Robert Corbin v. State of Indiana , 999 N.E.2d 70 ( 2013 )

Oct 11 2013, 5:39 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
NICHOLAS T. OTIS GREGORY F. ZOELLER
Newby, Lewis, Kaminski & Jones, LLP Attorney General of Indiana
La Porte, Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT CORBIN, )
)
Appellant-Defendant, )
)
vs. ) No. 75A03-1209-CR-402
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE STARKE CIRCUIT COURT
The Honorable Kim Hall, Judge
Cause No. 75C01-1204-FD-72
October 11, 2013
OPINION – FOR PUBLICATION
MATHIAS, Judge
Robert Corbin (“Corbin”) brings this interlocutory appeal from the Starke Circuit
Court’s denial of his motion to dismiss two counts of attempted child seduction. On
appeal, Corbin claims that the facts alleged in the charging information are insufficient to
support the charges alleged and that the trial court therefore erred in denying his motion
to dismiss.
We find Corbin’s conduct to be morally reprehensible. But we are also
constrained to find that, as charged in the first count, Corbin did not take the substantial
step required to amount to attempted child seduction. As to the second count, we are
similarly constrained to find that Corbin again did not take the substantial step required to
amount to attempted child seduction. In addition, the second count does not even charge
a crime under Indiana law. We must therefore reverse and remand.
Facts and Procedural History
In March 2012, Corbin was a teacher and swimming team coach at Knox High
School in Starke County, Indiana. At the time, A.H. was a sixteen-year-old sophomore at
the high school. On March 17, 2012, A.H. received a message on Facebook from Corbin
informing her that he did not accept students as Facebook friends. From that point on,
however, Corbin sent A.H. several Facebook messages of a sexual nature. According to
the State’s allegations in the charging information, on March 21, 2012, Corbin sent A.H.
a message asking the girl to “physically take care of” his sexual arousal. Appellant’s App.
p. 9. He also asked her to sneak out of the house after her father’s girlfriend fell asleep so
he could drive over and pick her up. The following day, Corbin sent A.H. a Facebook
message asking her to send him a “kiss” photograph and also asked how large her breasts
2
were. Corbin also asked if A.H. could sneak out of the house so that he could “see her
breasts in person[.]” Id.
Thereafter, A.H.’s aunt checked A.H.’s Facebook account and came across the
messages between A.H. and Corbin. A.H.’s aunt contacted her brother, A.H.’s father,
who then reported Corbin’s behavior to the police on March 28, 2012. The police
interviewed Corbin on March 31 and April 1, 2012. Corbin admitted to sending the
messages to A.H. But when asked if it was “his intention to have [A.H.] come to his
house to act on the messages sent[,] [h]e stated that they talked about it, but Corbin was
unsure if it would happen.” Id. at 7.
On April 3, 2012, the State charged Corbin as follows:
COUNT I: ATTEMPTED CHILD SEDUCTION
I.C. 35-41-5-1, 35-42-4-7(k)(1) AND 35-42-4-7(k)(2)(A)(ii) / CLASS D
FELONY
[O]n or about March 21, 2012, ROBERT CORBIN, being over eighteen
(18) years of age . . . and a childcare worker employed by a school
corporation attended by the victim, did knowingly and intentionally attempt
to engage in fondling or touching with the intent to arouse or satisfy the
sexual desires of either the child or the adult, to-wit: that Robert Corbin
sent Facebook messages to a student, A.H., asking her to “physically take
care of it” because he was sexually aroused and he took a substantial step
toward the crime by asking her to sneak out after the adult in the house was
asleep and he would drive over to pick her up, and Robert Corbin admitted
that he was sexually aroused by the messages being sent back and forth
between him and A.H.; and further,
3
COUNT II: ATTEMPTED CHILD SEDUCTION
I.C. 35-41-5-1, 35-42-4-7(k)(1) AND 35-42-4-7(k)(2)(A)(ii) / CLASS D
FELONY
[O]n or about March 22, 2012, ROBERT CORBIN, being over eighteen
(18) years of age . . . and a childcare worker employed by a school
corporation attended by the victim, did knowingly or intentionally attempt
to engage in fondling or touching with the intent to arouse or satisfy the
sexual desires of either the child or the adult, to-wit: that Robert Corbin
sent Facebook messages to a student, A.H., asking her to send him a “kiss”
photograph and what size her breasts were and he took a substantial step
toward the crime by asking if she could sneak out of the house so he could
see her breasts in person and Robert Corbin admitted that he was sexually
aroused by the messages being sent back and forth between him and A.H.
Appellant’s App. p. 9.
On April 10, 2012, Corbin filed a motion to dismiss the charges, claiming that the
facts as alleged failed to satisfy the elements of the crimes charged. The State responded
on May 9, 2012, and the trial court held a hearing on the matter on June 6, 2012. The
trial court entered an order denying Corbin’s motion to dismiss on August 14, 2012.
Corbin filed a motion on August 21, 2012 seeking to certify the trial court’s order for
interlocutory appeal. The trial court granted this motion on August 22, 2012, and this
court accepted interlocutory jurisdiction over the appeal on October 29, 2012.1
Standard of Review
Corbin brought his motion pursuant to Indiana Code section 35-34-1-4(a)(5),
which provides that a trial court “may, upon motion of the defendant, dismiss the
1
We held oral argument in this case on September 10, 2013, at the Indiana University Maurer School of
Law in Bloomington Indiana. We would like to extend our thanks to the students, staff, faculty, and
administration of the school for their hospitality, and we commend counsel for the quality of their written
and oral advocacy.
4
indictment or information upon any of the following grounds: . . . The facts stated do not
constitute an offense.” See Ceaser v. State, 964 N.E.2d 911, 918 (Ind. Ct. App. 2012)
(“an information may be dismissed if the facts stated in the information do not constitute
an offense.”), trans. denied. We generally review a trial court’s denial of a defendant’s
motion to dismiss for an abuse of discretion. Id. However, to the extent that the question
at issue is one of a matter of law, this is a question we review de novo. See Adams v.
State, 960 N.E.2d 793, 797 (Ind. 2012) (“Because a question of statutory interpretation
constitutes a question of law, we review it de novo.”).
I. The “Age of Consent” and Child Seduction
Generally speaking, the “age of consent” in Indiana is sixteen. See Ind. Code §
35-42-4-3 (defining sexual conduct with a child under the age of fourteen as the crime of
child molesting); Ind. Code § 35-42-4-9 (defining sexual conduct with a child at least
fourteen but less than sixteen years of age as the crime of sexual misconduct with a
minor); Ind. Code § 35-42-4-6 (criminalizing the solicitation of a child to engage in
sexual activity if the child is under the age of sixteen); Ind. Code § 35-42-4-5(criminalizing vicarious sexual gratification involving a minor and fondling in the
presence of a minor, defined as a person under the age of sixteen).
There are, however, several exceptions to this general rule of consent at the age of
sixteen. For example, possession or production of pornography depicting a child under
the age of eighteen is criminalized by Indiana Code section 35-42-4-4. At issue in the
present case is another exception to this general rule, the Child Seduction statute, which
provides in relevant part:
5
If a person who:
(1) is at least eighteen (18) years of age; and
(2) is:
(A) the:
(i) guardian, adoptive parent, adoptive grandparent,
custodian, or stepparent of; or
(ii) child care worker[2] for; or
(B) a military recruiter who is attempting to enlist;
a child at least sixteen (16) years of age but less than eighteen (18)
years of age;
engages with the child in sexual intercourse, deviate sexual conduct (as
defined in IC 35-31.5-2-94),[3] or any fondling or touching with the intent
to arouse or satisfy the sexual desires of either the child or the adult, the
person commits child seduction, a Class D felony.
Ind. Code § 35-42-4-7 (emphasis added). Thus, if an adult employee of a school
corporation touches or fondles a child at least sixteen but under eighteen years of age
who attends that school corporation with the intent to arouse or satisfy the sexual desires
of either the child or the employee, then the employee commits Class D felony child
seduction.
II. Criminal Attempt
Here, because A.H. was sixteen years old at the time of the communications
alleged in the charging information, Corbin could not be charged with child solicitation.
See I.C. § 35-42-4-6. Instead, Corbin was charged with attempted child seduction under
Indiana Code Section 35-42-4-7. The attempt statute explains that “[a] person attempts to
commit a crime when, acting with the culpability required for commission of the crime,
2
A “child care worker” is defined to include “a person who . . . is employed by a school corporation
attended by a child who is a victim of a crime under this chapter.” I.C. § 35-42-4-7(d)(2).
3
This statute defines sexual deviate conduct as: “an act involving: (1) a sex organ of one (1) person and
the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an
object.” I.C. § 35-31.5-2-94.
6
he engages in conduct that constitutes a substantial step toward commission of the crime.”
Ind. Code § 35-41-5-1. For purposes of the attempt statute, a “substantial step” is any
overt act beyond mere preparation and in furtherance of intent to commit an offense.
Collier v. State, 846 N.E.2d 340, 344 (Ind. Ct. App. 2006).
The question of whether a defendant has taken a substantial step toward the
commission of a crime is generally a question of fact to be decided by the trier of fact
based on all the particular circumstances of the case. Id. However, in other cases, what
constitutes attempt may be decided as a matter of law. See, e.g., Ward v. State, 528
N.E.2d 52, 55 (Ind. 1988) (concluding that evidence most favorable to the verdict failed,
as a matter of law, to establish that the defendant committed attempted child molesting);
Collier, 846 N.E.2d at 344 (concluding that defendant’s undisputed behavior did not, as a
matter of law, constitute a substantial step toward the commission of the crime of
murder); State v. Kemp, 753 N.E.2d 47, 51 (Ind. Ct. App. 2001) (affirming trial court’s
dismissal of charges against defendant where facts alleged did not, as a matter of law,
constitute attempted child molesting). Because of the procedural posture of this case, we
are called upon to review whether Corbin’s conduct amounted to a substantial step
toward commission of the crime charged as a matter of law.
In determining whether an attempt has occurred, the focus should be on what acts
have been completed, not what remains to be done, and the acts completed by the
defendant must be “strongly corroborative of the firmness of the defendant’s criminal
intent.” Collier, 846 N.E.2d at 344 (citing Mitchem v. State, 685 N.E.2d 671, 676 (Ind.
7
1997)). “[T]he liability of the defendant turns on his purpose as manifested through his
conduct.” Id. (citing Zickefoose v. State, 270 Ind. 618, 623, 388 N.E.2d 507, 510 (1979)).
Our supreme court has described the requirement of a substantial step as a
“minimal one.” State v. Van Cleave, 674 N.E.2d 1293, 1304 (Ind. 1996). But as this
court noted in Collier, “[h]ow conduct can simultaneously be described as both
‘substantial’ and ‘minimal’ is [a] dilemma.” 846 N.E.2d at 344. Even our supreme court
has noted this dilemma, stating: “[d]efining what constitutes an attempt has always been a
burden upon the common law, challenging even the most respected judges.” Ward , 528
N.E.2d at 53-54 (footnote omitted).
III. Solicitation as Attempt
An additional problem arises when the substantial step alleged to have been taken
by the defendant consists only of solicitation. Even a cursory review of the extant case
law illustrates the difficult issues that courts face when considering this issue.
A. Ward v. State
Our supreme court addressed the issue of solicitation as attempt in Ward v. State,
in which the court considered the sufficiency of the evidence supporting the defendant’s
convictions for two counts of attempted child molesting. In the first incident, the
defendant approached an eleven-year-old boy, D.D., on the street and asked if the boy
would like Ward to perform fellatio on him. Ward told D.D. that the sheriff would “get
D.D. in trouble” and stated that the sheriff was a “pervert.” Id. at 55. Ward asked D.D.
three times if he wanted to have Ward perform fellatio on him. The boy refused and later
told the sheriff about the incident.
8
To verify D.D.’s story, the sheriff asked R.C., a fifteen-year-old boy, to approach
Ward and engage in casual conversation but not to broach the subject of sex. R.C. found
Ward and greeted him, and Ward responded by offering the boy a beer. R.C. declined,
but Ward then told R.C. that, if he would keep the incident a secret, he would perform
fellatio on him. Ward then vaguely suggested that if R.C. were in Ward’s nearby
hometown, he should visit Ward. Ward was later convicted for two counts of attempted
child molesting.
On appeal, our supreme court set forth a two-part test to apply in considering
whether solicitation constitutes attempt:
We adopt two separate tests to determine when solicitation may be a
substantial step. The first test is fairly mechanical and the second involves
an assessment of the wrong which the legislature seeks to sanction.
Three–Part Test for Solicitation. First, a solicitation may be a substantial
step only when: 1) the solicitation takes the form of urging; 2) the
solicitation urges the commission of the crime at some immediate time and
not in the future; and 3) the cooperation or submission of the person being
solicited is an essential feature of the substantive crime.
Nature of the Crime. Second, if those findings are made, the court must
consider the specific crime, and the wrongful human conduct that the
legislature sought to sanction. One commentator has stated an eloquent
principle about the role which the nature of the crime plays in determining
what a substantial step is: . . . the more serious the crime attempted or the
greater the menace to the social security from similar efforts on the part of
the defendant or others, the further back in the series of acts leading up to
the consummated crime should the criminal law reach in holding the
defendant guilty for attempt.
Id. at 54.
Applying this test to the facts before it, the court first noted that Ward initiated the
contact with D.D., solicited him three times “in a context that amounted to urging or
9
persuasion rather than mere invitation,” and noted that Ward had urged the commission
of the crime immediately. Id. at 55. Thus, the court concluded that “[t]he pursuit, the
approach, the multiple requests, and Ward’s initial statements to D.D., which were
provocative and authoritative, all indicated that Ward’s solicitation was a substantial step
toward committing child molesting.” Id. The court also noted that child molesting
required the cooperation or submission of the child being solicited. Thus, the court
summarized:
The solicitation of D.D., therefore, was: (1) substantially in the nature of
persuasion, (2) aimed at immediate commission of a crime, and (3) aimed
at committing an offense dependent on cooperation of the one being
solicited. The presence of these three features and the relatively serious
nature of child molesting as a crime suggests that this set of acts may be
fairly characterized as an attempt.
Id.
With regard to R.C., however, the court came to the opposite conclusion. The
court noted that Ward did not follow or approach R.C. Instead, it was R.C. who sought
out and approached Ward. Ward also only solicited R.C. once, causing the court to
conclude that Ward’s solicitation failed to be an urging or persuasion. And Ward’s
conversation with R.C. was, at least in part, directed to future opportunity as opposed to
immediate sexual activity. “Thus, two of the elements which suggest categorizing the
solicitation of D.D. as an attempt [we]re not applicable in the case of R.C.” Id. The
court accordingly held that the evidence was insufficient to establish that Ward attempted
to molest R.C. Id.
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B. Benson v. State
The Ward test was subsequently applied by our court in Benson v. State, 574
N.E.2d 934 (Ind. Ct. App. 1991), in which the defendant drove a fifteen-year-old girl to
his home so that the girl could visit with the defendant’s stepchildren. While in the car,
Benson told the girl that he wanted to “make love” to her. Id. at 934. When they got to
Benson’s home, both he and his wife repeatedly attempted to persuade the girl to have
sexual intercourse with them. But the girl refused. Later, Benson and his wife told the
girl that they were “disappointed” in her, and the wife stroked the girl’s leg. Id. When
the girl became upset, Benson gave her pills and wine, causing her to become dizzy.
Benson’s wife then grabbed the girl’s legs and tried to force her to have sexual
intercourse, but the girl broke free. Benson and his wife then told the girl that they would
“drop the subject” for the rest of the night, but at one point during the night, Benson
asked the girl to lie down next to his wife. Id. The next day, the girl again refused an
offer to have sex with Benson, his wife, and a third party.
On appeal from his conviction for, among other things, attempted child molesting,
Benson claimed that, because the behavior upon which his conviction for attempted child
molesting was based was solely verbal, the State had failed to prove that he engaged in a
“substantial step” toward the crime of child molesting. Applying the test from Ward, the
Benson court dealt summarily with this argument:
[Benson] initiated the contact with D.S. and, along with his wife, made
repeated attempts to persuade [her] to engage in sexual intercourse. The
solicitation was aimed at immediate commission of the crime, and, as the
Ward court recognized, the substantive crime of child molesting is a two-
party offense requiring the cooperation or submission of the child being
11
solicited. Th[is] evidence was sufficient to show that [Benson] engaged in
conduct constituting a substantial step toward commission of child
molesting.
Id. at 935 (citation omitted).
C. Shahan v. State
In Shahan v. State, 669 N.E.2d 1012 (Ind. Ct. App. 1996), the defendant was
convicted of attempted child molesting based on his sexual solicitation of his own
daughter. In that case, Shahan approached his daughter and asked her to touch his penis,
but she refused. He then stated that, if she did not touch it, he would have to do so
himself, but she still refused. On appeal, we affirmed and held that this was sufficient
under Ward, noting that Shahan approached his daughter twice and requested that she
“participate in the immediate gratification of his sexual desires.” Id. at 1014 (emphasis
added). The court also noted Shahan’s persistence. And given Shahan’s position of trust
as the victim’s father, the court held that “[h]is solicitation of his daughter may fairly be
characterized as an urging that she fondle him.” Id. (emphasis added). Thus, the court
concluded that “the evidence [wa]s sufficient to support the determination that Shahan
engaged in an overt act which constituted a substantial step toward the commission of
child molesting.”4 Id.
4
Judge Barteau dissented, concluding as a matter of law that Shahan’s solicitation did not constitute a
substantial step toward the commission of the crime of child molesting. Id. at 1014 (Barteau, J.,
dissenting). Judge Barteau thought that Shahan’s actions were more akin to the behavior by the defendant
in Ward toward the second child in that case, noting that there was “but a single encounter, with no urging,
no persuasion, and no exercise of inherent authority.” Id. Thus, Judge Barteau concluded that Shahan’s
statements were a mere invitation. Id.
12
D. Mettler v. State
In Mettler v. State, 697 N.E.2d 502 (Ind. Ct. App. 1998), the defendant left a letter
in an envelope on his eighteen-year-old daughter’s bed. The envelope also contained a
five dollar bill and one-half of a one hundred dollar bill. The letter solicited Mettler’s
daughter to submit to fondling and cunnilingus and promised her the other half of the
hundred dollar bill if she complied. The daughter was frightened by the letter and told a
friend about it, and the friend’s stepfather informed the police. Mettler never spoke to his
daughter about his sexual desires, never physically confronted her, and there was no
further attempt at communicating to her after the letter. The State subsequently charged
Mettler with attempted incest, and Mettler was convicted.
On appeal, Mettler claimed that his letter soliciting his daughter to commit incest
was insufficient to constitute a substantial step toward commission of the crime.
Applying the Ward test, the court concluded:
Incest is a serious crime, and one which clearly is a menace to the moral
good of society so that we would be more likely to find an attempt if the
three-part test of Ward had been met. However, neither of the first two
parts of that test have been met. Mettler’s one-time-only letter, in our
opinion, does not constitute urging. Even if we were to concede urging, the
invitation to the daughter was to come into the front room some night. This
hardly can be classified as seeking immediate action. Mettler’s request is
nothing more than one for submission to his sexual desires at some
undefined future time.
Mettler, 697 N.E.2d at 503-04 (emphasis added). The court contrasted these facts with
those in Ward, Benson, and Shahan and concluded that “[w]ithout question Mettler’s
conduct was depraved, disgusting, and despicable, but it did not rise to the level of an
attempt to commit the crime of incest.” Id. at 504. Therefore, the court reversed the
13
conviction.5 With these cases in mind, we now turn to Corbin’s conduct as charged in the
case before us.
IV. Corbin’s Claim
On appeal, Corbin argues that, under our supreme court’s two-part test from Ward,
his conduct did not constitute a substantial step toward the commission of the crime of
child seduction.6 In considering this claim, we are mindful that we test the sufficiency of
a charging information by assuming the facts alleged in the information are true. State v.
Isaacs, 794 N.E.2d 1120, 1122 (Ind. Ct. App. 2003). We will consider each count of the
charging information in order.
A. Count I
Count I alleged that Corbin sent A.H. Facebook messages asking her to
“physically take care of” his sexual arousal and took a substantial step toward the
commission of child seduction by asking A.H. to sneak out of her house after the adult in
the house fell asleep where he would pick her up. Appellant’s App. p. 9. The question
we now consider is whether this alleged behavior, taken as true for purposes of our
5
Judge Mattingly (now Judge May) dissented, concluding that the letter did constitute urging and that,
under the facts of that case, the trier of fact could reasonably conclude that Mettler was soliciting sex
from his daughter in the near future. See id. at 505 (Mattingly, J., dissenting).
6
The State notes that the charging information cited the relevant statute, set forth the date and county
where the offense was alleged to have occurred, and cited the bare factual allegations that tracked the
statutory language, i.e., that Corbin attempted to engage in fondling or touching with A.H. with the intent
to arouse or gratify the sexual desires of either Corbin or A.H. Anything else, the State argues, is mere
surplusage and should not form the basis of a motion to dismiss. However, the case cited by the State in
support of its argument, State v. King, 502 N.E.2d 1366 (Ind. Ct. App. 1987), is distinguishable. The
core holding in King was that that “[t]he sufficiency of an information is tested by this Court by taking
the facts alleged in the information as true.” Id. at 1368. The defendant in King was attempting to litigate
a factual issue by submitting affidavits in support of his motion to dismiss, which was improper. Id. at
1370. Here, however, Corbin attacks the sufficiency of the charging information without reference to
affidavits, and we take the facts alleged as true.
14
review, was sufficient, under the test set forth in Ward, to constitute a substantial step
toward the crime of child seduction.
1. Part One of the Ward Test
The first part of the Ward test is composed of three elements: (1) solicitation in the
form of urging; (2) solicitation urging the commission of the crime at some immediate
time and not in the future; and (3) cooperation or submission of the person solicited being
an essential feature of the substantive crime. We address these in order.
The first prong of the test is whether the solicitation took the form of urging or
persuasion rather than mere invitation. See Ward, 528 N.E.2d at 54. As alleged in Count
I of the charging information here, Corbin “asked” A.H. to physically “take care of” his
sexual arousal and “asked” her to sneak out of the house when “the adult in the home was
asleep and he would drive over to pick her up.” Appellant’s App. p. 9. Although Corbin
does not develop an argument on this prong of the Ward test, his requests, as they are
charged, appear to be simply an invitation.
Even if we were to conclude that, from his position as a teacher, his requests to
A.H. could be considered urging or persuasion, Corbin’s actions as they are alleged in the
charging information did not urge the immediate commission of the crime. Indeed,
Corbin focuses his argument on this second step of the first portion of the Ward test.
Corbin notes that his communications to A.H. were not made in the girl’s physical
presence. Thus, he argues that he did not have the capacity to immediately commit the
crime. He also claims that his communications were about future conduct, not about
immediate conduct. This was a key factor distinguishing the behavior of the defendant in
15
Ward vis-à-vis the two children involved in that case. See Ward, 528 N.E.2d at 55
(noting that defendant’s statements to second child involved future conduct). We agree
with Corbin that his conduct as charged did not urge the immediate commission of a
crime.
Unlike the defendants in Ward, Benson, and Shahan, in the case before us, Corbin
did not solicit A.H. face-to-face; thus there was little opportunity for immediate
commission of the crime. And all of Corbin’s solicitations asked A.H. to leave her house
at some point in the future, not immediately. Corbin’s solicitations are more akin to the
letter left by the defendant in Mettler, which the court held did not urge immediate
commission of incest. Certainly Mettler, who was in the same house with his daughter
when he left the soliciting letter, was in more of a position to immediately commit the
crime of incest than was Corbin in a position to immediately commit the crime of child
seduction. While we do not preclude the possibility that a non-face-to-face
communication could urge the commission of the crime immediately,7 as charged in
Count I, Corbin did not even leave his home to meet with A.H. Under these facts and
circumstances, Corbin’s solicitations were not “aimed at immediate commission of a
crime.” Ward, 528 N.E.2d at 55.
The third step in the first portion of the Ward test is whether the cooperation or
submission of the person being solicited is an essential feature of the substantive crime.
7
An example that was discussed at oral argument in this case involved an adult text messaging a child
while sitting in a car parked nearby the child’s house, urging the child to immediately leave the house to
meet with the adult for sexual activity.
16
This is certainly true regarding the crime of child seduction, which is a two-party offense
requiring the cooperation or submission of the child. Cf. Ward, 528 N.E.2d at 55 (noting
that the substantive crime of child molesting is a two-party offense, which requires the
cooperation or submission of the child being solicited). Here again, Mettler is instructive.
A.H. was in a far stronger position to resist cooperating or submitting than Mettler’s
daughter was, living as she did with Mettler when Mettler solicited her for incest. We
simply cannot say that A.H. was in a position or location to immediately cooperate with
or submit to Corbin’s solicitations.
As charged in Count I, at least, Corbin clearly asked A.H. to engage in sexual
activity. But even if his requests could be considered to be urging or persuasion, they
were not “aimed at immediate commission of a crime.” Ward, 528 N.E.2d at 55
(emphasis added). In addition, the cooperation or submission of the victim is an essential
feature of the substantive crime under Ward, and A.H. was never in a position or location
to cooperate with or submit to Corbin’s solicitations.
For all of these reasons, under the first part of the Ward test, Corbin’s actions of
solicitation, as alleged in Count I, do not constitute a substantial step toward the
commission of the substantive crime of child seduction.8
8
Because we hold that Corbin’s conduct as charged in Count I does not constitute attempted child
seduction as a matter of law, we need not consider the nature of the crime under Ward. Under the second
prong of the Ward test: “the court must consider the specific crime, and the wrongful human conduct that
the legislature sought to sanction.” Id. at 54. “The more serious the crime attempted or the greater the
menace to the social security from similar efforts on the part of the defendant or others, the further back in
the series of acts leading up to the consummated crime should the criminal law reach in holding the
defendant guilty for attempt.” Id. Although a teacher engaging in sexual activity with a student is a
serious issue, and obviously immoral and deplorable behavior, our General Assembly has seen fit to
criminally sanction such conduct only as a Class D felony. This is in contrast to the crime of child
17
2. Attempt under Kemp v. State
Although focused on the crime of attempted child molesting, Kemp v. State, 753
N.E.2d 47 (Ind. Ct. App. 2001), trans. denied, superseded by statute on other grounds as
noted in LaRose v. State, 820 N.E.2d 727, 732 (Ind. Ct. App. 2005), provides good
direction to us as we consider the crime of attempted child seduction.9 In Kemp, a
detective posed online as a fourteen-year-old girl with the alias “Brittney4U2.” Id. at 51.
Kemp initiated an online chat with “Brittney,” who told him to “come on down,” and
suggested a place to meet. Id. at 51-52. Kemp agreed and drove to the proposed meeting
place, where he was arrested. The police found a package of condoms in Kemp’s vehicle.
Kemp was later convicted of, inter alia, attempted child molesting.
On appeal, this court reversed, noting that “[t]he overt act must reach far enough
towards accomplishing the attempted crime as to amount to commencement of
consummation of the crime. The overt act must go beyond preparation and planning.” Id.
at 50. We concluded that the substantial step alleged by the State—agreeing to meet
“Brittney,” driving to the meeting place, and bringing condoms—was mere preparation
and planning, and insufficient as a matter of law to constitute a substantial step sufficient
molesting, which can be a Class A felony, depending on the circumstances. See Ind. Code § 35-42-4-3.
Indeed, the Ward court noted that the crime of child molesting was a serious crime that could even act as
an aggravating factor supporting the imposition of the death penalty. 528 N.E.2d at 55 (citing Ind. Code
§ 35-42-1-1(2); Ind. Code § 35-50-2-9(b)(1)). This, the court held, shows that child molesting was a
“sufficiently serious crime to justify drawing a fairly early line to identify and sanction behavior as an
attempt.” Id. This is not true of the crime of child seduction, and future courts should be less inclined to
go further back in the series of events leading up to the consummated crime in holding the defendant
guilty for attempt.
9
The author of the current opinion concurred in Kemp, and the Kemp opinion was written by Judge
Baker, a member of the current panel.
18
to constitute attempt. Id. By any account, Kemp’s conduct went substantially further
than the conduct charged to Corbin in Count I, and yet it was still insufficient as a matter
of law to constitute a substantial step toward the commission of the underlying crime.10
In like manner, Corbin’s conduct, as alleged in Count I, is legally insufficient to establish
that he took a substantial step toward the commission of the crime of child seduction.
B. Count II
An additional problem surfaces when we consider Count II, which alleged that
Corbin sent Facebook messages to A.H. in which he asked her to send him a “kiss” photo,
asked what size her breasts were, and asked if she could sneak out of the house so that he
could see her breasts in person. Even if we consider Corbin’s requests as persuasion or
urging, his statements were not aimed at immediate commission of the crime, but instead
referred to some unspecified time in the future. And again, although cooperation or
submission of the victim is an essential feature of the crime, A.H. was never in a position
or location to cooperate with or submit to Corbin’s communications.
10
Effective July 1, 2014, Public Law 247-2013 § 5 amends the attempt statute to further provide that:
[A] person engages in conduct that constitutes a substantial step if the person, with the
intent to commit a sex crime against a child or an individual the person believes to be a
child:
(1) communicates with the child or individual the person believes to be a child
concerning the sex crime; and
(2) travels to another location to meet the child or individual the person believes to be a
child.
This new statute might well be a legislative response to our decision in Kemp. It is important to note that
even if the statute had been in effect to apply to Corbin, Corbin never travelled to meet with A.H. and
therefore would not have committed a crime. We also notice that our General Assembly has considered
these issues and has not yet chosen to criminalize soliciting sex from a child who is at least sixteen years
of age.
19
But an additional problem surfaces when we review the allegations in Count II.
Although neither raised by Corbin nor briefed by either party, the behavior that Corbin is
alleged to have attempted in Count II does not even fall within the definition of child
seduction. Corbin’s failure to raise this argument does not prevent our consideration of
this issue, as conviction for a non-existent offense would be fundamental error. See
Vandeventer v. State, 459 N.E.2d 1221, 1222 (Ind. Ct. App. 1984) (citing Hargis v. State,
220 Ind. 429, 44 N.E.2d 307 (1942); Moon v. State, 267 Ind. 27, 366 N.E.2d 1168(1977)).
Corbin was charged in Count II with asking A.H. to send him a “kiss” picture,
asking what size her breasts were, and asking if he could meet her so that he could see
them in person. Although this is extremely disturbing and morally reprehensible
behavior on the part of a teacher, asking for a “kiss” picture and asking what size a girl’s
breasts are do not to fall within the ambit of the crime of child seduction, which
criminalizes (1) sexual intercourse, (2) criminal deviate conduct, or (3) touching or
fondling with the intent to arouse or satisfy sexual desires, when done by a teacher to a
student. See I.C. § 35-42-4-7. Under the plain language of this statute, simply looking at
the breasts of a sixteen-year-old student is not criminal conduct. Thus, even if Corbin’s
actions did constitute attempt, what he is alleged to have attempted in Count II does not
constitute child seduction. Whether Corbin’s conduct as alleged in Count II should be
criminalized is, of course, a question beyond our purview. See Kemp, 753 N.E.2d at 50(noting that even if an act falls within the spirit of a criminal statute, the act will not
constitute an offense unless it also falls within the letter of the statute, and further noting
20
that criminal statutes are strictly construed against the State and may not be enlarged by
construction, implication, or intendment beyond the fair meaning of the words used).
Conclusion
The behavior alleged in the charging information is deplorable and immoral, and
our decision today should not be read in any way to condone Corbin’s conduct. Yet, we
are bound to narrowly construe criminal statutes in order to protect the constitutional
rights of all of our citizens. Here, the charging information at issue alleged that Corbin
asked A.H. to engage in sexual behavior at some non-immediate time and did so remotely,
over the Internet, which would make immediate commission of the crime difficult, at the
very least. Applying the Ward test to the facts alleged in the charging information, we
are constrained to conclude that Corbin’s Internet-based solicitations to A.H. did not
constitute a substantial step toward the crime of child seduction. Indeed, as charged,
Count II does not even allege criminal conduct on the part of Corbin. Accordingly, we
reverse the trial court’s order denying Corbin’s motion to dismiss and remand with
instructions to grant the motion.
Reversed and remanded.
BAKER, J., and MAY, J., concur.
21