be convicted of attempted sexual misconduct with a minor and attempted dissemination of matter harmful to minors because the intended victim was not actually a minor and therefore reverse those convictions. Finding no error in Gibbs' other argument and concluding that he has failed to persuade us that the sentence for his remaining conviction is not inappropriate, we affirm in part and reverse in part. * * *

The State concedes Aplin is on point but argues it was incorrectly decided. We, however, believe that Aplin was correctly decided. This is especially so since the Indiana Supreme Court denied transfer in Aplin on December 4, 2008. If our General Assembly wanted to penalize defendants for attempting to commit the offense of sexual misconduct with a minor when the victim is an adult the defendant believed to be fourteen or fifteen years old, it could have chosen statutory language similar to that it used in the child solicitation statute, that is, “an individual the person believes to be” a child at least fourteen but less than sixteen years old. See I.C. § 35-42-4-6. However, our General Assembly did not do so. Pursuant to Aplin, the evidence is insufficient to support Gibbs' conviction for attempted sexual misconduct with a minor. * * *

Affirmed in part, reversed in part.
MATHIAS, J., concurs.
MAY, J., dissents with separate opinion. [which begins on p. 14] Because I believe Gibbs' convictions of attempted sexual misconduct with a minor and attempted dissemination of matter harmful to minors should be affirmed, I respectfully dissent in part. I agree with the State that Aplin was wrongly decided.[1] Although an actual child victim is required for a conviction of the completed offense of sexual misconduct with a minor, Aplin did not adequately explain why an actual child is an element of an attempt offense or cite any authority in support of that proposition.
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[1] The majority believes Aplin was correctly decided, “especially so since the Indiana Supreme Court denied transfer . . . .” (Slip op. at 8.) Denial of transfer has no precedential value or legal effect other than to terminate the litigation between the parties, and does not necessarily indicate the Supreme Court's agreement with this court's opinion. Wishard Memorial Hosp. v. Kerr, 846 N.E.2d 1083, 1088 n.1 (Ind. Ct. App. 2006). See Ludy v. State, 784 N.E.2d 459, 460 (Ind. 2003), where our Supreme Court unanimously adopted a new rule of law one year after it had denied transfer in a case presenting precisely the same argument.

Upon reading this opinion, a reader wrote to point out:
According to Appellate Rule 58:

B. Effect of the Denial of Transfer. The denial of a Petition to Transfer shall have no legal effect other than to terminate the litigation between the parties in the Supreme Court. . . .

I don't think the denial of transfer enhances the pedigree of a case. Sometimes transfer is sought on a different issue or perhaps even by the other party (in cases where neither got a total victory).

The reader then pointed to Judge May's dissent as making the same point via case law.

I responded: "I admit I didn't know that - I thought denial of transfer was an affirmation."

To which the reader responded:

I've heard Justice Sullivan say that it means something. Unlike the denial of cert, which happens in thousands of SCOTUS cases that pass mostly through a cert pool, the Indiana justices to read each petition and the underlying court of appeals opinion. Rule 22(B) specifically requires the inclusion of "trans. denied" in citations, which shows it must mean something as well.
Any additional thoughts from readers?

Posted by Marcia Oddi on December 31, 2008 12:16 PM
Posted to Ind. App.Ct. Decisions