Ward v. State , 1988 Ind. LEXIS 255 ( 1988 )

DeBRULER, Justice,

dissenting and concurring.

The behavior upon which this conviction rests is solely verbal. Appellant did not move (attempt) to restrain the movement of the child or take liberties with his person, or to even touch him in a manner which would be generally regarded as innocent, though the opportunity was present. He did not shake hands with him, pat him on the back, or even try to do so. There was no demonstration toward the child to coerce, to seize him, or to prevent his walking away. The words spoken and the idea they conveyed, while reprehensible, did not constitute the crime charged, namely unlawfully attempting to touch the child’s sex organs, but were punishable instead as the class A misdemeanor of soliciting a child under twelve to engage in deviate sexual conduct. I.C. 35-42-4-6.

I.C. 35-41-5-1, the attempt statute, provides in pertinent part:

“A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime.”

I.C. 35-42-4-3, the child molesting statute, upon which Count I is based provides that:

“A person who, with a child under twelve (12) years of age, performs ... deviate sexual conduct commits child molesting. ...”

I.C. 35-41-1-9 defines deviate sexual conduct as:

“... an act involving ... a sex organ of one person and the mouth ... of another person

It is important here to be fully aware from the statutory definition of deviate sexual conduct that the prosecutor was bound to prove that appellant engaged in conduct that constitutes a substantial step toward placing his mouth upon the boy’s sex organ. The requirement is for proof of “conduct”, that is, an overt act which is not simply one performed in furtherance of a criminal plan, but an overt act which is a “substantial step” toward that end. Zickefoose v. State (1979), 270 Ind. 618, 388 N.E.2d 507. The design or plan which appellant had in mind manifested itself solely in speech. This design or plan did not manifest itself in other overt behavior. The speech, a solicitation, while reprehensible and punishable as a misdemeanor as causing injury to those under twelve years of age, was unaccompanied by forward overt acts, and as such standing virtually alone as a manifestation of intent was not conduct constituting a substantial step toward the touching of the boy’s person. The evidence does not bring appellant’s offense within the definition of the crime charged in Count I. For like reason, I agree with the majority opinion wherein it sets aside appellant’s conviction in Count II for insufficient evidence.