Neff v. State
| Decision Date | 03 November 2009 |
| Docket Number | No. 29A02-0904-CR-332.,29A02-0904-CR-332. |
| Citation | 915 N.E.2d 1026 |
| Parties | Dustin NEFF, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Steven Stoesz, Stoesz & Stoesz, Westfield, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Karl Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for appellee.
Dustin Neff appeals his conviction for one count of Class C felony child solicitation. We reverse and remand.
The issues before us are:
I. whether there is sufficient evidence to support Neff's child solicitation conviction as charged by the State; and
II. whether there is sufficient evidence that proper venue for Neff's trial lay in Hamilton County.
The evidence most favorable to the conviction is that on April 29, 2006, twenty-year-old Neff, who resided in Anderson, Madison County, logged on to Yahoo! Instant Messenger under the screen name "stud18_20022002." Ex. 5, p. 1. He initiated an exchange of instant messages ("IMs") with "lizzy_izzygrrl4512," whose Yahoo! profile indicated she was a twelve-year-old girl living near Indianapolis. Id. However, "lizzy_izzygrrl4512" was actually Monique Bedard, an adult woman living in Georgia. She volunteered for an organization called Perverted Justice, whose volunteers pose as children in Internet chat rooms and endeavor to snare adults attempting to prey on children.
During the April 29, 2006 online chat, Neff asked for pictures of "Lizzy" (Bedard). He then asked if "Lizzy" would want to meet "somewhere we could hangout talk...." Id. He also said, "would u wanan [sic] kiss...." Id. Finally, using graphic language he indicated that he wanted to have sexual intercourse with "Lizzy." "Lizzy" indicated that she might be willing to meet Neff sometime in the next week.
On May 1, 2006, Neff and "Lizzy" again chatted. "Lizzy" stated that she lived in Carmel, in Hamilton County, and the two discussed meeting at a Dairy Queen in Carmel. Although Neff repeatedly asked "Lizzy" to send him more pictures of herself, there was no explicit sexual talk during this chat.
On May 2, 2006, Neff and "Lizzy" again chatted and this time finalized plans to meet at the Carmel Dairy Queen that evening, and afterwards to go to "Lizzy's" apartment while her mother was gone. Neff told "Lizzy" he would be driving a black Pontiac. "Lizzy" asked Neff, "r u gonna bring condums [sic]?," to which Neff replied "yes." Id. at 8. "Lizzy" also said, "im gonna get mad if u dont get in ur car n come c me ... u told me u wud." Id. at 10. Neff said, "i will," and "Lizzy" replied "then do it now." Id. Neff later said, "Do u wanna get nude together," and asked a vulgar question regarding whether she was prepared and/or able to have sexual intercourse. Id.
Bedard had been in contact with Carmel Police Detective John Pirics regarding her chats with Neff and informed him of the planned meeting at the Dairy Queen. At approximately 8:20 p.m., Detective Pirics observed a black Pontiac with a Madison County plate drive into a parking lot next to the Dairy Queen, stay there for a minute or two, then drive away. Detective Pirics pulled the car over. Neff was driving. Neff admitted to police that he had driven to the Dairy Queen to meet a twelve-year-old girl he had been chatting with online.
On May 4, 2006, the State filed an information charging Neff with one count of Class C felony child solicitation, specifically alleging that the crime occurred "on or about May 2, 2006" and that it occurred in Hamilton County. App. p. 6. It also charged Neff with one count of Class B felony attempted child molesting, but the State later dismissed this charge. Neff waived his right to a jury trial, and a bench trial was held on December 2, 2008. During closing argument, Neff for the first time argued that Hamilton County lacked venue over the case. The Hamilton Superior Court disagreed and found Neff guilty of Class C felony child solicitation. Neff now appeals.
Neff's first argument is a general challenge to the sufficiency of the evidence supporting his conviction, although he also seems to make arguments regarding the adequacy of the charging information and an alleged variance between the information and proof at trial. When reviewing the sufficiency of the evidence to support a conviction, an appellate court considers only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). It is the fact-finder's role, not an appellate court's, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Id. To preserve this structure, we must consider conflicting evidence in a light most favorable to the conviction. Id. This court will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.
The information in this case alleged that "on or about May 2, 2006" Neff "did, being at least eighteen years of age, knowingly solicit Monique Bedard, an individual whom the defendant believed to be a child under fourteen (14) years of age to engage in sexual intercourse; said act having been committed by using a computer network." App. p. 6. The statute the information cited was Indiana Code Section 35-42-4-6(b)(3). As noted by Neff, this particular subsection of the child solicitation statute criminalizes soliciting "any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person ...." Indiana Code Section 35-42-4-6(b)(1) is the subsection that criminalizes the solicitation of sexual intercourse.
A charging information must cite "the statutory provision alleged to have been violated, except that any failure to include such a citation or any error in such a citation does not constitute grounds for reversal of a conviction where the defendant was not otherwise misled as to the nature of the charges against the defendant. ..." Ind.Code § 35-34-1-2(a)(3). We conclude Neff has waived any argument regarding this discrepancy, which is readily apparent on the face of the information, by never moving to dismiss the information. Indiana Code Section 35-34-1-4(a)(1), combined with Indiana Code Section 35-34-1-6(a)(1), permits dismissal of an information that is defective because it does not "substantially conform" to the requirements of Indiana Code Section 35-34-1-2. Generally, a failure to challenge a defective charging information by way of a motion to dismiss before the trial court waives any such challenge on appeal. Lampitok v. State, 817 N.E.2d 630, 636 (Ind.Ct.App.2004), trans. denied. If Neff was in any way confused by the discrepancy between the statutory citation and the specific language of the charging information, that discrepancy should have been brought to the attention of the trial court at the earliest opportunity.
On the merits of the case against Neff, he contends the State failed to prove that he solicited "Lizzy," either to have sexual intercourse or engage in fondling, during the May 2, 2006 IM chat. The child solicitation statute defines "solicit" as "to command, authorize, urge, incite, request, or advise...." I.C. § 35-42-4-6(a). On May 2, 2006, the only two comments Neff made of an explicitly sexual nature were him asking "Lizzy," "Do u wanan [sic] get nude," and asking "U sure u can take a big c* *k[?]" Ex. 5, p. 10. Neff notes that he made these statements only after "Lizzy" first asked if he was "gonna bring condums [sic]," and urging him to drive to Carmel and meet her. Id. at 8.
Neff is mistaken in relying only upon the contents of the May 2, 2006 chat in isolation in arguing that there is insufficient evidence to support his conviction. The charging information alleged that solicitation occurred "on or about May 2, 2006," and that this permitted the prosecution to rely on the contents of the April 29, 2006 chat as well. App. p. 6 (emphasis added). During that chat, "Lizzy" asked Neff, "wat wud we do" if they met, and Neff responded "would u wanan [sic] kiss." Ex. 5, p. 1. Neff later stated, "i wanna do more than that ... feel your p* * *y and t* *s," and later, "I wanna spread your legs and stick my d* *k in your p* * *y .... i will stop if it hurts." Id. at 2-3. Neff and "Lizzy" also discussed the possibility of meeting in person, and Neff asked "Lizzy" if she could send him some "sexy" pictures of herself. Id. at 3.
The content of the April 29, 2006 chat clearly is sufficient evidence of child solicitation; Neff does not directly argue otherwise. He may be implying that the trial court as fact finder was required to only consider evidence related to the May 2, 2006 chat, and that for the State to present and rely upon the April 29, 2006 chat constituted an improper variance from the charging information. "A variance is an essential difference between proof and pleading." Reinhardt v. State, 881 N.E.2d 15, 17 (Ind.Ct.App.2008). A variance is fatal if the defendant is misled by the charge in the preparation and maintenance of his or her defense, and he or she was harmed or prejudiced as a result. Id. As a general rule, failure to make a specific objection at trial waives any material variance issue. Id. At trial, Neff did not object to the State presenting evidence of and relying almost exclusively upon the April 29, 2006 chat as proof of child solicitation.2
Regardless of whether Neff objected, when time is not an element of a crime, or "of the essence of the offense," the State is only required to prove that the offense occurred any time within the statutory period of limitations; the State is not required to prove the offense occurred on the precise date alleged in an information. Poe v. State, 775 N.E.2d 681, 686 (Ind.Ct. App.2002), trans. denied. When an information alleges that an offense occurred "on or...
To continue reading
Request your trial
-
Pavlovich v. State
...utterance,” and “[t]here need not be any attempt to carry out the solicited act at any time in the immediate future.” Neff v. State, 915 N.E.2d 1026, 1034 (Ind.Ct.App.2009) (quoting LaRose v. State, 820 N.E.2d 727, 732 (Ind.Ct.App.2005), trans. denied ), aff'd on reh'g,922 N.E.2d 44 (Ind.Ct......
-
Milo v. State, Court of Appeals Case No. 19A-CR-751
...double jeopardy jurisprudence," effectively disagreeing with Williams and Elkins with regard to the failure to prove venue. 915 N.E.2d 1026, 1036 (Ind. Ct. App. 2009), adhered to on reh'g , 922 N.E.2d 44 (Ind. Ct. App. 2010), trans. denied. Regardless, the proposition that a grant of a moti......
-
Davis v. State, 03A05–1111–CR–639.
...and the State may establish venue by a preponderance of the evidence and need not prove it beyond a reasonable doubt. Neff v. State, 915 N.E.2d 1026, 1032 (Ind.Ct.App.2009), adhered to on reh'g,922 N.E.2d 44 (Ind.Ct.App.2010). Davis notes, however, that Officer Little indicated on a documen......
-
Blount v. State
...offense occurred on the precise date alleged, and its presentation of evidence is not limited to events on that date. Neff v. State, 915 N.E.2d 1026, 1032 (Ind.Ct.App.2009), adhered to on reh'g, 922 N.E.2d 44 (Ind.Ct.App.2010).The charging information here adequately notified Blount he was ......