Gibbs v. State

OPINION

Case Summary

As a result of an online sting operation, Randy Gibbs was convicted of Class B felony attempted sexual misconduct with a minor, Class C felony child solicitation, and Class D felony attempted dissemination of matter harmful to minors. We hold that pursuant to Aplin v. State, 889 N.E.2d 882 (Ind.Ct.App.2008), reh’g denied, trans. denied, Gibbs cannot be convicted of attempted sexual misconduct with a minor and attempted dissemination of matter harmful to minors because the intended victim was not actually a minor and therefore reverse those convictions. Finding no error in Gibbs’ other argument and concluding that he has failed to persuade us that the sentence for his remaining conviction is inappropriate, we affirm in part and reverse in part.

Facts and Procedural History

In July 2006, Indianapolis Metropolitan Police Department Detectives Darin Odier and Shani Anderson conducted an online sting operation. They created a profile of a fictitious fifteen-year-old girl with the screen name samantha_dyer61. “Samantha’s” profile included a picture of a girl in a cheerleading uniform, and the “Latest News” section stated, “I am a very cool 15 year old.” Ex. p. 34.

On July 10, 2006, the detectives entered an Indiana chat room using Samantha’s screen name and waited to see if they would be contacted. Samantha was contacted by “rfg452005” (later determined to be Gibbs), who asked, “You like sex a lot?” Tr. p. 168. Samantha said yes and indicated she was a fifteen-year-old female from Indianapolis. Gibbs then asked, “what is your favorite position?” Ex. p. 9.1 Samantha answered the question and again indicated she was fifteen. Gibbs asked whether she liked older guys and “whats the oldest u been with?” Id. Samantha indicated she had sex with a seventeen-year-old and a twenty-six-year-old. Gibbs then stated, “i love young pu* *y.” Id.

*1242The conversation continued in an explicitly sexual tone. Gibbs asked Samantha questions about her breasts, vagina, and clothing. He requested nude pictures and asked if she had a webcam. He asked her numerous questions about her sexual experiences and interests. Gibbs asked “are u kinky any?” Id. Samantha asked what he had in mind, and Gibbs replied, “tieing u up in different positions and tease u.” Id. He asked, “u ever been tied up before?” Id. Samantha said, “no is it scary.” Id.

Gibbs invited Samantha to view his penis via his webcam. The detectives viewed a live video of Gibbs masturbating. Gibbs asked Samantha whether she was “playing with yourselve now.” Id. at 11. Samantha said she was “not real good at it,” id., and Gibbs instructed her how she should touch herself.

Gibbs asked Samantha if she minded him being forty-five. She said, “not at all u mind me being 15.” Id. at 12. Gibbs said, “nope as long u not get me into trouble cause u are under age,” and he acknowledged Samantha was “elegal right now.” Id.

Gibbs asked Samantha if she was home alone. She said her father was home and told Gibbs he was a truck driver. Gibbs asked, “u have guys over there to have fun.” Id. at 11. Samantha said, “sometimes.” Id. Later, Gibbs steered the conversation toward meeting in person:

rfg452005: so when is your dad going to be gone over the road

samanthiLdyer61: later this week why? rfg452005: maybe we can meet up if u like and go from there

samantha_dyer61: maybe what do you wanna do?

rfg452005: eat and lick your hot pu* *y

Id. at 12.

Gibbs contacted Samantha again on July 18, 2006. Samantha asked if he was busy the next day and indicated her dad would be gone. Gibbs said, “well i do not get off work till 5pm.” Id. at 22. Samantha responded, “that’s kool i will just be chillin.” Id. Gibbs asked, “where are u located again,” and Samantha gave detailed directions to an apartment in Indianapolis. Id.

Gibbs asked if it would bother her that his right index finger was missing. Samantha said it would not and asked his first name. Gibbs told her his name was Randy.

Gibbs asked her if she was behind closed doors and again initiated a series of questions about her sexual experiences and interests. Samantha asked, “u r gonna teach me a lot 2morrow arent u?” Id. at 24. Gibbs said, “yup,” and again asked her about being tied up. Id. Samantha asked if he would hurt her, and Gibbs said, “i’m not into that sort of thing,” and explained he wanted to “hog[ ] tie u up and maybe tie u up spread eagle on the bed.” Id. at 26. Samantha said, “that sounds a bit scary,” and he promised he would not hurt her. Id.

He wanted to know if she was masturbating and again showed himself masturbating on his webcam. Gibbs continued to give instructions about things she should try.

On July 19, 2006, Gibbs talked to Samantha online, confirmed he was coming, and asked for her cell phone number. He then called, and Detective Anderson, pretending to be Samantha, gave him detailed directions. Gibbs said, “You done seen me on the cam. I haven’t seen you yet.” Id. at 87. Detective Anderson said, “I’m kind of tall and skinny. So I hope that doesn’t bother you.” Id. Gibbs responded, “No ... as long as your pu* *y tastes good.” Id. Gibbs called again when he reached the apartment complex, and Detective *1243Anderson explained how to open the gate and directed him to an apartment where officers were waiting to arrest him. The police found rope and condoms in Gibbs’ pockets.

The State charged Gibbs with Class B felony attempted sexual misconduct with a minor,2 Class C felony child solicitation,3 Class D felony attempted vicarious sexual gratification,'4 and Class D felony attempted dissemination of matter harmful to minors.5 A jury found Gibbs guilty as charged. The trial court did not enter judgment of conviction on attempted vicarious sexual gratification, finding it merged with child solicitation. The trial court imposed ten years with five years suspended for attempted sexual misconduct with a minor, four years with two years suspended for child solicitation, and one-and-a-half years, all suspended, for attempted dissemination of matter harmful to minors. The court ordered the first two sentences to be served consecutively, for an aggregate sentence of seven years executed and seven years suspended. Gibbs now appeals.

Discussion and Decision

Gibbs raises several issues on appeal, one of which is dispositive of several issues and which we rephrase as whether he can be convicted of attempted sexual misconduct with a minor and attempted dissemination of matter harmful to minors when the intended victim is not actually a minor. He also argues that the trial court abused its discretion by admitting photographs of him in handcuffs and that his sentence is inappropriate in light of his character and the nature of his offense.

I. Intended Victim is Not a Minor

Gibbs contends that pursuant to Aplin v. State, 889 N.E.2d 882 (Ind.Ct.App.2008), reh’g denied, trans. denied, he cannot be convicted of attempted sexual misconduct with a minor and attempted dissemination of matter harmful to minors because the target of these offenses was not a minor. In Aplin, the defendant, Matthew Aplin, had online conversations with a detective from the Fishers Police Department who was posing as a fifteen-year-old girl with the screen name glitterkatie2010. Aplin expressed his desire to have sex with “Katie” and arranged to meet her at a Starbucks inside a Super Target. Aplin drove to Super Target and looked inside the Starbucks. Aplin was then arrested and eventually found guilty of attempted sexual misconduct with a minor and child solicitation.

We affirmed Aplin’s child solicitation conviction but reversed his attempted sexual misconduct with a minor conviction. In our analysis, we began by noting a difference between the offenses of sexual misconduct with a minor and child solicitation: the former requires that the victim be a child while the latter may be established if the defendant “believes” the victim to be a child. Compare Ind.Code § 35-42-4-96 with Ind.Code § 35-42-4-6.7 *1244We then concluded that attempted sexual misconduct with a minor also requires that the intended victim be a minor:

The State charged that Aplin violated that statutory provision [sexual misconduct with a minor] when he attempted to engage in deviate sexual conduct with Dan Claasen.[8] If proven, this did not constitute the offense of attempted Sexual Misconduct with a Minor, because Detective Claasen is an adult. This conviction must be reversed due to insufficient evidence. As discussed below, the appropriate charge in these circumstances is that of Child Solicitation, whereby the State need not prove the actual age of the victim but may prove the solicitor’s belief that the solicitee is a minor.

Aplin, 889 N.E.2d at 884-85 (footnote omitted).

Gibbs argues that Aplin requires reversal of his conviction for attempted sexual misconduct with a minor because the State alleged he attempted to have sexual intercourse with a person he believed to be fifteen years old but who was actually an adult. He further argues that the reasoning of Aplin applies to his conviction for attempted dissemination of matter harmful to minors because that statute also does not contemplate a victim believed to be a minor. See Ind.Code § 35-49-3-3. We first address Gibbs’ conviction for attempted sexual misconduct with a minor.

The State concedes Aplin is on point but argues it was incorrectly decided. We, however, believe that Aplin was correctly decided. This is especially so since the Indiana Supreme Court denied transfer in Aplin on December 4, 2008. If our General Assembly wanted to penalize defendants for attempting to commit the offense of sexual misconduct with a minor when the victim is an adult the defendant believed to be fourteen or fifteen years old, it could have chosen statutory language similar to that it used in the child solicitation statute, that is, “an individual the person believes to be” a child at least fourteen but less than sixteen years old. See I.C. § 35-42-4-6. However, our General Assembly did not do so. Pursuant to Aplin, the evidence is insufficient to support Gibbs’ conviction for attempted sexual misconduct with a minor.9

As for Gibbs’ conviction for attempted dissemination of matter harmful *1245to minors, Indiana Code § 35-49-3-3 provides:

(a) Except as provided in subsection (b), a person who knowingly or intentionally:

⅜ i¡; ⅜ ⅜ ⅜ ⅜

(4) engages in or conducts a performance before minors that is harmful to minors;

* * * * ⅜ *

commits a Class D felony.

(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:

* ⅜ * * * *

(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.

I.C. § 35-49-3-3(a), (b) (emphasis added). If, like in this case, matter is disseminated via Internet or computer, subsection (b)(3) imposes two additional requirements: (1) the recipient must be less than eighteen years old and (2) the person must believe or intend the recipient to be less than eighteen years old. Because the actual recipients here, Detectives Odier and Anderson, were not less than eighteen years old, pursuant to the reasoning in Aplin, there was never an opportunity for the first requirement to be met. Once again, we note that our General Assembly did not use language in this statute similar to that it used in the child solicitation statute. The evidence is insufficient to support Gibbs’ conviction for attempted dissemination of matter harmful to minors.10

II. Admission of Photographs

Gibbs contends that the trial court erred in admitting two photographs of him into evidence at trial. One shows him lying face down on the floor with his hands handcuffed behind his back and a condom and rope next to him. The other shows him with his hands handcuffed behind his back and police officers holding on to his arms.

A trial court has broad discretion in ruling on the admissibility of evidence, and we review its rulings for abuse of discretion. Griffith v. State, 788 N.E.2d 835, 839 (Ind.2003). An abuse of discretion occurs if the decision is against the logic and effect of the facts and circumstances before the trial court. Myers v. State, 718 N.E.2d 783, 789 (Ind.Ct.App.1999). When a trial court abuses its discretion in admitting evidence, reversal is not required if the error was harmless. Edmond v. State, 790 N.E.2d 141, 144 (Ind.Ct.App.2003), trans. denied. Error is harmless “if the probable impact of the evidence upon the jury is sufficiently minor so as not to affect a party’s substantial rights.” Id. at 144-45 (quoting Appleton v. State, 740 N.E.2d 122, 124 (Ind.2001)).

Gibbs argues the photographs were unduly prejudicial. Indiana Evidence Rule 403 provides relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” The State argues the photographs were probative of Gibbs’ identity and of the fact he brought condoms and rope with him.

*1246We conclude any error in the admission of the photographs was harmless because the evidence against Gibbs was overwhelming. There was no serious dispute as to Gibbs’ identity. The State showed portions of the webcam video that showed Gibbs’ face. The State had evidence linking Gibbs to the screen name rfg452005. Gibbs is missing his right index ringer, and rfg452005 said he was missing his right index finger and showed his right hand on his webcam. A car registered to Gibbs was found outside the apartment where he was arrested. The detectives identified Gibbs in court as the man they had seen on the webcam and the man who had arrived at the apartment. Furthermore, Gibbs’ conversations with saman-tha_dyer61 and his webcam video were recorded and viewed by the jury, and their content provides a firm foundation for his convictions. Although the photographs showed Gibbs in a humiliating and suggestive situation, they likely had little impact on the verdict given the clear evidence of his guilt. Therefore, them admission was harmless and not grounds for reversal.

III. Inappropriate Sentence

Finally, Gibbs argues his sentence is inappropriate. We first observe that we have reversed two of Gibbs’ three convictions, leaving him with only one sentence for child solicitation. Nevertheless, we will address whether his remaining sentence of four years with two years suspended is inappropriate. We may revise a sentence if it is “inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). The defendant bears the burden of persuading us his sentence is inappropriate. Reid v. State, 876 N.E.2d 1114, 1116 (Ind.2007) (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006)).

As to the nature of the offense, Gibbs argues “Samantha” appeared older than fifteen because of her sexual experience and a reference in her profile to marijuana. He urges us to consider the environment of the internet, where it is not uncommon for people to role play, and “one is not confronted with the overt reality of face to face interactions and the usual social cues.” Appellant’s Br. p. 20. He also urges us to consider that he was caught as a result of “an aggressive sting operation.” Id. at 19.

However, “Samantha” stated several times that she was fifteen, and the picture on her profile was of a teenage girl. Gibbs acknowledged a sexual relationship with Samantha would be illegal, but he stated he did not mind that Samantha was fifteen as long as she did not get him into trouble. Gibbs initiated contact with Samantha and suggested meeting to have sex. He followed up with two more conversations within nine days. Gibbs exposed himself via his webcam during two of the conversations and requested nude pictures. He appeared determined to expand the sexual experience of a young girl, explaining to her how to masturbate and pushing her to allow him to tie her up, although she said it sounded scary.

As to his character, Gibbs notes he has no criminal record. He served in the Navy, has been regularly employed, and has supported a family. He completed the Basic Seminar of the Institute in Basic Life Principles.11 At the sentencing hearing, Gibbs stated he “made a bad judgment” and has “changed different ways in my life,” which includes attending church and giving to charity. Tr. p. 534. His *1247mother testified he helps her by taking her to the grocery store and doctor appointments and by buying her medications when she cannot afford them.

The trial court did not give great weight to Gibbs’ remorse because it could not determine whether Gibbs was “sorry because you’re really sorry over what you did or ... because you’ve been doing what you’ve wanted to do on the computer and you happen to get caught and now everyone knows?” Id. at 551. The trial court acknowledged Gibbs’ lack of criminal history was a significant mitigating circumstance. For the child solicitation conviction, the trial court sentenced Gibbs to the advisory term of four years and suspended two years. We believe this sentence appropriately takes into account Gibbs’ lack of criminal history and his demonstrated potential to engage in predatory behavior, and we therefore affirm it.

Affirmed in part, reversed in part.