Mettler v. State , 1998 Ind. App. LEXIS 1258 ( 1998 )

OPINION

RATLIFF, Senior Judge.

Statement of the Case

Vern E. Mettler appeals his conviction of attempted incest, a Class C felony.¹ We reverse.

The Issue

Whether Mettler’s solicitation of sexual favors from his eighteen-year-old daughter constituted sufficient evidence to support Ms conviction.

Facts

On October 21, 1996, Mettler left a letter in an envelope on his daughter’s bed. Also in the envelope was a five dollar bill and half of a hundred dollar bill. The letter solicited the daughter to submit to fondling and cunm-lingus, promising her the other half of the hundred dollar bill if she complied. Pertinent parts of the letter stated:

Would you like to have the other half of this bill? It is real easy. All you have to do is come in the front room some night, without your panties on. So I can give you a full body massage, suck on your tits a ■little, and pet and lick your beaver_

Record at 16.

The letter also said: “... keep this half and when you’re ready to do it, and when it’s over, I will tell you where the other half is....” Id. The letter further advised that Mettler would pay $5.00 to $10.00 for “a little peek at your beaver pelt and some tits ...” and “here is $5.00 for a starter.” Id. Additionally the letter informed the daughter that he would help her with her senior trip money if she complied.

The daughter was frightened by the letter. She showed the letter to a friend and the friend’s stepfather who took her to the police. Mettler never spoke to his daughter concerning Ms sexual desires, and there never was any physical confrontation between them, nor was there any further attempted contact by letter or writing.

Discussion and Decision

The statute defming incest, insofar as applicable, reads as follows:

(a) A person eighteen (18) years of age or older who engages in sexual intercourse or deviate sexual conduct with another person, when the person knows that the other person is related to the person biologically as a parent, child, grandparent, grandchild, sibling, aunt, uncle, Mece, or nephew, commits incest, a Class C felony. . . . ²>³

Ind.Code § 35-46-1-3.

For a person to be guilty of an attempt to commit a crime, he must, acting with the culpability required for the commission of the crime, engage m conduct that constitutes a substantial step toward the commission of that crime. Ind.Code 35-41-5-1. Thus, the question before us is whether Mettler’s letter, in and of itself, constituted a sufficient step towards the commission of incest.

The question of whether acts of solicitation rise to the level of an attempt to commit a crime involves consideration of two separate tests. Ward v. State, 528 N.E.2d 52 (Ind.1988). As our supreme court stated in Ward:

Three-Part Test for Solicitation. First, a solicitation may be a substantial step only when: 1) the solicitation takes the form of urgmg; 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.... Second, if those findings are made, the court must consider the specific crime, and the wrongful human conduct that the legislature sought to sanction. ...

Id. at 54. As to the second test, the more serious the crime attempted and the greater the menace to society, the less demanding are the requirements for finding an attempt. Id. It is clear, however, that the second test is considered only when the three-part test for solicitation has been met. Shahan v. State, 669 N.E.2d 1012, 1013 (Ind.Ct.App.1996), trans. denied.

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. Mett-ler’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.

This case differs significantly from Benson v. State, 574 N.E.2d 934 (Ind.Ct.App.1991), where there were repeated attempts to persuade a minor to engage in sexual intercourse. There the solicitation was aimed at immediate commission of the act, and there were physical attempts to force compliance. There, we held the Ward three-part test had been satisfied. Id. at 935. Likewise, the solicitation of D.D. in Ward happened three times in a context of urging and persuasion. This case involves a quite different scenario. On the other hand, the solicitation of R.C. in Ward was only one time, did not constitute urging or persuasion, and was directed, at least in part, to future activity. Thus, our supreme court found the three-part test for solicitation satisfied as to D.D., but found two of the elements of the three-part test lacking as to R.C. Ward, 528 N.E.2d at 55. Shahan involved a personto-person contact between the child and the defendant. 669 N.E.2d at 1014. In Johnston v. State, in a 3 to 2 decision, our supreme court, without reference to the Ward test, found sufficient evidence of attempted child molesting where the defendant offered the parents of three young girls money if they would permit him to have intercourse with the daughters. 541 N.E.2d 514, 517 (Ind.1989). Defendant came to their house with a vibrator, lubricants, and sedatives, and instructed the parents to drug the children and bring them naked to a bedroom. The dissenters found the evidence insufficient to meet the Ward test. Id. at 517-18.

Without 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.

We reverse the conviction and remand with instructions to enter a judgment of acquittal.

DARDEN, J., concur. MATTINGLY, J., dissents with opinion.

1 . Ind.Code § 35-46-1-3; Ind.Code § 35^11-5-1.

2 . The court’s judgment states that Mettler was convicted of attempted incest, a Class D felony. However, incest was elevated to a Class C felony in 1994. In view of our reversal of the conviction, this is of no consequence.

3 . The information charged attempted deviate sexual conduct. Deviate sexual conduct is defined as an act involving the sex organ of one person and the mouth or anus of another person. Ind.Code § 35-41-1-9.