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District Attorney Alan Nash talks reason behind Ivy’s plea agreement.

 

Erath County District Attorney Alan Nash

The following is a letter, published in its entirety, from Erath County District Attorney Alan Nash, following questions I asked him about the Ryan Ivy case and subsequent plea deal. – Sara Vanden Berge

 

Dear Ms. Vanden Berge,

 

Thank you for your questions regarding the reasoning and legal background behind our plea agreement disposing of the Ryan Ivy online solicitation matter.

 

When this case was called for jury trial last fall, we presented compelling evidence that the defendant had inappropriate online chats with a minor, and that the defendant was a church youth leader having these text conversations with a former participant in the youth group.

 


However, going into the trial, we knew the significant hurdle we would have was satisfying twelve out of twelve jurors, beyond a reasonable doubt, that the defendant participated in these chats with the intent to actually engage in physical sexual contact with the minor.

 

Current Texas law provides that having sexually oriented communications with a minor, absent outright obscenity, is felony solicitation only if the State can prove the defendant participated with the specific intent to engage in actual physical sexual contact with the minor.

 


This was not always a requirement of the law. Prior to a 2014 ruling by the Texas Court of Criminal Appeals in Ex Parte Lo, Texas law provided that sexually oriented online communications with a minor were unlawful solicitation if they were for the purpose of sexual gratification, whether or not there was a plan or intent to actually meet to have sexual relations.

 

In the 2014 ruling, Texas’ highest criminal court held that portion of the Penal Code unconstitutional, finding that it was overly broad and could criminalize literature, movies, and live concert performances which contain sexual language and content.

 


Citing the United States Supreme Court, the Texas high court noted that “Sexual expression which is indecent but not obscene is protected by the First Amendment.”

 

After the 2014 ruling, numerous online solicitation convictions were overturned across Texas, including two in Erath County.

 

Accordingly, in 2015, the Legislature, not because it wanted to, but because it was compelled to, amended the Online Solicitation statute to narrow the prohibition of online indecent, but not obscene, sexual communications with minors to those done “with the intent to commit an offense” already listed as criminal in the Penal Code (such as sexual assault, sexual performance of a child, human trafficking, among others).

 


To be sure, we do not prosecute cases unless we believe the defendant committed the offense beyond a reasonable doubt.

 

Going into this trial, we believed (and still believe) a man having sexual conversations with a girl (or woman, for that matter) carries with it an underlying intent to engage in sexual conduct if afforded the opportunity.

 

The jury, save one member, disagreed that the isolated and somewhat vague communications with a former youth group member were sufficient to prove “intent to commit” a sexual offense with the girl.

 

Despite a thorough and diligent investigation by our law enforcement, there was not evidence of a plan to meet, actual physical interaction of a sexual nature, or other victims who came forward to show a pattern or common scheme of the defendant.

 

The defense effectively pointed out that the communications from the defendant were vaguely flirtatious and sexual, the victim lived in a different community at the time of the chats, the chats spanned fewer than two days, the defendant shut down the communications when they became explicitly sexual, the defendant never encountered the victim after the chats, and the chats were discovered by the victim’s mother many months after they occurred.

The jury, having been properly instructed to follow the law as it is written, could not reach a unanimous verdict of guilty on the evidence.

 

I stand by the decision to prosecute this as a felony, and I am proud of the work law enforcement did in developing all the evidence available. Were we to have a re-trial, we have the same evidence, and the same applicable law, to present, needing twelve out of twelve jurors to vote to convict.

 

This defendant came within one vote of a jury acquitting him and having his record expunged.

 


 This is something I cannot abide.

 

Therefore, to ensure schools, churches, and employers who responsibly perform background checks will know of this case, we have reached a plea agreement which involves the defendant pleading guilty and being convicted of the misdemeanor offense of online harassment.

 

This will place the defendant under a period of strict supervision, and very importantly, preserve the records of this case.

 

Thank you for this opportunity to explain the legal background and result of this case.

 

Yours truly,

Alan Nash

 


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