James C. McClernon v. State of Indiana ( 2019 )


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  •                                                                             FILED
    Dec 30 2019, 9:14 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
    Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
    Wieneke Law Office, LLC                                   Attorney General of Indiana
    Brooklyn, Indiana
    George P. Sherman
    Supervising Deputy Attorney
    General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    James C. McClernon,                                       December 30, 2019
    Appellant-Defendant,                                      Court of Appeals Case No.
    19A-CR-1305
    v.                                                Appeal from the Vanderburgh
    Circuit Court
    State of Indiana,                                         The Honorable David D. Kiely,
    Appellee-Plaintiff.                                       Judge
    The Honorable Kelli E. Fink,
    Magistrate
    Trial Court Cause No.
    82C01-1903-F5-1766
    Najam, Judge.
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019                           Page 1 of 19
    Statement of the Case
    [1]   James C. McClernon brings this interlocutory appeal from the trial court’s
    denial of his motion to dismiss the State’s charge against him for failing to
    register vehicle information, as a Level 5 felony. 1 McClernon raises a single
    issue for our review, namely, whether Indiana Code Section 11-8-8-8(a)(1)’s
    requirement that a sex offender register vehicle information for any vehicle the
    offender “operates on a regular basis” is void for vagueness. We hold that
    longstanding principles of statutory construction require the language at issue to
    be read under an objective reasonableness standard—that is, whether one
    operates a vehicle on a regular basis is to be determined by asking whether
    reasonable persons would know that McClernon’s conduct put him at risk.
    Under that standard, the statutory language is not constitutionally deficient.
    Accordingly, we affirm the trial court’s denial of McClernon’s motion to
    dismiss.
    Facts and Procedural History 2
    [2]   According to the State’s probable cause affidavit:
    [McClernon, t]he suspect in this offense[,] is . . . a registered sex
    offender in Vanderburgh County, Indiana. The suspect was
    convicted of Sexual Assault . . . in Thunder Bay[,]
    1
    The State alleged an enhanced offense based on a prior failure-to-register conviction.
    2
    We held oral argument at Owen Valley High School on November 19, 2019. We extend our sincerest
    gratitude to the faculty, staff, and students for their hospitality. We also commend counsel for their excellent
    written and oral advocacy.
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019                               Page 2 of 19
    Canada[,] . . . [i]n Aug[ust] 2013. After serving his sentence[]
    there, he was required to register as a sex or violent offender
    upon his release. A review from the Indiana Department of
    Correction[] determined that the suspect’s Canadian [o]ffense is
    equivalent to attempted Criminal Deviant Conduct[, as] a Class
    B felony[,] and that the suspect must register as a Sexually
    Violent Predator for life.
    The suspect was also convicted for I.C. 11-8-8 failure to register
    as a sex or violent offender[] in the Vanderburgh County Court
    System . . . on 08-17-2016.
    The suspect’s signed and initialed Sex and Violent Offender
    Registration forms are on file[] and reflect that he has
    acknowledged his duties and obligations as a registered sex
    offender. A copy of the Indiana Sex Offender Registration Laws
    was also made available to him.
    The suspect last registered with the Vanderburgh County
    Sheriff’s Office [the “VCSO”] on the following dates: 01-25-
    2019, 02-04-2019, 02-13-2019, 02-22-2019, and 03-01-2019. On
    all of these dates the suspect did not report any vehicles, which is
    a duty and obligation as a registrant.
    On 02-04-2019, after not registering a vehicle, VCSO
    Receptionist A. Nilssen observed the suspect leave the
    VCSO . . . and drive away in an older model red Chevy pick-up
    truck. . . .
    On 02-06-2019, the suspect was stopped in a vehicle that
    matched the same vehicle that Nilssen observed him driving
    away in on 02-04-2019. . . . Officer N. Jones confirmed that the
    suspect was driving a suspected stolen vehicle and stopped him.
    [McClernon] stated that he had the truck for about [five] days
    and was using it to scrap for extra money. . . .
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019        Page 3 of 19
    The suspect was observed driving away from the VCSO . . . on
    02-04-2019 after not registering the vehicle[] and was stopped in
    said . . . vehicle on 02-06-2019 . . . and admitted that he was
    using it to scrap for about [five] days. This is a violation of I.C.[]
    11-8-8-8.
    On 03-08-2019, the suspect arrived [at] the VCSO . . . for his
    registration update. Upon arrival he was taken into custody . . . .
    Deputy Hatfield asked if the suspect wished to talk with him and
    the suspect agreed and signed a Miranda Warning
    acknowledging this.
    The suspect stated to Deputy Hatfield that he was in fact utilizing
    the red Chevy truck . . . . The suspect advised that he received
    the vehicle from [a third party] on the Saturday before he was
    stopped in it. This date would have been 2-2-19. The suspect
    advised he was using the vehicle to help his ex[-]wife move items.
    The suspect advised he believed he was returning the vehicle after
    using it. The suspect advised the [person] who gave him the
    vehicle never answered his phone so the suspect could not return
    it. The suspect then advised he would proceed to continue to
    utilize the vehicle until he was stopped in it on 2-6-19. The
    suspect advised he used the vehicle to obtain money by scrapping
    metal, to transport him to places, as well as [to] sleep inside of it.
    The suspect further advised he used this vehicle to get him to the
    [VCSO] so that he could complete his Sex and Violent Offender
    Registry form on 2-4-19. The suspect advised[,] even though he
    was utilizing the vehicle at the time he completed his Sex or
    Violent Offender registration, he did not register the vehicle. The
    suspect made multiple admissions to Deputy Hatfield that he
    utilized the above vehicle multiple days before and after
    registering that he was not utilizing a vehicle. The suspect
    further admitted to using the above vehicle for personal [use] as
    well as monetary gains during this time.
    Appellant’s App. Vol. 2 at 12-13.
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019        Page 4 of 19
    [3]   Based on those allegations, in March of 2019 the State charged McClernon with
    failing to register, as a Level 5 felony. In particular, the State alleged that
    McClernon had failed to register the vehicle information 3 for a vehicle that he
    “operates on a regular basis,” as required by Indiana Code Section 11-8-8-
    8(a)(1) (2019), a provision of Indiana’s Sex Offender Registration Act.
    McClernon moved to dismiss the charge on the ground that the vehicle-
    information registration requirement is void for vagueness as applied to him.
    The trial court denied McClernon’s motion to dismiss. The court then certified
    its order for interlocutory appeal, which we accepted.
    Discussion and Decision
    [4]   McClernon appeals the trial court’s denial of his motion to dismiss. As the
    Indiana Supreme Court has stated:
    We review a trial court’s ruling on a motion to dismiss a charging
    information for an abuse of discretion and a trial court abuses its
    discretion when it misinterprets the law. A challenge to the
    constitutionality of a statute is a pure question of law, which we
    review de novo. All statutes are presumptively constitutional, and
    the court must resolve all reasonable doubts concerning a statute
    in favor of constitutionality. That being said, unlike the higher
    burden faced by those making a facial constitutional challenge,
    those challenging the statute as applied need only show the
    statute is unconstitutional on the facts of the particular case.
    3
    This information includes the “vehicle description, vehicle plate number, and vehicle identification
    number.” 
    Ind. Code § 11-8-8-8
    (a)(1) (2019).
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019                             Page 5 of 19
    State v. Thakar, 
    82 N.E.3d 257
    , 259 (Ind. 2017) (quotation marks, omissions,
    alterations, and citations omitted).
    [5]   The issue in this appeal also involves questions of statutory interpretation.
    When interpreting a statute, our primary goal is to determine and give effect to
    the intent of the legislature. Rodriguez v. State, 
    129 N.E.3d 789
    , 796 (Ind. 2019).
    We must give effect to the plain and ordinary meaning of statutory terms, and
    there is a presumption that the legislature intended the statutory language to be
    applied logically and consistently with the statute’s underlying policy and goals.
    
    Id.
    [6]   A penal statute that is “so vague that men of common intelligence must
    necessarily guess at its meaning” violates “due process of law.” Connally v. Gen.
    Const. Co., 
    269 U.S. 385
    , 391 (1926). As the Supreme Court of the United
    States has explained:
    It is a basic principle of due process that an enactment is void for
    vagueness if its prohibitions are not clearly defined. Vague laws
    offend several important values. First, because we assume that
    man is free to steer between lawful and unlawful conduct, we
    insist that laws give the person of ordinary intelligence a
    reasonable opportunity to know what is prohibited, so that he
    may act accordingly. Vague laws may trap the innocent by not
    providing fair warning. Second, if arbitrary and discriminatory
    enforcement is to be prevented, laws must provide explicit
    standards for those who apply them. A vague law impermissibly
    delegates basic policy matters to policemen, judges, and juries for
    resolution on an ad hoc and subjective basis, with the attendant
    dangers of arbitrary and discriminatory application. Third, but
    related, . . . uncertain meanings inevitably lead citizens to steer
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019      Page 6 of 19
    far wider of the unlawful zone than if the boundaries of the
    forbidden areas were clearly marked.
    Grayned v. City of Rockford, 
    408 U.S. 104
    , 108-09 (1972) (quotation marks,
    omissions, and footnotes omitted). And Justice Scalia wrote for the Court,
    “[t]he prohibition of vagueness in criminal statutes is a well-recognized
    requirement, consonant alike with ordinary notions of fair play and the settled
    rules of law, and a statute that flouts it violates the first essential of due
    process.” Johnson v. United States, 
    135 S. Ct. 2551
    , 2556-57 (2015) (quotation
    marks omitted).
    [7]   But due process does not require perfect statutory precision. While a penal
    statute must “give a person of ordinary intelligence fair notice” of what is
    proscribed, we will “nullify a statute on constitutional grounds only where such
    result is clearly rational and necessary.” Morgan v. State, 
    22 N.E.3d 570
    , 574
    (Ind. 2014) (quotation marks omitted; emphasis removed). That “‘there may be
    marginal cases in which it is difficult to determine the side of the line on which
    a particular fact situation falls’ . . . is not a ‘sufficient reason to hold the
    language too ambiguous to define a criminal offense.’” 
    Id. at 575
     (quoting Roth
    v. United States, 
    354 U.S. 476
    , 491-92 (1957)). Where imprecise penal statutes
    are at issue, “a vagueness challenge based upon Due Process ‘may be overcome
    in any specific case where reasonable persons would know that their conduct is
    at risk.’” 
    Id.
     (quoting Maynard v. Cartwright, 
    486 U.S. 356
    , 361 (1988)). Thus,
    “principles of statutory interpretation instruct . . . to read a reasonableness
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019            Page 7 of 19
    standard” into imprecise statutory language that might otherwise “lead to
    absurd results and exceedingly broad discretion in enforcement.” Id. at 576.
    [8]   In Morgan, the Indiana Supreme Court held that Indiana’s public-intoxication
    statute was not void for vagueness in its proscription of behavior that
    “annoys . . . another person.” Id. at 576-77. The Court recognized that “[t]here
    is little doubt that the subjective application of the term ‘annoys’ would lead to
    absurd results and exceedingly broad discretion in enforcement.” Id. at 576.
    The Court further acknowledged the defendant’s argument that “reasonable
    people disagree as to what behavior is annoying . . . .” Id. at 574. But the
    Court held that the statutory language passed constitutional scrutiny by reading
    a reasonable-person standard into the term. Id. at 576-77. As the Court
    explained: “an objective reasonableness standard is used in many areas of the
    law as an appropriate determinant of liability and thus a guide to conduct, and
    it also provides a constraining and intelligible enforcement guideline for police
    and prosecutors.” Id. (quotation marks omitted). Therefore, the Court
    concluded that “the application of a reasonableness standard to the term
    ‘annoys’ satisfies constitutional requirements.” Id. at 577.
    [9]   We hold that the same must be true for Indiana’s requirement that a sex
    offender register the information for a vehicle that he “operates on a regular
    basis.” I.C. § 11-8-8-8(a)(1). We initially note a common dictionary definition
    for the word “regular,” which, as that term is undefined in the Indiana Code, is
    the definition that best reflects our legislature’s intent. See Rainbow Realty
    Group, Inc. v. Carter, 
    131 N.E.3d 168
    , 174 (Ind. 2019). “Regular” is not an
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019      Page 8 of 19
    obscure term or a term of art. As commonly understood, it means “recurring”
    or “conforming” to a “normal or usual manner.” Merriam-Webster Online
    Dictionary, http://www.merriam-webster.com/dictionary/regular (last visited
    Nov. 22, 2019). However, we agree with McClernon that those definitions
    alone do not resolve his vagueness challenge.
    [10]   Indeed, like the statutory language before the Court in Morgan, there is little
    doubt that a subjective application of “operates on a regular basis” would “lead
    to absurd results and exceedingly broad discretion in enforcement.” 22 N.E.3d
    at 576. And we acknowledge McClernon’s argument that reasonable people
    may disagree as to what constitutes a “regular” use. But the statutory language
    at issue is not constitutionally deficient when interpreted under a reasonable-
    person standard. See id. at 575-77. The reasonable-person standard gives sex-
    offender registrants a baseline for determining potentially proscribed conduct,
    and it constrains police and prosecutors from engaging in willy-nilly
    enforcement. Id. at 576-77. Accordingly, imputing the reasonable-person
    standard into the vehicle-information registration requirement, McClernon was
    given sufficient notice of the potentially prohibited conduct, and neither
    arbitrary nor discriminatory enforcement is authorized or encouraged. Id. at
    577.
    [11]   And, here, a reasonable person would have considered McClernon’s failure to
    register the information for the vehicle he operated to have put him at risk
    under the statute. According to the probable cause affidavit, McClernon
    operated the red Chevy truck for at least five consecutive days. He operated the
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019     Page 9 of 19
    vehicle to help a third party move personal property; to scrap metal for his own
    financial gain; and to transport himself around, including to register himself
    with local law enforcement. This conduct, it could be argued, was not a mere
    occasional, infrequent, or incidental use. We express no opinion on whether
    those alleged facts, if proven, would be sufficient to convict McClernon of the
    alleged offense. But they do suffice to demonstrate that, as applied to him
    under the reasonable-person standard, Indiana Code Section 11-8-8-8(a)(1) was
    not “too ambiguous to define a criminal offense.” Id. at 575.
    [12]   We also briefly address two federal cases referenced by McClernon on appeal.
    First, McClernon cites Whatley v. Zatecky, in which the United States Court of
    Appeals for the Seventh Circuit vacated an Indiana defendant’s conviction for
    dealing within 1000 feet of a youth program center. The statutory language in
    Whatley defined a youth program center as any “building or structure that on a
    regular basis” provided certain programs or services for minors. 
    833 F.3d 762
    ,
    765 (7th Cir. 2016) (quoting I.C. § 35-41-1-29(a)).
    [13]   In agreeing with the defendant in Whatley, the Seventh Circuit held in relevant
    part as follows:
    the State argues that a person of ordinary intelligence would
    understand that the number of youth programs held at the
    Robinson Community Church were sufficient to render it a youth
    program center. This is essentially an argument that the church
    held so many programs that it would meet any definition of
    “regular,” and that [the defendant’s] case is in the core of the
    conduct prohibited by the statute. But four or six activities a
    week at a facility that is not otherwise identifiable as a youth
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019   Page 10 of 19
    program center is nowhere near the core of the statute. Had [the
    defendant] possessed drugs within 1000 feet of a YMCA or a
    Boys and Girls Club, there would be no doubt that his conduct
    was within the core of the law. The State conceded in its
    argument to the Indiana Supreme Court that churches are not
    inherently places where children gather, and a handful of weekly
    events does nothing to provide fair notice or to discourage
    arbitrary enforcement of the statute.
    We twice asked the State at oral argument how many events
    each week would qualify as “regular,” so as to bring a facility
    within the limits of the law. The State twice responded, “four.”
    But the State provided no basis for that arbitrary and convenient
    number, which coincidentally matched the minimum number of
    children’s activities held at the Robinson Community Church
    each week. Without any standard in the statute, in a regulation,
    or in the Indiana case law, the completely subjective word
    “regular” invited arbitrary enforcement of this strict liability
    statute. Grayned, 
    408 U.S. at 108-09
    , 
    92 S. Ct. 2294
     (“if arbitrary
    and discriminatory enforcement is to be prevented, laws must
    provide explicit standards for those who apply them.”). “The
    dividing line between what is lawful and unlawful cannot be left
    to conjecture.” Connally, 
    269 U.S. at 393
    , 
    46 S. Ct. 126
    . But
    with the wording of Indiana’s statute, a defendant must rely on
    little more than conjecture to determine what will transform an
    unmarked building used for some other purpose into a “youth
    program center.”
    Id. at 783 (footnote and record citation omitted).
    [14]   Second, McClernon relies on an order from the United States District Court for
    the Eastern District of Michigan in Doe v. Snyder. In Doe, the court found that
    Michigan’s requirement that sex offenders register the information for any
    vehicle they “regularly operate” was void for vagueness. 
    101 F. Supp. 3d 672
    ,
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019    Page 11 of 19
    686-90 (E.D. Mich. 2015), rev’d on other grounds, 
    834 F.3d 696
    , 698-706 (6th Cir.
    2016). 4 In so finding, the court reasoned in relevant part as follows:
    the commonly accepted meaning of the terms “regularly” and
    “routinely” do not provide sufficient guidance to law
    enforcement or registrants to survive a due process challenge
    both generally and as applied to Plaintiffs. The frequency and
    consistency with which Doe #1 must drive his employers’
    vehicles in order to trigger the registration requirement is unclear.
    Likewise, it is ambiguous whether Doe #2’s use of his girlfriend’s
    car a few times a quarter constitutes regular use, particularly in
    light of the rule of lenity, and a reasonable person and well-
    intentioned law enforcement officer would struggle to determine
    whether Doe #4’s occasional use of his mother’s phone was
    “routine.” The ambiguity in the reporting requirements is further
    highlighted by officers’ and prosecutors’ responses to informal
    telephonic survey questions conducted by volunteers for
    Plaintiffs, law enforcement officers’ answers to deposition
    questions, and law enforcement officers’ guidance to Plaintiffs.
    Volunteers for Plaintiffs asked local law enforcement agencies
    and prosecutors’ offices how often a registrant could use a vehicle
    before triggering SORA’s reporting requirements. “[S]ome
    respondents did not know the answer, and others provided
    answers ranging from once or twice, to six or seven times, to
    ‘whatever is reasonable.’” When asked during a deposition
    whether a registrant who used a vehicle once during a three-
    month period had to report the vehicle, the law enforcement
    officer testified, “That would be probably a judgment call by the
    prosecutor or the law enforcement agency.” He answered in the
    affirmative when asked if “each law enforcement agency might
    4
    The United States Court of Appeals for the Sixth Circuit reversed the district court’s judgment on ex post
    facto grounds and without considering the void-for-vagueness issue.
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019                             Page 12 of 19
    come to a different conclusion about what regular use means.”
    Furthermore, law enforcement told Doe #4 that “if he borrows a
    car more than three times he must immediately report in person,”
    but such use does not clearly trigger SORA’s reporting
    requirements. Similarly, a local police department informed Ms.
    Doe that she had to register a vehicle “if she was driving it or if it
    was parked in her driveway.”
    The disparate views of the meaning of the term “regularly use”
    exemplify the lack of a standardized guidelines for the
    enforcement of SORA’s reporting provisions. . . .
    
    Id.
     (record citations omitted; alterations in original).
    [15]   We do not find either Whatley or Doe persuasive. First, neither the Seventh
    Circuit’s opinion nor the district court’s order discusses imputing a reasonable-
    person standard into an imprecise penal statute, as the Indiana Supreme Court
    and Supreme Court of the United States have both done. See Morgan, 22
    N.E.3d at 575-76 (discussing numerous cases). Second, the statutory language
    in Whatley involved whether a third party used a structure in a certain way on a
    “regular basis,” which third-party activities might be unknowable to a
    defendant. That is in stark contrast to the statutory language here, which turns
    on how the defendant himself uses a vehicle, information of which the
    defendant is obviously aware. Third, McClernon presented no evidence in
    support of his motion to dismiss that is on par with the evidence of possible
    arbitrary enforcement that was submitted to the district court in Doe. Thus, we
    decline to follow Whatley or Doe and instead follow Morgan.
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019      Page 13 of 19
    [16]   In sum, while the statutory requirement that a sex offender register the
    information for a vehicle he “operates on a regular basis” might appear to lack
    precision, whether one operates a vehicle on a regular basis is to be determined
    by asking whether reasonable persons would know that their conduct is at risk
    under the statute. Like the statutory language at issue in Morgan, the failure-to-
    register statutory language here is not void for vagueness. The reasonable-
    person standard provides sufficiently clear guidance to registrants and law
    enforcement of potentially proscribed conduct and, as such, passes
    constitutional scrutiny. Id. at 575-77. And, at the end of the day, whether
    particular conduct violates the statute must be determined by the fact-finder on
    a case-by-case basis. E.g., id. at 577. Thus, the trial court did not err when it
    denied McClernon’s motion to dismiss, and we affirm the trial court’s
    judgment.
    [17]   Affirmed.
    Bailey, J., concurs.
    Baker, J., dissents with separate opinion.
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019     Page 14 of 19
    IN THE
    COURT OF APPEALS OF INDIANA
    James C. McClernon,                                       Court of Appeals Case No.
    19A-CR-1305
    Appellant-Defendant,
    v.
    State of Indiana,
    Appellee-Plaintiff.
    Baker, Judge, dissenting.
    [18]   I respectfully dissent. “[T]he void-for-vagueness doctrine requires that a penal
    statute define the criminal offense with sufficient definiteness that ordinary
    people can understand what conduct is prohibited and in a manner that does
    not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson,
    
    461 U.S. 352
    , 357 (1983). And I believe that the statute under which
    McClernon was charged was vague enough to violate his due process rights.
    [19]   From the record, we know that starting February 2, 2019, McClernon operated
    a red truck for five days to help his ex-wife move items, to transport him, to
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019                 Page 15 of 19
    obtain money by scrapping metal, to sleep in, and to drive to the Vanderburgh
    County Sheriff’s Office to stay current on his sex offender registration
    requirements. McClernon was eventually arrested on March 8, 2019.
    [20]   Indiana Code section 11-8-8-8(a)(1) states, in pertinent part, that as a registered
    sex offender, McClernon must register vehicular information, which includes
    vehicle description, license plate number, and identification number, for any
    vehicle that he operates “on a regular basis[.]” It is this language—“on a regular
    basis”—that is at issue. What exactly does “on a regular basis” mean for
    purposes of statutory interpretation?
    [21]   The majority holds that any reasonable person in McClernon’s position would
    have known that their conduct could be at risk for criminal prosecution under
    the registration statute. See, e.g., Maynard v. Cartwright, 
    486 U.S. 356
    , 361
    (1988). But the answer, in my opinion, is not so clear-cut. For the following
    three reasons, I would reverse the trial court.
    [22]   First, there is the rule of lenity. “The rule of lenity requires that penal statutes be
    construed strictly against the State and any ambiguities resolved in favor of the
    accused[.]” Meredith v. State, 
    906 N.E.2d 867
    , 872 (Ind. 2009). At its core, this
    statute contains ambiguous language that both the trial court and this Court
    have had to grapple with. According to the rule of lenity, McClernon should
    not be penalized as a result of the ambiguity. And while statutes are not to be
    “overly narrowed so as to exclude cases they fairly cover,” Gordon v. State, 
    981 N.E.2d 1215
    , 1219 (Ind. Ct. App. 2013), it is far from definitive that
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019       Page 16 of 19
    McClernon’s five-day stint in the vehicle constitutes behavior that falls under
    the ambit of statutorily proscribed conduct.
    [23]   Next, there is textualism. Justice Neil Gorsuch of the United States Supreme
    Court has elaborated on the void-for-vagueness doctrine and how it applies to
    criminal penal statutes from a textualist perspective:
    In even more extreme circumstances—when a statute is so
    ambiguous that a judge simply cannot divine its meaning
    consistent with the judicial role—textualists have long employed
    the void for vagueness doctrine as a backstop. In that case . . . if a
    judge cannot know whether or not a statute applies to certain
    conduct, then the party bearing the burden of persuasion must
    lose.
    Neil Gorsuch et al., A Republic, If You Can Keep It 136-37 (2019). According to
    these textualist principles, the void-for-vagueness doctrine steps in when there is
    ambiguous statutory language. And because the State had the burden to prove
    that the language of “on a regular basis” applies to McClernon’s actions, it must
    lose. In other words, textual ambiguities beget greater constitutional protections
    for criminal defendants.
    [24]   Finally, there is the statutory language itself. The majority cannot define what
    “on a regular basis” means for purposes of the registration statute as a whole
    because the ambiguity of that phrase could result in many divergent
    interpretations, definitions, and examples. While the majority does provide a
    common dictionary definition of the word “regular,” it concedes that such a
    definition alone cannot resolve this vagueness challenge. Faced with this
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019       Page 17 of 19
    overriding ambiguity, the majority pivots to the reasonable person standard to
    summarily conclude that any reasonable person would, of course, know that
    conduct like McClernon’s was at risk for criminal prosecution. However, if the
    circumstances and individuals at play were different, would the majority arrive
    at the same result? Can we confidently say that a woman who drives her
    Oldsmobile to church just one day a week operates her vehicle “on a regular
    basis”? Are we sure that the sixteen-year-old teenager with a newly minted
    driver’s license who practices his parking in the nearby school parking lot
    operates his vehicle “on a regular basis”? And what of the mother who drives
    her three children to school, soccer practice, and medical appointments? Can
    we classify her as someone who operates her vehicle “on a regular basis”?
    [25]   The majority dismisses the holdings from Whatley v. Zatecky, 
    833 F.3d 762
     (7th
    Cir. 2016), and Doe v. Snyder, 
    101 F.Supp.3d 672
     (E.D. Mich. 2015), rev’d on
    other grounds, 
    834 F.3d 696
     (6th Cir. 2016), as unpersuasive because those cases
    did not impute the reasonable person standard and because their statutory
    language and record, respectively, are inapposite to those in this case. The
    majority correctly points out that our Supreme Court has imputed the
    reasonable person standard into other criminal statutes. Morgan v. State, 
    22 N.E.3d 570
    , 575-76 (Ind. 2014). But the Whatley and Doe Courts explained just
    how complicated it is to define the term “regular”—which, unlike Morgan,
    appears in the statutory language in both Whatley and Doe—and how such
    ambiguities affect the rights of criminal defendants. Instead of dismissing these
    cases as non-binding and extraneous, I advocate that we look to their holdings
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019   Page 18 of 19
    as further proof that the answer is not as straightforward as the majority would
    suggest. Because of this vagueness and to safeguard McClernon’s constitutional
    rights, I would reverse the trial court’s denial of his motion to dismiss.
    [26]   Therefore, I respectfully dissent.
    Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019        Page 19 of 19
    

Document Info

Docket Number: 19A-CR-1305

Filed Date: 12/30/2019

Precedential Status: Precedential

Modified Date: 12/30/2019