Michael L. Harris v. State of IndianaMichael L. Harris v. State of Indiana
Lead Opinion
OPINION
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:
(1) Whether Harris’s convictions underI.C. § 11-8-8-17 andI.C. § 35-42-4-12 violate the First Amendment of the United States Constitution;
(2) Whether Harris’s conviction underI.C. § 11-8-8-17 violates Harris’s right of free expression under the Indiana Constitution;
(3) WhetherI.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 underI.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 Sheriffs 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 [mjisdemeanor for the first offense and [Class] D [fjelony 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 Elk-hart County Sheriffs 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,” “Rjharrish-ome,” 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 I.C.
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.
Harris makes essentially two arguments that the statutes violate his First Amendment rights.
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,
A. I.C. § U-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
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.
I.C. § ll-8-8-8(a)(7). Failure to register is punishable as a Class C or D felony under
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,
We first examine whether the statute serves a significant government interest. See Economic Freedom Fund
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,
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,
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:
(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.
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,
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^:—12(b)(2) and who are not within the statutory exceptions noted in [I.C] § 35^2-4-12(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,
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,
The Doe court concluded that
3. Application to Harris
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,
[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.
Id. at 701-02.
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,
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,
II. Free Expression under the Indiana Constitution
We next review Harris’s claim that
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,
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,
B. Ind.Code § ll-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 exchange of ideas.” (Appellant’s Br. p. 15). The State responds that I.C. § ll-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 v. State,
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, ie., 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,
III. Ex Post Facto Provision of the Indiana Constitution
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,
Harris’s ex post facto challenge fails. Although Harris alleges that
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. § ll-8-8-8(a)(7) requirement that 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
(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. § ll-8-8-17(a). The statute requires that the sex or violent offender knowingly or intentionally commit the violation for culpability.
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,
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 us-ernames 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 ‘filmmakerl954@aol.com.’ The Indiana Actors.com profile page contained photographs of Harris, listed an email address of ‘michaharr5@aol.com,’ and stated “[cjontact 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 fHarris’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.
Based upon the foregoing, we conclude that Harris’s conviction under
Affirmed in part, reversed in part.
Notes
. 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,
. Although Harris asserts that both
. 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
. The Shurtleff court employed a narrowing construction of the Utah statute to conclude that it precluded "unrestricted dissemination information to the general public.” Shurtleff,
. For the purposes of foregoing analysis, we have assumed that email permits anonymity. Cf. Howell v. State,
. By concluding that
. Harris’s ex post facto challenge is based exclusively on the Indiana Constitution and not the United States Constitution.
. 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,
. 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 objection to the evidence at trial waives the error on appellate review. See Warren v. State,
Concurrence Opinion
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
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
As for Indiana Code