Ward v. State
| Decision Date | 12 September 1988 |
| Docket Number | No. 34S00-8609-CR-830,34S00-8609-CR-830 |
| Citation | 528 N.E.2d 52 |
| Parties | Lawrence E. WARD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Merrill W. Otterman, Deputy Public Defender, Kokomo, for appellant.
Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for appellee.
The question presented is whether solicitation of a child may suffice for conviction of attempted child molesting. As the trial judge correctly noted, this is a question of first impression in Indiana.
Appellant Lawrence Ward was convicted after a bench trial of attempting to molest a child under twelve, a class B felony, Ind.Code Secs. 35-42-4-3(a), 35-41-5-1, and attempting to molest a child age twelve through fifteen, a class C felony, Ind.Code Secs. 35-42-4-3(c), 35-41-5-1 (Burns 1985 Repl.). The judge sentenced Ward to fifteen years in prison for the class B felony and eight years for the class C felony with the sentences to run consecutively.
The evidence favorable to the judgment showed that during the afternoon of June 5, 1985, Ward followed and approached 11-year-old D.D. on the streets of downtown Greentown. Ward asked D.D. if he would like Ward to perform fellatio on him. Ward made three such requests. D.D., who was with a friend during this encounter, refused the solicitations. D.D. and Ward were unknown to each other before this day.
Later that day, D.D. told the sheriff about the incident. To verify D.D.'s story, the sheriff asked R.C., a 15-year-old boy, to approach Ward and engage in casual conversation. He also instructed R.C. not to broach the subject of sex. R.C. agreed and sought out Ward. After R.C. found Ward and greeted him, Ward responded by extending a beer toward R.C. and offering it to him. R.C. declined the beer. Ward then told R.C. that if he would not tell anybody, Ward would perform fellatio on him. R.C. refused the offer. Ward suggested vaguely that if R.C. were ever in the nearby town of Jerome he should visit Ward at his house. The sheriff monitored the situation from about a half block away. R.C. and Ward were also unknown to each other before this day.
Ward argues that evidence of solicitation is insufficient to sustain a conviction of attempted child molesting, especially when there is an applicable child solicitation statute. Ind.Code Sec. 35-42-4-6. Appellant asserts that at common law solicitation to commit a crime was not an attempt, and that more recent cases have held that solicitation does not amount to an attempt. See Gervin v. State, 212 Tenn. 653, 371 S.W.2d 449 (1963); Hutchinson v. State, 315 So.2d 546 (Fla.App.1975), over'd on other grounds, Gentry v. State, 437 So.2d 1097 (Fla.1983); State v. Otto, 102 Idaho 250, 629 P.2d 646 (1981). These cases involved a defendant charged with attempted murder for soliciting a second party to murder a third. A three-party solicitation is generally not close enough to performance or completion of the crime to constitute an attempt.
More pertinent to appellant's argument is People v. La Fontaine, 79 Cal.App.3d 176, 144 Cal.Rptr. 729 (1978), a case involving a defendant who picked up a 13-year-old hitchhiker and offered to pay him for sex. The California Court of Appeals stated it could find "no logic or reason" to merit carving out an exception allowing some solicitations to constitute an attempt. Id. at 182, 144 Cal.Rptr. at 733. To say that asking a child for sex cannot be an attempt because it is solicitation is reasoning by labels. 1 We reject the conclusion of La Fontaine, and we hold that acts which rise above mere invitation may properly fit under the law of attempt.
Defining what constitutes an attempt has always been a burden upon the common law, challenging even the most respected judges. 2 Deciding where to draw the line has always depended upon "the particular circumstances of each case--the seriousness of the crime attempted, and the danger to be apprehended from the defendant's conduct." Sayre, Criminal Attempts, 41 Harv.L.Rev. 821, 845 (1928).
In deciding whether acts of solicitation rise to the level of an attempt, we commence with the well-settled definition of criminal attempt. The defendant must have been acting with specific intent to commit the substantive crime, and he must have engaged in an overt act which constitutes a substantial step toward commission of the crime. Zickefoose v. State (1979), 270 Ind. 618, 388 N.E.2d 507. Applying this definition to a given set of facts requires further definition of the term "substantial step." We adopt two separate tests to determine when solicitation may be a substantial step. The first test is fairly mechanical and the second involves an assessment of the wrong which the legislature seeks to sanction.
Three-Part Test for Solicitation. First, a solicitation may be a substantial step only when: 1) the solicitation takes the form of urging; 2) the solicitation urges the commission of the crime at some immediate time and not in the future; and 3) the cooperation or submission of the person being solicited is an essential feature of the substantive crime. Perkins, Criminal Attempt and Related Problems, 2 UCLA L.Rev. 319, 353 (1954-55). 3
Nature of the Crime. Second, if those findings are made, the court must consider the specific crime, and the wrongful human conduct that the legislature sought to sanction. One commentator has stated an eloquent principle about the role which the nature of the crime plays in determining what a substantial step is: "... the more serious the crime attempted or the greater the menace to the social security from similar efforts on the part of the defendant or others, the further back in the series of acts leading up to the consummated crime should the criminal law reach in holding the defendant guilty for attempt." Sayre, supra at 845.
We have little difficulty in concluding that child molesting is a sufficiently serious crime to justify drawing a fairly early line to identify and sanction behavior as an attempt. It is clear the legislature believes child molesting is one of the most heinous crimes. Two statutes in Indiana support that proposition: Ind.Code Sec. 35-42-1-1(2) () and Ind.Code Sec. 35-50-2-9(b)(1) ().
Child molesting is a crime of unique characteristics. Among the two-party types of solicitation, child solicitation seems to be the only such crime that involves just one potentially guilty party. For instance, in soliciting bribery or suborning perjury, both parties may incur criminal liability. Perkins, supra. In soliciting a child, the solicited party is a vulnerable minor, without competence to consent as a matter of law. Some harm likely occurs to the innocent child just by being solicited to perform such acts, especially when explicit language is used. Moreover, the crime of child molesting is often perpetrated by persuasion and trickery rather than an overpowering or sudden attack. Solicitation of child molesting brings the parties much closer to completion of the substantive crime than might be the case in adult-adult or three-party solicitations.
Ward's solicitation of each boy was, of course, an overt act, and there is little question that Ward was acting with a specific intent to molest the child. 4 The crucial question, in each instance, is whether the circumstances and solicitations amounted to a substantial step toward commission of the crime of child molesting.
Solicitation of D.D. Ward initiated the contact with D.D., the eleven-year-old, when he followed and approached the boy. Ward also solicited D.D. three times in a context that amounted to urging or persuasion rather than a mere invitation. Ward, who was 37 years old at the time, approached D.D. by saying that the sheriff would get D.D. in trouble and that the sheriff was a "pervert." Ward was also urging commission of the crime immediately. The pursuit, the approach, the multiple requests, and Ward's initial statements to D.D., which were provocative and authoritative, all indicated that Ward's solicitation was a substantial step toward committing child molesting.
Further, the substantive crime of child molesting is a two-party offense, which requires the cooperation or submission of the child being solicited. The elements of Ind.Code Sec. 35-42-4-3(a) are: (1) a person (2) with a child under 12 years of age (3) performs or submits (4) to sexual intercourse or deviate sexual conduct.
The solicitation of D.D., therefore, was: (1) substantially in...
To continue reading
Request your trial
-
Ishee v. State, No. 1998-CT-01123-SCT.
...Conceding that the law on this point is elusive and nebulous, I find useful the test adopted by the Indiana Supreme Court in Ward v. State, 528 N.E.2d 52 (Ind.1988). In Ward, the defendant approached a minor child on a public street and asked if he would like for the defendant to perform fe......
-
State v. Baxley
...The authorities opposing this view are limited. 1 Joel P. Bishop, Criminal Law § § 767, 768, at 543-49 (9th ed. 1923); Ward v. State, 528 N.E.2d 52 (Ind.1988); State v. Kilgus, 128 N.H. 577, 519 A.2d 231 (1986); Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S.C......
-
Collier v. State
...what constitutes an attempt has always been a burden upon the common law, challenging even the most respected judges." Ward v. State, 528 N.E.2d 52, 53 (Ind.1988) (citing Oliver Wendell Holmes, The Common Law 68 (1881)). One principle the Court has approved is as [T]he more serious the crim......
-
State v. Arave
...asking another eleven-year-old girl if he could "put his head between [the girl's] legs and take a picture"); Ward v. Indiana, 528 N.E.2d 52, 52-53, 55 (Ind.1988) (holding evidence supported attempted molestation of a child when it showed the defendant followed a boy on a street; asked the ......