Gibbs v. State

Decision Date31 December 2008
Docket NumberNo. 49A02-0712-CR-1017.,49A02-0712-CR-1017.
Citation898 N.E.2d 1240
PartiesRandy GIBBS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Elizabeth A. Gabig, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Arturo Rodriguez II, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

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.

The 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

samantha_dyer61: 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 Anderson 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 We 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...

To continue reading

Request your trial
2 cases
  • King v. State
    • United States
    • Supreme Court of Indiana
    • March 2, 2010
    ......Because the recipient was not a minor, the defendant was charged with Attempted Dissemination of Matter Harmful to Minors, rather than Dissemination of Matter Harmful to Minors.         To the extent that Gibbs and Aplin may be read to prohibit convictions for Attempted Dissemination of Matter Harmful to Minors where the supposed minor is in fact an adult, these opinions are disapproved and overruled. Conclusion.         We hold that the general Attempt statute applies to the offense of ......
  • Gibbs v. State
    • United States
    • Supreme Court of Indiana
    • May 14, 2009

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT