Michael L. HARRIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 20A04-1204-CR-225
Court of Appeals of Indiana.
March 27, 2013.
Michael L. Harris, New Castle, IN, Appellant Pro Se. Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
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,
We affirm in part and reverse in part.
ISSUES
Harris raises three issues on appeal, which we restate as the following four issues:
- Whether Harris‘s convictions under
I.C. § 11-8-8-17 andI.C. § 35-42-4-12 violate the First Amendment of the United States Constitution; - Whether Harris‘s conviction under
I.C. § 11-8-8-17 violates Harris‘s right of free expression under the Indiana Constitution; - Whether
I.C. § 11-8-8-8 constitutes an ex post facto law under the Indiana Constitution as applied to Harris; and - 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 register as a sex offender for ten years commencing December 1, 2008; however, by operation of law, Harris‘s sta-
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 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 “Mi-chaHarr5,” “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,
On May 26, 2010, Harris filed a petition for relief from retroactive application of
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
Harris makes essentially two arguments that the statutes violate his First Amendment rights.1 Regarding
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 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 communica-
A. I.C. § 11-8-8-8(a)(7)
1. Statute at Issue
Indiana‘s Sex Offender Registration Act (INSORA), codified at
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.
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
The State argues that
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
We first examine whether the statute serves a significant government interest. See Economic Freedom Fund, 959 N.E.2d at 802. INSORA, of which
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.
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 1225.4 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 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. § 35-42-4-12
1. 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.
(e) A person described in subsection (b) who knowingly or intentionally uses:
- a social networking web site; 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 web site or program commits a sex offender Internet offense, a Class A misdemeanor.
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 the Internet in real time using typed text.”
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 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).
After Harris filed his appeal, the Seventh Circuit issued its decision in Doe v. Marion County Prosecutor, 705 F.3d 694 (7th Cir.2013), which addresses the constitutionality of
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 696. The lower court decision upheld the constitutionality of the statute, concluding that The Seventh Circuit reversed and remanded with instructions to issue the injunction. Id. at 703. It concluded that 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 Frisby 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 [Supreme] Court required the cities to prevent littering by enforcing littering laws.” Id. at 699. 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 The parties here agree and the Doe court concluded that 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, 124 S.Ct. 97, 157 L.Ed.2d 71 (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. 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 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. 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 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 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 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 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 We next review Harris‘s claim that 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 “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 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, 669 N.E.2d at 1370. 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. 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 exchange of ideas.” (Appellant‘s Br. p. 15). The State responds that 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 v. State, 622 N.E.2d 954, 958 (Ind.1993). 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 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 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 Harris‘s final constitutional challenge is that 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 Harris also argues that because he personally did not use or intend to use certain unregistered email addresses, he complied with the In order to convict Harris of failing to register under 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 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 Based upon the foregoing, we conclude that Harris‘s conviction under Affirmed in part, reversed in part. BAILEY, J. concurs. CRONE, J. concurs in part and concurs in result in part with separate opinion. 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 Harris first contends that Indiana Code Sections As for 3. Application to Harris
II. Free Expression under the Indiana Constitution
A. Standard of Review
B.
III. Ex Post Facto Provision of the Indiana Constitution
IV. Sufficiency of the Evidence