Criminal sex attempt conviction upheld without amorous manipulations'.


Byline: Barbara L. Jones

The line between an attempt to commit a crime and an intent to do so may be more blurry after a Court of Appeals decision upholding a conviction for attempted third-degree criminal sexual conduct.

The defendant was arrested in a sting operation before any overt sexual activity occurred. In a bench trial, he was also convicted of electronic solicitation of a child and electronic distribution of sexual material to a child. He was sentenced to 35 months in prison on the criminal sexual conduct offense.

The defendant conceded that he intended to commit criminal sexual conduct but not that he attempted it. The case is State v. Wilkie.

"We are not persuaded that the absence of more typical 'amorous manipulations,' such as physical touch or in-person communication, defeats proof of an attempt offense," said Judge Louise Bjorkman for the court, citing a 1954 precedent, State v. Johnson. Chief Judge Edward Cleary dissented.

Substantial step toward, more than preparation for

An agent from the Bureau of Criminal Apprehension posed as a young male in a Grindr profile and the defendant responded. He sent the decoy officer explicit pictures. The decoy told the defendant he was 14 and they communicated about meeting for sex. They arranged to meet at the decoy's home, and the decoy told the defendant his parents would not be there. When Wilkie arrived, he texted the decoy, who told him to knock on the door. The police answered.

The court analyzed two criminal statutes. A person commits third-degree criminal sexual conduct when he engages in "sexual penetration" with a complainant who is "at least 13 but less than 16 years of age and the actor is more than 24 months older than the complainant." Minn. Stat. 609.344, subd. 1(b). A person attempts to commit a crime when, with intent, he "does an act which is a substantial step toward, and more than preparation for, the commission of the crime." Minn. Stat. 609.17, subd. 1.

But a substantial step is defined in case law. Bjorkman wrote that the seminal case about the definition of attempt is the 1912 decision in State v. Dumas where the court said that an attempt is an intentional overt act that tends but fails to accomplish the crime. The overt acts must be more than preparation for the crime.

Wilkie conceded that the evidence sufficed to prove intent but argued that his actions were mere preparation. He argued that other cases involving sexual offenses involved physical contact...

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