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FOR PUBLICATION
ATTORNEY FOR APPELLANT: ELIZABETH A. GABIG Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ARTURO RODRIGUEZ II Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
RANDY GIBBS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff ) ) ) ) ) ) ) ) )

Dec 31 2008, 9:25 am

CLERK

No. 49A02-0712-CR-1017

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Sheila Carlisle, Judge Cause No. 49G03-0607-FB-132575

December 31, 2008 OPINION - FOR PUBLICATION

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. "Samanthas" 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 Samanthas 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.

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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.

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Quotations from the online conversations are reproduced exactly as they were typed, including

errors.

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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, "thats 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, "im 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.

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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 havent seen you yet." Id. at 87. Detective Anderson said, "Im kind of tall and skinny. So I hope that doesnt 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

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Ind. Code

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