Opinion
NO. 2017 KA 1101
12-21-2017
STATE OF LOUISIANA v. DAVID YOUNG
JEFF LANDRY ATTORNEY GENERAL STEPHEN MARTIN ASSISTANT ATTORNEY GENERAL COLIN CLARK DEPUTY SOLICITOR GENERAL BATON ROUGE, LA ATTORNEYS FOR STATE OF LOUISIANA GLEN R. PETERSEN BATON ROUGE, LA ATTORNEY FOR DEFENDANT-1ST APPELLANT DAVID YOUNG
NOT DESIGNATED FOR PUBLICATION Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana
Trial Court No. 07-15-0122
Honorable Bonnie Jackson, Judge JEFF LANDRY
ATTORNEY GENERAL
STEPHEN MARTIN
ASSISTANT ATTORNEY GENERAL
COLIN CLARK
DEPUTY SOLICITOR GENERAL
BATON ROUGE, LA ATTORNEYS FOR
STATE OF LOUISIANA GLEN R. PETERSEN
BATON ROUGE, LA ATTORNEY FOR
DEFENDANT-1ST APPELLANT
DAVID YOUNG BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ. PETTIGREW, J.
The defendant, David W. Young, was charged by bill of information with computer-aided solicitation of a minor, a violation of La. R.S. 14:81.3 (count one); and indecent behavior with a juvenile, a violation of La. R.S. 14:81 (count two). He entered a plea of not guilty and waived his right to a jury trial. Following the bench trial, the district court took the matter under advisement in order to review the defendant's conversations, and the defendant filed a motion for acquittal based on the alleged insufficiency of the State's evidence. Specifically, as set forth in an accompanying memorandum, the defendant argued that the State failed to prove beyond a reasonable doubt that he reasonably believed that he was communicating with a minor or that he had the requisite intent to coerce a minor to engage in sexual conduct. Thereafter, the district court found the defendant guilty as charged on both counts.
The bill of information alleges that count one took place November 2, 2012, through December 6, 2012, and thereafter, and count two took place December 2, 2012, and thereafter.
The defendant subsequently filed a motion for postverdict judgment of acquittal based on double jeopardy. The defendant argued in an accompanying memorandum that the same act constituted the same elements of the underlying offenses for his convictions on counts one and two and that the same evidence was used as the basis for both of those convictions. The State filed an opposition to the motion arguing that each statute contained an element of the crime not required of the other statute. The State further argued that the evidence used to convict the defendant of count two included chats that took place on December 8, 2014, approximately two years after those used to convict the defendant of count one. Defense counsel filed a response to the State's opposition challenging the State's assertions. Specifically, defense counsel argued that there was no testimony presented at trial in support of the State's contention that the acts constituting count one took place in November 2012 and the acts constituting count two took place in 2014. The defendant maintained that the guilty verdicts hinged on the actions of the defendant on or before November 8, 2012.
We note that the motion should have been labeled as a motion in arrest of judgment. See La. Code Crim. P. art. 859(6).
After a hearing, the district court granted the defendant's motion for postverdict judgment of acquittal as to count one. On count two, the defendant was sentenced to five years at hard labor. The district court suspended the defendant's five-year sentence, placed him on probation for a period of five years, and transferred his probation to Nevada, where the defendant currently resides.
Both the defendant and the State have filed appeals. On appeal, the defendant challenges the sufficiency of the evidence admitted by the State in support of count two. The State challenges the district court's finding and application of double jeopardy and its grant of the defendant's motion for postverdict judgment of acquittal. For the following reasons, we affirm the defendant's conviction and sentence on count two, reverse the double jeopardy ruling and reinstate the defendant's conviction on count one, and remand for sentencing on count one.
FACTS
In November 2012, East Baton Rouge Parish Sheriffs Office Lieutenant Resa Davis, working with the Special Internet Crimes Against Children Task Force, began chatting with the defendant in an undercover capacity in a Yahoo! Louisiana Romance Chatroom. Lieutenant Davis's undercover screenname was "jadejeansonne" (hereinafter referred to as "Jade").
In the first conversation, on November 2, 2012, the defendant, who used the screenname "njguy537," contacted Jade in a private message and asked for her age, sex, and location. Rather than end the conversation when she responded that she was fourteen years old and lived in Louisiana, the defendant immediately asked for her specific location in Louisiana and for pictures. After seeing Jade's picture, he responded, "[W]ow, you[']re hot!" and asked for more pictures, stating that he would "love to see" them. He then asked Jade whether she was in school and asked whether she had a boyfriend. The defendant told Jade that she "look[ed] older" and "look[ed] hot." He asked whether she had ever met up with a guy from online. The defendant told Jade that he "met a few girls here [the Louisiana Romance Chatroom] before" and that "it[']s hot as long as you[']re careful." The defendant told Jade that he was the director of sales for a software company and met people online because he traveled at least fifty percent of the time. He then asked Jade for more pictures and told her that he liked her. After seeing more pictures, the defendant asked Jade what kind of guys she was into and whether she had ever had sex. The defendant told Jade that two of the five girls he had previously met online were from Louisiana. He told Jade, "[Louisiana] girls like sex ... I like [Louisiana] girls[,] LOL." He again asked for pictures and asked if they could talk again another day.
Throughout the conversations, the defendant, whose date of birth is October 7, 1970, was in his forties.
On November 5, 2012, the defendant began another conversation with Jade, and asked whether she had a web camera because he "wanted to see [her] live." He asked whether she had any pictures that he had not yet seen and specifically asked for pictures of her "butt." The defendant stated that he was "definitely a perv[ert]" and that he was "the first to admit, [he is] all about sex, probably too much LOL." He then asked Jade for the second time whether she had ever had sex and whether she had ever been with an older guy. He specifically asked in what type of sexual contact she had engaged. The following day, the defendant told Jade that he was in Slidell and asked whether she had ever snuck out of her house. He again requested pictures of Jade's butt and said, "hang with me tomorrow night and I[']ll take some." When Jade told the defendant that she was in Baton Rouge, the defendant stated that he could come any time after 6:00 p.m. The defendant asked what she wanted to do when they hung out, and told Jade not to let him choose "cuz [sic] I[']m a perv[ert] LOL[.]" He told Jade that he was "way into sex" and did not know if he trusted himself with her because he "might try to do stuff" with her like "get naked." The defendant then stated, "I mean you are hot. [S]o [I'd] wanna [sic] do it with you. [J]ust know that you[']re kinda [sic] young." He again asked what Jade had "done with guys" and whether she wanted to "try anything." The defendant proceeded to tell Jade that he liked "butt sex" and that he engaged in that with one of the girls he met online. He told Jade, "you totally look like you[']re 17-19" and stated that he wished she were. He asked her whether she wanted to have sex with him. Jade responded "sure." The defendant asked, "[S]o where would we hang out? [O]bviously not your house LOL." The two agreed the mall or the park would be good places to meet. When the defendant found out that Jade's best friend was seventeen years old, he asked for pictures of her and whether she had a boyfriend. After seeing pictures of the friend, the defendant asked Jade to contact her friend and find out whether the friend would be willing to meet him to have sex. He also asked whether the friend had engaged in "regular sex" or "butt sex." He asked for Jade's number and told her that his name was Dave.
On November 8, 2012, the defendant asked Jade if her friend wanted to come down and asked, "[S]he[']s okay with f***ing?" When Jade responded affirmatively, the defendant stated that he was in LaPlace. He asked if they could meet that night. The defendant told Jade that she should have told him that she was older and it would not matter if anyone found out. He stated, "I wouldn[']t be worried about meeting you. [I]t would be totally on!" He then stated, "I[']d love to f*** your friend though since she[']s 17 ... although I[']d rather have you."
No conversations took place thereafter until February 4, 2013, when the defendant told Jade that he had not been in Louisiana lately, but would be in early March. On July 11, 2014, the defendant asked Jade whether she had a web camera and suggested she take a "quick pic[ture] with [her] phone" because he wanted to "see [her] so bad." On December 8, 2014, the defendant told Jade that he was in Detroit. He told her that he liked "[a lot] more about [her] besides [her] name" and that he wanted to "be sure [he didn't] pressure [her] into anything." When Jade stated that she did not feel any pressure, he stated, "[G]ood, cuz [sic] I like you. [J]ust since you are inexperienced, I have to be careful not to overstep." He continued, "[G]ood, I mean if you were older and experienced, I would have asked to meet you already. I[']m trying to be good LOL." He reminded Jade that he would be back in Louisiana "soon enough" and told her to "remember what [he] said before ... if you ask, I[']ll say yes LOL ... but I can[']t ask." He asked Jade if "butt sex" was "something [she] would try someday" and stated that he hoped it would be with him. He told Jade that he was "having a really hard time not trying to f*** [her]" and stated that he would be in Louisiana in January. He told Jade that he would be at Baton Rouge Community College, which he previously stated was one of his clients. He suggested that they could meet there. He asked her what they would do if they met up and told her that she could decide. He told her that he did not want to decide because he might "make [her] feel pressure."
The defendant attempted to contact Jade again on December 10, 2014, and December 15, 2014, but Jade did not respond. On February 16, 2015, the defendant sent a message to Jade letting her know that he was in Louisiana. He sent another message to Jade that night, as well as on February 17, 2015, but Jade did not respond until March 9, 2015. The defendant attempted to contact Jade again on March 10, 2015, and March 25, 2015, but Jade did not respond until March 30, 2015. The defendant contacted Jade again on April 9, 2015, and April 15, 2015. The two had a conversation on April 16, 2015, and the defendant stated that he was in Texas but would be in Louisiana in May. On April 22, 2015, the defendant told Jade that he liked threesomes and told her that if she had a hot friend, maybe someday they could have a threesome. After that conversation, the defendant attempted to contact Jade on April 23, 2015; April 27, 2015; April 28, 2015; April 29, 2015; April 30, 2015; and May 3, 2015. Jade did not respond until May 6, 2015.
On May 19, 2015, the defendant told Jade that he was in Baton Rouge at a hotel near Louisiana State University. Jade sent the defendant another picture of herself. He told Jade that he wanted to come swim with her and asked whether she had ever been skinny-dipping. The following day, when Jade asked the defendant what he was doing, he told her that he was "jerkin off LOL." When Jade stated that she was eating a banana, the defendant told Jade that "guys like girls that like bananas" and asked if she knew what he meant. He then asked Jade if anyone would be at her house the following day and when she stated that no one else would be home, he said, "maybe I can come watch you swim." The May 20, 2015, conversation was the final conversation between the defendant and Jade.
SUFFICIENCY OF THE EVIDENCE
In the defendant's sole assignment of error, he challenges the sufficiency of the evidence presented by the State on count two, indecent behavior with a juvenile. Specifically, the defendant contends that there was not sufficient evidence presented at trial that he reasonably believed that he was communicating with a minor. In the State's third assignment of error, it contends that the evidence was sufficient to support a conviction of computer-aided solicitation.
A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const. amend. XIV La. Const. art. I, § 2. The constitutional standard for testing the sufficiency of the evidence, as enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. La. Code Crim. P. art. 821; State v. Ordodi, 2006-0207, p. 10 (La. 11/29/06), 946 So.2d 654, 660. In conducting this review, we also must be expressly mindful of Louisiana's circumstantial evidence test, i.e., "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." La. R.S. 15:438; State v. Wright, 98-0601, p. 2 (La. App. 1 Cir. 2/19/99), 730 So.2d 485, 486, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157 & 2000-0895 (La. 11/17/00), 773 So.2d 732. When a case involves circumstantial evidence and the fact finder reasonably rejects the hypothesis of innocence presented by the defendant's own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. See State v. Captville, 448 So.2d 676, 680 (La. 1984); State v. Taylor, 97-2261, p. 6 (La. App. 1 Cir. 9/25/98), 721 So.2d 929, 932.
Specific intent is that state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1). Specific intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126, 1127 (La. 1982). Specific intent can be formed in an instant. State v. Cousan, 94-2503, p. 13 (La. 11/25/96), 684 So.2d 382, 390. The existence of specific intent is an ultimate legal conclusion to be resolved by the trier of fact. State v. McCue, 484 So.2d 889, 892 (La. App. 1 Cir. 1986).
At the time of the offenses, La. R.S. 14:81.3 provided, in pertinent part:
A. (1) Computer-aided solicitation of a minor is committed when a person seventeen years of age or older knowingly contacts or communicates, through the use of electronic textual communication, with a person who has not yet attained the age of seventeen where there is an age difference of greater than two years, or a person reasonably believed to have not yet attained the age of seventeen and reasonably believed to be at least two years younger, for the purpose of or with the intent to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct or a crime of violence as defined in R.S. 14:2(B), or with the intent to engage or participate in sexual conduct in the presence of the person who has not yet attained the age of seventeen, or person reasonably believed to have not yet attained the age of seventeen.Moreover, La. R.S. 14:81 provides, in pertinent part:
(2) It shall also be a violation of the provisions of this Section when a person seventeen years of age or older knowingly contacts or communicates, through the use of electronic textual communication, with a person who has not yet attained the age of seventeen where there is an age difference of greater than two years, or a person reasonably believed to have not yet attained the age of seventeen and reasonably believed to be at least two years younger, for the purpose of or with the intent to arrange for any third party to engage in any of the conduct proscribed by the provisions of Paragraph (1) of this Subsection.
. . . .
C. It shall not constitute a defense to a prosecution brought pursuant to this Section that the person reasonably believed to be under the age of seventeen is actually a law enforcement officer or peace officer acting in his official capacity.
A. Indecent behavior with juveniles is the commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person:
. . . .
(2) The transmission, delivery or utterance of any textual, visual, written, or oral communication depicting lewd or lascivious conduct, text, words, or images to any person reasonably believed to be under the age of seventeen and reasonably believed to be at least two years younger than the offender.
It shall not be a defense that the person who actually receives the transmission is not under the age of seventeen.
The defendant does not contest that he communicated by computer with Lieutenant Davis, who was posing as Jade. Prior to trial, the parties stipulated that the content of the chats was lewd and lascivious. Therefore, the only issue before us as to count two is whether the defendant reasonably believed that he was communicating with a minor.
The defendant testified and explained that he had been married for seventeen years and was the father of two teenage children. He worked as a consultant on the use of operator training simulators in the oil and gas industry and previously worked in sales in the same capacity. The defendant explained that he traveled for work and had a high-stress job, so he participated in chatroom conversations to alleviate stress. According to the defendant, when he was in a chatroom, he was in a "fantasy world" and was just "role-playing." He denied meeting anyone that he spoke with in a chatroom in person and said that he had no intention of meeting Jade. The defendant went on to explain that if he wanted to meet Jade, he would have done so, stating, "My professional career has been one of closing the deal. I'm pretty good at it. And given the opportunity, if I want to close it, I'm going to do it." According to the defendant, he believed that Jade was lying about her age and that he was communicating with an adult. He argues that he believed he was conversing with an adult because he was in an adult chatroom and Jade was available for chat during the school day. He also argues that Jade used "adult phrases" in conversation, was inconsistent with her date of birth, and refused to provide current photographs of herself.
The bill of information sets forth the dates of offense for count one as November 2, 2012, through December 6, 2012, and thereafter. In its answer to the defendant's motion for a bill of particulars, the State sets forth the dates of offense as to count one as November 2, 2012; November 5-6, 2012; November 8, 2012; February 4, 2013; July 11, 2014; December 8, 2014; April 16, 2015; and April 22, 2015. The bill of information sets forth the dates of offense for count two as December 2, 2012, and thereafter. The motion for a bill of particulars did not request specification for the dates charged in count two. Although the evidence does not contain a conversation on December 2, 2012, it does contain conversations that took place thereafter (other than those specified in the bill of particulars for count one).
The chatroom conversations between the defendant and Jade make clear that the defendant believed he was conversing with a juvenile throughout their communications. The defendant asked Jade on more than one occasion whether her parents would care if they met. He continually asked Jade whether she had engaged in any sexual activity and explained to her how her first encounter may feel. He asked Jade if boys her age attempted to engage in sexual activity with her. He asked Jade how old she was on more than one occasion, stated that she looked older on more than one occasion, and stated that he wished she were older. The defendant told Jade that he could not send nude pictures of himself to her because of her age. He also told Jade that she should be the one to decide what they would do once they met so that she would not feel any pressure.
The district court read the chats and listened to all of the testimony, including the defendant's, presented at trial. Thereafter, the district court found the defendant guilty of indecent behavior with a juvenile. Viewing the evidence in the light most favorable to the prosecution, we cannot say that the district court's determination was irrational. The district court rejected the defendant's theory that he did not reasonably believe that he was communicating with a fourteen-year-old girl. The defendant made statements and asked questions of Jade during the chats indicating his belief that he was communicating with a juvenile. Moreover, although the defendant contends that the conversations were just fantasy and role-playing, he truthfully told Jade his first name, that he was married and had children, that he was the director of sales for a computer company, and that he traveled for work. He specifically told Jade when he was in various cities in Louisiana, as well as when he was in Texas and Michigan. He told Jade that Baton Rouge Community College was one of his clients, that he drove a $65,000.00 Cadillac vehicle, and that he earned more than $200,000.00 a year. The defendant even told Jade his actual birth month and day (although he stated that he was ten years younger). Such specific and accurate details given by the defendant contradict his assertion that he was simply playing a role. As the trier of fact, the district court was free to accept or reject, in whole or in part, the testimony of any witness, See State v. Richardson, 459 So.2d 31, 38 (La. App. 1 Cir. 1984). An appellate court errs by substituting its appreciation of the evidence and credibility of the witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence reasonably presented to, and rationally rejected by, the fact finder. See State v. Calloway, 2007-2306, pp. 1-2 (La. 1/21/09), 1 So.3d 417, 418 (per curiam).
Accordingly, the district court did not err in finding the defendant guilty of indecent behavior with a juvenile (count two), and the defendant's sole assignment of error is without merit.
As noted, the State contends in its third assignment of error that the evidence was also sufficient to support count one, computer-aided solicitation of a minor. Specifically, the State notes that the district court incorrectly "assumed that trying to meet a minor to engage in sexual conduct is the only way to violate computer-aided solicitation." The State argues that lewd and lascivious conversations by themselves may constitute sexual conduct.
In its written reasons for judgment on the defendant's motion for postverdict judgment of acquittal, the district court stated that it did not find any evidence that the defendant attempted to meet the minor or that he persuaded, induced, enticed, or coerced her to engage or participate in sexual conduct outside of their lewd and lascivious conversations. However, the district court also stated that it did not examine the evidence related to the chats from 2014 "because it found every element necessary to constitute the crimes alleged had already occurred by the end of the November 8, 2012 chat." The district court also stated that it was not convinced beyond a reasonable doubt that the State's evidence was sufficient to show that the defendant reasonably believed that Jade had not yet attained the age of seventeen as to the chats that took place in 2014.
Louisiana Revised Statutes 14:81.3 contemplates two scenarios in which a person can be found in violation. The first such scenario, or prong, addresses the perpetrator's conduct that intends to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct. The second scenario envisions the perpetrator's communication with the intent to engage or participate in sexual conduct in the presence of the young victim. In both cases, it is the communication and intent, not the end-resulting contact that the statute is addressing. See State v. Rieckmann, 2014-1441 (La. App. 1 Cir. 9/18/15), 2015 WL 5515017 (unpublished). At the time of the offenses, the statute defined "sexual conduct" as "actual or simulated sexual intercourse, deviant sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, lewd exhibition of the genitals, or any lewd or lascivious act." La. R.S. 14:81.3D(2) (prior to revision by 2014 La. Acts No. 564, § 1). A request that the minor child meet the adult to engage in sexual activities is sufficient to support a conviction of computer-aided solicitation of a minor. See State v. Green, 49,741, p. 13 (La. App. 2 Cir. 4/15/15), 164 So.3d 331, 341; State v. Whitmore, 46,120, pp. 9-10 (La. App. 2 Cir. 3/2/11), 58 So.3d 583, 590, writ denied, 2011-0614 (La. 11/14/11), 75 So.3d 937, cert. denied, 566 U.S. 1012, 132 S.Ct. 2434, 182 L.Ed.2d 1067 (2012); State v. Williams, 2011-79, pp. 8-11 (La. App. 5 Cir. 11/29/11), 80 So.3d 626, 632-634.
During the conversations that took place on the dates set forth in the bill of particulars, the defendant's intent to persuade Jade to participate in sexual conduct is clear. After explaining to Jade that he was a "pervert" and "all about sex," the defendant told Jade that she could decide what they did when they met because he did not want to "pressure her." The defendant continually asked Jade what she would like to do and reminded her how much he loved "butt sex." When the defendant was in Louisiana, he repeatedly contacted Jade. Based on these facts, the defendant was clearly repeatedly attempting to persuade Jade to agree to meet with him and engage in sexual activity upon meeting. As to the district court's assertion that it was not convinced that the State's evidence was sufficient to show that the defendant reasonably believed that he was communicating with someone who had not yet attained the age of seventeen during the 2014 chats, the bill of information as well as the bill of particulars specifically sets forth the dates of offense for count one as beginning on November 2, 2012. In the district court's own reasons, it stated that it "found every element necessary to constitute the crimes alleged had already occurred by the end of the November 8, 2012 chat." Thus, the district court was incorrect to the extent that it concluded there was not sufficient evidence to support a finding of computer-aided solicitation of a minor.
DOUBLE JEOPARDY
On appeal, the State challenges the district court's ruling granting the defendant's motion for postverdict judgment of acquittal on the basis of double jeopardy. Specifically, the State argues that the two relevant statutes do not contain the same elements and the defendant's offenses were temporally distinct. Alternatively, the State argues that if double jeopardy did exist, the district court erred in vacating the greater charge rather than the lesser.
The State correctly notes that the offense of computer-aided solicitation carries a greater penalty. Whoever violates the provisions of La. R.S. 14:81.3, "when the victim is a person reasonably believed to have not yet attained the age of seventeen, shall be fined not more than ten thousand dollars and shall be imprisoned at hard labor for not less than two years nor more than ten years, without benefit of parole, probation, or suspension of sentence." La. R.S. 14:81.3B(1)(c). "Whoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both." La. R.S. 14:81H(1). --------
In determining whether the double jeopardy prohibition has been violated, the Louisiana Supreme Court had recognized two different tests, i.e., the test established in Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932), and the "same evidence" test. State v. Martin, 2011-1843, p. 4 (La. App. 1 Cir. 5/2/12), 92 So.3d 1027, 1030, writ denied, 2012-1244 (La. 11/9/12), 100 So.3d 836. However, the Louisiana Supreme Court has recently ruled that Louisiana courts are bound only to apply the standard established by the United States Supreme Court in Blockburger to protect against double jeopardy and can dispense with Louisiana's "same evidence" test. See State v. Frank, 2016-1160 (La. 10/18/17), ___ So.3d ___, 2017 WL 4681941.
The Blockburger test is as follows:
The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.
Blockburger, 284 U.S. at 304, 52 S.Ct. at 182.
A conviction for computer-aided solicitation requires proof of an additional fact that indecent behavior with a juvenile does not, and vice versa. The offenses also differ in their intent requirements. Indecent behavior with a juvenile requires proof that the offender intended to arouse the sexual desires of himself or the recipient of the communication. The statute also requires proof of lewd or lascivious communications. For purposes of computer-aided solicitation, proof of intent to arouse or gratify sexual desires is not an essential element. The statute only requires intent to persuade, induce, entice, or coerce the victim into engaging in sexual conduct or the intent to engage or participate in sexual conduct in the presence of the person who has not yet attained the age of seventeen. Thus, they are not the same under Blockburger. Accordingly, double jeopardy principles were not violated in this case, and the district court erred in granting the defendant's motion for postverdict judgment of acquittal. Because we find merit in this assignment of error, we reverse the district court's double jeopardy ruling, reinstate the defendant's conviction on count one, and remand the matter for resentencing.