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Gibbs v Indiana

12-31-2008 Indiana:

Gibbs v Indiana
898 N.E.2d 1240 (2008)

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 inappropriate, we affirm in part and reverse in part.

... ... ...

As to his character, Gibbs notes he has no criminal record. He served in the Navy, has been regularly employed, and has supported a family. He completed the Basic Seminar of the Institute in Basic Life Principles.11 At the sentencing hearing, Gibbs stated he "made a bad judgment" and has "changed different ways in my life," which includes attending church and giving to charity. Tr. p. 534. His mother testified he helps her by taking her to the grocery store and doctor appointments and by buying her medications when she cannot afford them.

The trial court did not give great weight to Gibbs' remorse because it could not determine whether Gibbs was "sorry because you're really sorry over what you did or ... because you've been doing what you've wanted to do on the computer and you happen to get caught and now everyone knows?" Id. at 551. The trial court acknowledged Gibbs' lack of criminal history was a significant mitigating circumstance. For the child solicitation conviction, the trial court sentenced Gibbs to the advisory term of four years and suspended two years. We believe this sentence appropriately, takes into account Gibbs' lack of criminal history and his demonstrated potential to engage in predatory behavior, and we therefore affirm it.

Affirmed in part, reversed in part.

Rulings target Internet sex stings

1-4-2009 Indiana:

Appeals court says there must be an actual victim

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. That leaves in place a third related conviction.

The reversal could mean new cases lead to lighter sentences. 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' onviction 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.

"We are always looking to protect children, " Massillamany said.

Now prosecutors must rely on charges of child solicitation, a Class C felony charge that applies under Indiana law as long as the defendant merely believes the intended victim is at least 14 and younger than 16.

The Class C felony carries a potential sentence of two to eight years in prison, far short of the maximum 20-year penalty for attempted sexual misconduct.

Hamilton County Prosecutor Sonia Leerkamp said she may lobby the General Assembly to broaden the sexual misconduct statute along the same lines as child solicitation. Until then, she said, her office will review how it charges online sting cases to conform to the rulings.

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.

Prosecutors argue that online stings protect teenagers by snaring likely perpetrators, though judges often give reduced sentences or even probation -- as Aplin received -- because there are no actual victims.

No such luck for Gibbs, a Navy veteran with a clean record who expressed regret for bad judgment after a jury convicted him. Marion Superior Court Judge Sheila A. Carlisle gave him seven years in prison, including two years for child solicitation, with the possibility of spending the last four years in community corrections programs.

"I have serious concerns," Carlisle told him in October 2007, "about your ability to refrain from this conduct in the future." ..Source.. by Jon Murray

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