Timothy Cunningham v. State of Indiana (NFP)

Annotate this Case

Download PDF

FILED 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. Oct 30 2008, 9:04 am CLERK of the supreme court, court of appeals and tax court ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: KATHLEEN M. SWEENEY Indianapolis, Indiana 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The Honorable Ted Robinette, Master Commissioner Cause No. 49G03-0707-FC-144447 October 30, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge STATEMENT OF THE CASE Timothy Cunningham appeals his conviction, after a bench trial, of child solicitation as a class C felony.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 2 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 10 inches, but that she would like it once it was in. Id. He asked her bra size and expressed a desire to suck on her breasts and see them bare. Id. He stated he would love to eat [her] sweet tight p*ssy and suck on [her] hot cl*t . . . . Id. He asked whether jamielosh had thought about performing fellatio and stated that he thought she would be good at [it]. Id. Cunningham asked what jamielosh was wearing and whether she masturbated; then encouraged her to do so during a series of additional messages. He stated a desire to engage in sexual intercourse and promised he would be slow and easy. Id. He asked where her mother was, and when jamielosh answered, at work till 11, he answered, if I were there id get you naked suck on your cl*t till you got off then slip it in you slowly. Id. He wish[ed] [his] tongue was in [her] and that it was [his] c*ck in her. Id. After more than an hour of exchanging such sexually explicit messages with jamielosh, he asked whether she want[ed] company some evening and closed by saying later. Id. On July 20, 2007, the State charged Cunningham with one count of child solicitation, as a class C felony. The charging information alleged that Cunningham, 1 Odier testified that this is short for age, sex, location. (Tr. 30). 3 a person at least twenty-one (21) years of age, did, by use of a computer network, knowingly solicit an individual . . . Cunningham believed to be . . . fifteen (15) years of age, to engage in sexual intercourse and/or deviate sexual conduct. (App. 31). At a bench trial on December 13, 2007, and January 25, 2008, the above facts were provided in Odier s testimony and the transcript of the March 27, 2007, instant message chat between jamielosh and funguy. During cross-examination, Odier acknowledged that the profile he created for jamielosh inadvertently stated that it was an adult profile. (Tr. 180). Also admitted into evidence was Cunningham s voluntary recorded statement to Odier. Therein, Cunningham stated that he was born in 1950. He acknowledged that at the outset of the chat, jamielosh had messaged him that she was 15 f indy, 2; and he expressly described his early messages as sexually explicit. (Ex. 8, 9). Cunningham also acknowledged that he had looked at the profile for jamielosh before he sent the first message; stated that she looked too young to [him] ; and admitted that the photograph on the jamielosh profile looks 14 to 15 years old. Id. The trial court took the matter under advisement, to listen to Cunningham s recorded statement and to read the transcript of the instant message chat. On February 8, 2008, it found Cunningham guilty as charged and entered judgment of conviction on child solicitation as a class C felony. On March 4, 2008, the trial court sentenced him to three years, with three years suspended. 2 In his statement, Cunningham indicated that he understood ASL meant age, sex, location. Id. 4 DECISION When reviewing the sufficiency of the evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court s ruling. Appellate courts affirm the conviction unless no reasonable fact-finder could find the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quotations and citations omitted, emphasis in original). The statute provides that a person at least twenty-one years of age or older, who knowingly or intentionally solicits . . . an individual the person believes to be a child at least fourteen (14) years of age but less than sixteen (16) years of age, to engage in sexual intercourse; deviate sexual conduct; or any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person, commits a class C felony if it is committed by using a computer network. Ind. Code § 35-42-4-6(c). Further, solicit means to command, authorize, urge, incite, request, or advise an individual . . . by using a computer network. I.C. § 35-42-4-6(a). The State is not required to prove that the person solicited the child to engage in an act described in subsection . . . (c) at some immediate time. I.C. § 35-42-4-6(d). 5 Cunningham argues that the evidence is insufficient to prove that he knowingly3 solicited a child because Odier mistakenly created an adult profile thereby allowing Cunningham to believe he was chatting with another adult. Cunningham s Br. at 7. He then distinguishes the facts in his case from those in Laughner v. State, 769 N.E.2d 1147 (Ind. Ct. App. 2002), trans. denied, cert. denied 538 U.S. 1013 (2003); LaRose v. State, 820 N.E.2d 727 (Ind. Ct. App. 2005); and Kuypers v. State, 878 N.E.2d 896 (Ind. Ct. App. 2008); and asserts that his conviction should be overturned because of its unique factual circumstances that lawfully support a mistake of mistake defense and or alternatively disprove the essential elements of knowingly or intentionally solicits a child. Cunningham s Br. at 10. We agree that the facts here are not identical to those of the cited cases, but Cunningham fails to enlighten us as to the mistake of mistake defense. Id. Further, as noted above, he was not charged with having intentionally solicited a child. Finally, he presents no analysis to support his bald assertion that the circumstances disprove the essential element of knowingly soliciting a child. Id. A person engages in conduct knowingly if, when he engages in the conduct, he is aware of a high probability that he is doing so. I.C. § 35-41-2-2(b). Because knowledge is the mental state of the actor, it may be proved by circumstantial evidence and inferred from the circumstances and facts of each case. Wilson v. State, 835 N.E.2d 1044, 1049 (Ind. Ct. App. 2005), trans. denied. 3 Cunningham asserts that the State failed to prove that he knowingly or intentionally solicited a child . . . . Cunningham s Br. at 7. However, the charging information alleged that he did knowingly solicit an individual . . . . (App. 31). 6 We acknowledge that at one place on the profile for jamielosh, it indicates adult profile. Nevertheless, after funguy sent a message to jamielosh saying very sexy and pretty, the reply which would have shown the profile photograph in the dialogue box on Cunningham s computer screen asked funguy his age, sex, and location. (Tr. 166). He replied that he was 20 to [sic] old, (Ex. 4), an answer supporting the inference that Cunningham believed jamielosh was a child. Further, in reply to funguy s response, jamielosh stated 15 f indy. (Ex 4). Thus, that jamielosh was not an adult but a fifteen-year-old child was expressly conveyed to Cunningham, and it was after this that he proceeded to send a series of salacious messages concerning sexual activity to jamielosh. Many of these messages support the inference that Cunningham believed jamielosh was age fifteen asking about her mother, presuming her sexual inexperience. Moreover, in his own statement, Cunningham admitted that he had looked at the picture before sending the first message to jamielosh, and that she looked too young to him, 14 to 15 years old. (Ex. 8, 9). The evidence supports the trial court s inference that Cunningham believed jamielosh to be a fifteen-year-old child and knowingly solicited her to engage in sexual intercourse and deviate sexual conduct. Affirmed. FRIEDLANDER, J., and BARNES, J., concur. 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.