Laughner v. State
| Decision Date | 12 June 2002 |
| Docket Number | No. 82A01-0104-CR-141.,82A01-0104-CR-141. |
| Citation | 769 N.E.2d 1147 |
| Parties | Richard J. LAUGHNER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Richard Kammen, Gilroy, Kammen & Hill, Joel Schumm, Indianapolis, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Richard Laughner appeals his conviction, after a trial by jury, of one count of attempted child solicitation, a class C felony. He also appeals his sentence thereon.
We affirm in part, reverse in part, and remand for resentencing.
In the year 2000, Indiana State Police detective Joel Metzger, based in Evansville, was working as part of the Crimes Against Children Unit. Metzger "entered" computer chat rooms on the internet and portrayed himself as a child, thus available to be solicited for sex by adults. On the afternoon of July 13, 2000, Metzger was using the screen name "LLuke12" in a chat room of America On Line (AOL) called "Indy M4M," Indy men for men. As "LLuke12," Metzger received an instant message from "Tret6128," who was later identified as Laughner, age forty. In the course of this instant message conversation, Laughner asked Metzger's age, and Metzger said he was thirteen years-old; Laughner asked if Metzger wanted to "meet up" and asked to "chat about this on the phone." (Tr. Ex. 1). When Metzger said that was not possible because his mother was home and "she watches me on the phone," Laughner said he would try to find Metzger in the chat room during the evening. Id. Using the AOL instant message program, Metzger activated the "select all" feature to capture the conversation-via-messages with Laughner, and then the "copy" feature; finally, he transferred the copy of the conversation to a document he saved in his word-processing program. (Tr. p. 517).
On that evening, Laughner found Metzger in the chat room and asked a series of questions about his sexual experiences; he again indicated his desire to talk to Metzger on the telephone. After Metzger gave Laughner his telephone number, Laughner called back immediately. As before, Metzger saved the instant message conversation; he also tape recorded the telephone conversation.1
During the next few weeks, Laughner attempted to talk with Metzger three or four times by sending brief instant messages saying "hi or hello." (Tr. p. 528). Metzger did not respond because based upon the July 13th telephone conversation, he thought that Laughner was simply interested in "a phone sex relationship." Id.
On August 8, 2000, Laughner sent Metzger an instant message saying, "u wanna meet up" and again asked how old Metzger was. (Tr. Ex. 4). Metzger answered, "13." Id. Laughner asked where Metzger was located and Metzger told him Evansville. Laughner said that he was in Indianapolis and asked for a picture of Metzger. Laughner sent Metzger a picture of himself, and Metzger sent Laughner a picture of a child. Laughner once more asked whether Metzger wanted to "meet up," and then asked some ten or eleven questions about Metzger's sexual experiences.2 Id. Again, Metzger saved the instant message conversation.
On the morning of August 11, 2000, Laughner contacted Metzger and asked, "u wanna get off?" (Tr. Ex. 5). Metzger said, "when?" and Laughner replied, "today." Id. Metzger asked if Laughner was "serious" about "com[ ]ing down here," and Laughner answered, "i am very serious," and added "today?" Id. Laughner said, "i will come down," that he could be there "around 2," and they arranged to meet at the Bigfoot gas station. Id. Laughner stated twice again that he would be there at 2:00 p.m. The instant message conversation ended at 10:05 a.m., and Metzger saved it as he had the other conversations.
Laughner arrived at the Bigfoot station at 1:57 p.m. When confronted by Metzger, Laughner admitted that he was "Tret6128." Subsequently, Metzger advised Laughner of his Miranda rights; Laughner signed a statement indicating he understood his rights, waived them, and was willing to answer questions and make a statement without a lawyer. During that interview, which was taped and played for the jury,3 Laughner admitted to having sent the various instant messages to "LLuke12" and having telephoned "LLuke12" on July 13th. According to Laughner, he drove to Evansville on August 11th "to see" whether "LLuke12" was a child; when asked whether he was hoping that was the case, his answer was, "yes in a way"; as to whether he would have acted upon the "opportunity" to have "consensual" sex with a thirteen year-old child, he answered, "It would have been tough." (Appellant's App. p. 286).
The State initially charged Laughner with attempted child solicitation, a class C felony, on August 17, 2000, in Vanderburgh County. On August 30, 2000, the State filed an amended information charging Laughner with child solicitation, a class C felony. On January 21, 2001, Laughner filed a motion to dismiss, arguing that one could not commit the crime of child solicitation "with an adult." (Tr. p. 5). The trial court denied the motion to dismiss. On March 15, 2001, the trial court sua sponte reconsidered its previous ruling, stating that according to its file the charge against Laughner was child solicitation, and as to that charge he was granting the motion to dismiss. The trial court then permitted the State to file an amended information that charged Laughner with attempted child solicitation. Laughner asked for a continuance of the trial set to commence on March 21, 2001. The State objected, arguing that to reschedule its AOL witness would delay the trial for months.4 The trial court denied Laughner's continuance motion. On March 20, 2001, Laughner filed another motion to dismiss, a motion in limine to exclude the instant message conversations, and a motion for change of venue, all of which were denied.
At trial, the court admitted into evidence, over Laughner's objection, the documents in which Metzger had saved the instant message conversations between himself and Laughner. An expert witness from AOL testified as to how a computer can access an AOL chat room, how an instant message conversation is conducted, and how the text of such a conversation can be recorded; the witness also demonstrated what the various computer screens for chat rooms and instant messaging look like, and explained certain AOL records of Laughner's account. Laughner tendered eleven proposed instructions, several of which were given by the trial court. However, Laughner's proposed instructions regarding the jury deliberation process and the legality of sexual conversations between consenting adults were refused.
The jury convicted Laughner as charged. Subsequently, the trial court imposed the presumptive four-year sentence, to be executed.
Laughner first argues that because there is no "clear statutory language" so providing, there can be no crime of attempted child solicitation in Indiana. Br. of Appellant at 15. We disagree.
We necessarily begin from the premise that all crimes are statutory, and an act constitutes a crime when our legislature has defined it as such. See Herron v. State, 729 N.E.2d 1008, 1011 (Ind.Ct. App.2000),
trans. denied. Accordingly, we turn to that which our legislature has enacted as the definition of the specific offense of child solicitation as follows:
Ind.Code § 35-42-4-6. The offense of attempt is defined in pertinent part as follows:
A person attempts to commit a crime when, acting with the culpability required for the commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime.
When we construe a statute, the primary rule is "to ascertain and give effect to the intent of the legislature." Chambliss v. State, 746 N.E.2d 73, 77 (Ind. 2001). "The best evidence of legislative intent is the language of the statute itself, and all words must be given their plain and ordinary meaning unless otherwise indicated by statute." Id.
The child solicitation statute is a specific one, whereas the attempt statute is one of general applicability. No statutory language forbids there being an attempt offense in the case of the crime of solicitation.5
Laughner directs us to Ward v. State, 528 N.E.2d 52 (Ind.1988), to support his contention that "one cannot attempt an attempt." Br. of Appellant at 17. Ward began from the...
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