King v. State
2009 WL 1872527, 908 N.E.2d 673, 2009 Ind. App. LEXIS 935 (2009)
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Rule of Law:
Under Indiana's attempt statute, factual impossibility is not a defense to an attempt crime when a defendant, acting with the required criminal intent, takes a substantial step toward committing the crime, even if circumstances unknown to the defendant make the crime impossible to complete.
Facts:
- In October 2007, Indianapolis Metropolitan Police Detective Darin Odier created a fictitious online profile for a 15-year-old female named 'Jamie Lush.'
- Andrew H. King, using the screen name 'king556466,' initiated an instant message conversation with 'Jamie,' believing she was a 15-year-old girl.
- During their conversations, King sent 'Jamie' several photos of himself and two separate photos of an exposed penis.
- King explicitly proposed meeting 'Jamie' for sex, stating they could 'f**k most of the night,' and discussed logistics, including arranging a location and agreeing to bring condoms.
- After the first planned meeting did not occur, King initiated a second online chat a week later, again suggesting they meet for sex and sending another explicit photo.
- Using information from Yahoo! and an internet service provider, police traced the 'king556466' account to Crossroads Bible College, where King was a student.
Procedural Posture:
- The State charged Andrew H. King in an Indiana trial court with two counts of class C felony child solicitation and one count of class D felony attempted dissemination of matter harmful to minors.
- On September 3, 2008, a jury found King guilty as charged.
- King, as appellant, appealed his convictions to the Court of Appeals of Indiana, with the State as appellee.
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Issue:
Is factual impossibility a valid defense to a charge of attempted dissemination of matter harmful to minors where the defendant believes he is sending prohibited material to a minor, but the recipient is in fact an adult police officer?
Opinions:
Majority - Crone, Judge
No. Factual impossibility is not a defense to the crime of attempted dissemination of matter harmful to minors. The court held that Indiana's attempt statute focuses on the defendant's intent and the substantial step taken toward the commission of a crime, not on external circumstances that may make the crime impossible to complete. The court explicitly rejected the reasoning of a prior appellate decision, Gibbs v. State, and adopted the reasoning of the dissent in that case. It relied on Indiana Code § 35-41-5-1(b), which states, 'It is no defense that, because of a misapprehension of the circumstances, it would have been impossible for the accused person to commit the crime attempted.' The court, citing Zickefoose v. State, reasoned that when a defendant has done all they believe necessary to cause a particular criminal result, they have committed an attempt, regardless of what is actually possible. Here, King intended to send harmful material to a minor and took the substantial step of sending the photograph; his failure to complete the crime was only because the recipient was an adult officer, which constitutes factual impossibility and is not a defense.
Analysis:
This decision solidifies the legal principle that factual impossibility is not a defense to attempt crimes in Indiana, particularly in the context of online police stings. By explicitly disagreeing with a recent opinion from another panel of the same court (Gibbs v. State), the court created a clear split of authority, signaling the need for the Indiana Supreme Court to resolve the issue. The ruling strengthens the position of law enforcement in prosecuting individuals who solicit minors online, as it focuses the legal inquiry on the defendant's criminal intent and actions rather than on the identity of the person on the other end of the conversation. This precedent makes it significantly more difficult for defendants in such cases to argue that no crime could have occurred because no actual minor was involved.
