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IN- 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' (Gibbs -v- Indiana)conviction 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 (Alpin -v- Indiana), 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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