                                                                            FILED
                                                                        Dec 30 2019, 9:14 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                   Attorney General of Indiana
Brooklyn, Indiana
                                                          George P. Sherman
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

James C. McClernon,                                       December 30, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-1305
        v.                                                Appeal from the Vanderburgh
                                                          Circuit Court
State of Indiana,                                         The Honorable David D. Kiely,
Appellee-Plaintiff.                                       Judge
                                                          The Honorable Kelli E. Fink,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          82C01-1903-F5-1766



Najam, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019                           Page 1 of 19
                                            Statement of the Case
[1]   James C. McClernon brings this interlocutory appeal from the trial court’s

      denial of his motion to dismiss the State’s charge against him for failing to

      register vehicle information, as a Level 5 felony. 1 McClernon raises a single

      issue for our review, namely, whether Indiana Code Section 11-8-8-8(a)(1)’s

      requirement that a sex offender register vehicle information for any vehicle the

      offender “operates on a regular basis” is void for vagueness. We hold that

      longstanding principles of statutory construction require the language at issue to

      be read under an objective reasonableness standard—that is, whether one

      operates a vehicle on a regular basis is to be determined by asking whether

      reasonable persons would know that McClernon’s conduct put him at risk.

      Under that standard, the statutory language is not constitutionally deficient.

      Accordingly, we affirm the trial court’s denial of McClernon’s motion to

      dismiss.


                                     Facts and Procedural History 2
[2]   According to the State’s probable cause affidavit:


                 [McClernon, t]he suspect in this offense[,] is . . . a registered sex
                 offender in Vanderburgh County, Indiana. The suspect was
                 convicted of Sexual Assault . . . in Thunder Bay[,]



      1
          The State alleged an enhanced offense based on a prior failure-to-register conviction.
      2
        We held oral argument at Owen Valley High School on November 19, 2019. We extend our sincerest
      gratitude to the faculty, staff, and students for their hospitality. We also commend counsel for their excellent
      written and oral advocacy.

      Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019                               Page 2 of 19
        Canada[,] . . . [i]n Aug[ust] 2013. After serving his sentence[]
        there, he was required to register as a sex or violent offender
        upon his release. A review from the Indiana Department of
        Correction[] determined that the suspect’s Canadian [o]ffense is
        equivalent to attempted Criminal Deviant Conduct[, as] a Class
        B felony[,] and that the suspect must register as a Sexually
        Violent Predator for life.


        The suspect was also convicted for I.C. 11-8-8 failure to register
        as a sex or violent offender[] in the Vanderburgh County Court
        System . . . on 08-17-2016.


        The suspect’s signed and initialed Sex and Violent Offender
        Registration forms are on file[] and reflect that he has
        acknowledged his duties and obligations as a registered sex
        offender. A copy of the Indiana Sex Offender Registration Laws
        was also made available to him.


        The suspect last registered with the Vanderburgh County
        Sheriff’s Office [the “VCSO”] on the following dates: 01-25-
        2019, 02-04-2019, 02-13-2019, 02-22-2019, and 03-01-2019. On
        all of these dates the suspect did not report any vehicles, which is
        a duty and obligation as a registrant.


        On 02-04-2019, after not registering a vehicle, VCSO
        Receptionist A. Nilssen observed the suspect leave the
        VCSO . . . and drive away in an older model red Chevy pick-up
        truck. . . .


        On 02-06-2019, the suspect was stopped in a vehicle that
        matched the same vehicle that Nilssen observed him driving
        away in on 02-04-2019. . . . Officer N. Jones confirmed that the
        suspect was driving a suspected stolen vehicle and stopped him.
        [McClernon] stated that he had the truck for about [five] days
        and was using it to scrap for extra money. . . .

Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019        Page 3 of 19
        The suspect was observed driving away from the VCSO . . . on
        02-04-2019 after not registering the vehicle[] and was stopped in
        said . . . vehicle on 02-06-2019 . . . and admitted that he was
        using it to scrap for about [five] days. This is a violation of I.C.[]
        11-8-8-8.


        On 03-08-2019, the suspect arrived [at] the VCSO . . . for his
        registration update. Upon arrival he was taken into custody . . . .
        Deputy Hatfield asked if the suspect wished to talk with him and
        the suspect agreed and signed a Miranda Warning
        acknowledging this.


        The suspect stated to Deputy Hatfield that he was in fact utilizing
        the red Chevy truck . . . . The suspect advised that he received
        the vehicle from [a third party] on the Saturday before he was
        stopped in it. This date would have been 2-2-19. The suspect
        advised he was using the vehicle to help his ex[-]wife move items.
        The suspect advised he believed he was returning the vehicle after
        using it. The suspect advised the [person] who gave him the
        vehicle never answered his phone so the suspect could not return
        it. The suspect then advised he would proceed to continue to
        utilize the vehicle until he was stopped in it on 2-6-19. The
        suspect advised he used the vehicle to obtain money by scrapping
        metal, to transport him to places, as well as [to] sleep inside of it.
        The suspect further advised he used this vehicle to get him to the
        [VCSO] so that he could complete his Sex and Violent Offender
        Registry form on 2-4-19. The suspect advised[,] even though he
        was utilizing the vehicle at the time he completed his Sex or
        Violent Offender registration, he did not register the vehicle. The
        suspect made multiple admissions to Deputy Hatfield that he
        utilized the above vehicle multiple days before and after
        registering that he was not utilizing a vehicle. The suspect
        further admitted to using the above vehicle for personal [use] as
        well as monetary gains during this time.


Appellant’s App. Vol. 2 at 12-13.
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019        Page 4 of 19
[3]   Based on those allegations, in March of 2019 the State charged McClernon with

      failing to register, as a Level 5 felony. In particular, the State alleged that

      McClernon had failed to register the vehicle information 3 for a vehicle that he

      “operates on a regular basis,” as required by Indiana Code Section 11-8-8-

      8(a)(1) (2019), a provision of Indiana’s Sex Offender Registration Act.

      McClernon moved to dismiss the charge on the ground that the vehicle-

      information registration requirement is void for vagueness as applied to him.

      The trial court denied McClernon’s motion to dismiss. The court then certified

      its order for interlocutory appeal, which we accepted.


                                       Discussion and Decision
[4]   McClernon appeals the trial court’s denial of his motion to dismiss. As the

      Indiana Supreme Court has stated:


               We review a trial court’s ruling on a motion to dismiss a charging
               information for an abuse of discretion and a trial court abuses its
               discretion when it misinterprets the law. A challenge to the
               constitutionality of a statute is a pure question of law, which we
               review de novo. All statutes are presumptively constitutional, and
               the court must resolve all reasonable doubts concerning a statute
               in favor of constitutionality. That being said, unlike the higher
               burden faced by those making a facial constitutional challenge,
               those challenging the statute as applied need only show the
               statute is unconstitutional on the facts of the particular case.




      3
        This information includes the “vehicle description, vehicle plate number, and vehicle identification
      number.” Ind. Code § 11-8-8-8(a)(1) (2019).

      Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019                             Page 5 of 19
      State v. Thakar, 82 N.E.3d 257, 259 (Ind. 2017) (quotation marks, omissions,

      alterations, and citations omitted).


[5]   The issue in this appeal also involves questions of statutory interpretation.

      When interpreting a statute, our primary goal is to determine and give effect to

      the intent of the legislature. Rodriguez v. State, 129 N.E.3d 789, 796 (Ind. 2019).

      We must give effect to the plain and ordinary meaning of statutory terms, and

      there is a presumption that the legislature intended the statutory language to be

      applied logically and consistently with the statute’s underlying policy and goals.

      Id.


[6]   A penal statute that is “so vague that men of common intelligence must

      necessarily guess at its meaning” violates “due process of law.” Connally v. Gen.

      Const. Co., 269 U.S. 385, 391 (1926). As the Supreme Court of the United

      States has explained:


              It is a basic principle of due process that an enactment is void for
              vagueness if its prohibitions are not clearly defined. Vague laws
              offend several important values. First, because we assume that
              man is free to steer between lawful and unlawful conduct, we
              insist that laws give the person of ordinary intelligence a
              reasonable opportunity to know what is prohibited, so that he
              may act accordingly. Vague laws may trap the innocent by not
              providing fair warning. Second, if arbitrary and discriminatory
              enforcement is to be prevented, laws must provide explicit
              standards for those who apply them. A vague law impermissibly
              delegates basic policy matters to policemen, judges, and juries for
              resolution on an ad hoc and subjective basis, with the attendant
              dangers of arbitrary and discriminatory application. Third, but
              related, . . . uncertain meanings inevitably lead citizens to steer

      Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019      Page 6 of 19
              far wider of the unlawful zone than if the boundaries of the
              forbidden areas were clearly marked.


      Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) (quotation marks,

      omissions, and footnotes omitted). And Justice Scalia wrote for the Court,

      “[t]he prohibition of vagueness in criminal statutes is a well-recognized

      requirement, consonant alike with ordinary notions of fair play and the settled

      rules of law, and a statute that flouts it violates the first essential of due

      process.” Johnson v. United States, 135 S. Ct. 2551, 2556-57 (2015) (quotation

      marks omitted).


[7]   But due process does not require perfect statutory precision. While a penal

      statute must “give a person of ordinary intelligence fair notice” of what is

      proscribed, we will “nullify a statute on constitutional grounds only where such

      result is clearly rational and necessary.” Morgan v. State, 22 N.E.3d 570, 574

      (Ind. 2014) (quotation marks omitted; emphasis removed). That “‘there may be

      marginal cases in which it is difficult to determine the side of the line on which

      a particular fact situation falls’ . . . is not a ‘sufficient reason to hold the

      language too ambiguous to define a criminal offense.’” Id. at 575 (quoting Roth

      v. United States, 354 U.S. 476, 491-92 (1957)). Where imprecise penal statutes

      are at issue, “a vagueness challenge based upon Due Process ‘may be overcome

      in any specific case where reasonable persons would know that their conduct is

      at risk.’” Id. (quoting Maynard v. Cartwright, 486 U.S. 356, 361 (1988)). Thus,

      “principles of statutory interpretation instruct . . . to read a reasonableness



      Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019            Page 7 of 19
      standard” into imprecise statutory language that might otherwise “lead to

      absurd results and exceedingly broad discretion in enforcement.” Id. at 576.


[8]   In Morgan, the Indiana Supreme Court held that Indiana’s public-intoxication

      statute was not void for vagueness in its proscription of behavior that

      “annoys . . . another person.” Id. at 576-77. The Court recognized that “[t]here

      is little doubt that the subjective application of the term ‘annoys’ would lead to

      absurd results and exceedingly broad discretion in enforcement.” Id. at 576.

      The Court further acknowledged the defendant’s argument that “reasonable

      people disagree as to what behavior is annoying . . . .” Id. at 574. But the

      Court held that the statutory language passed constitutional scrutiny by reading

      a reasonable-person standard into the term. Id. at 576-77. As the Court

      explained: “an objective reasonableness standard is used in many areas of the

      law as an appropriate determinant of liability and thus a guide to conduct, and

      it also provides a constraining and intelligible enforcement guideline for police

      and prosecutors.” Id. (quotation marks omitted). Therefore, the Court

      concluded that “the application of a reasonableness standard to the term

      ‘annoys’ satisfies constitutional requirements.” Id. at 577.


[9]   We hold that the same must be true for Indiana’s requirement that a sex

      offender register the information for a vehicle that he “operates on a regular

      basis.” I.C. § 11-8-8-8(a)(1). We initially note a common dictionary definition

      for the word “regular,” which, as that term is undefined in the Indiana Code, is

      the definition that best reflects our legislature’s intent. See Rainbow Realty

      Group, Inc. v. Carter, 131 N.E.3d 168, 174 (Ind. 2019). “Regular” is not an

      Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019      Page 8 of 19
       obscure term or a term of art. As commonly understood, it means “recurring”

       or “conforming” to a “normal or usual manner.” Merriam-Webster Online

       Dictionary, http://www.merriam-webster.com/dictionary/regular (last visited

       Nov. 22, 2019). However, we agree with McClernon that those definitions

       alone do not resolve his vagueness challenge.


[10]   Indeed, like the statutory language before the Court in Morgan, there is little

       doubt that a subjective application of “operates on a regular basis” would “lead

       to absurd results and exceedingly broad discretion in enforcement.” 22 N.E.3d

       at 576. And we acknowledge McClernon’s argument that reasonable people

       may disagree as to what constitutes a “regular” use. But the statutory language

       at issue is not constitutionally deficient when interpreted under a reasonable-

       person standard. See id. at 575-77. The reasonable-person standard gives sex-

       offender registrants a baseline for determining potentially proscribed conduct,

       and it constrains police and prosecutors from engaging in willy-nilly

       enforcement. Id. at 576-77. Accordingly, imputing the reasonable-person

       standard into the vehicle-information registration requirement, McClernon was

       given sufficient notice of the potentially prohibited conduct, and neither

       arbitrary nor discriminatory enforcement is authorized or encouraged. Id. at

       577.


[11]   And, here, a reasonable person would have considered McClernon’s failure to

       register the information for the vehicle he operated to have put him at risk

       under the statute. According to the probable cause affidavit, McClernon

       operated the red Chevy truck for at least five consecutive days. He operated the

       Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019     Page 9 of 19
       vehicle to help a third party move personal property; to scrap metal for his own

       financial gain; and to transport himself around, including to register himself

       with local law enforcement. This conduct, it could be argued, was not a mere

       occasional, infrequent, or incidental use. We express no opinion on whether

       those alleged facts, if proven, would be sufficient to convict McClernon of the

       alleged offense. But they do suffice to demonstrate that, as applied to him

       under the reasonable-person standard, Indiana Code Section 11-8-8-8(a)(1) was

       not “too ambiguous to define a criminal offense.” Id. at 575.


[12]   We also briefly address two federal cases referenced by McClernon on appeal.

       First, McClernon cites Whatley v. Zatecky, in which the United States Court of

       Appeals for the Seventh Circuit vacated an Indiana defendant’s conviction for

       dealing within 1000 feet of a youth program center. The statutory language in

       Whatley defined a youth program center as any “building or structure that on a

       regular basis” provided certain programs or services for minors. 833 F.3d 762,

       765 (7th Cir. 2016) (quoting I.C. § 35-41-1-29(a)).


[13]   In agreeing with the defendant in Whatley, the Seventh Circuit held in relevant

       part as follows:


               the State argues that a person of ordinary intelligence would
               understand that the number of youth programs held at the
               Robinson Community Church were sufficient to render it a youth
               program center. This is essentially an argument that the church
               held so many programs that it would meet any definition of
               “regular,” and that [the defendant’s] case is in the core of the
               conduct prohibited by the statute. But four or six activities a
               week at a facility that is not otherwise identifiable as a youth

       Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019   Page 10 of 19
               program center is nowhere near the core of the statute. Had [the
               defendant] possessed drugs within 1000 feet of a YMCA or a
               Boys and Girls Club, there would be no doubt that his conduct
               was within the core of the law. The State conceded in its
               argument to the Indiana Supreme Court that churches are not
               inherently places where children gather, and a handful of weekly
               events does nothing to provide fair notice or to discourage
               arbitrary enforcement of the statute.


               We twice asked the State at oral argument how many events
               each week would qualify as “regular,” so as to bring a facility
               within the limits of the law. The State twice responded, “four.”
               But the State provided no basis for that arbitrary and convenient
               number, which coincidentally matched the minimum number of
               children’s activities held at the Robinson Community Church
               each week. Without any standard in the statute, in a regulation,
               or in the Indiana case law, the completely subjective word
               “regular” invited arbitrary enforcement of this strict liability
               statute. Grayned, 408 U.S. at 108-09, 92 S. Ct. 2294 (“if arbitrary
               and discriminatory enforcement is to be prevented, laws must
               provide explicit standards for those who apply them.”). “The
               dividing line between what is lawful and unlawful cannot be left
               to conjecture.” Connally, 269 U.S. at 393, 46 S. Ct. 126. But
               with the wording of Indiana’s statute, a defendant must rely on
               little more than conjecture to determine what will transform an
               unmarked building used for some other purpose into a “youth
               program center.”


       Id. at 783 (footnote and record citation omitted).


[14]   Second, McClernon relies on an order from the United States District Court for

       the Eastern District of Michigan in Doe v. Snyder. In Doe, the court found that

       Michigan’s requirement that sex offenders register the information for any

       vehicle they “regularly operate” was void for vagueness. 101 F. Supp. 3d 672,

       Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019    Page 11 of 19
686-90 (E.D. Mich. 2015), rev’d on other grounds, 834 F.3d 696, 698-706 (6th Cir.

2016). 4 In so finding, the court reasoned in relevant part as follows:


         the commonly accepted meaning of the terms “regularly” and
         “routinely” do not provide sufficient guidance to law
         enforcement or registrants to survive a due process challenge
         both generally and as applied to Plaintiffs. The frequency and
         consistency with which Doe #1 must drive his employers’
         vehicles in order to trigger the registration requirement is unclear.
         Likewise, it is ambiguous whether Doe #2’s use of his girlfriend’s
         car a few times a quarter constitutes regular use, particularly in
         light of the rule of lenity, and a reasonable person and well-
         intentioned law enforcement officer would struggle to determine
         whether Doe #4’s occasional use of his mother’s phone was
         “routine.” The ambiguity in the reporting requirements is further
         highlighted by officers’ and prosecutors’ responses to informal
         telephonic survey questions conducted by volunteers for
         Plaintiffs, law enforcement officers’ answers to deposition
         questions, and law enforcement officers’ guidance to Plaintiffs.


         Volunteers for Plaintiffs asked local law enforcement agencies
         and prosecutors’ offices how often a registrant could use a vehicle
         before triggering SORA’s reporting requirements. “[S]ome
         respondents did not know the answer, and others provided
         answers ranging from once or twice, to six or seven times, to
         ‘whatever is reasonable.’” When asked during a deposition
         whether a registrant who used a vehicle once during a three-
         month period had to report the vehicle, the law enforcement
         officer testified, “That would be probably a judgment call by the
         prosecutor or the law enforcement agency.” He answered in the
         affirmative when asked if “each law enforcement agency might



4
   The United States Court of Appeals for the Sixth Circuit reversed the district court’s judgment on ex post
facto grounds and without considering the void-for-vagueness issue.

Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019                             Page 12 of 19
               come to a different conclusion about what regular use means.”
               Furthermore, law enforcement told Doe #4 that “if he borrows a
               car more than three times he must immediately report in person,”
               but such use does not clearly trigger SORA’s reporting
               requirements. Similarly, a local police department informed Ms.
               Doe that she had to register a vehicle “if she was driving it or if it
               was parked in her driveway.”


               The disparate views of the meaning of the term “regularly use”
               exemplify the lack of a standardized guidelines for the
               enforcement of SORA’s reporting provisions. . . .


       Id. (record citations omitted; alterations in original).


[15]   We do not find either Whatley or Doe persuasive. First, neither the Seventh

       Circuit’s opinion nor the district court’s order discusses imputing a reasonable-

       person standard into an imprecise penal statute, as the Indiana Supreme Court

       and Supreme Court of the United States have both done. See Morgan, 22

       N.E.3d at 575-76 (discussing numerous cases). Second, the statutory language

       in Whatley involved whether a third party used a structure in a certain way on a

       “regular basis,” which third-party activities might be unknowable to a

       defendant. That is in stark contrast to the statutory language here, which turns

       on how the defendant himself uses a vehicle, information of which the

       defendant is obviously aware. Third, McClernon presented no evidence in

       support of his motion to dismiss that is on par with the evidence of possible

       arbitrary enforcement that was submitted to the district court in Doe. Thus, we

       decline to follow Whatley or Doe and instead follow Morgan.



       Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019      Page 13 of 19
[16]   In sum, while the statutory requirement that a sex offender register the

       information for a vehicle he “operates on a regular basis” might appear to lack

       precision, whether one operates a vehicle on a regular basis is to be determined

       by asking whether reasonable persons would know that their conduct is at risk

       under the statute. Like the statutory language at issue in Morgan, the failure-to-

       register statutory language here is not void for vagueness. The reasonable-

       person standard provides sufficiently clear guidance to registrants and law

       enforcement of potentially proscribed conduct and, as such, passes

       constitutional scrutiny. Id. at 575-77. And, at the end of the day, whether

       particular conduct violates the statute must be determined by the fact-finder on

       a case-by-case basis. E.g., id. at 577. Thus, the trial court did not err when it

       denied McClernon’s motion to dismiss, and we affirm the trial court’s

       judgment.


[17]   Affirmed.


       Bailey, J., concurs.


       Baker, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019     Page 14 of 19
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       James C. McClernon,                                       Court of Appeals Case No.
                                                                 19A-CR-1305
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Baker, Judge, dissenting.


[18]   I respectfully dissent. “[T]he void-for-vagueness doctrine requires that a penal

       statute define the criminal offense with sufficient definiteness that ordinary

       people can understand what conduct is prohibited and in a manner that does

       not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson,

       461 U.S. 352, 357 (1983). And I believe that the statute under which

       McClernon was charged was vague enough to violate his due process rights.


[19]   From the record, we know that starting February 2, 2019, McClernon operated

       a red truck for five days to help his ex-wife move items, to transport him, to

       Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019                 Page 15 of 19
       obtain money by scrapping metal, to sleep in, and to drive to the Vanderburgh

       County Sheriff’s Office to stay current on his sex offender registration

       requirements. McClernon was eventually arrested on March 8, 2019.


[20]   Indiana Code section 11-8-8-8(a)(1) states, in pertinent part, that as a registered

       sex offender, McClernon must register vehicular information, which includes

       vehicle description, license plate number, and identification number, for any

       vehicle that he operates “on a regular basis[.]” It is this language—“on a regular

       basis”—that is at issue. What exactly does “on a regular basis” mean for

       purposes of statutory interpretation?


[21]   The majority holds that any reasonable person in McClernon’s position would

       have known that their conduct could be at risk for criminal prosecution under

       the registration statute. See, e.g., Maynard v. Cartwright, 486 U.S. 356, 361

       (1988). But the answer, in my opinion, is not so clear-cut. For the following

       three reasons, I would reverse the trial court.


[22]   First, there is the rule of lenity. “The rule of lenity requires that penal statutes be

       construed strictly against the State and any ambiguities resolved in favor of the

       accused[.]” Meredith v. State, 906 N.E.2d 867, 872 (Ind. 2009). At its core, this

       statute contains ambiguous language that both the trial court and this Court

       have had to grapple with. According to the rule of lenity, McClernon should

       not be penalized as a result of the ambiguity. And while statutes are not to be

       “overly narrowed so as to exclude cases they fairly cover,” Gordon v. State, 981

       N.E.2d 1215, 1219 (Ind. Ct. App. 2013), it is far from definitive that


       Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019       Page 16 of 19
       McClernon’s five-day stint in the vehicle constitutes behavior that falls under

       the ambit of statutorily proscribed conduct.


[23]   Next, there is textualism. Justice Neil Gorsuch of the United States Supreme

       Court has elaborated on the void-for-vagueness doctrine and how it applies to

       criminal penal statutes from a textualist perspective:


               In even more extreme circumstances—when a statute is so
               ambiguous that a judge simply cannot divine its meaning
               consistent with the judicial role—textualists have long employed
               the void for vagueness doctrine as a backstop. In that case . . . if a
               judge cannot know whether or not a statute applies to certain
               conduct, then the party bearing the burden of persuasion must
               lose.


       Neil Gorsuch et al., A Republic, If You Can Keep It 136-37 (2019). According to

       these textualist principles, the void-for-vagueness doctrine steps in when there is

       ambiguous statutory language. And because the State had the burden to prove

       that the language of “on a regular basis” applies to McClernon’s actions, it must

       lose. In other words, textual ambiguities beget greater constitutional protections

       for criminal defendants.


[24]   Finally, there is the statutory language itself. The majority cannot define what

       “on a regular basis” means for purposes of the registration statute as a whole

       because the ambiguity of that phrase could result in many divergent

       interpretations, definitions, and examples. While the majority does provide a

       common dictionary definition of the word “regular,” it concedes that such a

       definition alone cannot resolve this vagueness challenge. Faced with this


       Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019       Page 17 of 19
       overriding ambiguity, the majority pivots to the reasonable person standard to

       summarily conclude that any reasonable person would, of course, know that

       conduct like McClernon’s was at risk for criminal prosecution. However, if the

       circumstances and individuals at play were different, would the majority arrive

       at the same result? Can we confidently say that a woman who drives her

       Oldsmobile to church just one day a week operates her vehicle “on a regular

       basis”? Are we sure that the sixteen-year-old teenager with a newly minted

       driver’s license who practices his parking in the nearby school parking lot

       operates his vehicle “on a regular basis”? And what of the mother who drives

       her three children to school, soccer practice, and medical appointments? Can

       we classify her as someone who operates her vehicle “on a regular basis”?


[25]   The majority dismisses the holdings from Whatley v. Zatecky, 833 F.3d 762 (7th

       Cir. 2016), and Doe v. Snyder, 101 F.Supp.3d 672 (E.D. Mich. 2015), rev’d on

       other grounds, 834 F.3d 696 (6th Cir. 2016), as unpersuasive because those cases

       did not impute the reasonable person standard and because their statutory

       language and record, respectively, are inapposite to those in this case. The

       majority correctly points out that our Supreme Court has imputed the

       reasonable person standard into other criminal statutes. Morgan v. State, 22

       N.E.3d 570, 575-76 (Ind. 2014). But the Whatley and Doe Courts explained just

       how complicated it is to define the term “regular”—which, unlike Morgan,

       appears in the statutory language in both Whatley and Doe—and how such

       ambiguities affect the rights of criminal defendants. Instead of dismissing these

       cases as non-binding and extraneous, I advocate that we look to their holdings


       Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019   Page 18 of 19
       as further proof that the answer is not as straightforward as the majority would

       suggest. Because of this vagueness and to safeguard McClernon’s constitutional

       rights, I would reverse the trial court’s denial of his motion to dismiss.


[26]   Therefore, I respectfully dissent.




       Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019        Page 19 of 19
