MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded                                              FILED
as precedent or cited before any court except                                     Dec 06 2019, 10:07 am

for the purpose of establishing the defense of                                         CLERK
res judicata, collateral estoppel, or the law of                                   Indiana Supreme Court
                                                                                      Court of Appeals
                                                                                        and Tax Court
the case.


ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Elizabeth A. Bellin                                         Curtis T. Hill, Jr.
Elkhart, Indiana                                            Attorney General of Indiana

                                                            J.T. Whitehead
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                              IN THE
        COURT OF APPEALS OF INDIANA

Elmer L. Moore,                                             December 6, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            19A-CR-824
        v.                                                  Appeal from the Elkhart Superior
                                                            Court
State of Indiana,                                           The Honorable Stephen R. Bowers,
Appellee-Plaintiff                                          Judge
                                                            Trial Court Cause No.
                                                            20D02-1711-F5-279



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-824 | December 6, 2019                     Page 1 of 7
[1]   Elmer L. Moore appeals his conviction of Level 5 felony failure to register as a sex or

      violent offender with a prior conviction of failure to register. 1 He raises one issue on

      appeal, which we restate as whether the trial court erred in denying his motion to

      dismiss the charges against him. We affirm.



                                   Facts and Procedural History
[2]   On or about June 2, 2003, in Cass County, Michigan, Moore had sexual contact

      with a person he knew or should have known was physically helpless. Michigan

      charged Moore with criminal sexual conduct in the fourth degree.2 He was

      convicted, and the court sentenced him to 300 days in jail and 24 months of

      probation.


[3]   Between August 1, 2004, and September 10, 2004, in Goshen, Indiana, Moore

      sexually molested his ten-year-old niece. The State of Indiana charged Moore with

      Class C felony child molesting. 3 Moore pled guilty, and the court sentenced him in

      February 2006 to eight years in the Indiana Department of Correction (“DOC”).

      Moore was released from incarceration to parole on September 16, 2009, and he

      remained on parole until September 16, 2011. Both when Moore was placed on

      parole and when he was discharged from parole, the State notified Moore of his sex




      1
          Ind. Code § 11-8-8-17(b) (2014).
      2
          MCL 750.520e(1)(c).
      3
          Ind. Code § 35-42-4-3 (1998).



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-824 | December 6, 2019   Page 2 of 7
      offender registration obligation and duties, and Moore acknowledged his receipt and

      understanding of those duties both times.


[4]   In December 2011, the State charged Moore with Class D felony failure to register as

      a sex offender 4 because he had made a material misstatement when he registered

      with the Elkhart County Sheriff’s Office (“ECSO”). Moore pled guilty, and the court

      imposed a 540-day sentence.


[5]   On August 22, 2016, Moore appeared in person at the ECSO and registered as a sex

      offender. He reported living at an address in Elkhart. On September 30, 2016,

      Moore reported to the ECSO that he was homeless. Indiana Code Section 11-8-8-12

      requires a homeless sex offender to register in-person at the local sheriff’s office once

      every seven days until the offender finds a permanent residence. Moore registered

      weekly through November 17, 2016. Moore did not register in-person at the ECSO

      on November 24, 2016, or thereafter, nor did he ever report a permanent address.


[6]   On November 8, 2017, the State charged Moore with one count of Level 5 felony

      failure to register as a sex or violent offender with a prior conviction of failure to

      register and one count of Level 6 felony failure to register as a sex or violent

      offender. 5 A public defender was appointed to represent Moore. On January 24,

      2019, Moore indicated his wish to proceed pro se. At a hearing, the court inquired

      about Moore’s desire to represent himself and his understanding of the risks and

      responsibilities associated with doing so. The court then granted Moore’s request


      4
          Ind. Code § 11-8-8-17 (2007).
      5
          Ind. Code § 11-8-8-17(a) (2014).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-824 | December 6, 2019   Page 3 of 7
      and appointed stand-by counsel. Moore waived his right to a jury trial, and the court

      set the matter for a bench trial on January 29, 2019.


[7]   On the morning Moore’s bench trial was scheduled to begin, Moore filed a motion to

      dismiss the charges against him arguing his prosecution was a violation of the

      Indiana Constitution’s prohibition against ex post facto laws. The court held a

      combined hearing on the motion to dismiss and trial of the pending charges, and

      then the court took the matter under advisement. On February 25, 2019, the court

      issued an order with findings of fact and an analysis of the applicable law. The court

      denied Moore’s motion to dismiss and found him guilty of Level 5 felony failure to

      register as a sex or violent offender with a prior conviction of failure to register. 6 On

      March 25, 2019, the court entered judgment of conviction and imposed a seven-year

      sentence, with six years executed in the DOC and one year suspended to probation.



                                       Discussion and Decision
[8]   Moore argues the trial court erred by denying his motion to dismiss the charges

      against him. Generally, we review a trial court’s decision to dismiss a criminal

      indictment for an abuse of discretion. Tyson v. State, 51 N.E.3d 88, 90 (Ind. 2016).

      However, we review the decision de novo when, as here, it presents a pure question of

      law. Id.




      6
        The trial court merged Moore’s Level 6 felony failure to register as a sex or violent offender charge into his Level 5
      felony conviction.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-824 | December 6, 2019                      Page 4 of 7
[9]    Moore alleges the charges against him should have been dismissed because they

       violated the ex post facto clause of the Indiana Constitution. Article 1, Section 24 of

       the Indiana Constitution provides: “No ex post facto law. . . shall ever be passed.”

       This provision is meant to ensure that Hoosiers have fair warning of the criminal

       penalties that may result from their conduct before they violate the law. State v.

       Summers, 62 N.E.3d 451, 454 (Ind. Ct. App. 2016), trans. denied. Moore argues the

       charges against him were based on ex post facto laws because his duty to register in

       2016 and 2017 depended on a 2008 amendment of the registration statute.7 Moore is

       incorrect, however, as the reporting statute that existed in 2004 created his obligation

       to register in 2016 and 2017.


[10]   In 2004, when Moore molested his niece, the statute that controlled the length of

       time Moore would be required to register as a sex offender provided, in relevant part:


                (a) [A]n offender’s duty to register under this chapter expires ten (10)
                    years after the date the offender:


                    (1) is released from a penal facility (as defined in IC 35-41-1-21) or
                        a secure juvenile detention facility of a state or another
                        jurisdiction;



       7
         Effective July 1, 2008, Indiana’s legislature amended the re-codified reporting statute to include a tolling provision
       for “any period that the sex or violent offender is incarcerated.” Ind. Code § 11-8-8-19(a) (2008). However, as we
       have explained elsewhere, the tolling provision “applies only to people who, after having committed a sex offense,
       subsequently commit an additional offense that leads to a new sentence of incarceration.” Bridges v. State, 109
       N.E.3d 453, 456 (Ind. Ct. App. 2018). The tolling provision did not change the date a sex offender’s registration
       obligation began. Id. at 454 (“On May 16, 2006, Bridges was released from prison, and his ten-year registration
       requirement began.”). Rather, the tolling provision just provided that if an offender is registering as a sex offender
       and then becomes incarcerated for a crime other than his original sex offense, he cannot apply the time he is
       imprisoned for the new offense toward completion of his sex offender registration period. Id. at 456. As Moore’s
       ten-year obligation to register existed in 2016 and 2017 without consideration of this tolling provision, Moore’s ex
       post facto argument has no merit.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-824 | December 6, 2019                       Page 5 of 7
                   (2) is placed in a community transition program;


                   (3) is placed in a community corrections program;


                   (4) is placed on parole; or


                   (5) is placed on probation;


               whichever occurs last.


       Ind. Code § 5-2-12-13 (2004).


[11]   Moore does not contest that he failed to register as a sex offender or provide a

       permanent address after November 17, 2016. Rather, Moore argues his registration

       obligation began on the day of his conviction and expired in 2016. However, the

       plain language of the statute in effect in 2004 provided Moore’s registration period

       for molesting his niece did not begin to run until he was placed on parole. The DOC

       placed Moore on parole on September 16, 2009. Moore’s instant offense predated

       September 16, 2019. Therefore, Moore’s registration obligation had not expired

       when he committed the instant offense, and the trial court properly rejected Moore’s

       motion to dismiss the charges against him. See Summers, 62 N.E.3d at 455 (holding

       motion to dismiss should be denied where charges did not violate ex post facto

       prohibition).



                                                  Conclusion
[12]   The trial court properly denied Moore’s motion to dismiss because the law in effect

       at the time Moore molested his niece provided notice to Moore that he would have
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-824 | December 6, 2019   Page 6 of 7
       to register as a sex offender for at least ten years after being released from

       incarceration. Because Moore was released from incarceration on his child

       molestation conviction in 2009, he was still under an obligation to register as a sex

       offender in 2016 and 2017, and he failed to do so. Therefore, we affirm Moore’s

       conviction of Level 5 felony failure to register as a sex or violent offender with a prior

       conviction of failure to register.


[13]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-824 | December 6, 2019   Page 7 of 7
