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"He definitely did more than just chat," said Chief Justice Christine Durham.
"He set up a meeting and showed up at the scene." The statute states a person must believe that the person they are chatting with is a minor.
Taliaferro said in her client's case, he was convicted based solely on an Internet chat he claims was purely sexual fantasy.
James Gallegos, of Clearfield, was charged and convicted by a jury of enticing a 13-year-old girl over the Internet. In actuality, the 13-year-old was an adult agent with the Utah Attorney General's Internet Crimes Against Children task force.
That's what is prohibited," said Assistant Utah Attorney General Jeffrey Gray.
Justice Michael Wilkins asked Gray if it was illegal for someone to have "cyber-sex" with someone claiming to be a minor.
The anonymity that the Internet offers makes cybersex crimes appealing to some individuals who believe they are protected from detection.
However, that same anonymity could put someone in the position of engaging in sexually suggestive emails or texts with someone who could turn out to be an undercover police detective or FBI agent.
"All you're doing is criminalizing speech," said attorney Ann Taliaferro. Even if a suspect outright confesses to a crime, the state must show independent evidence that they either committed the crime or intended to commit a crime.
Durham pointed out that Gallegos went beyond sexual talk and into soliciting someone who claimed they were a minor. She added if a man walked up to a 13-year-old on the street and solicited sex, what would be the difference?
"It is the solicitation, the inducement, the allure.
In an attempt to have the charge thrown out, 3rd District Judge Stephen Henroid ruled that it didn't matter that Gallegos showed up at the meeting site and that the crime was completed over the Internet.
During oral arguments Wednesday, justices differed as to whether Gallegos' conversation could convict him.