A Clearfield man convicted of enticing a minor over the Internet is claiming that Utah's Internet Enticement Statute is unconstitutional and is asking the Utah Supreme Court to overturn his conviction.

James Gallegos claims he never truly believed that an undercover officer with the Utah Attorney General's Internet Crimes Against Children task force was actually the 13-year-old girl the agent claimed to be. He also claims his conversation with the agent was protected under the First Amendment and that Utah's law is constitutionally vague.

This morning, an attorney for Gallegos is expected to appeal to the Utah Supreme Court to overturn the conviction, claiming the state hasn't shown that Gallegos intended to meet a minor for sex.

However, attorneys for the state say Gallegos participated in sexually explicit online chats with the agent and showed up at a rendezvous location set by the agent.

Gallegos would turn to Internet chat to meet adult women, according to documents filed with the court. The former Marine had recently separated from his wife. On March 16, 2006, Gallegos chatted online with a person whose profile showed the picture of a young girl and whose age was stated as 13.

At the time, Gallegos did not use his real name but rather used a nickname which referred to his genitals. During two chats, spaced a week apart, the agent talked about wanting to drive Gallegos' car.

Agent: "so what else do you like to do?"

Gallegos: "athletic stuff and you?"

Agent: "hiking — driving cars — lol"

Gallegos: "cool — you really like cars"

Agent: "yup — will you let me drive urs"

Gallegos: "it depends ... what do I get out of it ... "

Agent: "maybe I will make you some cookies"

Gallegos: "nope has to be better than that ... "

Agent: "(well) then what do you want"

Gallegos: "touch you all over"

Gallegos contends he never believed he was talking to a minor and at one point he actually thought he was chatting with a gay man posing as a young girl.

But prosecutors point out that Gallegos was seen at the scene of a rendezvous point, where he and the agent agreed to meet. Gallegos claims he just drove by out of curiosity. After about 10 officers showed up at his ex-wife's home looking for him, Gallegos turned himself in.

A jury convicted him of two counts of enticement of a minor over the Internet. He is currently serving a one-year jail sentence.

One issue the Supreme Court will have to tackle is the trial judge's ruling that regardless of the fact that Gallegos showed up at the meeting point, his crime was completed during online chat. Typically law enforcement officers arrest suspects at a predetermined meeting place to use as evidence of criminal intent. However 3rd District Judge Stephen Henroid ruled that it did not matter that Gallegos showed up and ruled the crime was completed over the Internet.

Justices will have to work out whether the chat alone is protected under the First Amendment.

---

E-mail: gfattah@desnews.com