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Sunday, January 04, 2009

Ind. Decisions - "Rulings target Internet sex stings: Appeals court says there must be an actual victim "

The Dec. 31st, 2-1 Court of Appeals ruling in the case of Randy Gibbs v. State of Indiana, about which the ILB posted this summary and commentary, is the subject of this story today by Jon Murray of the Indianapolis Star. Some quotes:

The Internet stings police consider key to protecting minors from sexual predators may lose some of their power after two recent Court of Appeals rulings.

The use of undercover investigators as bait in Internet chats has become routine in Central Indiana. But the attraction for law enforcement -- the lack of an actual victim -- also became the basis for the reversal of two convictions against a Shelbyville man Wednesday by the Indiana Court of Appeals. * * *

The decision and a similar ruling in July targeted the most serious charge usually leveled against suspects nabbed in online stings.

The court ruled 2-1 that attempted sexual misconduct with a minor, a Class B felony, requires that the victim be a minor; an undercover officer doesn't count. It also used the same reasoning to reverse Randy Gibbs' conviction of dissemination of matter harmful to a minor, leaving only a child solicitation conviction intact.

Gibbs, now 48, was arrested after he showed up at an Indianapolis apartment in 2006 with rope and condoms in his pockets following explicit online chats with an investigator posing as 15-year-old "Samantha."

Appeals Judge Melissa S. May dissented, arguing all charges should stand against Gibbs.

"He did all he believed was necessary to complete the offense of sexual misconduct of a minor," May wrote, "and he failed to complete the offense only because it was not possible under the circumstances."

Mario Massillamany, the Marion County prosecutor's spokesman, said the office had stopped using the attempted sexual misconduct charge in online sting cases after the July decision, which a different Court of Appeals panel issued in a Hamilton County case. * * *

[Hamilton County Prosecutor Sonia Leerkamp] had hoped the Indiana Supreme Court would take up the Hamilton County case. Matthew Jachin Aplin, then 27, was arrested in 2006 after he chatted online with an investigator posing as a 15-year girl and showed up to a meeting inside a Fishers SuperTarget store.

But last month, the state Supreme Court declined to review the Court of Appeals' reversal of Aplin's attempted sexual misconduct conviction.

See the ILB summary of the July 11th Aplin decision here - 2nd case.

As noted in the story, the Supreme Court denied transfer in Aplin. The commentary to the Dec. 31st ILB entry focuses on the significant to be given the denial.

Posted by Marcia Oddi on January 4, 2009 11:26 AM
Posted to Ind. App.Ct. Decisions