State v. Champagne, No. A-1365-08 (App. Div. Sept. 19, 2011), sounds like a case that could have been featured on the NBC show, “To Catch a Predator.”  The defendant engaged in sexually graphic Internet conversations with a person whom he thought was a boy between the ages of thirteen and sixteen.  In their conversations, the defendant tried to make arrangements to meet the “boy” at a motel to engage in sexual relations.  In reality, however, the “boy” was an undercover investigator with the State’s Division of Criminal Justice.  The defendant was indicted on three counts of second-degree attempted sexual assault and third-degree luring/enticing a child.

In December 2004, the defendant pled guilty to one count of attempted sexual assault.  The State appealed his sentence and the Appellate Division reversed and remanded for resentencing.  After the case returned to the trial level, the defendant moved to dismiss the indictment, arguing that “‘a person [cannot] purposely attempt to commit the strict liability crime of sexual assault of a child between the ages of [thirteen] and [sixteen] when no child was actually involved[.]’”  The trial court denied that motion.  Thereafter, the defendant pled guilty to one count of second-degree attempted sexual assault, which for sentencing purposes was treated as a third-degree offense.  After sentencing, the defendant appealed and argued that the trial court should have dismissed the indictment and that the factual basis for his plea did not establish the crime of attempted sexual assault.

The Appellate Division rejected the defendant’s arguments and affirmed.  First, the Appellate Division noted that during the pendency of the defendant’s appeal it had decided State v. Kuhn, 415 N.J. Super. 89 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011), which involved analogous facts.  In that case, the defendant had several sexually related Internet conversations with someone he thought was a thirteen-year-old girl but was really an investigator for Atlantic County.  Like the defendant in Champagne, the defendant in Kuhn tried to arrange a meeting to engage in sexual relations with a person he thought was a minor.  Among other things, the defendant in Kuhn was convicted of second-degree attempted sexual assault, which is what the defendant pled guilty to in the instant case.

The Kuhn court rejected the defendant’s argument that he could not be guilty of attempt because the person he had spoken with was not a minor, reasoning that “[i]f a person whom the defendant believes to be a child is an adult, then the defendant’s subjective belief that the victim is a child suffices to impose liability for attempt[.]”  The defendant in Champagne argued that Kuhn was incorrect and urged the court not to follow it, but the Appellate Division refused.  In so doing, the Appellate Division reviewed its reasoning from Kuhn concerning attempted sexual offenses and concluded that “because defendant was charged with attempted crimes, his claim that the thirteen-year-old ‘boy’ was, in fact, an adult would not be a defense at trial.  It is likewise of no avail to him on appeal.”  The Appellate Division also rejected the defendant’s assertion that the factual basis for his plea did not establish the offense of attempted sexual assault, as the court noted that he admitted the necessary elements of the offense.