- The Washington Times - Tuesday, October 21, 2014

A federal appeals court Tuesday overturned the conviction of a Virginia doctor found guilty of attempting to engage in sexual activity with a 12-year-old girl and 3-year-old boy.

Paul David Hite, 59, was sentenced in July 2013 to 22 years in prison after online discussions with an undercover police officer posing as a person who had access to two small children. The Midlothian, Virginia, anesthesiologist was arrested and convicted on two counts of attempting to entice a minor to engage in illicit sexual activity.

Mr. Hite, 59, appealed the conviction on the grounds that in order to be found guilty it must have been proven that he had direct contact with a minor.

A three-judge panel from the U.S. Court of Appeals for the D.C. Circuit upheld the standard that a person could be found guilty of the offense without actually communicating with a child, noting that seven other circuits have also upheld that a person does not have to communicate directly with a minor to be found guilty in such a case.

The panel said a person can communicate instead with an adult intermediary as long as the interactions are “aimed at transforming or overcoming the minor’s will in favor of engaging in illegal sexual activity.”

But the judges overturned the conviction on the grounds that incorrect jury instructions were given in the case and ordered a new trial.

Mr. Hite’s defense at trial was that he “engaged in fantasy and role-play and had no intention of engaging in sexual activities with a real child,” the judges’ order states.

In their overturning of the conviction, the panel wrote that the court erred in instructing the jury that “government must only prove that the defendant believed that he was communicating with someone who could arrange for the child to engage in unlawful sexual activity.”

“The District Court’s error was highly prejudicial,” the panel wrote. “Following this flawed instruction, the jury could have convicted the defendant without necessarily finding that he intended to transform or overcome the will of either fictitious minor, so long as they found that he sought to arrange for sexual activity with them.”

Along with a new trial, the judges ruled that Mr. Hite should have also been allowed to include testimony from an expert witness who would testify to the difference between having real desires to engage in pedophilia and fantasies of doing so.

The panel was comprised of Judge Judith Ann Wilson Rogers, who was appointed by President Clinton; Judge Nina Pillard and Judge Robert L. Wilkins, who were appointed by President Obama.

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