                                                                             FILED
                                                                        Apr 12 2016, 10:55 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Ruth Ann Johnson                                            Gregory F. Zoeller
Marion County Public Defender                               Attorney General of Indiana

Suzy Danielle St. John                                      Stephen Richard Creason
Deputy Public Defender                                      Deputy Attorney General

Victoria L. Bailey                                          Eric P. Babbs
Deputy Public Defender                                      Deputy Attorney General
Indianapolis, Indiana                                       Indianapolis, Indiana

______________________________________________________________________________

                                              In the
                                Indiana Supreme Court
                                _________________________________

                                       No. 49S02-1506-CR-376

SCOTT HITCH,
                                                            Appellant (Defendant below),

                                                 v.

STATE OF INDIANA,
                                                          Appellee (Plaintiff below).
                                _________________________________

  Appeal from the Marion Superior Court, Criminal Division 17, No. 49G17-1310-FD-065095
                         The Honorable Clayton A. Graham, Judge
                          _________________________________

      On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-1404-CR-295
                           _________________________________


                                           April 12, 2016


Rucker, Justice.
       Scott Hitch appeals the trial court’s determination declaring he committed a crime of
domestic violence. Concluding there was no violation of Hitch’s Sixth Amendment right to trial
by jury, and further concluding the evidence was sufficient to sustain the determination, we
affirm the judgment of the trial court.


                                  Facts and Procedural History


       Scott Hitch and Erica Bruce lived together between January and August 2013. When
their relationship ended Bruce moved out of the shared apartment to live with the father of her
two children.    Several weeks later, after Bruce’s relationship with her children’s father
deteriorated, Bruce temporarily moved back in with Hitch. She had arranged for an apartment in
the same complex and was staying with Hitch until it was ready. Bruce did not unpack her bags
because she planned to move shortly thereafter. Hitch testified at trial that he did not have a
“romantic relationship” with Bruce after she moved out in August.           See Tr. at 163-64.
Describing Hitch as her “ex-boyfriend” Bruce testified their relationship ended the night Hitch
attacked her. Tr. at 69.


       On October 2, 2013, joining his boss for drinks, Hitch along with Bruce visited a
downtown Indianapolis pub. Later that evening the couple proceeded to a local restaurant where
they got into an argument when Bruce began comparing Hitch to her children’s father. During
the course of the argument Hitch flicked hot chili onto Bruce’s face. Embarrassed, Bruce walked
out of the restaurant. However, because she did not have money for a taxi, Bruce rode back to
the apartment with Hitch.


       Once inside, the argument escalated when Bruce sent a text message to the children’s
father to come pick her up. According to Bruce, Hitch demanded that she “get the f*** out right
now.” Tr. at 76. Bruce testified that she asked Hitch if she could stay the night because she did
not have transportation. In response, according to Bruce, Hitch grabbed her by the neck and
positioned himself on top of her. Eventually Bruce managed to push Hitch away and call 911.
The responding officer found Bruce outside the apartment with some of her belongings. He
examined Bruce and noted her neck was red and sensitive to the touch. Bruce spent the night



                                               2
under observation at a local hospital where she reported neck pain and tenderness. According to
Hitch, he “never touched [Bruce].” Tr. at 162, 176.


        The State charged Hitch with Count I strangulation as a class D felony, Count II
intimidation as a class A misdemeanor, and Count III battery as a class A misdemeanor. Prior to
the jury trial on March 27, 2014 the State dismissed the intimidation charge, and the jury found
Hitch guilty of battery only.1 Thereafter the trial court sentenced Hitch to the maximum term of
365 days imprisonment2 with twelve days executed and 353 days suspended to probation. Under
provisions of Indiana Code section 35-38-1-7.7(a), the trial court also determined Hitch
committed a crime of “domestic violence.”3 Hitch objected on grounds his relationship with
Bruce did not satisfy the statutory requirements for domestic violence. The trial court disagreed
and pursuant to Indiana Code section 35-38-1-7.7(c) advised Hitch that this determination
rendered him ineligible to possess a firearm.4


        Hitch appealed raising the following restated claims: (1) the firearm restriction amounted
to additional punishment above the statutory maximum for misdemeanor battery, and because
the facts supporting the enhancement were not submitted to a jury the determination ran afoul of
the Sixth Amendment; and (2) the evidence was not sufficient to support a finding that he
committed a crime of domestic violence. The Court of Appeals reversed the judgment of the
trial court based on Hitch’s first claim and finding it dispositive did not address his sufficiency


1
  The statute provides in relevant part: “A person who knowingly or intentionally touches another person
in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is: . .
. a Class A misdemeanor if: . . . it results in bodily injury to any other person[.]” Ind. Code § 35-42-2-
1(a)(1)(A) (Supp. 2013).
2
 “A person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than
one (1) year; in addition, he may be fined not more than five thousand dollars ($5,000).” I.C. § 35-50-3-
2.
3
 The statute provides in relevant part: “At the time of sentencing, a court shall determine whether a
person has committed a crime of domestic violence. . . .”
4
  The statute provides in relevant part: “Upon determining that a defendant has committed a crime of
domestic violence, a court shall advise the defendant of the consequences of this finding.” One such
consequence is “a person who has been convicted of a crime of domestic violence may not possess a
firearm. . . .” I.C. § 35-47-4-7(a) (Supp. 2012).


                                                    3
claim. Hitch v. State, 24 N.E.3d 974 (Ind. Ct. App. 2015), vacated. Having previously granted
transfer, we now affirm the trial court’s judgment. Additional facts are set forth below.


                                           Discussion
                                                I.


       We first observe and Hitch concedes he did not object at trial to the domestic violence
determination on the grounds of a Sixth Amendment violation.             Instead he objected on
sufficiency grounds. “It is well-settled law in Indiana that a defendant may not argue one ground
for objection at trial and then raise new grounds on appeal.” Gill v. State, 730 N.E.2d 709, 711
(Ind. 2000).   The issue is waived.     Thus we must review this claim through the lens of
fundamental error. The doctrine of fundamental error provides an exception to the general rule
that the “failure to object at trial constitutes procedural default precluding consideration of the
issue on appeal.” Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013). This “exception is
extremely narrow, and applies only when the error constitutes a blatant violation of basic
principles, the harm or potential for harm is substantial, and the resulting error denies the
defendant fundamental due process.” Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind.
2006)). “The error claimed must either make a fair trial impossible or constitute clearly blatant
violations of basic and elementary principles of due process.” Id. (quoting Brown v. State, 929
N.E.2d 204, 207 (Ind. 2010) (internal quotation omitted)).


       In Blakely v. Washington, the United States Supreme Court held “[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 542 U.S. 296,
301 (2004) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). The Court has also
made clear that “[i]n stating Apprendi’s rule, [it had] never distinguished one form of
punishment from another. Instead, [the Court’s] decisions broadly prohibit judicial factfinding
that increases maximum criminal sentence[s], penalties, or punishment[s.]” S. Union Co. v.
United States, 576 US ___, 132 S.Ct. 2344, 2351 (2012) (internal quotation omitted).




                                                 4
          According to Hitch the firearm prohibition constitutes punishment within the meaning of
the Sixth Amendment and thus the underlying facts supporting the prohibition—a determination
of domestic violence—must be found by a jury and proven beyond a reasonable doubt.
Otherwise, Hitch contends, the prohibition is in violation of his Sixth Amendment right to trial
by jury as explicated in Apprendi, Blakely and Southern Union. The State counters the firearm
prohibition is not a punishment at all, but instead “the intent and effect of a domestic violence
determination in Indiana is to facilitate compliance with the pre-existing federal law that
prohibits domestic violence offenders from possessing firearms.”5 Br. of Appellee at 11-12
(citations omitted).


          Although disagreeing the statute is punitive in nature, the State nonetheless implicates
what is commonly referred to as the “intent-effects” test, which provides a useful analytical
framework for examining whether the statute here is constitutionally infirm. Under this test a
court first determines whether the legislature meant the statute to establish a civil regulatory
regime or impose criminal punishment. Wallace v. State, 905 N.E.2d 371, 378 (Ind. 2009)
(citation omitted). “If the intention of the legislature was to impose punishment, then that ends
the inquiry, because punishment results.” Id. On the other hand, if a court concludes the
legislature intended a non-punitive regulatory regime, then the inquiry focuses on whether the
scheme is so punitive in effect that it transforms what was intended as a civil and regulatory
regime into a criminal penalty. Id. With this framework in mind we examine Indiana Code
section 35-38-1-7.7 (which we will refer to for convenience as the “firearm prohibition statute”).




5
    The federal Gun Control Act (“GCA”) provides in relevant part:

          It shall be unlawful for any person . . . who has been convicted in any court of a
          misdemeanor crime of domestic violence, to ship or transport in interstate or foreign
          commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive
          any firearm or ammunition which has been shipped or transported in interstate or foreign
          commerce.

18 U.S.C. § 922(g)(9). The applicable penalty provision reads: “Whoever knowingly violates subsection
[(g)] of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.” 18
U.S.C. § 924(a)(2). There is no state-imposed sanction for violating the firearm prohibition statute.


                                                      5
                                                II.


        It is difficult to determine legislative intent in this case because as with most Indiana
statutes there is no available legislative history and the statute does not contain a purpose
statement. However we have noted that “[i]n the absence of a stated purpose, one way to
determine legislative intent is to examine where the statute is located within the Code.” Jensen
v. State, 905 N.E.2d 384, 390 (Ind. 2009) (citation omitted). And as the Court of Appeals has
pointed out, “Section 35-38-1-7.7, which directs the trial court to determine whether a defendant
committed a crime of domestic violence, is located in the criminal code.” Goldsberry v. State,
821 N.E.2d 447, 465 (Ind. Ct. App. 2005). According to the court this placement along with the
legislature’s explicit declaration that the statute is “an act to amend the Indiana Code concerning
criminal law and procedure” demonstrates “the legislature intended the sanction to be a criminal
punishment.” Id.


        Although we agree location of the statute within the criminal code represents a strong
indication the legislature intended a punitive intent, this fact alone is not dispositive.      As
discussed in slightly more detail later in this opinion the statute also advances a legitimate
regulatory purpose, namely public safety by ensuring firearms are kept out of the hands of
domestic abusers. And this Court has previously declined to conclude the legislature intended a
punitive intent where the statute demonstrated a “legitimate regulatory purpose” even though it
was “located solely within the criminal code.” State v. Pollard, 908 N.E.2d 1145, 1149-50 (Ind.
2009). We conclude that at the very least there is some amount of ambiguity as to whether the
legislature intended to impose punishment by enacting the firearm prohibition statute. Therefore,
assuming without deciding the legislative intent behind the statute was to create a civil, non-
punitive regulatory scheme, we examine whether the statute is so punitive in effect that it negates
that intent.


                                               III.


        In assessing a statute’s effect the seven factors the United States Supreme Court outlined
in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), “provide[] some guidance.”



                                                6
Wallace, 905 N.E.2d at 379 (quoting United States v. Ward, 448 U.S. 242, 249 (1980)).
Although more traditionally employed to analyze claims arising under the Ex Post Facto Clause,
these factors “have their earlier origins in cases under the Sixth and Eighth Amendments . . . .”
Smith v. Doe, 538 U.S. 84, 97 (2003). The seven factors are:

       [1] [w]hether the sanction involves an affirmative disability or restraint, [2]
       whether it has historically been regarded as a punishment, [3] whether it comes
       into play only on a finding of scienter, [4] whether its operation will promote the
       traditional aims of punishment—retribution and deterrence, [5] whether the
       behavior to which it applies is already a crime, [6] whether an alternative purpose
       to which it may rationally be connected is assignable for it, and [7] whether it
       appears excessive in relation to the alternative purpose assigned.

Mendoza-Martinez, 372 U.S. at 168-69 (footnotes omitted). Because these factors “are designed
to apply in various constitutional contexts . . . they are neither exhaustive nor dispositive, but are
useful guideposts.” Smith, 538 U.S. at 97 (internal citations and quotations omitted). Even
though no one factor is determinative, we give “greatest weight” to the last factor. Pollard, 908
N.E.2d at 1153. In that regard, “our task is not simply to count the factors on each side, but to
weigh them.” Wallace, 905 N.E.2d at 379 (citation omitted). We address each factor in turn.


       1. Affirmative Disability or Restraint

       The first factor to consider is whether the sanction involves an affirmative disability or
restraint. In evaluating this factor we inquire “how the effects of the [sanction] are felt by those
subject to it. If the disability or restraint is minor and indirect, its effects are unlikely to be
punitive.” Pollard, 908 N.E.2d at 1150 (citation omitted). The restraint here is obviously direct
in that it applies to any person found guilty of domestic violence. And it is not minor because
the right of Indiana citizens to bear arms under this State’s constitution,6 which is infringed upon
by the firearm prohibition statute, is an interest in both liberty and property protected by the
Fourteenth Amendment to the Federal Constitution. See Kellogg v. City of Gary, 562 N.E.2d




6
  Article 1, Section 32 provides: “The people shall have a right to bear arms, for the defense of
themselves and the State.”



                                                  7
685, 693-94 (Ind. 1990).7        To be sure, this constitutionally protected right is not without
limitations. See Estate of Heck ex rel. Heck v. Stoffer, 786 N.E.2d 265, 270 (Ind. 2003) (noting
the significant number of statutes governing the sale, use and possession of firearms). But
limitations aside, the prohibition nonetheless infringes on an important constitutional liberty. We
are persuaded the first Mendoza-Martinez factor favors treating the effects of the firearm
prohibition statute as punitive.


        2. Sanctions That Have Historically Been Considered Punishment

        We next determine “whether [the sanction] has historically been regarded as a
punishment[.]” Mendoza-Martinez, 372 U.S. at 168. On grounds other than the intent-effects
test at least one federal circuit characterized the firearms possession ban under the federal GCA
as imposing a “civil disability.” See United States v. First, 731 F.3d 998, 1008-1009 (9th Cir.
2013). At least two other circuits refer to the ban not as a punishment but rather as a “collateral
consequence” of an underlying conviction. See Gentry v. Deuth, 456 F.3d 687, 695 (6th Cir.
2006); United States v. Rozier, 598 F.3d 768, 769 (11th Cir. 2010). This authority provides
some amount of guidance on the question before us. We find more instructive however a
decision from the Pennsylvania Supreme Court.               Addressing a defendant’s ex post facto
challenge to the federal firearm ban, and applying the Mendoza-Martinez intent-effects test, with
respect to the second factor the court concluded, “[d]isqualifying felons from purchasing or
possessing firearms is no more punitive than disenfranchisement or occupational disbarment,
sanctions which the United States Supreme Court has deemed non-punitive.” Lehman v. Pa.
State Police, 839 A.2d 265, 272 (Pa. 2003) (citing cases). We agree and believe the same
conclusion applies with equal force to defendants convicted of misdemeanors. See, e.g., Snyder
v. King, 958 N.E.2d 764, 781 (Ind. 2011) (involving defendant who was convicted and sentenced
for misdemeanor battery and thus by statute disenfranchised during the period of incarceration;
Court determined legislature had the police power to deprive all convicted prisoners the right to
vote for the duration of their incarceration, and declared the Infamous Crimes Clause of the


7
  See also District of Columbia v. Heller, 554 U.S. 570, 576, 595 (2008) (analyzing the federal
constitution which dictates: “A well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed” and declaring, “the Second Amendment
conferred an individual right to keep and bear arms”).


                                                     8
Indiana Constitution pursuant to which the legislature was so empowered was “not intended to
be used primarily as a retributive or deterrent mechanism of punishment” but instead “is properly
understood primarily as a regulatory measure”). In sum, we find no authority supporting the
proposition that banning firearm possession of a misdemeanant has historically been considered
punishment. This factor leans in favor of treating the effect of the statute as non-punitive.


          3. Finding of Scienter

          Third, we consider “whether [the sanction] comes into play only on a finding of
scienter[.]”8 Mendoza-Martinez, 372 U.S. at 168. The scienter requirement “is customarily an
important element in distinguishing criminal from civil statutes.” Wallace, 905 N.E.2d at 381
(citation omitted). If a sanction is not linked to a showing of mens rea, then it is less likely to be
intended as punishment. Id.


          Here, the firearm prohibition statute is not linked to a showing of mens rea; and there is
no scienter requirement.9 Instead the prohibition is imposed on all persons who have committed
a crime of domestic violence. And this is so regardless of the person’s intent or awareness of the
statute. This factor weighs in favor of treating the statute as non-punitive.




8
  Scienter is defined as “[a] degree of knowledge that makes a person legally responsible for the
consequences of his or her act or omission . . . .” Black’s Law Dictionary 1547 (10th ed. 2014).
9
    The statute provides:

          “Crime of domestic violence”. . . means an offense or the attempt to commit an offense
          that:
                 (1) has as an element the:
                      (A) use of physical force; or
                      (B) threatened use of a deadly weapon; and
                 (2) is committed against a:
                      (A) current or former spouse, parent, or guardian of the defendant;
                      (B) person with whom the defendant shared a child in common;
                      (C) person who was cohabiting with or had cohabited with the defendant as a
                          spouse, parent, or guardian; or
                      (D) person who was or had been similarly situated to a spouse, parent, or
                          guardian of the defendant.

I.C. § 35-31.5-2-78 (2012).


                                                    9
        4. The Traditional Aims of Punishment

        We next ask, “whether [the sanction’s] operation will promote the traditional aims of
punishment—retribution and deterrence . . . .” Mendoza-Martinez, 372 U.S. at 168. If a statute
promotes the traditional aims of punishment then it is more likely punitive than regulatory.
Jensen, 905 N.E.2d at 393. “Retribution is vengeance for its own sake. It does not seek to affect
future conduct or solve any problem except realizing ‘justice.’” Wallace, 905 N.E.2d at 381 n.12
(citation omitted).   On the other hand, “[d]eterrent measures serve as a threat of negative
repercussions to discourage people from engaging in certain behavior.” Id. We have no reason
to believe the legislature enacted the firearm prohibition statute for purposes of retribution. But
the statute most certainly serves as strong deterrence by imposing adverse consequences on any
person convicted of domestic violence. This factor favors treating the statute as punitive.


        5. Application Only to Criminal Behavior

        Under the fifth factor we consider “whether the behavior to which [the sanction] applies
is already a crime. . . .” Mendoza-Martinez, 372 U.S. at 168. The fact a statute applies to
behavior that is already and exclusively criminal supports a conclusion that its effects are
punitive. Wallace, 905 N.E.2d at 382. It is clear the firearm prohibition statute applies only to
criminal conduct in that it requires a finding of guilty and is imposed at sentencing. Because a
criminal conviction triggers obligations under the statute, we conclude this factor favors treating
the statute as punitive.


        6. Advancing a Non-punitive Interest

        We next ask “whether an alternative purpose to which [the sanction] may rationally be
connected is assignable for it . . . .” Mendoza-Martinez 372 U.S. at 168-69. This factor is best
translated as an inquiry into whether the statute advances a legitimate regulatory purpose.
Wallace, 905 N.E.2d at 383. The answer is undoubtedly yes. We agree with the State that
Indiana’s firearm prohibition is aligned with the federal GCA.         And as the United States
Supreme Court has explained, one of the underlying purposes of the act was to “close [a]
dangerous loophole” namely, “[e]xisting felon-in-possession laws, Congress recognized, were
not keeping firearms out of the hands of domestic abusers, because ‘many people who engage in


                                                10
serious spousal or child abuse ultimately are not charged with or convicted of felonies.’” U.S. v.
Hayes, 555 U.S. 415, 426 (2009) (internal citations omitted). And keeping firearms out of the
hands of such persons most certainly advances public safety—a legitimate regulatory purpose.
See Scarborough v. United States, 431 U.S. 563, 572 (1977) (discussing legislative history of the
federal GCA and declaring, “Congress sought to rule broadly—to keep guns out of the hands of
those who have demonstrated that they may not be trusted to possess a firearm without becoming
a threat to society.” (internal quotation omitted)). This factor leans in favor of treating the statute
as non-punitive.


       7. Excessiveness in Relation to Alternative Purpose

       Finally, we determine “whether [the sanction] appears excessive in relation to the
alternative purpose assigned . . . .” Mendoza-Martinez, 372 U.S. at 169. Stated somewhat
differently the question is whether the non-punitive regulatory purpose is excessive in this case.


       To be sure there is a rational connection to a non-punitive purpose—public safety by
keeping firearms out of the hands of domestic abusers.             However the domestic violence
determination with its corollary firearm prohibition does not “consider the seriousness of the
crime . . . or an initial determination of the risk of re-offending,” factors that in a different
context we have noted have a bearing on the excessiveness inquiry. See Pollard, 908 N.E.2d at
1153 (reviewing residency restriction statute in connection with its non-punitive purpose—public
safety and protection of children). Here the firearm prohibition applies without consideration of
whether the offender actually used a firearm or even threatened to use one. Indeed the statute
prohibits an offender’s ability to possess firearms based on conduct that may have nothing at all
to do with firearms.


       At first blush it may appear the lack of specificity within the statute could favor treating
this factor as slightly punitive. However, there is even more to support the non-punitive nature
of this prohibition because the prohibition is not a lifetime ban. After five years a person may




                                                  11
petition the court for restoration of his or her right to possess a firearm. See I.C. § 35-47-4-7.10
In considering the petition the court is required to take into account a number of factors that are
specifically tailored to the offender and focused on the offender’s conduct over the course of the
five year period. Id. This aspect of the statute outweighs any punitive effect that may arise by
keeping firearms out of the hands of individuals who have engaged in domestic violence, which
rarely arises as an isolated incident and is prone to escalate in severity. We conclude therefore
this factor leans slightly in favor of treating the statute as non-punitive.


        In summary, of the seven factors identified by Mendoza-Martinez as relevant to the
inquiry of whether a statute has a punitive effect, three factors—affirmative disability or
restraint, traditional aims of punishment, and application to criminal behavior—point in favor of
treating the effect of the firearm prohibition statute as punitive.             The remaining factors,
particularly factor seven—excessiveness—point in the other direction. As we indicated earlier
although “no one factor is determinative,” Wallace, 905 N.E.2d at 379, we nonetheless give
“greatest weight” to factor seven, Pollard, 908 N.E.2d at 1153, and “our task is not simply to
count the factors on each side, but to weigh them.” Wallace, 905 N.E.2d at 379 (citation
omitted). After weighing these factors we conclude the firearm prohibition statute is non-
punitive. But even if the balancing of these factors indicated that statute was slightly punitive,
the statute is not so punitive in effect that we can say with certainty the statute negates our
assumption the legislature intended to create a civil, non-punitive regulatory regime.


10
  “Not earlier than five (5) years after the date of conviction, a person who has been convicted of a crime
of domestic violence may petition the court for restoration of the person’s right to possess a firearm. . .
[T]the court shall consider the following factors:
        (1) Whether the person has been subject to:
                 (A) a protective order;
                 (B) a no contact order;
                 (C) a workplace violence restraining order; or
                 (D) any other court order that prohibits the person from possessing a firearm.
        (2) Whether the person has successfully completed a substance abuse program, if applicable.
        (3) Whether the person has successfully completed a parenting class, if applicable.
        (4) Whether the person still presents a threat to the victim of the crime.
        (5) Whether there is any other reason why the person should not possess a firearm, including
        whether the person failed to satisfy a specified condition under subsection (c) or whether the
        person has committed a subsequent offense.”

I.C. § 35-47-4-7(b) (2012).


                                                    12
       We are aided in this disposition by our long-held declaration that “every statute stands
before us clothed with the presumption of constitutionality until that presumption is clearly
overcome by a contrary showing.” Jensen, 905 N.E.2d at 390 (citing State v. Rendleman, 603
N.E.2d 1333, 1334 (Ind. 1992)). Further, “[i]f two reasonable interpretations of a statute are
available, one of which is constitutional and the other not, we will choose that path which
permits upholding the statute because we will not presume that the legislature violated the
constitution unless the unambiguous language of the statute requires that conclusion.” Id. at 390-
91 (quoting State Bd. of Tax Comm’rs v. Town of St. John, 702 N.E.2d 1034, 1037 (Ind. 1998)).
In essence Hitch has failed to carry his burden of proof. There was no error here let alone
fundamental error.


                                                IV.


       Hitch contends even if the Court finds there is no fundamental error, the evidence
nonetheless does not show he committed a crime of domestic violence. In pertinent part, a crime
of domestic violence includes “use of physical force . . . against a . . . person who was
cohabitating with or had cohabitated with the defendant as a spouse . . . .” I.C. § 35-31.5-2-78
(2012); see also supra at n.9. According to Hitch the facts in this case are analogous to those in
Johnson v. State, 903 N.E.2d 472 (Ind. Ct. App. 2009). In Johnson the trial court’s domestic
violence determination was reversed on appeal because the evidence revealed the parties had
been living together “only two or three months when the battery occurred” and that the victim
moved in with the defendant “as a convenience because she lost her apartment.” Id. at 476.
Here Hitch points out that like the victim in Johnson Bruce lived with him out of convenience
while she waited for her apartment to be ready. He also directs our attention to portions of the
trial transcript in which Bruce testified the arrangement was “temporary” and that she kept her
belongings packed in bags because she was “planning on leaving soon[.]” Br. of Appellant at 9
(quoting Tr. at 98, 96). According to Hitch “there was no testimony Bruce and Hitch were
intimate while she stayed at his apartment.” Id. at 10.




                                                13
        Because Hitch appeals a judgment entered by the trial court without a jury we employ a
clearly erroneous standard of review. See Ind. Trial Rule 52(A).11 Under this standard we
review only for sufficiency of the evidence. State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013).
“We neither reweigh the evidence nor determine the credibility of witnesses.” Id. “We consider
only the probative evidence and reasonable inferences supporting the judgment and reverse only
on a showing of clear error.” Id. Clear error is “that which leaves us with a definite and firm
conviction that a mistake has been made.” Id. (citation omitted).


        The facts in this case are distinguishable from those in Johnson, most notably the
duration of the relationship. Unlike Johnson, here the parties had been living together not for
two or three months but for several months—January to August. Hitch does not contest this
point. And Bruce testified Hitch was her ex-boyfriend with the relationship ending the night he
assaulted her. When asked if the couple were involved in a “romantic relationship,” Hitch began
testifying about the months leading up to and including the day of the argument. See Tr. at 163-
65. The reasonable inference from this testimony is that for eight months the couple lived
together in a romantic relationship but they did not do so for the few weeks leading up to the
argument.


        The statute makes clear domestic violence includes a person who “was cohabitating with
or had cohabitated with the defendant as a spouse . . . .” I.C. § 35-31.5-2-78(2)(C) (emphasis
added). Therefore, regardless of whether the second cohabitation was romantic the parties’ first
romantic cohabitation satisfies the statutory mandate. Thus, the evidence was sufficient to
sustain the trial court’s domestic violence determination and thus its judgment was not clearly
erroneous.




11
  The rule provides in pertinent part: “On appeal of claims tried by the court without a jury or with an
advisory jury, at law or in equity, the court on appeal shall not set aside the findings or judgment unless
clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses.”


                                                    14
                                           Conclusion


       We affirm the judgment of the trial court.


Rush, C.J., and David, J., concur.
Massa, J., concurs in result with separate opinion in which Dickson, J., joins.




                                                15
Massa, J., concurring in result with separate opinion.


       I agree with the holding of the Court today, that the loss of firearm privileges which
accompanies a “crime of domestic violence” determination by a trial judge at sentencing does
not violate Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and its progeny. I do not,
however, concur in the Court’s rationale, because I believe it begins a slow march in the wrong
direction.


       We have previously confronted the loss of constitutional rights incident to a criminal
conviction, and determined that such a loss is merely a “collateral consequence” of conviction,
rather than a distinct criminal punishment. See, e.g., Snyder v. King, 958 N.E.2d 764, 785 (Ind.
2011) (“[T]he General Assembly may exercise its police power to deprive all convicted prisoners
of the right to vote for the duration of their incarceration. . . . The loss of political and civil
rights upon conviction and imprisonment is simply a collateral consequence thereof.”); Williams
v. State, 641 N.E.2d 44, 46 (Ind. Ct. App. 1994) (“Collateral consequences attending a guilty
plea in some circumstances . . . may include the loss of civil service employment, of the right to
vote and to travel freely abroad, of the right to a driver’s license, and of the right to possess
firearms.” (internal citations omitted)).    This is consistent with Supreme Court precedent,
holding that the disenfranchisement of convicted felons (both during incarceration and after
release) is not punitive, or otherwise violative of the Fourteenth Amendment. See Richardson v.
Ramirez, 418 U.S. 24, 56 (1974) (holding that California could permissibly “exclude from the
franchise convicted felons who have completed their sentences and paroles” under the
Fourteenth Amendment); Trop v. Dulles, 356 U.S. 86, 96–97 (1958) (“A person who commits a
bank robbery . . . loses his right to liberty and often his right to vote. If, in the exercise of the
power to protect banks, both sanctions were imposed for the purpose of punishing bank robbers,
the statutes authorizing both disabilities would be penal. But because the purpose of the latter
statute is to designate a reasonable ground of eligibility for voting, this law is sustained as a
nonpenal exercise of the power to regulate the franchise.”)


       And what’s more, none of this body of precedent relied upon the federal test for whether
a government restriction is “punitive” rather than “regulatory” under the United States
Constitution. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963). Indeed, federal
law holds that its virtually-identical firearm restriction—18 U.S.C. § 922(g)(9) (2012)12—is not a
criminal penalty, without relying on the seven-factor Mendoza-Martinez test. In Lewis v. United
States, the Supreme Court considered a challenge to 18 U.S.C. App. § 1202(a)(1),13 which
prohibited a convicted felon from possessing a firearm. 445 U.S. 55, 57–58 (1980). Lewis pled
guilty of felony breaking and entering in 1961, was subsequently charged with violating §
1202(a)(1), and defended on the grounds that the original conviction was invalid. Id. The
Supreme Court affirmed the charge, using the following rationale:

                Congress’ judgment that a convicted felon, even one whose
                conviction was allegedly uncounseled, is among the class of
                persons who should be disabled from dealing in or possessing
                firearms because of potential dangerousness is rational.
                Enforcement of that essentially civil disability through a criminal
                sanction does not support guilt or enhance punishment, on the
                basis of a conviction that is unreliable when one considers
                Congress’ broad purpose.

Id. at 67 (emphasis added) (internal quotations omitted).14 More recently, the Ninth Circuit
found that the holding in Lewis applies with equal force to 18 U.S.C. § 922(g)(9), finding that it
too is a “civil disability.” United States v. First, 731 F.3d 998, 1008–09 (9th Cir. 2013), cert.
denied, 135 S. Ct. 50 (2014). And like Lewis, the Ninth Circuit in First did not resort to the
Mendoza-Martinez test to reach this outcome.

        I therefore believe that applying the Mendoza-Martinez test to this Apprendi-based
constitutional challenge injects unnecessary ambiguity into the court’s decision-making process




12
  This federal counterpart reads: “It shall be unlawful for any person . . . who has been convicted in any
court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce,
or possess in or affecting commerce, any firearm or ammunition . . . .”
13
  The specific statute in Lewis, codified in the Appendix to Title 18 as part of the Omnibus Crime
Control and Safe Streets Act of 1968, was repealed in 1986. See Pub. L. 99-308, § 104(b), 100 Stat. 459.
“The substance of this provision is now contained in § 922(g)(1).” United States v. Bena, 664 F.3d 1180,
1186 (8th Cir. 2011).
14
  The Lewis majority then referred to § 1202(a)(1) as “a civil firearms disability,” and even noted in dicta
that its reasoning should apply to 18 U.S.C. § 922 as well. See Lewis, 445 U.S. at 63–64, 67.


                                                     2
at sentencing.       Criminal conviction in Indiana carries with it a number of “collateral
consequences” not directly related to the criminal sentence, including, but not limited to:

                    Disenfranchisement for the term of incarceration, Ind. Code §
                     3-7-13-4 (2005);

                    Ineligibility for jury service during the term                 of
                     disenfranchisement, Ind. Code § 33-28-5-18(b)(5) (2008);

                    The requirement to provide both fingerprints, Ind. Code § 35-
                     38-1-28 (2014), and DNA samples to the State, Ind. Code § 10-
                     13-6-10 (2010); Ind. Code § 35-38-1-27 (2014);

                    A court order prohibiting contact with an individual, Ind. Code
                     § 35-38-1-30 (2014);

                    Seizure of monies earned while incarcerated as a result of the
                     criminal conduct, Ind. Code § 5-2-6.3-3 (2010);

                    Depending on the crime, registration as a credit restricted
                     felon, Ind. Code § 35-38-1-7.8 (2014), or a habitual offender,
                     Ind. Code § 35-38-1-32 (2014), loss of driver’s license, Ind.
                     Code § 35-48-4-15 (2014), and mandatory HIV testing, which
                     if positive is disclosed to the defendant’s victims, Ind. Code §
                     35-38-1-10.5, -10.6 (2014);

                    For certain gambling-related offenses, lifetime prohibitions on
                     running or even entering a gambling establishment, Ind. Code
                     § 4-33-10-4 (2012); Ind. Code § 4-35-6.5-3 (2012); and

                    Eligibility for certain rehabilitative government assistance
                     programs, such as Temporary Assistance for Needy Families
                     funding, Ind. Code § 12-14-28-3.3 (2012), and substance abuse
                     clinics. Ind. Code § 5-2-11-0.5, -5 (2010).

All of these consequences involve at least a minimal finding of fact by the sentencing court,
some of which may not have been found by the jury beyond a reasonable doubt. Moreover,
several of these restrictions implicate constitutional rights, such as the right to vote, the right to
serve on a jury, privacy rights, freedom of association and freedom to travel. I do not believe
that each and every one of these consequences need be subjected to the Mendoza-Martinez test
in future litigation asserting a Blakely/Apprendi claim. Rather, this Court should endeavor to




                                                  3
keep that Pandora’s Box closed,15 and continue to entrust our trial courts to operate with
appropriate discretion at sentencing in ordering such “collateral consequences” be applied.


        For the foregoing reasons, I concur in today’s result, affirming the trial court’s “crime of
domestic violence” determination under Indiana Code section 35-38-1-7.7.


Dickson, J., joins.




15
   We first adopted the federal intent-effects test in Wallace v. State, where we held that Indiana’s sex
offender registration requirement constituted a criminal punishment, and thus could not be imposed on
Wallace under the Ex Post Facto Clause of the Indiana Constitution, since he had already committed his
crime and even completed his Indiana sentence before the law was enacted. 905 N.E.2d 371, 379–84
(Ind. 2009). And we did this despite acknowledging that the United States Supreme Court had found a
similar registration requirement non-punitive—applying this same test under the Ex Post Facto Clause of
the United States Constitution. Id. at 378 (citing Smith v. Doe, 538 U.S. 84, 105–06 (2003)). This
outcome makes Indiana an outlier, as the vast majority of our sister state courts which have addressed the
issue have found their sex offender registration requirements to be non-punitive, in line with Smith. See
Tyson v. State, -- N.E.3d --, 2016 WL 756366, at n.2 (Ind. Feb. 25, 2016) (noting at least ten states which
have upheld sex offender registry requirements as non-punitive). And to further complicate matters, on
the same day this Court handed down Wallace, it also handed down Jensen v. State, where a plurality
reached the opposite outcome and found application of sex offender registry requirements to Jensen did
not offend the Indiana Constitution. 905 N.E.2d 384 (Ind. 2009).

         Because Wallace and Jensen made it abundantly clear that sex offender registry requirements
must be tested on a case-by-case as-applied basis, they have invited an endless string of appeals from sex
offenders who want to avoid telling their neighbors that they live next door, with varying results. See,
e.g., Tyson, 2016 WL 756366 (non-punitive); State v. Zerbe, -- N.E.3d --, 2016 WL 756368 (Ind. Feb. 25,
2016) (non-punitive); Gonzalez v. State, 980 N.E.2d 312 (Ind. 2013) (punitive); Lemmon v. Harris, 949
N.E.2d 803 (Ind. 2011) (non-punitive); Hevner v. State, 919 N.E.2d 109 (Ind. 2010) (punitive); State v.
Pollard, 908 N.E.2d 1145 (Ind. 2009) (punitive). And we have declined to review many more such
decisions by our Court of Appeals. See, e.g., Seales v. State, 4 N.E.3d 821 (Ind. Ct. App.) (non-punitive),
trans. denied, 9 N.E.3d 170 (Ind. 2014); State v. Hough, 978 N.E.2d 505 (Ind. Ct. App. 2012) (punitive),
trans. denied, 985 N.E.2d 339 (Ind. 2013); Andrews v. State, 978 N.E.2d 494 (Ind. Ct. App. 2012)
(punitive), trans. denied, 985 N.E.2d 339 (Ind. 2013); Burton v. State, 977 N.E.2d 1004 (Ind. Ct. App.
2012) (punitive), trans. denied, 985 N.E.2d 339 (Ind. 2013), abrogated by Zerbe, 2016 WL 756368;
Healey v. State, 969 N.E.2d 607 (Ind. Ct. App.) (non-punitive), trans. denied, 974 N.E.2d 475 (Ind.
2012). Parsing through these seven factors has proven to effectively grant us near total discretion to
follow our gut instinct as to whether a restriction “feels” like punishment.

         But having said that, although a majority of this Court has recently taken a more casual attitude
toward stare decisis, see Myers v. Crouse-Hinds Div. of Cooper Indus., Inc., -- N.E.3d --, 2016 WL
825111 (Ind. Mar. 2, 2016), the doctrine nonetheless compels continued application of the intent-effects
test in sex offender registry appeals. I would prefer, however, that we not get tangled in the same briar
patch when reviewing a host of other consequences collateral to conviction.


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