MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                                Jul 27 2017, 8:06 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Marielena Duerring                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Mark Benner,                                             July 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1607-CR-1609
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         71D03-1511-FC-9



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017             Page 1 of 18
[1]   The State charged Mark Benner with two counts of child seduction, one as a

      Class C felony and one as a Class D felony. Benner filed a motion to dismiss

      the charges, which the trial court denied. In this interlocutory appeal, Benner

      argues that to convict him of child seduction as charged would violate the Ex

      Post Facto Clause of the Indiana Constitution, and alternatively, that the

      section of the child seduction statute under which he was charged is

      unconstitutionally vague.


[2]   We affirm.


                                         Facts & Procedural History


[3]   Benner was an assistant girls basketball coach at Mishawaka High School

      beginning with the 2009-2010 season. Benner was not employed in any other

      position at Mishawaka High School. For the 2012-2013 basketball season, P.A.

      was a junior at Mishawaka High School and a member of the basketball team.

      In March 2013, after the close of the basketball season, Benner resigned from

      his coaching position. Shortly thereafter, Benner met up with P.A. and they

      kissed for the first time.1 Their relationship progressed from kissing to fondling

      and oral sex. From August 2013 to January 2014, Benner and P.A. engaged in

      sexual intercourse several times. At the time, Benner was around forty-four

      years old and P.A. was sixteen or seventeen years old.




      1
       P.A. stated that there was no physical relationship between her and Benner while he was the assistant
      basketball coach.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017            Page 2 of 18
[4]   On November 20, 2015, the State charged Benner with two counts of child

      seduction. Count I was charged as a Class D felony and alleged that

      “[b]etween July 1, 2013 and January 9, 2014,” Benner, “having had a

      professional relationship with [P.A.],” engaged in fondling or touching with

      P.A. with the intent to arouse or satisfy the sexual desires of either Benner or

      P.A. Appellant’s Appendix Vol. 2 at 60; see Ind. Code § 35-42-4-7(n), (p)(1).

      Count II was charged as a Class C felony and alleged that “[b]etween August 1,

      2013 and January 9, 2014,” Benner, “having had a professional relationship

      with [P.A.],” engaged in sexual intercourse or deviate sexual conduct with P.A.

      Appellant’s Appendix Vol. 2 at 60; see I.C. § 35-42-4-7(n), (p)(2).


[5]   Benner filed a motion to dismiss both charges on February 23, 2016, claiming

      that to convict him of child seduction as charged would violate the prohibition

      against ex post facto laws. Benner filed a supplemental motion to dismiss on

      April 25, 2016, alleging as an alternative ground for dismissal that the section of

      the child seduction statute under which he was charged was unconstitutionally

      vague. The State filed responses in opposition to Benner’s motions to dismiss.

      The trial court held a hearing on the motions on May 27, 2016, and

      subsequently issued an order denying Benner’s request to dismiss the charges.


[6]   On June 9, 2016, Benner filed a Motion to Certify Interlocutory Order for

      Appeal, which the trial court granted on June 21, 2016. This court accepted

      Benner’s Motion to Accept Jurisdiction Over Interlocutory Appeal on August

      23, 2016. Additional facts will be provided as necessary.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017   Page 3 of 18
                                            Discussion & Decision


[7]   Benner argues that the trial court erred in denying his motion to dismiss the

      child seduction charges. As he did before the trial court, Benner contends that

      to convict him of child seduction would violate the prohibition against ex post

      facto laws. He also argues that the section of the child seduction statute under

      which he was charged is unconstitutionally vague.


[8]   When a statute is challenged as an alleged violation of the Indiana

      Constitution,2 the statute stands before us clothed with the presumption of

      constitutionality until that presumption is clearly overcome by a contrary

      showing. Wallace v. State, 905 N.E.2d 371, 378 (Ind. 2009) (citing State v.

      Rendleman, 603 N.E.2d 1333, 1334 (Ind. 1992)). The party challenging the

      constitutionality of the statute bears the burden of proof, and all doubts are

      resolved against that party. Id.


[9]   The Indiana Constitution provides that “[n]o ex post facto law . . . shall ever be

      passed.” Ind. Const. art. I, § 24. In general, the Ex Post Facto Clause forbids

      laws imposing punishment for an act that was not otherwise punishable at the

      time it was committed or imposing additional punishment for an act then

      proscribed. Wallace, 905 N.E.2d at 377. “The critical question in evaluating an




      2
        Benner also references the Ex Post Facto Clause of the United States Constitution but does not provide a
      separate argument thereunder. In any event, because the ex post facto analysis is the same under both
      Indiana law and the federal Constitution, the result is the same. See Spencer v. O’Connor, 707 N.E.2d 1039,
      1042 (Ind. Ct. App. 1999), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017              Page 4 of 18
       ex post facto claim is whether the law changes the legal consequences of acts

       completed before its effective date.” Sewell v. State, 973 N.E.2d 96, 102 (Ind. Ct.

       App. 2012) (quotation omitted). “The fact that an element of a crime draws

       upon antecedent facts does not make” a statute an ex post facto law. Id.

       (quotation and citation omitted). Underlying the Ex Post Facto Clause is the

       desire to give people fair warning of the conduct that will give rise to criminal

       penalties. Wallace, 905 N.E.2d at 377 (citing Armstrong v. State, 848 N.E.2d

       1088, 1093 (Ind. 2006)).


[10]   The child seduction statute was amended by the Indiana General Assembly

       during the 2013 legislative session and such amendment became effective on

       July 1, 2013. P.L. 208-2013, § 8. As pertinent here, the amendment added

       subsection (n), which provides:


               A person who:


               (1) has or had a professional relationship with a child at least
               sixteen (16) years of age but less than eighteen (18) years of age
               whom the person knows to be at least sixteen (16) years of age
               but less than eighteen (18) years of age;


               (2) may exert undue influence on the child because of the
               person’s current or previous professional relationship with the
               child; and




       Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017   Page 5 of 18
           (3) uses or exerts[3] the person’s professional relationship to
           engage in sexual intercourse, other sexual conduct (as defined in
           IC 35-31.5-2-221.5), or any fondling or touching with the child
           with the intent to arouse or satisfy the sexual desires of the child
           or the person;


           commits child seduction.


I.C. § 35-42-4-7.4 The 2013 amendment also added as I.C. § 35-42-4-7(i), which

defines a “professional relationship” as being a relationship with a child “if . . .

the person . . . is employed in a position in which counseling, supervising,

instructing, or recruiting children forms a significant part of the employment”

and “the person has a relationship with a child that is based on the person’s

employment.”




3
    Subsection (o) provides:

         In determining whether a person used or exerted the person’s professional relationship with the
         child to engage in sexual intercourse, deviate sexual conduct, or any fondling or touching with
         the intent to arouse or satisfy the sexual desires of the child or the person under subsection (n),
         the trier of fact may consider one (1) or more of the following:
           (1) The age difference between the person and the child.
           (2) Whether the person was in a position of trust with respect to the child.
           (3) Whether the person’s conduct with the child violated any ethical obligations of the
           person’s profession or occupation.
           (4) The authority that the person had over the child.
           (5) Whether the person exploited any particular vulnerability of the child.
           (6) Any other evidence relevant to the person’s ability to exert undue influence over the child.
4
  At the time, subsection (p)(1) classified the offense as a Class D felony if the person engaged in any fondling
or touching with the intent to arouse or satisfy the sexual desires of the child or the person and subsection
(p)(2) classified the offense as a Class C felony if the person engaged in sexual intercourse or deviate sexual
conduct with the child.

Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017                   Page 6 of 18
[11]   Benner was charged under I.C. § 35-42-4-7(n) and the charges alleged that he,

       “having had a professional relationship” with P.A., committed child seduction

       between July 1, 2013, and January 9, 2014 for Count I and between August 1,

       2013, and January 9, 2014 for Count II. Appellant’s Appendix Vol. 2 at 60

       (emphasis supplied). Benner argues that to fit within the definition of

       “professional relationship,” the language of subsection (i) clearly specifies that

       the person “is employed” thereby indicating a current, as opposed to past,

       professional relationship exists. I.C. § 35-42-4-7 (emphasis supplied). Benner’s

       argument is thus—because he was not employed as the assistant basketball

       coach at the time of his physical relationship with P.A., he did not have, in the

       present tense, a “professional relationship” with her so as to give rise to a

       charge of child seduction under subsection (n). Benner contends that to convict

       him of child seduction would require evidence of his conduct—his employment

       as an assistant basketball coach for Mishawaka High School—prior to the

       enactment of this provision to establish a professional relationship between him

       and P.A. Benner claims that as applied to him, this is “clearly a violation of the

       rule prohibiting ex post facto laws.” Appellant’s Brief at 10.


[12]   We disagree with Benner’s reading of the child seduction statute. Contrary to

       Benner’s claim, the “is employed” language of subsection (i) does not require a

       current professional relationship at the time the prohibited conduct occurs.

       Subsection (i) simply defines what constitutes a professional relationship. This

       determination is made by looking at the nature and circumstances of the

       relationship at the time the relationship existed, hence the language “is


       Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017   Page 7 of 18
       employed.” It is of no moment that this definition did not exist at the time

       Benner was the assistant basketball coach. It is enough that as of July 1, 2013,

       Benner was on notice that his previous position as one of P.A.’s basketball

       coaches might constitute a “professional relationship.”5


[13]   Our reading of subsection (i) is buttressed by the language of subsection (n),

       which explicitly provides that a charge of child seduction may be based on a

       person who “has or had” a professional relationship. I.C. § 35-42-4-7 (emphasis

       supplied). The 2013 amendment to the child seduction statute did not

       criminalize Benner’s prior professional relationship with P.A. Rather,

       subsection (n) criminalized sexual conduct with a child between the ages of

       sixteen and eighteen occurring on or after July 1, 2013 if the person “has or

       had” a professional relationship with the child. I.C. § 35-42-4-7. The statute

       clearly does not limit the criminal offense to a person who is currently in a

       professional relationship.


[14]   We note that the statute is retrospective insofar as the definition of

       “professional relationship” did not exist at the time Benner was in a position

       that can now be considered a professional relationship and that in making such

       a determination, one has to look at circumstances of a relationship that existed

       prior to the enactment of subsections (n) and (i). In terms of imposing

       punishment, however, the statute is not retrospective as applied in this case



       5
        Benner does not dispute that his position as qualified as a “professional relationship” as defined in I.C. § 35-
       42-4-7(i).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017                Page 8 of 18
       because subsection (n) was in effect when Benner committed the crime—i.e.,

       engaged in a sexual relationship with P.A. over whom he previously “had” a

       professional relationship. The conduct that formed the basis of the charges

       against Benner occurred after the effective date of subsection (n). In other

       words, as of July 1, 2013, the effective date of the addition of subsection (n) to

       the child seduction statute, Benner was on notice that if he used his prior

       professional relationship with P.A. to engage in fondling or other sexual

       conduct with P.A., he could be prosecuted for child seduction so long as P.A.

       was under the age of 18.


[15]   It has been stated that “[t]he critical question in evaluating an ex post facto

       claim ‘is whether the law changes the legal consequences of acts completed

       before its effective date.’” See Sewell v. State, 973 N.E.2d 96, 102 (Ind. Ct. App.

       2012) (citing U.S. v. Brady, 26 F.3d 282, 291 (2nd Cir. 1994) (quoting Weaver v.

       Graham, 450 U.S. 24, 31 (1981))). Our inquiry is “not whether a legislative

       change produced a disadvantage for the defendant, but instead whether such

       change altered the definition of criminal conduct.” Wiggins v. State, 727 N.E.2d

       1, 5 (Ind. Ct. App. 2000), trans. denied. Benner, who previously had a

       professional relationship with P.A., is alleged to have committed child

       seduction for his conduct occurring after the effective date of the statute

       defining the crimes for which he was charged. There is no ex post facto

       violation. See Teer v. State, 738 N.E.2d 283, 287 (Ind. Ct. App. 2000)

       (defendant’s conviction of being a serious violent felon in possession of a

       firearm was not an ex post facto violation where, although defendant


       Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017   Page 9 of 18
       committed the serious violent felony prior to the act’s effective date, defendant

       was charged with possessing a firearm after the statute’s effective date).


[16]   Benner also argues that the section of the child seduction statute under which

       he was charged is unconstitutionally vague as applied to him. A criminal

       statute may be invalidated for vagueness for either of two independent reasons:

       (1) for failing to provide notice enabling ordinary people to understand the

       conduct that it prohibits; and (2) for the possibility that it authorizes or

       encourages arbitrary or discriminatory enforcement. Brown v. State, 868 N.E.2d

       464, 467 (Ind. 2007) (citing City of Chicago v. Morales, 527 U.S. 41, 56 (1999);

       Healthscript, Inc. v. State, 770 N.E.2d 810, 815-816 (Ind. 2002)). “A related

       consideration is the requirement that a penal statute give a person of ordinary

       intelligence fair notice that his contemplated conduct is forbidden so that ‘no

       man shall be held criminally responsible for conduct which he could not

       reasonably understand to be proscribed.’” Id. (quoting Healthscript, Inc., 770

       N.E.2d at 816).


[17]   Benner has failed to establish that the statute, as applied to him, is vague. It is

       immaterial whether Benner knew at the time he was coaching P.A. that he had

       a “professional relationship” with her. Rather, the relevant question is whether,

       after the effective date of the statutory amendment, he could determine that he

       previously had a professional relationship with P.A. when he was her basketball

       coach and whether such relationship barred him from pursuing a sexual

       relationship with her on or after July 1, 2013. The definition of “professional

       relationship” did exist at the time Benner committed the alleged crimes in this

       Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017   Page 10 of 18
       case. Additionally, subsection (n) of the child seduction statute in effect at the

       time of his alleged crimes explicitly stated that a person who “has or had a

       professional relationship with a child” commits child seduction if the person uses

       that professional relationship to engage in fondling or other sexual conduct with

       the child. I.C. § 35-42-2-7 (emphasis supplied).


[18]   Because the statute set forth the definition of “professional relationship” and

       makes it a crime for a person who “has or had a professional relationship with a

       child” to use that relationship to engage in sexual activity with that child if the

       child is less than eighteen years of age, we conclude Benner was adequately

       apprised that his alleged conduct could be prosecuted as child seduction.

       Benner’s claim that the statute is vague as applied to him fails. The trial court

       did not err in denying Benner’s motion to dismiss.


[19]   Judgment affirmed.


       Kirsch, J., concurs.


       Mathias, J., dissents with opinion.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017   Page 11 of 18
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Mark Benner,                                             Court of Appeals Case No.
                                                                71A03-1607-CR-1609
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Mathias, Judge, dissenting.


[20]   I respectfully dissent because I believe that the State’s prosecution of Benner

       under the version of Indiana Code section 35-42-4-7 that went into effect on

       July 1, 2013, violates the Ex Post Facto clauses of the United States

       Constitution and the Indiana Constitution. I also believe that this statute, as

       applied to Benner, is unconstitutionally vague.


[21]   I begin by noting that criminal statutes must be strictly construed against the

       State. Herron v. State, 729 N.E.2d 1008, 1010 (Ind. Ct. App. 2000). Even though

       an act may fall within the spirit of a statute, it will not constitute a crime unless

       it is also within the words of the statute. Id. With this in mind, I turn to the

       merits of Benner’s claims.
       Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017   Page 12 of 18
[22]   The version of the child seduction statute at issue here provides as follows:


                A person who:
                   (1) has or had a professional relationship with a child at least
                   sixteen (16) years of age but less than eighteen (18) years of age
                   whom the person knows to be at least sixteen (16) years of age
                   but less than eighteen (18) years of age;
                   (2) may exert undue influence on the child because of the
                   person’s current or previous professional relationship with the
                   child; and
                   (3) uses or exerts the person’s professional relationship to
                   engage in sexual intercourse, deviate sexual conduct, or any
                   fondling or touching with the child with the intent to arouse or
                   satisfy the sexual desires of the child or the person;

                commits child seduction.


       I.C. § 35-42-4-7(n) (emphasis added).6


[23]   This statute is an exception to the otherwise general rule that the “age of

       consent” in Indiana is sixteen. See Ind. Code § 35-42-4-9 (defining sexual

       misconduct with a minor as sexual conduct with children under the age of

       sixteen);7 see also W.C.B. v. State, 855 N.E.2d 1057, 1060 (Ind. Ct. App. 2006)

       (noting that a victim younger than sixteen cannot consent to sexual contact)

       (citing Moon v. State, 823 N.E.2d 710, 718 (Ind. Ct. App. 2005)); Salter v. State,




       6
        Again, I refer to the version of the child seduction statute that was effective July 1, 2013. The statute was
       amended again effective July 1, 2014, and yet again effective July 1, 2015.
       7
        If the child is under the age of fourteen, the crime is child molesting. See Ind. Code § 35-42-4-3 (defining
       child molesting as sexual conduct with a child under the age of fourteen).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017               Page 13 of 18
       906 N.E.2d 212, 223 (Ind. Ct. App. 2009) (noting that a sixteen-year-old child is

       old enough to consent to sexual relations in Indiana) (citing Williams v. State,

       178 Ind. App. 554, 383 N.E.2d 416, 418 (1978) (noting that sixteen years old is

       the “age of consent.”). For better or worse, sixteen has been the age of consent

       in Indiana for over one hundred years. See Burns Annotated Ind. Statutes §

       2250 (1914) (defining rape to include “unlawfully hav[ing] carnal knowledge of

       a woman forcibly against her will, or of a female child under sixteen (16) years

       of age.”).8 Accordingly, the only thing that made Benner’s behavior criminal

       was his status as a coach.


[24]   I acknowledge that Benner has been charged based only on the allegation of a

       sexual relationship with P.A. that occurred after the effective date of July 1,

       2013. See Appellant’s App. Vol. 2, p. 60-61 (alleging that “between July 1, 2013

       and January 9, 2014” Benner, “having had a professional relationship” with

       P.A., “did use or exert his professional relationship with P.A.” to engage in

       sexual conduct with P.A.).


[25]   However, Benner’s professional relationship with P.A. ended in March 2013.

       Several months later, on July 1, 2013, the General Assembly amended the child

       seduction statute to add a new element to the crime, criminalizing sexual

       conduct between sixteen and seventeen year olds and those who “ha[ve] or




       8
        Prior to this, the age of consent was fourteen. See Ind. Revised Statutes § 1917 (1898) (providing that
       “[w]hoever unlawfully has carnal knowledge of a woman forcibly, or a female child under fourteen years of
       age is guilty of rape . . . .”).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017         Page 14 of 18
       had” a professional relationship with such minors. The version of the statute

       that took effect on July 1, 2013, would permit Benner’s conviction based on an

       element that only existed before the effective date of the statute. I believe this

       element does more than “draw[] upon antecedent facts.” See Sewell, 973 N.E.2d

       at 102. This element consists wholly of behavior that occurred before the

       effective date of the statute. Accordingly, I believe this statute, as applied to

       Benner, violates the Ex Post Facto clauses of the federal Constitution and

       Indiana Constitution. See Pollard v. State, 908 N.E.2d 1145 (Ind. 2009) (holding

       that application of residency restriction statute, which prohibited those

       convicted of certain sex offenses from living within 1,000 feet of school

       property, youth program centers, or public parks, to defendant who had lived at

       his house for several years before the effective date of the residency restriction

       statute, was unconstitutional under the Ex Post Facto clause of the Indiana

       Constitution).


[26]   I further agree with Benner that this version of the child seduction statute is

       unconstitutionally vague as applied to him. The section of the statute defining

       the term “professional relationship” provides:


               For purposes of this section, a person has a “professional
               relationship” with a child if:
               (1) the person:
                    (A) has a license issued by the state or a political subdivision
                    on the basis of the person’s training and experience that
                    authorizes the person to carry out a particular occupation; or




       Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017   Page 15 of 18
                    (B) is employed in a position in which counseling,
                    supervising, instructing, or recruiting children forms a
                    significant part of the employment; and
               (2) the person has a relationship with a child that is based on the
               person’s employment or licensed status as described in
               subdivision (1).
               The term includes a relationship between a child and a mental
               health professional or military recruiter. The term does not
               include a coworker relationship between a child and a person
               described in subdivision (1)(B).


       I.C. § 35-42-4-7(i) (emphases added).


[27]   This definition is clearly in the present tense, e.g., it uses the term “is

       employed,” not “was employed” or “has been employed.” It is undisputed that

       here, at the time of the conduct alleged in the charging information, Benner was

       no longer employed as an assistant coach. Thus, he did not fit within the

       definition of “professional relationship” as set forth in subsection 7(i). But

       subsection 7(n) sets forth as an element of the crime that the person “has or had

       a professional relationship.” This includes both past and present behavior. Ex

       Post Facto issues aside, this creates a considerable ambiguity in the statute.


[28]   This is exacerbated by the language of subsection 7(n)(3) that requires as an

       element that the defendant “uses or exerts the person’s professional relationship”

       to engage in sexual conduct with the victim. Again, this is in the present tense.

       Thus, the statute, appears to refer to a defendant’s current status and conduct,

       but allows conviction for past conduct.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017   Page 16 of 18
[29]   In terms of the vagueness analysis, we concern ourselves with a hypothetical

       “person of ordinary intelligence,” not trained lawyers or judges. Brown, 868

       N.E.2d at 467. This version of the child seduction statute does not give a person

       of ordinary intelligence fair notice regarding what conduct is forbidden.


[30]   Is a consensual sexual relationship with a sixteen or seventeen-year-old person

       prohibited if one “is employed” in certain positions, as set forth in the definition

       of “professional relationship,” or is it prohibited if the person “has or had” such

       a relationship? How does one “exert” a professional relationship, especially

       one that no longer exists? To a person of ordinary intelligence, I believe this is

       unclear. While the child seduction statute is meant to stop behavior that needs

       to be stopped, it does not give adequate and accurate notice of the specific

       connection between the professional relationship between the minor and the

       adult and the conduct they engage in that may risk criminal liability on the part

       of the adult. Because it is a criminal statute that must be construed against the

       State, I believe it is unconstitutionally vague.


[31]   In conclusion, Benner’s alleged conduct was reprehensible and outrageous. He

       is alleged to have abused his position as an authority figure to have a sexual

       relationship with a minor who had once been entrusted to him to coach.

       However, even generally recognized abhorrent conduct must still be clearly

       defined under both the Indiana and United States constitutions. Because I

       believe that the version of the child seduction statute under which Benner was

       charged runs afoul of the Ex Post Facto clause as applied to Benner and is



       Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017   Page 17 of 18
unconstitutionally vague, I would reluctantly reverse the trial court’s denial of

Benner’s motion to dismiss.




Court of Appeals of Indiana | Memorandum Decision 71A03-1607-CR-1609 | July 27, 2017   Page 18 of 18
