Wayne L. Patton v. State of Indiana , 2013 Ind. App. LEXIS 327 ( 2013 )

Jul 09 2013, 6:26 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ADAM C. SQUILLER GREGORY F. ZOELLER
Squiller Law Office, P.C. Attorney General of Indiana
Auburn, Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WAYNE L. PATTON, )
)
Appellant-Defendant, )
)
vs. ) No. 17A05-1210-CR-538
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DEKALB SUPERIOR COURT
The Honorable Kevin P. Wallace, Judge
Cause No. 17D01-1109-FD-144
July 9, 2013
OPINION–FOR PUBLICATION
BAKER, Judge
In this case, the appellant-defendant Wayne L. Patton challenges a certain
condition of probation that the trial court imposed following his conviction for Child
Seduction,1 a class D felony. Patton contends that the condition prohibiting him from
accessing various internet websites and computer programs in which children are likely
to participate is “overly broad, excessively vague,” and impermissibly impinges on his
First Amendment rights under the United States Constitution. Appellant’s Br. p. 4.
A trial court may impose conditions of probation that restrict a defendant’s
activities substantially beyond the ordinary restrictions that are imposed upon an
individual. The condition that the trial court imposed upon Patton is reasonable and is
neither overbroad nor excessively vague because the condition relates directly to
preventing Patton from communicating with children on the internet. The condition also
specifically informs Patton that he is prohibited from engaging in internet activity that is
designed and known to be used by children. As a result, we decline to strike this
condition of probation, and we affirm the judgment of the trial court.
FACTS
On June 9, 2011, Patton took his sixteen-year-old daughter, J.P., driving, so she
could obtain practice hours toward obtaining her operator’s license. At some point,
Patton told J.P. to stop the van and get out. J.P. complied and Patton began to fondle
J.P.’s breasts. Patton then told J.P. that they should try some “other [sexual] things,”
sometime. Tr. p. 152-53.
1
Ind. Code § 35-42-4-7(k).
2
The next morning, J.P. reported the incident to Jessica, her mother. When Jessica
confronted Patton about the incidents, Patton admitted that he had looked at J.P.’s
breasts, but he claimed it was because she had asked him to examine a scab on one of
them. After picking up J.P. and her other two children and driving them to her parents’
home in Auburn, Jessica reported to the Auburn Police Department what J.P. had told
her.
During an interview with police officers, Patton told Auburn Police Detective Phil
Snover that J.P. had asked him to “look at something on her breast.” Tr. p. 215.
Although Patton admitted that he did so in “the back of the van,” he denied that he had
ever touched J.P. Id. The State subsequently charged Patton with class D felony child
seduction. At trial, Patton denied touching J.P. and claimed that she “likes attention” and
is “very imaginative.” Id. at 223, 236, 240, 241. The jury found Patton guilty as charged.
The trial court subsequently sentenced Patton to one-and-one-half years of
incarceration, with sixty days executed on weekends and the remainder suspended to
probation. The trial court informed Patton that he was required to follow all of the
special sex offender rules and register as a sex offender for a period of ten years. These
conditions included the following:
You are prohibited from accessing or using certain websites, chat rooms, or
instant messaging programs frequented by children. You are prohibited
from deleting, erasing, or tampering with information on your personal
computer with intent to conceal an activity prohibited by this condition.[2]
2
This is a required condition of probation under Indiana Code section 35-38-2-2.2(4).
3
Appellant’s App. p. 69-71. Patton acknowledged this condition of probation, signed the
form advising him of this condition at the sentencing hearing, and did not object. Patton
now appeals.
DISCUSSION AND DECISION
Patton argues that the trial court’s imposition of the child-related internet
restrictions as a condition of his probation cannot stand. Patton contends that this
condition is vague and “overbroad in that it unnecessarily prohibits a vast range of non-
illicit conduct and could easily have been narrowly tailored to prevent the targeted
activities.” Appellant’s Br. p. 4. In other words, Patton claims that the language of this
particular condition of probation is vague and lacks specificity with regard to the
particular websites and software that Patton should be prohibited from using.
In resolving this issue, we initially observe that a trial court has broad discretion in
establishing conditions of probation to safeguard the general public and to create law-
abiding citizens. Gordy v. State, 674 N.E.2d 190, 191 (Ind. Ct. App. 1991). Conditions
of probation should effectuate the supervision required to achieve probation goals and,
therefore, must be functionally and rationally related to the probationer’s rehabilitative
needs and to society’s interests. McCloud v. State, 452 N.E.2d 1053, 1056 (Ind. Ct. App.
1983). We will not set aside terms of probation unless the trial court has abused its
discretion. Whitener v. State, 982 N.E.2d 439, 446 (Ind. Ct. App. 2013), trans. denied.
An abuse of discretion occurs when the decision is “clearly against the logic and effect of
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the facts and circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Id.As noted above, Patton did not object at the sentencing hearing to the condition of
probation, which stated that he was “prohibited from accessing or using certain websites,
chat rooms, or instant messaging programs frequented by children.” Tr. p. 307-37. Thus,
Patton has waived the issue. See Hale v. State, 888 N.E.2d 314, 319 (Ind. Ct. App. 2008)
(observing that by failing to object to the conditions of probation at the sentencing
hearing, a defendant does not properly preserve the issue for appellate review). And
arguments raised for the first time on appeal are waived. Stewart v. State, 945 N.E.2d
1277, 1288 (Ind. Ct. App. 2011), trans. denied.
Waiver notwithstanding, we note that Indiana Code section 35-38-2-2.2(4)
provides that
[a]s a condition of probation for a sex offender (as defined in IC 11-8-8-
4.5), the court shall:
(4) prohibit the sex offender from
(A) Accessing or using certain websites, chat rooms, or instant
messaging programs frequented by children; and
(B) Deleting, erasing, or tampering with information on the sex
offender’s personal computer with intent to conceal an
activity prohibited by clause (A).
Although Patton attacks the validity of this statute on constitutional grounds
alleging that it unfairly impinges on his First Amendment rights, we note that First
Amendment protections are not absolute. Indeed, some restrictions on speech are
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consistent with First Amendment principles, especially in the context of conditions of
probation. Braun v. Baldwin, 346 F.3d 761, 763 (7th Cir. 2003). More specifically,
conditions of supervision may restrict a probationer’s activities “substantially beyond the
ordinary restrictions imposed by law on an individual citizen.” Morrissey v. Brewer, 408
U.S. 471, 478 (1972).
When a defendant challenges a probationary condition because it allegedly unduly
intrudes on a constitutional right, we evaluate that claim by balancing the following
factors: 1) the purpose to be served by probation; 2) the extent to which constitutional
rights enjoyed by law-abiding citizens should be enjoyed by probationers; and 3) the
legitimate needs of law enforcement. McVey v. State, 863 N.E.2d 434, 447 (Ind. Ct.
App. 2007).
Although Patton relies on Doe v. Marion County Prosecutor, 705 F.3d 694, 703
(7th Cir. 2013), in support of his contention that his First Amendment rights were
violated in light of this probation condition, we note that the United States Court of
Appeals for the Seventh Circuit interpreted Indiana Code section 35-42-4-12, which
prohibited certain sex offenders from “knowingly or intentionally us[ing]: a social
networking website” or “an instant messaging or chat room program” that “the offender
knows allows a person who is less than eighteen (18) years of age to access or use the
website or program,” and held that the statute was not “narrowly tailored” because the
statute targeted substantially more activity than the evil it sought to address, which was
illicit contact with minors. Id. at 699-701.
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However, it was expressly acknowledged that this holding “should not be read to
affect district courts’ latitude in fashioning terms of supervised release, . . . or states from
implementing similar solutions.” Id. at 703. Indeed, the Doe Court recognized that a
trial court might constitutionally limit a defendant’s full access to the internet as a term of
supervised release if such full access posed too high a risk of recidivism. Id.In this case, Patton is a sex offender on supervised release that places him in a
significantly different position than the class of sex offenders in Doe and renders the
holding in that case inapplicable to him. Time and again, we have observed that
conditions of probation may impinge upon a probationer’s right to exercise an otherwise
constitutionally protected right because “probationers simply do not enjoy the freedoms
to which ordinary citizens are entitled. Purdy v. State, 708 N.E.2d 20, 22 (Ind. Ct. App.
1999).
Here, Patton’s internet restriction specifically applies to websites that are
“frequented by children.” I.C. § 35-38-2-2.2(4). In our view, this internet restriction
while Patton is on probation is reasonably and directly related to deterring Patton from
having contact with children and to protecting the public. See United States v. Zinn, 321
F.3d 1084, 1093 (11th Cir. 2003) (recognizing that “the concomitant dangers of the
internet and the need to protect both the public and sex offenders themselves from its
potential abuses”). Also, Patton’s internet restriction is tailored to him as a sex offender
and serves the legitimate needs of law enforcement to monitor and restrict his activities
with children for this initial period following his conviction.
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On the other hand, we note that the internet restriction as applied to Patton does
not prohibit him from searching for employment, gaining additional education, or reading
a newspaper. The condition prohibits Patton from accessing only those internet-related
activities used by children, which are directly related to his position as a sex offender on
probation. See Harris v. State, 836 N.E.2d 267, 275 (Ind. Ct. App. 2005) (holding that
an internet restriction on a parolee reasonably related to the State’s goals of reintegrating
the parolee into his community, protecting the general public, and preventing future
crime does not unduly infringe upon the parolee’s First Amendment rights).
Patton does not identify a single activity or other conduct that is prohibited by the
probation condition but unrelated to seeking out inappropriate contact with minors.
Therefore, Patton has failed to satisfy his burden of showing that this probation condition
is overly broad as applied to him.
Additionally, we note that Patton has likewise failed to demonstrate that the
probationary condition is unconstitutionally vague. Like statutes that define criminal
offenses, the language in a probation condition must be such that it describes with
“particularity and clarity” the misconduct that will result in penal consequences. Hunter
v. State, 883 N.E.2d 1161, 1163-64 (Ind. 2008). The condition imposed upon Patton
would be considered vague only if individuals of ordinary intelligence would not
comprehend it to adequately inform them of the conduct to be proscribed. Smith v. State,
727 N.E.2d 763, 766 (Ind. Ct. App. 2000). The condition need only inform the individual
of the generally proscribed conduct. Id. It need not list, with itemized exactitude, every
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item of conduct that is prohibited. A defendant is not at liberty to devise hypothetical
situations that might demonstrate vagueness. Id.In our view, the language of the condition prohibiting Patton from “accessing or
using certain websites, chat rooms, or instant messaging programs frequented by
children” adequately informs him that he is prohibited from internet activity that would
allow him to view communications between children and to communicate with them.
Restricting a sex offender’s access to the internet that “offers unlimited access to people,
including children” serves to protect the public and to prevent future criminal activity.
See Harris, 836 N.E.2d at 275 (finding a complete ban on internet use without the prior
approval of the parole agent to not be vague).
We also note that there are a number of ways that Patton can learn which internet
activities are permissible. Indeed, some websites require age verification for entry and/or
clearly state the adult-based objective, which would not be frequently used by children.
Chat rooms routinely define the group in its description, so Patton would know if it is a
child-based means of communication. For instance, “Girls_Club299999” is a chat group
for girls on Yahoo between the ages of six and nineteen, and “”Charhour.com” is a chat
room for children under the age of thirteen. Additionally, social media sites such as
Facebook expressly state the terms and conditions of use that demonstrate it is used by
children thirteen to eighteen years old. Facebook, Statement of Rights and
Responsibilities, Facebook.com/legal/terms (last updated Dec. 11, 2012) (requiring users
to be thirteen years of age or older).
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In our view, there is little risk as Patton navigates the internet that he would
intentionally access a website or a chat room that permits communication with children
without being on notice that the site permits that kind of activity. Also, there is no reason
to believe that the probation condition at issue would be read to include inadvertent or
incidental access onto a prohibited website or chat room. See Smith, 727 N.E.2d at 766(excluding inadvertent or incidental contact with minors as a violation of the probationary
condition that a person have no contact with minors).
Because the condition of probation in this case is specifically tailored to only those
internet activities that are “frequented by children,” Patton is provided with adequate
notice that he would be in violation of his probation by accessing websites that are
designed and known to be used by children for communication. Also, in light of the vast
nature of the internet, it would be virtually impossible for the legislature to list each and
every website, chat room, or instant messaging program that permits communication by
and among children. In short, because the language of the probation condition afforded
Patton a predictable standard and notice with regard to his internet usage during his
probationary period, his constitutional claims fail, and we decline to set aside the
condition of probation that relates to his internet usage.
The judgment of the trial court is affirmed.
MAY, J., and MATHIAS, J., concur.
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