Michael L. Harris v. State of Indiana

Mar 27 2013, 8:38 am
FOR PUBLICATION
APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:
MICHAEL L. HARRIS GREGORY F. ZOELLER
New Castle, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL L. HARRIS, )
)
Appellant-Defendant, )
)
vs. ) No. 20A04-1204-CR-225
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ELKHART SUPERIOR COURT
The Honorable David C. Bonfiglio, Judge
Cause No. 20D06-0911-FD-383
March 27, 2013
OPINION – FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Michael L. Harris (Harris), appeals his conviction and
sentence for Count I, failure to register as a sex offender, a Class D felony, Ind. Code §
11-8-8-17; and Count II, sex offender internet offense, a Class A misdemeanor, I.C. § 35-
42-4-12.
We affirm in part and reverse in part.
ISSUES
Harris raises three issues on appeal, which we restate as the following four issues:
(1) Whether Harris’s convictions under I.C. § 11-8-8-17 and I.C. § 35-42-4-12
violate the First Amendment of the United States Constitution;
(2) Whether Harris’s conviction under I.C. § 11-8-8-17 violates Harris’s right of
free expression under the Indiana Constitution;
(3) Whether I.C. § 11-8-8-8 constitutes an ex post facto law under the Indiana
Constitution as applied to Harris; and
(4) Whether the evidence was sufficient to convict Harris of failure to register as a
sex offender under I.C. § 11-8-8-17.
FACTS AND PROCEDURAL HISTORY
In 1999, Harris was convicted of Class B felony child molestation and sentenced
to ten years’ incarceration. Harris was released to parole and reincarcerated on multiple
occasions until his sentence was completed in 2008. Initially, Harris was required to
2
register as a sex offender for ten years commencing December 1, 2008; however, by
operation of law, Harris’s status changed to that of a sexually violent predator. As a
result, he is subject to lifetime registration and reporting requirements.
Following his release from incarceration, Harris filled out a sex and violent
registration offender form provided by the Elkhart County Sheriff’s Department. The
registration form contained spaces for Harris to provide his “E-mail/Chat room/Instant
Messaging/Social Networking Site Names” but these were left blank. (State’s Exhibit
No. 2 p. 1). The last page of the form contains a preprinted affirmation and series of
acknowledgements. The affirmation provided that Harris had truthfully answered the
form under penalties of perjury. The acknowledgements included a warning that persons
convicted of certain crimes, including child molesting, “may be prohibited from
communicating via chat rooms, instant messaging or social networking sites in which
persons under the age of 18 are allowed to access or use. Violation is a Class A
[m]isdemeanor for the first offense and [Class] D [f]elony for each and every one
thereafter.” (State’s Exh. No. 2 p. 3). Harris’s signature appears on the last page of the
form and alongside the date of December 2, 2008. On the same page, witness signatures
dated December 2, 2008, March 2, 2009 and June 1, 2009 also appear.
Detective Brian Holloman of the Elkhart County Sheriff’s Department (Detective
Holloman) began working with the county sex offender registry in May 2006 and has
been “[s]olely running it since July of 2006” and oversees the county’s average of 400
sex offenders. (Transcript p. 79). In June 2009, Detective Holloman received
3
information that Harris “had a MySpace profile” and began investigating. (Tr. p. 86).
Detective Holloman went to the MySpace website and found Harris’s profile page with a
user name of “filmmaker 54.” The profile page contained Harris’s photograph,
biographical information, interests, and listed his marital status as single. In response to a
subpoena, MySpace, Inc. provided Detective Holloman with account information: the
account had been created on May 5, 2009 and was registered in Harris’ name along with
an America Online, Inc., (AOL) email address of filmmaker54@aol.com.
A subpoena was thereafter sent to AOL, which provided Detective Holloman with
account information for “filmmaker54.” The account information included a list of
associated “screen names,” including “MichaHarr5,” “Mlharrismedia,” Rjharrishome,” as
well as other screen names, which were apparently also used as email addresses. (State’s
Exh. No. 5 p. 5). The account was registered under the name of Harris’s wife and paid
for with her credit card. Her address and telephone number were the same as reported by
Harris on his sex and violent offender registration form. The membership had been
active since “03-01-15.” (State’s Exh. No. 5 p. 7).
On November 9, 2009, the State filed an Information charging Harris with failure
to register as a sex offender, a Class D felony, I.C. § 11-8-8-17; and a sex offender
internet offense, a Class A misdemeanor, I.C. § 35-42-4-12. On December 3, 2009,
Harris provided an updated registration form, which listed the AOL email addresses but
no social networking user names. Harris attached a note indicating that he had provided
4
this information under protest and without admitting that he had used or intended to use
these email addresses.
On May 26, 2010, Harris filed a petition for relief from retroactive application of
I.C. §§ 11-8-8-8; -17; and § 35-42-4-12 alleging primarily as applied ex post facto
violations under the Indiana Constitution. On September 7, 2010, Harris, by counsel,
filed a motion to dismiss all charges based on ex post facto and free speech violations.
On September 29, 2010, the trial court held a hearing on the motions and subsequently
denied them on October 21, 2010.
On January 23, 2012, a jury trial was held. Harris was found guilty as charged on
both Counts. On February 27, 2012, the trial court sentenced Harris to three years’
incarceration at the Department of Correction on Count I with a concurrent one year
sentence on Count II.
Harris now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. First Amendment
Harris contends that his convictions under I.C. §§ 11-8-8-17 and 35-42-4-12
violate the First Amendment to the United States Constitution. The First Amendment
provides in relevant part that “Congress shall make no law ... abridging the freedom of
speech.” U.S. Const., Amdt. 1. The First Amendment is applicable to the states via the
Fourteenth Amendment. Shuger v. State, 859 N.E.2d 1226 (Ind. Ct. App. 2007), trans.
denied.
5
Harris makes essentially two arguments that the statutes violate his First
Amendment rights.1 Regarding I.C. §11-8-8-8 and -17, he argues that anonymity is
protected under the First Amendment and the disclosure requirements constitute an
involuntary relinquishment of his anonymity thereby violating the First Amendment.2
His argument is more straightforward regarding I.C. § 35-42-4-12. Harris argues that by
banning his use of social networking websites accessible by persons under the age of
eighteen, the State has impermissibly restricted his First Amendment right to free
expression, whether political, religious, commercial, or personal.
Both parties characterize the statutes at issue as content neutral. Government
regulation of expressive activity is content neutral so long as it is justified without
reference to the content of the regulated speech. Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989). “A law is content neutral if it regulates only the time, place, or manner
of speech irrespective of content.” Shuger, 859 N.E.2d at 1232. The appropriate
1
As a threshold matter, we ascertain the nature of these challenges. As the State points out, Harris’s brief
contains lengthy argument citing language applicable to both facial and as applied challenges to the
constitutionality of the statutes. A facial challenge to the constitutionality of a statute requires the
challenging party to demonstrate that there are no set of circumstances under which the statute can be
constitutionally applied. See Doe v. Town of Plainfield, 893 N.E.2d 1124, 1129 (Ind. Ct. App. 2008),
trans. denied. An ‘as-applied’ challenge asks only that the reviewing court declare the challenged statute
or regulation unconstitutional on the facts of the particular case. Dowdell v. City of Jeffersonville, 907
N.E.2d 559, 564 (Ind. Ct. App. 2009), trans. denied. While Harris’s arguments often move back and
forth between different concepts and standards of review, they, more often than not, recite that both
statutes are unconstitutional as applied to him.
2
Although Harris asserts that both I.C. § 11-8-8-8 and -17 are the source of the alleged violation, as the
State points out, I.C. § 11-8-8-17 merely criminalizes the failure to provide required information; the
requirement to provide email addresses and internet identifiers is contained in I.C. § 11-8-8-8(a)(7).
Thus, the inquiry into the constitutionality of Harris’s anonymity claim is better understood as a challenge
to I.C. § 11-8-8-8(a)(7) only.
6
constitutional test for a content neutral regulation is “whether it is narrowly tailored to
serve a significant governmental interest while leaving open ample alternative channels
for communication of the information.” State v. Economic Freedom Fund, 959 N.E.2d
794, 802 (Ind. 2011). The State has the burden of proof. See Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 664 (1994).
B. I.C. § 11-8-8-8(a)(7)
1. Statute at Issue
Indiana’s Sex Offender Registration Act (INSORA), codified at I.C. ch. 11-8-8,
requires persons convicted of a sex or violent offense to register with and report to local
law enforcement. I.C. §§ 11-8-8-4; -14. Sex offenders must fulfill a number of
obligations, including providing personal information. See I.C. § 11-8-8-8. Harris is a
sexually violent predator and therefore must register and provide information under I.C. §
11-8-8-8. See Lemmon v. Harris, 949 N.E.2d 803, 804-09 (Ind. 2011). Subsection (a)(7)
requires offenders to provide certain personal information pertaining to the Internet:
Any electronic mail address, instant messaging username, electronic chat
room username, or social networking web site username3 that the sex or
violent offender uses or intends to use.
3
Each of the foregoing terms is further defined by statute. User names, whether for an electronic chat
room, instant messaging, or social networking web site, refer to identifiers enabling either communication
over the internet in real time using typed text or the creation, use, or modification of a social networking
website. See I.C. §§ 11-8-8-1.2; -1.6; -1.8. A social networking web site is defined in I.C. § 35-42-4-12.
An email address refers to “a destination, commonly expressed as a string of characters, to which
electronic mail may be sent or delivered.” I.C. § 11-8-8-1.4.
7
I.C. § 11-8-8-8(a)(7). Failure to register is punishable as a Class C or D felony under I.C.
§ 11-8-8-17. Failure to register includes not only a knowing or intentional “material
misstatement” but also an omission of information when registering. I.C. § 11-8-8-
17(a)(3).
Harris describes himself as a political activist who is vehemently opposed to sex
offender registry and related laws. He cites newspapers, government websites, online
forums and attorney websites as examples of websites requiring an email address as a
prerequisite to communicate. He alleges that although he has spoken out publicly about
his concerns; however, “because of his business interests, personal safety concerns for he
[sic] an[d] his family and to avoid retaliation, and his tenuous situation as a person
required to register as a sex offender, there are times when it is prudent for [him] to
comment or speak anonymously.” (Appellant’s Br. p. 14). By requiring disclosure of his
email addresses, Harris argues that I.C. § 11-8-8-8(a)(7) prohibits “true anonymity of
speech since [Harris] is required to give the very persons or organizations he may be
speaking out against the identifiers he would otherwise be able to use with anonymity (in
the public forum[)].” (Appellant’s Br. p. 14). Harris therefore contends that “it is
impossible for [him] to respond anonymously to online newspaper articles and to
participate anonymously in online political forums,” and creates “a substantial burden on
his right to speak.” (Reply Br. p. 3).
The State argues that I.C. § 11-8-8-8(a)(7) does not implicate the First
Amendment. Specifically, the statute’s registration requirement does not prohibit Harris
8
from speaking and “places no limits whatsoever on a registrant’s use of the internet.”
(Appellee’s Br. p. 12). In the State’s view, the registration requirement does not compel
Harris to speak, nor does it restrict him from expressing his views. The State also argues
that Harris can communicate anonymously by creating a blog to express his views.
2. Application
In Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010), cert. denied, 131 S.Ct. 1617(2011), the Tenth Circuit considered a challenge to Utah’s sex offender registry laws
requiring the disclosure of the registrant’s email address and internet identifiers. Similar
to I.C. § 11-8-8-8(a)(7), the Utah statute at issue required disclosure of internet
identifiers, which included “electronic mail, chat, instant messenger, social networking,
or similar name used for Internet communication.” Id. at 1221 n.1. Among other
claims, Doe alleged that the Utah registration law violated his First Amendment right to
engage in anonymous speech by chilling “any anonymous criticisms of oppressive laws
or state practices he might otherwise make via the internet.” Id. at 1225. The Tenth
Circuit, however, concluded that the law constituted a content neutral burden on speech
because it “says nothing about the ideas of opinions that Mr. Doe may or may not
express, anonymously or otherwise” and did not unnecessarily impede Doe’s First
Amendment right of speech.4 Id. at 1223-225.
4
The Shurtleff court employed a narrowing construction of the Utah statute to conclude that it precluded
“unrestricted dissemination information to the general public.” Shurtleff, 628 F.3d at 1224-225. In
Indiana, sex offender registry information appears on an internet website. See I.C. § 36-2-13-5.5. This
includes sex offender email addresses and user names. See I.C. § 36-2-13-5.5(b)(3). However, Harris
9
We first examine whether the statute serves a significant government interest. See
Economic Freedom Fund, 959 N.E.2d at 802. INSORA, of which I.C. § 11-8-8-8(a)(7) is
a part, “undoubtedly advances a legitimate, regulatory purpose in that it promotes public
safety” and protects “the public from repeat offenders.” Lemmon, 949 N.E.2d at 812.
Though disputing sex offender recidivism rates, Harris concedes that as originally
conceived, the registry is “a tool to assist law enforcement [to] quickly [identify]
potential abductors should a child go missing.” (Appellant’s Br. p. 20). We therefore
conclude that I.C. § 11-8-8-8(a)(7) serves a significant governmental interest.
The narrowly tailored requirement is satisfied so long as the regulation promotes a
substantial government interest that would be achieved less effectively absent the
regulation. Ward, 491 U.S. at 799. Here, the statute requires disclosure of email
addresses as well as instant messaging and chat room user names that the registrant uses
or intends to use. I.C. § 11-8-8-8(a)(7). Absent the requirement, the State undoubtedly
has a lessened ability to investigate a registrant’s online whereabouts.
Regarding the chilling effect providing identifiers may have on his right to speak
anonymously, we observe that disclosure of online identifiers does not “unnecessarily
interfere with his First Amendment freedom to speak anonymously.” Shurtleff, 628 F.3d
at 1225. This is so because “the First Amendment protects anonymity where it serves as
a catalyst for speech.” Id. Harris does not argue that he is forced to reveal his identity as
does not allege that any chilling effect on his First Amendment rights arises from this public
dissemination requirement.
10
a prerequisite for expression. Although it is possible for the State to be aware of Harris’s
identity at the time of his speech, “this possibility does not impose a constitutionally
improper burden on speech.” Id. Consequently, we reject Harris’s claim that I.C. § 11-8-
8-8(a)(7) chills his expression under the First Amendment.5
C. Ind. Code § 35-42-4-121. Statute at Issue
Sexually violent predators and certain sex or violent offenders are outright banned
from using those social networking sites, instant messaging programs, or chat room
programs that are accessible by persons under the age of eighteen. I.C. § 35-42-4-12.
Harris, by virtue of his status as a sexually violent predator, is subject to the statute’s
restrictions. See I.C. § 35-42-4-12(b)(1). Those restrictions include the following:
(e) A person described in subsection (b) who knowingly or intentionally uses:
(1) a social networking web site; or
(2) 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 web site or program commits a sex offender Internet offense, a
Class A misdemeanor.
I.C. § 35-42-4-12(e).
Subsections (c) and (d) define instant messaging or chat room programs and social
networking web sites. An “instant messaging or chat room program” refers to a software
program that “allows two (2) or more members or authorized users to communicate over
5
For the purposes of foregoing analysis, we have assumed that email permits anonymity. Cf. Howell v.
State, 921 N.E.2d 503, 505 n.2 (Ind. Ct. App. 2009) (“Each computer attached to the internet has an
Internet protocol address […] which identifies its location to the Internet network.”).
11
the Internet in real time using typed text.” I.C. § 35-42-4-12(c). The software program
must require registration or creation of “an account, user name or password to become a
member or registered user.” I.C. § 35-42-4-12(c). A “social networking web site” is an
Internet web site that “facilitates the social introduction between two (2) or more
persons;” “allows a member to create a web page or personal profile;” and “provides a
member with the opportunity to communicate with another person.” I.C. § 35-42-4-12
(d)(1),(3-4). The social networking web site “requires a person to register or create an
account, user name, or a password” in order to “become a member of the web site and to
communicate with other members.” I.C. § 35-42-4-12(d)(2). Electronic mail and
message board programs do not constitute instant messaging, chat room programs, or
social networking web sites. I.C. § 35-42-4-12(c)-(d).
Harris contends that his use of social networking web sites is protected under the
First Amendment. By convicting him for using certain social networking web sites,
Harris argues that he has been punished for engaging in constitutionally protected
expressive activity. The State argues that the internet use restriction is narrowly tailored
to serve the compelling interest in protecting minors from online solicitations and that
ample alternatives exist for Harris to express his views. The State asserts that the sex
offender internet offense statute is narrowly tailored to promote its compelling interest as
it “removes predators from online sites where they have easy access to a large pool of
potential victims.” (Appellee’s Br. p. 18). However, the State concedes that “the statute
will potentially prohibit a considerable amount of speech that does not involve
12
interactions with minors at all.” Nevertheless, the State contends that the statute is
narrowly drawn because “there is no other workable effective measure to deter and
prevent the online sexual solicitations of minors” and only certain types of sex offenders
are restricted from using web sites or services that pose “the greatest risk of online
exploitation.” (Appellee’s Br. p. 18).
2. Doe v. Marion County Prosecutor
After Harris filed his appeal, the Seventh Circuit issued its decision in Doe v.
Marion County Prosecutor, 2013 WL 238735 (7th Cir. Jan. 23, 2013), which addresses
the constitutionality of I.C. § 35-42-4-12 under the First Amendment. Doe involved a
permanent injunction against the enforcement of I.C. § 35-42-4-12 brought by:
all Marion County[, Indiana] residents required to register as sex or violent
offenders pursuant to Indiana law who are not subject to any form of
supervised release and who have been found to be a sexually violent
predator under Indiana law or who have been convicted of one or more of
the offenses noted in [I.C.] § 35-42-4-12(b)(2) and who are not within the
statutory exceptions noted in [I.C.] § 35-42-4-12(a).
Id. at *1. The lower court decision upheld the constitutionality of the statute, concluding
that I.C. § 35-42-4-12 was a content neutral regulation, narrowly tailored to serve a
significant governmental interest and left ample alternative channels for communication
open.
The Seventh Circuit reversed and remanded with instructions to issue the
injunction. Id. at *9. It concluded that I.C. § 35-42-4-12 was a content neutral restriction
“because it restricts speech without reference to the expression’s content.” Id. at *3. As
a result, it applied the Ward test to determine whether the statute is “narrowly tailored to
13
serve a significant governmental interest” and “leave[s] open ample alternative channels
for communication of the information.” Id. (quoting Ward, 491 U.S. at 791). Although
the State had a justified interest in protecting minors from “improper sexual
communication,” the Seventh Circuit concluded that I.C. § 35-42-4-12 was not narrowly
tailored to serve that interest. Id.
The Doe court first considered the constitutionality of complete bans on
expressive activity. Complete bans can be deemed narrowly tailored “but only if each
activity within the proscription’s scope is an appropriately targeted evil.” Id. (quoting
Frisbee v. Schultz, 487 U.S. 474, 485 (1988)). Further, complete bans may be narrowly
tailored where the “substantive evil […] is not merely a possible by-product of the
activity, but is created by the medium of expression itself.” Id. (quoting City of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984)). Thus, where each
communication is an evil and the medium itself represents the evil, complete bans on
expression have been upheld on First Amendment grounds.
In contrast, where the state has alternative means to combat the evil, the Doe court
noted that such bans have been held invalid. It cited Schneider v. Town of Irvington, 308
U.S. 147, 162-64 (1939) and Martin v. City of Struthers, 319 U.S. 141, 147 (1943) in
support. In these cases, the Supreme Court struck down regulations against handbill
distribution (Schneider) and door-to-door solicitations (Martin). The Doe court found
that in Schneider “the expressive activity–handing paper to people in public–did not
produce the evil. The recipients’ incidental decision to drop the paper did. As such, the
14
[Supreme] Court required the cities to prevent littering by enforcing littering laws.” Id. at
*4. Similarly, the Doe court reasoned that the solicitation ban in Martin failed because
each householder could avail themselves of traditional legal methods to restrict the
solicitations. See id.
The Doe court concluded that I.C. § 35-42-4-12 was not narrowly tailored in light
of these precedents. Under the Frisbee and City of Los Angeles rationale, the court noted
the State’s concession that “there is nothing dangerous about Doe’s use of social media as
long as he does not improperly communicate with minors” and there was “no
disagreement that illicit communication comprises a minuscule subset of the universe of
social network activity.” Id. Under the Schneider and Martin rationale, the Doe court
concluded that the State already criminalized illicit expression with minors. In particular,
the court noted that I.C. § 35-42-4-6 punishes child solicitation and I.C. § 35-42-4-13
punishes inappropriate communication with a child. These statutes “have enhanced
penalties for using a computer network.” Id. As a result, the Doe court concluded that
these statutes “better advance Indiana’s interest in preventing harmful interaction with
children” and are thus “neither over nor under-inclusive” as it found I.C. § 35-42-4-12 to
be. Id. Concluding that I.C. § 35-42-4-12 was not narrowly tailored, the court did not
consider whether ample alternative means of communication existed. Id. at *3.
3. Application to Harris
The parties here agree and the Doe court concluded that I.C. § 35-42-4-12 is
content neutral. Guided by the Seventh Circuit’s decision in Doe, we therefore apply the
15
Ward test to determine whether I.C. § 35-42-4-12 meets the intermediate level of scrutiny
applicable to content neutral regulations. See id. Here, the State has argued that a) it has
a substantial state interest in protecting minors from harmful communication; b) I.C. §
35-42-4-12 is narrowly tailored to serve that interest; and c) ample alternatives exist for
Harris to express himself.
Aspects of this case illustrate the breadth of the applicable state interest. Although
Harris cites to studies disputing the current rates of sex offender recidivism, we cannot
say that the State’s assertion that existence of online predation and high sex offender
recidivism has lost its force. Further, we cannot ignore that Harris is a sexually violent
predator whose conduct in fact posed the very risk to minors that the State seeks to
restrict from occurring through the Internet. As a parolee, Harris violated the terms of his
parole by soliciting teenage male actors for his movies via the Internet. See Harris v.
State, 836 N.E.2d 267, 271-72 (Ind. Ct. App. 2005), trans. denied. As we noted in that
case:
[T]he limitation on Harris’s access to the Internet is reasonably related to
his successful reintegration into the community. By imposing the
restriction on Harris’s use of the Internet, the [parole board] was
legitimately concerned that a released child molester’s unfettered access to
a computer might result in additional criminal conduct. This is so because
the Internet, or Cyberspace, defies boundaries and offers unlimited access
to people, including children. See, e.g., U.S. v. Zinn, 321 F.3d 1084, 1093
(11th Cir. 2003) (noting that some child molesters reach their victims
through the Internet), cert. denied, 540 U.S. 839 [(2003)]. This access is
often subtle to children—as it comes in the form of friendship or, in
Harris’s case, prospective employment—and undetected by parents.
Restricting a child molester’s access to this communication medium,
therefore, serves to protect the public and to prevent future criminal
activity.
16
Id. at 275. We conclude that under these circumstances the State has sufficiently
demonstrated that it has significant interests associated with the regulation of sex
offender internet usage.
However, the State’s argument on narrow tailoring, an issue under which it has the
burden, fails under Doe. See Turner, 512 U.S. at 664. Indeed, each component of its
narrow tailoring argument fails. First, the State concedes that I.C. § 35-42-4-12 prohibits
“a considerable amount of speech that does not involve [harmful] interactions with
minors at all.” (Appellee’s Br. p. 18). This fails under Frisbee and Schneider because
each communication is concededly not an evil. Second, the State argues that certain
types of social networking web sites (i.e., those accessible to minors) provide easy access
to a large pool of victims. Yet, this is an insufficient argument to show that the medium
rather than the potential communication causes harm. Third, by arguing that registrants
are excluded, this assumes that all registered sex offenders will potentially engage in
illicit communication. This argument fails under Schneider and Martin because the State
has already criminalized such communication. Fourth, the State posits that use of the
same socializing sites used by minors inevitably leads to online solicitation. This
argument fails under Turner because the State has not shown how the ban alleviates such
harm in a direct and material way. The sole remaining justification for the statute is
based on the administrability exception in Hill. Here, the State’s efforts are insufficient;
it argues that there is no other workable effective measure to deter and prevent the online
sexual solicitation of minors. Lacking a detailed argument sufficient to pass muster
17
under Hill, we conclude that the State has not successfully invoked the administrability
exception under these circumstances.
Nevertheless, an argument can be made under City of Los Angeles and Hill that the
media of social networking sites or instant messaging programs constitute an evil and
also present difficulties in carving a rule that covers precisely the evil contemplated by
the General Assembly. The Doe opinion acknowledges this as a possible argument:
Despite the infirmity of the statute in this case, we do not foreclose the
possibility that keeping certain sex offenders off social networks advances
the state’s interest in ways distinct from the existing justifications. For
example, perpetrators may take time to seek out minors they will later
solicit. This initial step requires time spent on social networking websites
before the solicitation occurs. […. Further,] a law could apply to certain
persons that present an acute risk—those individuals whose presence on
social media impels them to solicit children. Currently, the state presents
no evidence that covered individuals present this sort of risk.
Id. at * 7.
It is conceivable that the social networking medium possesses qualities allowing
us to conclude that the substantive evil is generated by the medium itself. See A.B. v.
State, 885 N.E.2d 1223, 1224-225 (Ind. 2008)(describing features of MySpace). Social
networking websites use endorsements from trusted sources to facilitate social
introductions thereby overcoming a bias against unknown persons, products, or services.
It is possible that prohibiting those certain sex offenders from using such online utilities
reduces the risk that unsupervised communication with an unsuspecting minor may,
through development of bonds of trust and friendship with a predator – a bond that may
ultimately lead to the minor being lured and groomed. Moreover, the nature of social
18
networking web sites may present obstacles justifying the administrability exception
under Hill. Yet, without detailed explanations on how social networking web sites
operate, the State’s argument is not only insufficient to establish justification under City
of Los Angeles and Hill, but also does not fall within the hypothetical, narrowly drawn
statute described in Doe.
A lower federal court’s interpretation of Indiana law is not binding on an Indiana
state court. See League of Women Voters of Indiana, Inc. v. Rokita, 929 N.E.2d 758, 763
(Ind. 2010). We note that the parties in this case and remedy afforded differ from Doe.
The Doe court permanently enjoined Marion County prosecutors from enforcing I.C. §
35-42-4-12 against sex offenders not on supervised release. Although Harris was last
released from parole in December 2008, he was tried and convicted in Elkhart County.
Nevertheless, we conclude that the State’s proffered narrow tailoring justification for I.C.
§ 35-42-4-12 is unsustainable in light of the Doe opinion.
In reaching our determination, we emphasize the distinction between First
Amendment overbreadth and ‘as-applied’ challenges. The First Amendment overbreadth
doctrine allows an individual to attack the constitutionality of a statute that applies to
protected speech, even if the conduct by the challenging party is clearly unprotected.
Logan v. State, 836 N.E.2d 467, 472 (Ind. Ct. App. 2005). The remedy applicable to an
overbreadth challenge is a declaration that the statute is null and void. See U.S. v.
Williams, 553 U.S. 285, 292 (2008). However, overbreadth challenges in criminal cases
are discouraged. Sabri v. U.S., 541 U.S. 600, 609-10 (2004). More importantly, Harris is
19
accused of committing the acts he claims constitute protected speech. Thus, overbreadth
analysis is inapplicable and Harris’s challenge is properly viewed as an as-applied
challenge. See LaRose v. State, 820 N.E.2d 727, 731 n.4 (Ind. Ct. App. 2005), trans.
denied. We therefore conclude that I.C. § 35-42-4-12 is unconstitutional as applied to
Harris and reverse his conviction under the statute.6 Compare Grody v. State, 278 N.E.2d
280, 285 (Ind. 1972) with Smith v. State, 413 N.E.2d 652, 653 (Ind. Ct. App. 1980).
II. Free Expression under the Indiana Constitution
We next review Harris’s claim that I.C. § 11-8-8-8 violates the Free Expression
clause of the Indiana Constitution. Article 1, Section 9 states in relevant part that “[n]o
law shall be passed, restraining the free interchange of thought and opinion, or restricting
the right to speak, write, or print, freely, on any subject whatever […] but for the abuse of
that right, every person shall be responsible.”
A. Standard of Review
We apply a two-step inquiry when reviewing the application of a statute under the
Indiana Constitution. See Shoultz v. State, 735 N.E.2d 818, 826 (Ind. Ct. App. 2000),
trans. denied. A claimant must first demonstrate that the State’s action has, in the
concrete circumstances of the case, restricted his or her opportunity to engage in
expressive activity. Whittington v. State, 669 N.E.2d 1363, 1367 (Ind. 1996). While
6
By concluding that I.C. § 35-42-4-12, as applied, violates the First Amendment, we do not reach
Harris’s challenges to the statute under the Article 1, Sections 9 and 23 of the Indiana Constitution.
Further, our holding obviates the need to review Harris’s argument regarding the statutory defense
provided by I.C. § 35-42-4-12(f).
20
“speaking, writing, or printing, freely on any subject whatever” are protected, the
defendant must show that the State has imposed “a direct and significant burden on a
person’s opportunity to speak his or her mind, in whatever manner the speaker deems
most appropriate.” Id. at 1368. Second, the defendant has the burden to show that the
State’s regulation of the expression is not rational. Logan, 836 N.E.2d at 473. In other
words, the defendant retains the burden to prove “that the State could not reasonably
conclude that the restricted expression was an abuse.” Whittington, 669 N.E.2d at 1369.
If the expressive activity is political in nature, the State must demonstrate that it
did not materially burden the claimant’s opportunity to engage in political expression. Id.
“Expressive activity is political ... if its point is to comment on government action,
whether applauding an old policy or proposing a new one, or opposing a candidate for
office or criticizing the conduct of an official acting under the color of law.” Whittington
v. State, 669 N.E.2d at 1363, 1370 (Ind. 1996). In contrast, where an individual’s
expression focuses on the conduct of a private party – including the speaker himself or
herself – it is not political. Id. If the expression, viewed in context, is ambiguous, a
reviewing court should find that the claimant has not established that it was political and
should evaluate the constitutionality of any state-imposed restriction of the expression
under a rationality review. Id.
B. Ind. Code § 11-8-8-8(a)(7)
Harris argues that registration of his email address “curtails any anonymity that he
may wish to use […] thereby imposing a material burden upon his free speech and
21
exchange of ideas.” (Appellant’s Br. p. 15). The State responds that I.C. § 11-8-8-
8(a)(7) does not restrict expressive activity and even if it is a restriction, the registration
requirement is a response to an abuse of the right to speak.
Although Harris contends that the statute has restricted his political expression, he
must show that the “actual operation of the statute at issue” restricted his expression.
Price, 622 N.E.2d at 958. He has not met this burden. Harris was charged with failing to
provide those email addresses he used or intended to use. The registration requirement in
I.C. § 11-8-8-8(a)(7) does not restrict his ability to use email, nor does it limit his use of
social networking websites or instant messaging and chat room platforms.
Even assuming that Harris has shown the statute to be a restriction on his
expressive activity, Harris has not met his burden regarding the second prong, i.e., that
the State could not reasonably conclude that the restricted expression was an abuse. First,
to the extent that Harris argues that the registration requirement restricts his anonymous
expression, we have previously noted that the right of anonymity expression applies
when anonymity is a catalyst for speech. See Shurtleff, 628 F.3d at 1225. Providing
registration information therefore does not curtail his ability to express anonymously in
the first instance. Although Harris argues that “no abuse was alleged” by the State as a
result of Harris’s failure to register the email addresses and user names, we find this
argument insufficient to meet his burden. (Appellant’s Br. p. 22). The only speech
involved here is identification information; Harris was not convicted for any expression
extending beyond that. To the extent that Harris’s activity was expressive, the State
22
contends that it was an abuse of his right to expression, insofar as it constitutes a “threat
to public safety and the general welfare” falling “within the police power of the State.”
(Appellee’s Br. p. 23). As the supreme court has noted, INSORA promotes public safety
and “registration systems are a legitimate way to protect the public from repeat
offenders.” Wallace v. State, 905 N.E.2d 371, 383 (Ind. 2009). Accordingly, under these
facts, Harris’s conviction under I.C. § 11-8-8-8(a)(7) does not contravene his right to free
expression as guaranteed by Article I, Section 9 of the Indiana Constitution.
III. Ex Post Facto Provision of the Indiana Constitution
Harris’s final constitutional challenge is that I.C. § 11-8-8-8 is unconstitutional as
applied to him in that the statute is an ex post facto law and therefore violates the Ex Post
Facto Clause of the Indiana Constitution.7 The Indiana Constitution states that “No ex
post facto law […] shall ever be passed.” Ind. Const. art 1, § 24. This provision forbids,
in pertinent part, the passage of any law “which imposes a punishment for an act which
was not punishable at the time it was committed; or imposes additional punishment to
that then prescribed.” Healey v. State, 969 N.E.2d 607, 611 (Ind. Ct. App. 2012), trans.
denied (quoting from Weaver v. Graham, 450 U.S. 24, 28 (1981)). The underlying
purpose of the Ex Post Facto Clause is to give effect to the fundamental principle that
persons have a right to fair warning of that conduct which will give rise to criminal
penalties. State v. Pollard, 908 N.E.2d 1145, 1149 (Ind. 2009).
7
Harris’s ex post facto challenge is based exclusively on the Indiana Constitution and not the United
States Constitution.
23
In Wallace, the supreme court concluded that ex post facto claims under the
Indiana Constitution are evaluated by application of the “intent-effects” test. Pollard,
908 N.E.2d at 1149. Under the first prong of this test, we determine what type of scheme
the legislature intended the statute to establish. Id. If the legislature’s intention was to
impose punishment, the inquiry ends and an ex post facto violation is found. Id. If,
however, the legislature’s intention was regulatory or civil in nature, then the court must
move to the second prong of the inquiry to determine whether the effects of the statute
are so punitive as to transform the regulatory scheme into a criminal penalty. Id.
Harris’s ex post facto challenge fails. Although Harris alleges that I.C. § 11-8-8-8
constitutes an ex post facto violation in the heading of his brief and the last sentence of
his argument, he makes no attempt to analyze the statute under the intents-effects test.
As a result, we find that Harris has failed to make a cogent argument and has therefore
waived this particular claim. See Wingate v. State, 900 N.E.2d 468, 475 (Ind. Ct. App.
2009).8
IV. Sufficiency of the Evidence
Harris also argues that because he personally did not use or intend to use certain
unregistered email addresses, he complied with the I.C. § 11-8-8-8(a)(7) requirement that
8
Harris also contends that his convictions violate Resolution from the United Nations Human Rights
Council regarding free speech on the Internet. See H.R.C. Res. 20/L.13, U.N. Doc. A/HRC/20/L.13 (June
29, 2012. However, Harris cites to no authority to demonstrate that this resolution has binding authority
and further fails to make an argument how the statutes violate the resolution. Accordingly, we deem this
argument waived for failure to make a cogent argument. See Wingate, 900 N.E.2d at 475.
24
a sex or violent offender register those email addresses the offender uses or intends to
use. We characterize this argument as a sufficiency of the evidence claim.
In order to convict Harris of failing to register under I.C. § 11-8-8-17, as a Class D
felony, the State was required to prove beyond a reasonable doubt that Harris, a sex
offender, acting with the culpability required for commission of the crime:
(1) fail[ed] to register when required to register under this chapter;
(2) fail[ed] to register in every location where the sex or violent offender is
required to register under this chapter;
(3) ma[de] a material misstatement or omission while registering as a sex or
violent offender under this chapter[.]
I.C. § 11-8-8-17(a). The statute requires that the sex or violent offender knowingly or
intentionally commit the violation for culpability. I.C. § 11-8-8-17.
When reviewing the sufficiency of the evidence to support a conviction, we will
consider only the probative evidence and reasonable inferences supporting the verdict.
Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm the conviction unless no
reasonable fact-finder could find the elements of the crime proven beyond a reasonable
doubt. Id. Because knowledge is the mental state of the actor, it may be provided by
circumstantial evidence and inferred from the circumstances of each case. Taylor v.
State, 975 N.E.2d 392, 394 (Ind. Ct. App. 2012), trans. denied.
Harris does not dispute that he did not list the email addresses when he updated his
registration on June 1, 2009. However, Harris argues that he was aware of the
requirement to register and as a result he never personally used or intended to use the
unregistered email addresses or social networking website user names. Instead, he claims
25
that the unregistered email addresses and social networking usernames were registered
under his wife’s name, used in connection with the promotion of his services as an actor
and filmmaker, and part of the “brand name” of his business carried out through his
corporation. According to Harris, in such case, the law does not require him to register
the email addresses or social networking user names.
At trial, the State offered screen shots of Harris’s MySpace profile page and his
IndianaActors.com profile page. The MySpace profile page contained Harris’s
photograph, a narrative of his likes and dislikes, listed his marital status as single, and a
user name of ‘filmmaker 54.’ Further, the State provided records from MySpace
showing that the profile page was created on May 5, 2009, and an associated email
address of ‘filmmaker1954@aol.com.’ The Indiana Actors.com profile page contained
photographs of Harris, listed an email address of ‘michaharr5@aol.com,’ and stated
“[c]ontact Michael L. Harris directly if you are interested in his talents.” (State’s Exh.
No. 6). Harris did not register either email address until December 3, 2009.
Based on the foregoing, we deem Harris’s arguments merely a request to reweigh
the evidence. We decline to do so. There is sufficient evidence from which the jury could
infer that Harris used or intended to use such email addresses and failed to register these
email addresses on June 1, 2009. We therefore reject Harris’s sufficiency of the evidence
claim.9
9
Harris makes two additional arguments that we do not consider. First, Harris alleges that the trial court
abused its discretion by denying his motion in limine regarding criminal history evidence. It is well
settled that the denial of a motion in limine does not preserve error and that the failure to make a timely
26
CONCLUSION
Based upon the foregoing, we conclude that Harris’s conviction under Ind. Code §
35-42-4-12 violates the First Amendment to the United States Constitution and reverse
his conviction under that statute. However, Harris’s constitutional challenges to I.C. §
11-8-8-8(a)(7) under the First Amendment as well as Article 1, Sections 9 and 24 of the
Indiana Constitution fail. We also conclude that the State produced sufficient evidence to
support Harris’s conviction under I.C. § 11-8-8-17.
Affirmed in part, reversed in part.
BAILEY, J. concurs
CRONE, J. concurs in part and concurs in result in part with separate opinion
objection to the evidence at trial waives the error on appellate review. See Warren v. State, 757 N.E.2d
995,998 (Ind. 2001). Here, Harris did not object when the State introduced evidence of his child
molesting conviction. Second, Harris argues that the State committed prosecutorial misconduct during its
closing argument. Specifically, he contends that the State improperly referred to his prior child molesting
conviction, expressed personal opinions that Harris sought to be portrayed as a victim, and called Harris a
liar. However, Harris did not object to these remarks, request an admonishment, or make a motion for a
mistrial. His argument is therefore waived. See Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006).
Further, where a claim of prosecutorial misconduct has not been properly preserved, the defendant must
establish the grounds for the misconduct and the additional grounds for fundamental error. Id.Fundamental error is an extremely narrow exception that allows a defendant to avoid waiver of an issue.
Id. However, Harris makes no attempt to argue that fundamental error occurred.
27
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL L. HARRIS, )
)
Appellant-Defendant, )
)
vs. ) No. 20A04-1204-CR-225
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
CRONE, Judge, concurring in part and concurring in result in part
I agree with the majority that the State produced sufficient evidence to support
Harris’s conviction under Indiana Code Section 11-8-8-17; that he waived his ex post
facto claim as to Indiana Code Section 11-8-8-8; that he waived his claim that his
convictions violate the Resolution from the United Nations Human Rights Council; and
that he waived his claims regarding the trial court’s denial of his motion in limine and the
prosecutor’s alleged misconduct. I also agree that Indiana Code Section 11-8-8-8 is not
28
unconstitutional as applied to Harris under the First Amendment. As to the remaining
issues, I respectfully concur in result.
Harris first contends that Indiana Code Sections 11-8-8-7, 11-8-8-17, and 35-42-4-
12 are unconstitutional as applied to him under the First Amendment to the U.S.
Constitution and Article 1, Section 9 of the Indiana Constitution. Like the majority, I
agree with the State that Indiana Code Section 11-8-8-17 “merely makes it a crime to
failure to register as required by law, which does not implicate” any constitutional free-
speech provision, and thus his “constitutional arguments are properly directed toward the
substance of the registration requirement, which is found in Section 11-8-8-8.”
Appellee’s Br. at 9 n.5. As mentioned above, I agree with the majority that Indiana Code
Section 11-8-8-8 is not unconstitutional as applied to Harris under the First Amendment.
As for Harris’s state constitutional argument, however, I would simply hold that he has
failed to establish that the statute has actually restricted his expression and say nothing
more on the subject.
As for Indiana Code Section 35-42-4-12, the majority acknowledges that the
Seventh Circuit Court of Appeals recently addressed its constitutionality under the First
Amendment in Doe v. Marion County Prosecutor, 705 F.3d 694 (7th Cir. 2013), but
never quite gets around to saying that the court found the statute unconstitutional on its
face. See id. at 695 (“We … hold that the law as drafted is unconstitutional. Though
content neutral, we conclude that the Indiana law is not narrowly tailored to serve the
29
state’s interest.”). I acknowledge that we are not bound by the Seventh Circuit’s holding
and that Doe is both factually and procedurally distinguishable, but I see no reason to
reinvent the wheel here and would reverse Harris’s conviction under Indiana Code
Section 35-42-4-12 based on Judge Flaum’s persuasive analysis in that case. We need
not address Harris’s state constitutional argument here, but I would simply note that the
protections of Article 1, Section 9 of the Indiana Constitution are at least equal to if not
greater than those of the First Amendment.
30