Andrew King v. State of Indiana ( 2010 )

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. O’Connor Gregory F. Zoeller
O’Connor & Auersch Attorney General of Indiana
Indianapolis, Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court Mar 02 2010, 3:03 pm
_________________________________ CLERK
of the supreme court,
court of appeals and
tax court
No. 49S04-0911-CR-507
ANDREW KING, Appellant (Defendant below),
v.
STATE OF INDIANA, Appellee (Plaintiff below).
_________________________________
Appeal from the Marion Superior Court, No. 49G03-0801-FC-23143
The Honorable Sheila A. Carlisle, Judge
The Honorable Stanley E. Kroh, Master Commissioner
_________________________________
On Transfer from the Indiana Court of Appeals, No. 49A04-0810-CR-609
_________________________________
March 2, 2010
Dickson, Justice.
Having granted transfer to resolve a conflict among decisions of the Indiana Court of Ap-
peals, 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 At-
tempted Dissemination of Matter Harmful to Minors. His appeal claims: (1) insufficient evi-
dence to convict for Attempted Dissemination of Matter Harmful to Minors because the offend-
ing 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 vi-
olation 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 re-
garding 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).
Our analysis requires consideration of both the statute defining the offense of Attempt
and that defining the attempted substantive offense. These statutes provide in relevant part as
follows:
35-41-5-1 Attempt
(a) A person attempts to commit a crime when, acting with the culpability re-
quired for commission of the crime, he engages in conduct that constitutes a sub-
stantial step toward commission of the crime. An attempt to commit a crime is a
felony or misdemeanor of the same class as the crime attempted. . . .
(b) It is no defense that, because of a misapprehension of the circumstances, it
would have been impossible for the accused person to commit the crime at-
tempted.
Ind. Code § 35-41-5-1.
35-49-3-3 Dissemination of matter or conducting performance harmful to minors
(a) Except as provided in subsection (b), a person who knowingly or intentionally:
(1) disseminates matter to minors that is harmful to minors;
...
commits a Class D felony.
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 Aplin 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 Aplin, 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.
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(b) This section does not apply if a person disseminates, displays, or makes available the
matter described in subsection (a) through the Internet, computer electronic transfer, or a
computer network unless:
(1) the matter is obscene under IC 35-49-2-1;
(2) the matter is child pornography under IC 35-42-4-4; or
(3) the person distributes the matter to a child less than eighteen (18) years of age
believing or intending that the recipient is a child less than eighteen (18) years of age.
Ind. Code § 35-49-3-3.
Predicating his contentions on the fact that the completed offense of Dissemination un-
ambiguously requires that the proscribed Internet matter be distributed to a child less than eigh-
teen years of age, the defendant makes two principal arguments. First, he emphasizes the lan-
guage of the Attempt statute that requires both that the defendant act with the culpability re-
quired "for commission of the crime" and that the defendant engage in conduct that constitutes a
substantial step "toward commission of the crime." Appellant's Pet. to Trans. at 6. From this he
argues that "[b]ecause it is not a crime to send [such matter] over the internet to a person who is
over 18, . . ., it is not a crime to attempt to engage in that activity." Id. Second, the defendant
argues that subsection (b)(3) of the Dissemination statute operates to exempt the statute from the
general Attempt statute and indicates the legislature's intent not to criminalize the Internet trans-
mission of matter harmful to minors unless the recipient is actually a minor. Comparing the lan-
guage in the Child Solicitation statute with the language in the Dissemination of Matter Harmful
to Minors statute, the defendant further argues that, by failing to include the language "or an in-
dividual the person believes to be a child" or simply the word "or" before "believing or intending
that the recipient is a child less than eighteen," the legislature intended to preclude the possibility
of an attempt to disseminate matter to minors that is harmful to minors, when the recipient is not
in fact a minor. Compare Ind. Code § 35-42-4-6 with § 35-49-3-3.
Shortly after enactment of the Attempt statute, this Court made clear that the new statute
rejected prior views that limited attempt crimes to "conduct which will apparently result in the
crime, unless interrupted by circumstances independent of the doer's will." Zickefoose v. State,
270 Ind. 618, 623, 388 N.E.2d 507, 510 (1979) (internal citations omitted). Rather, we held that
the "new" general attempt statute "now focuses on the substantial step that the defendant has
completed, not on what was left undone." Id. Rejected as well were prior views that impossi-
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bility was a defense. "It is not necessary that there be a present ability to complete the crime, nor
[is it] necessary that the crime be factually possible." Id.
In the present case, the defendant does not dispute that, acting with the culpability re-
quired for the commission of the crime of Dissemination of Matter Harmful to Minors, he took
the substantial step of transmitting by the Internet such proscribed matter to a person he believed
was a fifteen-year-old girl. This substantial step, done with the culpability required for commis-
sion of the Dissemination offense, constitutes the charged offense of Attempted Dissemination of
Matter Harmful to Minors. It matters not that his intended recipient was an adult; the Attempt
statute makes clear that such "a misapprehension of the circumstances" is no defense. Ind. Code
§ 35-41-5-1(b); see also Zickefoose, 270 Ind. at 623, 388 N.E.2d at 510.
We agree that the unambiguous language of the Dissemination statute clearly requires
that, for the commission of the completed offense, the harmful matter must in fact be distributed
to a child less than eighteen years of age. We do not agree, however, that this manifests a legis-
lative intent to foreclose application of the general Attempt statute to prosecute unsuccessful at-
tempts to commit such Dissemination. We believe that the addition of subsection (b)(3) to § 35-
49-3-3 in 2002, requiring the recipient to be a child less than eighteen years of age, was a legisla-
tive response seeking to comply with recent First Amendment jurisprudence of the United States
Supreme Court,2 and as such sought to protect free speech rights of adults while criminalizing
the dissemination of matter to minors that is harmful to minors.
The essence of an attempt is that one or more elements of an offense are not fully satis-
fied, 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 dissemi-
2
See, e.g., Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997). There, the
United States Supreme Court evaluated the constitutionality of the Communications Decency Act of
1996. The act criminalized the transmission or display of patently offensive or indecent materials to mi-
nors. The Court determined that the language used in the act was vague and overbroad because it did not
adequately define terminology, and it criminalized protected adult speech. The Court recognized a right
held by adults to receive speech that is harmful to minors, but it also recognized the lack of protection for
obscene materials and child pornography. Id. at 874–79, 883, 117 S. Ct. at 2346–48, 2350, 138 L. Ed. 2d
at 899–902, 904.
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nated matter harmful to minors to a person he believed or intended to be a child less than eigh-
teen 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 Aplin 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 Mat-
ter Harmful to Minors and that the crime of Attempted Dissemination of Matter Harmful to Mi-
nors is not precluded when the intended minor recipient is actually an adult. The judgment of the
trial court is affirmed.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
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