« Law - "The law firms of Benesch Friedlander Coplan & Aronoff LLP and Dann Pecar Newman & Kleiman P C announced that they will merge their practices, effective March 1, 2010" | Main | Ind. Decisions - Still no transfer list for the week ending Feb. 26, 2010 »

Tuesday, March 02, 2010

Ind. Decisons - Supreme Court decides one this afternoon

In Andrew King v. State of Indiana, a 5-page, 5-0 opinion, Justice Dickson writes:

Having granted transfer to resolve a conflict among decisions of the Indiana Court of Appeals, we hold that the offense of Attempted Dissemination of Matter Harmful to Minors can be committed when a defendant attempts to transmit proscribed matter by the Internet to an adult police detective posing as a minor.

The defendant was convicted of two counts of Child Solicitation and one count of Attempted Dissemination of Matter Harmful to Minors. His appeal claims: (1) insufficient evidence to convict for Attempted Dissemination of Matter Harmful to Minors because the offending matter was received not by a minor but by an adult police officer; (2) numerous errors in the admission of evidence; and (3) erroneous admission of the defendant's statement to police in violation of the corpus delicti rule. The Court of Appeals affirmed his convictions. King v. State, 908 N.E.2d 673 (Ind. Ct. App. 2009). We granted transfer to resolve a decisional conflict regarding the effect of an adult recipient posing as a minor in prosecutions for this attempt crime.[1] As to all other issues raised by the defendant, we summarily affirm pursuant to Indiana Appellate Rule 58(A)(2). * * *

The essence of an attempt is that one or more elements of an offense are not fully satisfied, but a defendant still has taken a substantial step toward the offense while acting with the requisite intent of that offense. If each of the elements of an offense are fully satisfied, the charged offense will be the offense, not an attempt of that offense. Here, the defendant disseminated matter harmful to minors to a person he believed or intended to be a child less than eighteen years of age. The only element not met for the offense of disseminating matter harmful to minors is that the recipient was not in fact a child less than eighteen years of age. Because the recipient was not a minor, the defendant was charged with Attempted Dissemination of Matter Harmful to Minors, rather than Dissemination of Matter Harmful to Minors.

To the extent that Gibbs and Alpin may be read to prohibit convictions for Attempted Dissemination of Matter Harmful to Minors where the supposed minor is in fact an adult, these opinions are disapproved and overruled.

Conclusion. We hold that the general Attempt statute applies to the offense of Dissemination of Matter Harmful to Minors and that the crime of Attempted Dissemination of Matter Harmful to Minors is not precluded when the intended minor recipient is actually an adult. The judgment of the trial court is affirmed.
____________
[1] The Court of Appeals's decision in this case is inconsistent with its decisions in Gibbs v. State, 898 N.E.2d 1240 (Ind. Ct. App. 2008), trans. denied, and Alpin v. State, 889 N.E.2d 882 (Ind. Ct. App. 2008), trans. denied. In Gibbs, the defendant appealed his convictions for Child Solicitation, Attempted Dissemination of Matter Harmful to Minors, and Attempted Sexual Misconduct with a Minor. Relying upon Alpin, a divided panel of the Court of Appeals looked at the statutory language defining the crimes of Sexual Misconduct with a Minor and Dissemination of Matter Harmful to Minors and determined that where there is no opportunity to commit the crimes because the supposed minor is in fact an adult, there can be no attempt of those crimes.

For background, see these ILB entries referencing the Aplin decision, particularly this one from Feb. 17, 2009 and this one from June 30, 2009 summarizing the COA decision in King v. State (3rd case). A quote from the ILB:
Re "impossibility", the Dec. 31st, 2-1 Court of Appeals ruling in the case of Randy Gibbs v. State of Indiana is referenced 21 times in the opinion; Aplin v. State is cited 34 times.

Posted by Marcia Oddi on March 2, 2010 03:16 PM
Posted to Ind. Sup.Ct. Decisions