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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: KATHLEEN M. SWEENEY Indianapolis, Indiana

FILED
Oct 30 2008, 9:04 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ZACHARY J. STOCK Deputy Attorney General Indianapolis, Indiana

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

No. 49A02-0804-CR-319

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Ted Robinette, Master Commissioner Cause No. 49G03-0707-FC-144447

October 30, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE Timothy Cunningham appeals his conviction, after a bench trial, of child solicitation as a class C felony. We affirm. ISSUE Whether sufficient evidence of Cunningham's intent to solicit a minor (to engage in sexual intercourse or deviate sexual conduct, or any fondling or touching to arouse his or the minor's sexual desires) sustains his conviction of child solicitation as a class C felony. FACTS In March of 2007, Detective Darin Odier was engaged in an investigation of sexual predators on the internet and created a profile on Yahoo! for Jamie Losh. The profile indicated that the age of Jamie Losh was fifteen and included a photograph of what appears to be a young girl. During an exchange of instant messages in a Yahoo! Chat room, "the dialogue box for the recipient of" a message from "jamielosh" would "show Jamie Losh's photograph that was contained in the profile." (Tr. 159). Using the "jamielosh" identity, on the evening of March 27, 2007, Odier signed on the Yahoo! Messenger service and entered a chat room specific to Indiana. Cunningham, using the screen name "funguy50002004" ["funguy"], sent an instant message to "jamielosh" saying, "very pretty and sexy." (Tr. 166). The responding message asked

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ASL"1; "funguy" answered "male 20 to [sic] old darn it Bloomington," and "jamielosh" responded "15 f indy." (Ex. 4). As "funguy," Cunningham then messaged "jamielosh" that she was "hot" and asked if she was "built as nice as it looks." Id. He expressed the desire to "kiss [her] all over," asked whether she "ever had sex," and stated, "i might hurt you im big"

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