*1 healthy subject utilities whether should legisla- policy
to Section is a choice the readily
ture could make based a desire private encourage investment sewer Indeed, majori-
and water facilities.
ty’s less reading seems reasonable to me.
Distressed utilities would seem to be the acquired by gov-
best candidates to be entity
ernmental to assure stable service. legislature
On its face is odd that the prevent governmental choose ac-
quisition perhaps of this imaginary
distressed but permit utilities it as to
healthy ones. policy
Whatever considerations
be, it seems to me this section was
carefully crafted to apply all utilities. If
that is proper reading not a of Section Assembly
the General easily could correct
it, City and the could then initiate a new
eminent domain proceeding. Because I Appeals correctly
believe the Court of re- issue, deny
solved this I would transfer.
Given that granted, transfer has I been
respectfully dissent.
DICKSON, J., concurs. BROWN, Appellant
Richard
(Defendant below), Indiana, Appellee
STATE of
(Plaintiff below).
No. 49S05-0612-CR-494.
Supreme Court Indiana.
June
not serve as a basis
for the convictions
and that
case
evidence
insuffi-
cient to establish all of the statutory ele-
deception,
ments
we reverse.
*3
The criminal charges stemmed from a
defendant,
series of
in
incidents which the
pretending
station,
to work
radio
telephoned at least three adult men and
falsely informed them a
in
radio contest
they
which
could each win a new car or
they
cash if
places
drive from their
of employment
to a
address
(which happened to be the defendant’s res-
idence), enter and remove all of their
clothes,
exchange
them for a T-shirt.
Each of the men appeared
at
defen-
home,
dant’s
and two of the men satisfied
requirements
fictitious contest
but re-
Schumm,
IN,
Joel M.
Indianapolis,
At-
prize.
no
ceived
Each man contacted the
torney for Appellant.
radio station and discovered that it had no
Carter, Attorney
Steve
General of
such employee and
was
sponsoring
Indiana,
Stein,
Kathryn
Jodi
Deputy At-
such contest.
torney General,
IN,
Indianapolis,
Attor-
The defendant asserts numerous issues
neys for Appellee.
on appeal,
dispositive.
but two are
1. Criminal Confinement
as Removal
by Fraud or Enticement
The defendant contends
DICKSON,
that the crimi-
Justice.
nal confinement convictions
vague-
fail for
defendant,
The
Brown,
Richard Carlos
ness
provides
because the statute
neither
appeals his convictions and
sen
resulting
adequate notice to defendants about what
tence on three counts of criminal confine
conduct has been
nor
criminalized
minimal
ment and
identity
three counts of
decep
guidelines to distinguish
in-
criminal from
tion, all
felonies. The Court of
nocent conduct. The State denies that the
Appeals reversed the criminal confinement
statutory language
vague, especially
convictions, finding the applicable statuto
applied
case,
when
to the
defendant
ry provisions unconstitutionally vague, but
that,
because the defendant’s conduct
it affirmed the
convictions for
de
enticement,
“was
fraud
ception and remanded for sentencing.
conduct falls squarely within the confines
Brown v.
699, 713,
716
and the statute was not
(Ind.Ct.App.2006), aff'd,
reh.,
856
vague
applied
to him.”
Br.
Appellee’s
N.E.2d
(Ind.Ct.App.2006).
739
Both the
at 16.
transfer,
defendant and the
sought
State
which we granted.
Brown v.
Each of the three counts of criminal
(Ind.2006) (table).
N.E.2d 599
Finding
the defendant
that the criminal confinement
can-
statute
knowingly used “fraud”
“enticement” to
Inc.,
“remove ” Harriss, 80, United States v. (quoting 81. To Appellant’s App’x .... other 617, 808, 812, 612, 74 S.Ct. L.Ed. charges, the U.S. to these pertinent the extent (1954)). State provided: applicable (Ind.1985), this Court em (a) inten- knowingly or phasized something that “there tionally: a criminal statute to indicate where the (1) ... trivial and line is to be drawn between by fraud, person, removes things substantial so that erratic arrests force, force, or threat convictions for trivial acts and omis another; place to from one *4 will not It cannot left to sions occur. be ..., ... a criminal confinement commits juries, judges, prosecutors draw felony. D Class statutory the Accordingly, such lines.” (2004) 35-42-3-3(a) (emphasis sufficiently definite language “convey added) (amended 2006). . proscribed warning as conduct when understanding.” measured common validity of a challenge to A State, 89, v. 477 N.E.2d 93 Rhinehardt presumption a that must overcome statute (Ind.1985). v. Lom is constitutional. State the statute (Ind.2000). 653, bardo, N.E.2d 655 738 But a statute “is not void for has the challenging statute party
The ordinary if vagueness individuals of intelli Brady v. proving of otherwise. burden it to the extent gence comprehend could (Ind.1991). 981, State, 575 N.E.2d fairly it inform them of that principles advise process Due Klein, 698 generally proscribed conduct.” vagueness is if penal a statute void for that Lombardo, 299; at accord prohibitions. its it does not define the statute does not N.E.2d at 656. And (Ind. 296, 299 v. 698 N.E.2d Klein prohib all of specifically have to list items 1998) Rockford, City v. (citing Grayned conduct; rather, it must inform ited 2294, 104, L.Ed.2d S.Ct. U.S. generally pro individual conduct (1972)). criminal statute be invali A Lombardo, 738 N.E.2d scribed. of two inde vagueness for for either dated vagueness challenge a The examination of failing provide for pendent reasons: cir light of the facts and performed enabling ordinary people to under notice case. Id. each individual cumstances of prohibits, and the conduct that it stand vagueness claim focuses it The defendant’s that authorizes or possibility for the “remove,” terms in the statute: discriminatory three encourages arbitrary or en “fraud,” Morales, To determine and “enticement.” v. Chicago City forcement. applies, 1849, 1859, vagueness doctrine 41, 56, 144 whether 119 S.Ct. 527 U.S. (1999); terms not consider each of these Healthscript, we L.Ed.2d 79-80 (Ind. isolation, The statute does but in context. 815-16 Inc. 2002). for provide definition is the re related consideration per terms. our evaluation give a of these three quirement penal that a claim, vagueness which ordinary that the defendant’s intelligence fair notice son of ordinary people under- hinges upon how is forbidden so contemplated conduct prefer con- we criminally statutory language, “no held re stand man shall be dictionaries, specialized not a he could not sult standard sponsible for conduct which by the dictionary as cited State. proscribed.” legal reasonably understand be dictionaries advise that ing Such “re an untruth to persuade an Alzheim- a place move” means to move from or patient er’s to enter the location of position.1 proscribes The statute thus con caregiver. person duct that causes another to move Criminal confinement for removal en- place
from one to another for iden reasons ticement can likewise applied to crimi- fraud, enticement, improper: tified as legitimate, nalize an assortment of normal force, or threat force. The word “re everyday behavior. The word “entice- move,” as used in the rather ment” is commonly understood to mean straightforwardly fairly rea informs of attracting, luring, act tempting or sonably intelligent person that is unlaw by arousing hope or desire.3 ful to cause another to move from a The specified confinement, or improper location offense reject the reasons. We defendant’s claim felony, would thus occur per- whenever a unconstitutionally vague that the statute is son knowingly intentionally arouses by reason of its use the word “remove.” hope or desire in another lure change attract the other to location. Lit- But the terms “fraud” “en erally, this proscription would *5 include ticement,” statute, in used as are array broad quite of acceptable human problematic. Ordinary people commonly behavior, e.g., intra-spousal parent- and to “trickery,” understand “fraud” mean child communications to change induce a “deception,” or “deceit.”2 Thus under location; stood, commercial advertising the offense of criminal to entice confine ment, felony, events; com travel or visits stores or reli- person mitted whenever a knowingly or gious appeals to foster church attendance. intentionally person causes another to As enticement, to both possi- fraud change by location of trickery, means bilities seem endless. deception, scope or deceit. The of such possibilities Such intuitively obvious of proscription would embrace a vast as improper applications of the criminal con- sortment very acceptable of and even finement persuasive statute is evidence salutary conduct that is crim that, respect with by to removal or fraud nature,
inal in
e.g., using misleading rea
enticement,
the statute fails to “indicate
sons to secure a person’s attendance for
where the line is to be drawn between
surprise
celebration;
their
birthday
trivial
things
and substantial
evoking
so that errat-
Santa Claus’s watchful eye to
bed;
ic
induce a child
go
arrests and convictions for trivial
employing
acts
flattery
exaggeration
or
to motivate an
omissions will not occur.”
event;
other
to attend an
assert-
As seeks counts of Each of the three confinement stat- the criminal defendant “did deception charged of the the individual inform ute fails to knowingly identifying information use the Lombardo, generally proscribed. conduct person, namely Radio Now of another (93.1), N.E.2d at 656. consent person’s without other to harm or defraud and with the intent conclude that We therefore an- person,., profess to be another statute, person, agent that is: an Radio other 35-42-3-3, to its inclusion (93.1).” Appellant’s App’x 80-81. Now “enticement,” is void for “fraud” and words charges, pertinent To the extent to these for the and cannot be basis vagueness, applicable provided: But convictions this case. defendant’s (a) ..., knowingly or in- invalidate the statute as this does not in- ... tentionally uses the constitutionality preserve To whole. person: formation another it a “may give courts a criminal consent; person’s without the other nul it from narrowing construction save lification, does not such construction where to: with intent policy new or different basis establish a (A) person; harm or defraud legislative intent.” with and is consistent (B) ...; or N.E.2d at 123.4 Downey, 476 *6 (C) person; to be another profess above, infirm statute is not As noted the identity deception, a Class commits We of the term “remove.” by reason felony. the Indiana construe therefore (2004) (amend- 35-43-5-3.5(a) § Ind.Code from statute to exclude Sec- 2006). this purposes provi- For the ed 3-3(a)(2) fraud, “by entice- phrase the tion charged of- sion, to the and as relevant ment,” leaving proscrip- it intact as to its fense, information” phrase “identifying the knowingly or a against tion to mean “information defined specifically by intentionally “removes individual, including an an that identifies to place one or threat of force” from force name, address, date of ... individual’s was con- Because the defendant another. iden- birth, employer employment, removing persons by fraud victed name, number, maiden mother’s tification criminal con- we reverse his number, any identifica- Security Social finement convictions. en- by governmental a tion issued number 35-43-5-l(h) § tity ...” Ind.Code Using Identity Deception Infor- 2. added) (current version at Ind. (emphasis an Individual mation that Identifies 35-43-5-1(0). “individ- The word Code refer to a commonly the understood to contends that ual” is The defendant “per- in contrast being,5 single the ele human insufficient establish evidence is individual son,” either an which can mean identity deception of the three ments added) 35-46-l-4(a)(l) (emphasis a criminal Court construed In this amended). (since neglect aof defining the offense of "may” in the dependent to exclude the word See, e.g., American endanger life or health.” phrase "that (2d ed.1985) (defining "individual” the noun being human or other corporation Because the evidence does not establish legal entity.6 that the defendant committed the offense by using specifically identify- information addressing a claim insuffi ing another being, individual human the evidence, appellate cient an court con insufficient prove evidence is all only probative siders evidence and identity elements of the crimes of supporting reasonable inferences deception. judgment whether a assess reason able trier fact could have found the Conclusion beyond a guilty defendant reasonable The defendant’s convictions for criminal doubt. v. Whedon confinement and are deception (Ind.2002). Applying this reversed, each and we remand further standard, the trial evidence establishes proceedings with conformity opin- spoke peo the defendant to three ion. contest, ple about phony each time representative himself as a SULLIVAN, BOEHM, RUCKER, station, corporation. of the radio And JJ., concur. with at people, least one the de C.J., SHEPARD, part dissents as to Ross,” fendant claimed be “Scott part and concurs as separate without representative of the radio station. But opinion. this was fictitious name created
the defendant did not coincide with person. real statute, penal construing
When
ambiguous language construed strictly against the State and in favor of STATE of Indiana ex rel. Kurt the accused. Merritt v. HOFFMAN, Relator, M. (Ind.2005). 472, 475 Applying phrase “identifying information” as defined charge against the defendant *7 COURT, The ALLEN CIRCUIT Therese required prove State that the defen Brown, Thereof, M. as Clerk and The address, name, dant an used individual’s Craig Bobay, Hon. Judge J. There- birth, identifiers, date of or other to com of, Respondents.
mit the crime. While there was No. 02S00-0704-OR-161. evidence that the defendant used informa tion corporate radio station Supreme Court of Indiana. consent, without its there was no evidence June name, address, that he used the date of birth, or other of any existing identifiers being
human in perpetrating his hoax. single to mean: "A being human considered being organiza- son” to mean: "A human separately group society.”); from a or from duties.”); legal rights tion with Random College (Rev. Dictionary Random House (Rev. ed.1984) College Dictionary House ed.1984) (defining the noun "individual” to (in part defining "person” the noun to mean: single being, mean: "a human as distin- being, group "a beings, human human guished group.”) from estate, corporation, legal entity an or other See, recognized by rights e.g., having law as American (2d ed.1985) (in part defining duties.”) "per- the noun