Nicholas Medalen v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 10 2020, 5:36 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James D. Crum Curtis T. Hill, Jr.
Coots, Henke & Wheeler, P.C. Attorney General of Indiana
Carmel, Indiana
Lauren A. Jacobsen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nicholas Medalen, January 10, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1522
v. Appeal from the Hamilton
Superior Court
State of Indiana, The Honorable Michael A. Casati,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D01-0207-FB-52
Friedlander, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1522 | January 10, 2020 Page 1 of 9
[1] Nicholas Medalen appeals the trial court’s determination that he violated a
condition of his probation. He also appeals the sentence the trial court imposed
after revoking his probation. We affirm.
[2] In 2003, Medalen pleaded guilty to five counts of child molesting, all Class C
felonies. On May 6, 2004, the trial court imposed an aggregate sentence of
forty years, with twenty years suspended. The conditions of his probation
included the following: “No viewing or possession of any pornographic or
sexually explicit materials.” Tr. Vol. 3, State’s Ex. 4, p. 64. In the sentencing
order, the trial court further explained the condition as follows:
Defendant shall not possess or view any pornographic or sexually
explicit materials, including, but not limited to: videos, television
programs, DVDs, CDs, magazines, books, Internet web sites,
games, sexual devices or aids, or any material which depicts
partial or complete nudity or sexually explicit language or any
other materials related to illegal or deviant sexual interests or
behaviors.
Id., State’s Ex. 3, p. 59. Medalen did not appeal his sentence.
[3] Medalen completed the executed portion of his sentence and was released to
probation. In November 2013, the State filed an information of violation of
probation. Medalen was arrested. In April 2014, the trial court held a fact-
finding hearing, determined Medalen had violated a condition of probation,
and sentenced him to serve ten years of his previously-suspended sentence.
Medalen did not appeal.
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[4] Medalen finished serving that sentence and was again released to probation,
under the supervision of the Hamilton County Courts Department of Probation
Services (“probation department”). Upon his release, Medalen moved into a
men’s shelter in Terre Haute, Indiana. The shelter’s manager, Matthew
Mahoney, drove Medalen to his appointments. Mahoney noticed Medalen
liked to draw and was impressed by one of his drawings, so he bought drawing
supplies for him.
[5] On November 1, 2018, the probation department filed an information of
violation of probation, alleging that Medalen had violated a term of his
probation by looking at pornography on a computer at a job center. The trial
court issued an arrest warrant, and Medalen was arrested at the shelter.
Immediately after Medalen was removed from the premises, Mahoney packed
up Medalen’s belongings and prepared to move them and his mattress into
storage, per the shelter’s usual procedures. When Mahoney moved the
mattress, he found approximately fifty images and drawings hidden
underneath. One of the documents was the drawing that Mahoney had
watched Medalen draw. The images and drawings included depictions of nude
or mostly-nude females, some of whom were underage. Mahoney secured the
documents and later arranged to deliver them to the probation department.
[6] On February 19, 2019, the State filed another information of violation of
probation. The State alleged Medalen had violated a condition of probation by
possessing pornography and/or sexually explicit materials.
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[7] On June 27, 2019, the court held a fact-finding hearing. After the hearing, the
court determined Medalen had violated a condition of probation by possessing
pornography and/or sexually explicit materials, as alleged in the February 19,
1
2019 information of violation of probation. The court revoked his probation
and ordered him to serve the remaining ten years of his sentence at the Indiana
Department of Correction. This appeal followed.
1.
[8] Medalen first challenges the trial court’s revocation of his probation. He frames
his appeal as a challenge to the sufficiency of the evidence, but in substance he
argues that the condition of probation banning him from possessing
2
pornography or sexually explicit materials is unconstitutionally vague. We
therefore address this appeal as a constitutional challenge.
[9] The State argues that Medalen’s constitutional claim is procedurally barred
because he failed to object to the conditions of his probation at his sentencing
hearing in 2004 or pursue a timely appeal after sentencing. The State further
argues the vagueness claim is waived because he did not present it to the trial
court during probation revocation proceedings. The State’s arguments are well
1
The court declined to determine that Medalen had violated a condition of probation as alleged in the
November 1, 2018 information of violation of probation.
2
Medalen argues that the condition of probation at issue here has already “been found to be overbroad, and
vague,” in cases involving other defendants, and need not be addressed again here. Appellant’s Br. p. 5. We
disagree. Medalen bears the burden of proving the trial court erred by misapplying the prior cases to the facts
and circumstances of his case.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1522 | January 10, 2020 Page 4 of 9
taken, but given that Medalen is presenting a constitutional claim, we choose to
address the merits of his appeal. See Payne v. State, 484 N.E.2d 16 (Ind. 1985)
(addressing a constitutional vagueness claim despite waiver).
[10] In general, trial courts enjoy broad discretion in establishing a defendant’s
conditions of probation, and we review a probation order for an abuse of
discretion. Weida v. State, 94 N.E.3d 682 (Ind. 2018). When a defendant, like
Medalen, challenges a probation condition on constitutional grounds such as
vagueness, our standard of review is de novo. Id.
[11] The Indiana Supreme Court has explained how it reviews vagueness claims as
follows:
When faced with a vagueness challenge to a probation condition,
i.e., the condition lacks the requisite clarity and particularity, we
employ the same standard we apply when evaluating penal
statutes for vagueness. We will find a probation condition
unconstitutionally vague only if individuals of ordinary
intelligence would not comprehend it to adequately inform them
of the conduct to be proscribed. Probation conditions, like
criminal statutes, sufficiently inform probationers of restricted
actions when they identify the generally proscribed conduct.
Fastidious specificity is not required. In other words, probation
conditions need not list, with itemized exactitude, every item of
conduct that is prohibited.
When considering a vagueness challenge, we confine ourselves to
the facts and circumstances of the case before us. We will not
allow a probationer to devise hypothetical situations that might
demonstrate vagueness. What’s more, we take the challenged
probation provisions or language in context, not in isolation.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1522 | January 10, 2020 Page 5 of 9
Id. at 688 (quotations and citations omitted).
[12] Medalen claims that the condition of his probation that bars him from
possessing pornographic or sexually explicit materials, as set forth in the
conditions of his probation and the trial court’s sentencing order, is
unconstitutionally vague. He cites McVey v. State, 863 N.E.2d 434 (Ind. Ct.
App. 2007), trans. denied, and Fitzgerald v. State, 805 N.E.2d 857 (Ind. Ct. App.
2004), in which panels of this Court invalidated as vague conditions of
probation similar to the condition at issue here. In McVey, the challenged
condition of probation stated:
[You] shall not possess or view any pornographic or sexually
explicit materials, including but not limited to: videos, television
programs, DVDs, CDs, magazines, books, Internet web sites,
games, sexual devices or aids, or any material which depicts
partial or complete nudity or sexually explicit language or any
other materials related to illegal or deviant interests or behaviors
….
863 N.E.2d at 447. The condition of probation at issue in Fitzgerald, 805
N.E.2d 857, was identical to the condition in McVey. We are also aware of
Smith v. State, 779 N.E.2d 111, 118 (Ind. Ct. App. 2002), trans. denied, in which
the Court concluded a condition of probation barring Smith from possessing
“pornographic or sexually explicit materials” was unconstitutionally vague.
[13] McVey, Fitzgerald, and Smith are procedurally distinguishable from Medalen’s
case. Those three cases involved direct appeals from sentencing, in which the
appellants challenged their conditions of probation in the abstract. There were
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1522 | January 10, 2020 Page 6 of 9
no facts indicating that a violation had occurred. By contrast, in Medalen’s
case the State alleged that he violated a condition of his probation, and there are
concrete facts and circumstances to consider.
[14] Medalen hid approximately fifty images and drawings under his mattress.
Some of the images and drawings depicted adult women in swimsuits and
lingerie, displaying bare buttocks and mostly uncovered breasts. An individual
of ordinary intelligence might or might not understand that such documents
were barred by the condition of probation at issue here. See, e.g., Foster v. State,
813 N.E.2d 1236, 1237 (Ind. Ct. App. 2004) (reversing revocation of Foster’s
probation; Foster was found to have “three Stuff for Men magazines and two
Maxim magazines on the nightstand beside [his] bed,” and the condition of
probation banning possession of pornographic material was deemed
unconstitutionally vague).
[15] But Medalen also possessed several drawings of nude female children, with
their genitals clearly depicted, engaging in sexual behavior. One of the persons
depicted is television character Lisa Simpson, who is generally known to be a
child. Possession of a drawing “that depicts or describes sexual conduct by a
child who the person knows is less than eighteen (18) years of age or who
appears to be less than eighteen (18) years of age, and that lacks serious literary,
artistic, political, or scientific value” is a Level 6 felony in Indiana. Ind. Code §
35-42-4-4 (2017).
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[16] There can be no doubt that child pornography would be included in the
definition of “pornographic” or “illegal” materials as explained by the
sentencing court in Medalen’s case. Tr. Vol. 3, State’s Ex. 3, p. 59. We
conclude from the facts and circumstances of this case that an individual of
ordinary intelligence would have understood that possessing sexual images of
nude children violated the conditions of Medalen’s probation, especially since
his underlying convictions were for child molestation. He has failed to
demonstrate that the condition of his probation at issue is unconstitutionally
vague.
2.
[17] Medalen claims in passing that the trial court erred in ordering him to serve the
remainder of his suspended sentence. In support of this claim, he generally
asserts that sentencing him to ten years in prison “for being in possession of
photographs of scantily clad women and drawings of nude cartoon characters”
was an abuse of discretion. Appellant’s Br. p. 7. Medalen does not cite to any
authorities in support of his claim. An appellant’s brief must contain “the
contentions of the appellant on the issues presented,” “supported by citations to
the authorities, statutes, and the Appendix or parts of the Record on Appeal
relied on . . . .” Ind. Appellate Rule 46(A)(8)(a). We will not review the record
and research authorities to make arguments on Medalen’s behalf. He has
waived this claim for appellate review. See Burnell v. State, 110 N.E.3d 1167
(Ind. Ct. App. 2018) (deeming waived seven of appellant’s eight claims for
failure to provide arguments supported by citations to legal authority).
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[18] For the reasons stated above, we affirm the judgment of the trial court.
[19] Judgment affirmed.
Robb, J., and Vaidik, J., concur.
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