Christopher Greg Wilson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Christopher Greg Wilson appeals his conviction for child solicitation as a level 5 felony. He asserts that the trial court committed fundamental error. We affirm.

Facts and Procedural History

[2] On October 30, 2022, Johnson County Sheriff's Office Detective Travis Wampler was conducting a “covert” “[o]nline child internet sex sting.” Transcript Volume II at 51-52. He entered an online chatroom called “Kik” operating as “a fourteen year old girl named Carly.” Id. at 55, 56. Thirty-seven-year-old Wilson messaged “Carly” within Kik and “began casual conversation” that eventually transitioned to exchanging phone numbers and texting over cellphones. Id. at 58.¹ Detective Wampler, posing as Carly, immediately informed Wilson that she was currently fourteen, “almost fifteen,” years old. Id.

[3] For three days, from October 30, 2022, through November 1, 2022, Wilson and “Carly” texted each other with much of the content being “sexual in nature.” Id. at 60. At one point “Carly” sent Wilson an image purporting to be a photograph of herself. Wilson responded, “you're cute AF” and “I love blonds but ur jail bait.” Exhibits Volume I at 14. Later when “Carly” said she needed to go to bed, Wilson texted, “sweet dreams” and sent an image of “his groin area,” which was clothed. Id. at 21; Transcript Volume II at 64. The following day, when “Carly” discussed schoolwork she had, Wilson texted, “I could be ur tutor if u need help lol.” Exhibits Volume I at 23. “Carly” later sent Wilson a picture purporting to be her hand in a “Y” shape next to her clothed crotch, and he responded, “I want my hand there” and informed her that he was almost done with work. Id. at 26. “Carly” responded, “YesPlz. Just your [hand emoji] hand” and “Or face or [eggplant emoji].” Id. at 26-27.² Wilson informed “Carly” that he was working close to where he believed she lived, and he texted her, “Y u wanna do something” and “I would ruin u girl u have no idea lol.” Id. at 27. “Carly” said, “Ya ․ go to speedway” “Get me cigs ․ Marlboro lites n Mt. Dew.” Id. at 28. Wilson asked her to give him “Like 20 min” and he would be there. Id. “Carly” asked, “U got co[n]doms N lube[?]” Id. at 29. Wilson texted, “We can talk for a bit and c where it goes [kissing face emoji].” Id. Wilson also texted, “Ur adorable” in response to another purported picture of fourteen-year-old “Carly.” Id. at 32. She asked him, “R u worked up” and he responded, “U will c in a few.” Id. at 33. “Carly” asked Wilson if he had money for her, he responded, “I'll see what I got,” and she texted a peach emoji and said, “I'm excited.” Id. at 35.³ After Wilson sent a picture proving he had bought a bottle of Mountain Dew and cigarettes, “Carly” gave him the address of a house where she claimed to be waiting for him. Police intercepted and arrested Wilson when he arrived at the house.

[4] Wilson agreed to a police interview and admitted to having sent the messages to “Carly” through Kik and on his cell phone. A forensic examination of his phone revealed it had been used for multiple pornographic searches, he had searched “Carly's” phone number on a website that looks up the identity of individuals associated with a phone number, and he had used a chatroom on Kik called “Teens for Older Men.” Transcript Volume II at 99.

[5] On February 28, 2023, the State charged Wilson with child solicitation as a level 5 felony pursuant to Ind. Code § 35-42-4-6(c). The charging information alleged:

On or about November 1, 2022 in Johnson County, State of Indiana, Christopher Greg Wilson was eighteen (18) years of age or older, knowingly or intentionally solicited an individual whom Christopher Greg Wilson believed was a child fourteen (14) or fifteen (15) years of age to engage in fondling or touching intended to arouse or satisfy the sexual desires of the individual whom Christopher Greg Wilson believed was a child fourteen (14) or fifteen (15) years of age or Christopher Greg Wilson.

Appellant's Appendix Volume II at 27.

[6] On January 30, 2024, the State filed a Motion to Amend Information By Substitution to instead charge Wilson with child solicitation as a level 4 felony. The amended charging information reads:

[O]n or about November 1, 2022 in Johnson County, State of Indiana, Christopher Greg Wilson, being at least twenty-one (21) years of age, did knowingly and/or intentionally solicit a person that Christopher Greg Wilson believed to be a child at least fourteen years of age but less than sixteen years of age to engage in sexual intercourse or other sexual conduct intended to arouse or satisfy the sexual desires of Christopher Greg Wilson, said solicitation having been accomplished by the use of a computer network as defined in I.C. 35-43-2-3(a) and with the said Christopher Greg Wilson having traveled to meet the said child.

Id. at 55 (inadvertent closed bracket omitted).

[7] Wilson waived his right to a jury trial, and a bench trial began on May 9, 2024. Detective Wampler testified regarding his experience with online sex sting operations. He testified that he believed the “general flavor, or content of the conversations” with Wilson were “sexual in nature.” Transcript Volume II at 60. He explained that he has chatted “with hundreds of people” and “ninety plus percent of them” will “run” once “you drop the age” because “[t]hey want nothing to do with what can be criminal.” Id. at 69. Detective Wampler stated that Wilson, on the other hand, simply acknowledged “Carly's” young age, said “that's scary for him, you're jail bait,” and continued with the sexual conversations. Id. On cross-examination, Detective Wampler admitted that toward the end of the text conversations, he, and not Wilson, brought up “condoms and lube.” Id. at 73. Detective Wampler further admitted that he, and not Wilson, included the eggplant and peach emojis in the chat, but explained “the whole goal is to make sure, make it clear, if he makes an overt action towards doing this, what are we clearly coming to do ․ it's clearly for sexual activity.” Id. at 74. When asked, “Did [Wilson] ever tell you that he's going to have sex with you when he gets there,” Detective Wampler responded that he believed that Wilson made “an overt action towards having sexual intercourse with a fourteen year old.” Id.

[8] During closing arguments, Wilson's counsel argued that the State “has not charged touching/fondling” and “[t]hat is the only evidence that they have that my client commanded, authorized, urged, incited, or requested lured, enticed or advised ․ The only thing they have is touch/fondle. And they didn't charge it.” Id. at 125. The prosecutor responded during rebuttal that the charging “variance here is not fatal” and “[t]he evidence that's been submitted does satisfy subsection c which both charging informations were filed under ․” Id. The prosecutor pointed to the text messages and urged that “[t]he Court can still find, and the State believes that we have still proven beyond a reasonable doubt that he went there to solicit a child for other sexual conduct, that he is guilty of that charge under subsection c.” Id. The prosecutor went on to explain, “[t]he to wit language is simply additional language that assists him in preparing for a defense. It is not a variance that is detrimental to him in a way that has not allowed him to do so, and the State has proven that he was there to engage in other sexual conduct, in addition to touching/fondling that we would all agree was on the table here throughout the discussion.” Id. at 126.

[9] The court took the matter under advisement and ultimately found Wilson guilty of child solicitation as a level 5 felony. The court sentenced Wilson to 1,095 days with 240 days of home detention and 855 days of probation.

Discussion

[10] Wilson frames the issue as whether “it was fundamental error to convict [him] of Child Solicitation, as a Level 5 Felony which was neither a charged offense, nor a lesser included of the charged offense.” Appellant's Brief at 6. The State responds that “[t]here was no error because Level 5 felony child solicitation was a lesser included offense of the Level 4 felony child solicitation charge.” Appellee's Brief at 12.

[11] We observe that fundamental error is an extremely narrow exception that allows a defendant to avoid waiver of an issue. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). It is error that makes a fair trial impossible or constitutes clearly blatant violations of basic and elementary principles of due process presenting an undeniable and substantial potential for harm. Id. This exception is available only in “egregious circumstances.” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010), reh'g denied. “Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh'g denied. Conviction upon a charge not made or for an offense that is not a lesser included offense of the charged crime constitutes a denial of due process—fundamental error which may be raised for the first time on appeal. Lechner v. State, 439 N.E.2d 1203, 1205 (Ind. Ct. App. 1982).

[12] Upon review of the statute defining the charged crime and the amended charging information, we agree with the State that level 5 felony child solicitation is a lesser included offense of level 4 felony child solicitation as charged, and thus no reversible error, fundamental or otherwise, occurred. The State charged Wilson under Ind. Code § 35-42-4-6(c) which provides:

A person at least twenty-one (21) years of age who knowingly or intentionally solicits a child at least fourteen (14) years of age but less than sixteen (16) years of age, or 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, other sexual conduct (as defined in IC 35-31.5-2-221.5), or any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person, commits child solicitation, a Level 5 felony. However, the offense is a Level 4 felony if the person solicits the child or individual the person believes to be a child at least fourteen (14) but less than sixteen (16) years of age to engage in sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5), and:

(1) commits the offense by using a computer network (as defined in IC 35-43-2-3(a)) and travels to meet the child or individual the person believes to be a child[.]

[13] An offense constitutes a lesser included offense when it is either inherently or factually included in the crime charged. Wright v. State, 658 N.E.2d 563, 567 (Ind. 1995). An offense is an inherently lesser included offense if the alleged lesser included offense may be established by proof of the same material elements or less than all the material elements defining the crime charged or where the only feature distinguishing the alleged lesser included offense from the crime charged is that a lesser culpability is required to establish commission of the lesser offense. Id. at 566. An offense is factually included “[i]f the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense.” Id. at 567.

[14] Wilson's entire argument hinges on the assumption that, in entering conviction on child solicitation as a level 5 felony rather than as a level 4 felony, the trial court necessarily only found sufficient evidence that he solicited fondling or touching but insufficient evidence that he solicited sexual intercourse or other sexual conduct as specifically charged. The State maintains that, even if the trial court found there was insufficient evidence to prove that Wilson solicited sexual intercourse or other sexual conduct, reversal is unwarranted because “Wilson's conviction would still be a factually included offense because of how he was charged.” Appellee's Brief at 14.⁴ We agree.

[15] The amended information alleged that Wilson solicited “Carly” to “engage in sexual intercourse, or other sexual conduct intended to arouse or satisfy the sexual desires” of Wilson. Appellant's Appendix Volume II at 55. Although fondling or touching was not specifically mentioned in the amended charging information, as noted by the State, there are three different types of conduct that a defendant may solicit a child to engage in to satisfy the statute; sexual intercourse, other sexual conduct, or any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person. Indeed, the crime of child solicitation has been, at all relevant times, defined to include the knowing or intentional solicitation of a child to engage in “any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person[.]” Ind. Code § 35-42-4-6(c).

[16] Although the State did not specifically allege child solicitation based on fondling or touching in the amended information, the State did allege the unique intent to arouse element, which is only necessary for the level 5 felony offense of solicitation for fondling or touching. Cf. Downey v. State, 726 N.E.2d 794, 799 (Ind. Ct. App. 2000) (observing in the child molesting context that child molesting by fondling or touching was not a factually lesser included offense of child molesting by sexual deviate conduct as charged because the State failed to allege in the information “the intent element” to arouse or satisfy sexual desires as required for the lesser offense), trans. denied; Hawk v. State, 506 N.E.2d 71, 74 (Ind. Ct. App. 1987) (“Here, the information traced the language of the section dealing with child molestation by sexual intercourse. The information contained no additional factual allegations, nor did it make reference to the vital element of the touching or fondling crime, i.e., the specific intent to arouse or satisfy. These omissions undermine the contention that the crime for which Hawk was convicted was included factually, or, as charged.”), reh'g denied, trans. denied. Here, the State specifically alleged the element of intent that distinguishes solicitation for fondling or touching from solicitation for sexual intercourse or other sexual conduct.

[17] Moreover, although the amended information omitted the words “fondling or touching,” sexual intercourse or other sexual conduct would necessarily include, at the very least, touching, so we agree that inclusion of the necessary intent element in the amended charging information advised Wilson of the essential elements of the crime for which he was ultimately convicted and he was able to adequately prepare his defense. See Douglas v. State, 484 N.E.2d 610, 613 (Ind. Ct. App. 1985) (fondling charge would have been included as charged had the State charged deviate sexual conduct under the molestation statute “with intent to arouse or to satisfy.”); cf. Thompson v. State, 761 N.E.2d 467, 470 (Ind. Ct. App. 2002) (holding that trial court erred in convicting defendant of sexual battery as a lesser included offense of rape because the charging information failed to advise defendant of the intent element—that he intended to arouse or satisfy his own sexual desires—and thus he was not given notice of the elements of the crime for which he was ultimately convicted and was unable to adequately prepare his defense). Under the circumstances presented, we conclude that level 5 felony child solicitation was a factually included offense of the crime charged. We cannot say that the trial court committed error, fundamental or otherwise, in entering Wilson's conviction as a level 5 felony.

[18] For the foregoing reasons, we affirm Wilson's conviction.

[19] Affirmed.

FOOTNOTES

1.   The record indicates that during a pretrial hearing on March 7, 2024, Wilson stated under oath that he was “34” years old, which would have made him thirty-three years old at the time of the offense. Transcript Volume II at 42. It is unclear whether this was a misrepresentation by Wilson or simply a typographical error as the record indicates that Wilson was born on April 11, 1985, which would have made him thirty-eight years old on the date of the hearing and thirty-seven years old at the time of the offense.

2.   Detective Wampler testified that an “eggplant” emoji is “symbolic of a penis for chat lingo.” Transcript Volume II at 65.

3.   Detective Wampler testified that a “peach emoji” represents “a vagina.” Transcript Volume II at 74.

4.   The State first argues that the level 5 felony is an inherently included offense, stating that “[t]here are valid circumstances in which Wilson's conviction for Level 5 felony child solicitation would be inherently included in Level 4 felony child solicitation.” Appellee's Brief at 14. The State suggests that the court could have found that Wilson indeed solicited sexual intercourse or other sexual conduct, but that the other elements, such as use of a computer network and traveling to meet the child, that raise the offense to a level 4 felony, were unmet. We agree that, under that circumstance, level 5 felony child solicitation would be inherently included in level 4 felony child solicitation as it could have been established by proof of less than all the material elements defining the crime charged. However, in its abstract of judgment, the court defines the crime as “35-42-4-6(c)/F5: Child Solicitation – Same as 7192, but solicitation is for fondling or touching.” Appellant's Appendix Volume II at 104. This indicates that the court entered judgment of conviction on the level 5 felony based upon a finding of solicitation for fondling or touching with intent to arouse and not sexual intercourse or other sexual conduct. Accordingly, the level 5 felony conviction was not an inherently included offense.

Brown, Judge.

Chief Judge Altice and Judge Tavitas concur. Altice, C.J., and Tavitas, J., concur.