Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                           FILED
before any court except for the                           Jan 09 2013, 8:45 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the                        CLERK
                                                               of the supreme court,

law of the case.                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

KIMBERLY A. JACKSON                              GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 RICHARD C. WEBSTER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MARTY L. ARMES,                                  )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 28A01-1207-CR-299
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE GREENE SUPERIOR COURT
                          The Honorable Dena A. Martin, Judge
                              Cause No. 28D01-1204-FB-9




                                      January 9, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                Case Summary and Issues

       Marty Armes pleaded guilty to two counts of sexual misconduct with a minor as a

Class B felony, and the trial court sentenced him to nineteen years with two years

suspended to probation on each count, to be served consecutively. Armes raises the

following restated issues for our review: 1) whether two of his probation conditions are

ambiguous, overbroad, unconstitutionally vague, and unreasonable; and 2) whether the

trial court’s sentence is inappropriate in light of the nature of his offenses and his

character.   Concluding his probation conditions are not ambiguous, overbroad,

unconstitutionally vague, or unreasonable, and the trial court’s sentence is not

inappropriate, we affirm.

                              Facts and Procedural History

       Armes was charged with three counts of sexual misconduct with a minor as a

Class B felony and four counts of sexual misconduct with a minor as a Class C felony.

Pursuant to a plea agreement, the trial court entered judgment of conviction for two

counts of sexual misconduct with a minor as a Class B felony. He admitted to engaging

in sexual intercourse in 2007 and 2008 with his daughter, M.A., who was fourteen or

fifteen years old, and to performing sexually deviate conduct in 2008 and 2009 with his

daughter, N.A., who was fourteen years old at the time. The trial court found the

following aggravating circumstances: Armes was the father of the victims, and as such,

was in a position of care, custody, and control of the victims; Armes violated his position

of trust numerous times over a period of years; and he has a history of juvenile and

criminal activity. As mitigating circumstances, the trial court noted Armes pleaded

guilty, he was a victim of abuse as a child, and he demonstrated remorse at the sentencing
                                            2
hearing. The trial court sentenced Armes to nineteen years with two years suspended to

probation for each offense, and ordered the sentences served consecutively.

          Armes now appeals. Additional facts will be supplied as necessary.

                                    Discussion and Decision

                                    I. Probation Conditions

          Trial courts are given broad discretion in determining the appropriate conditions of

probation. McVey v. State, 863 N.E.2d 434, 447 (Ind. Ct. App. 2007), trans. denied. We

will not set aside a trial court’s probation terms unless it has abused its discretion.

Collins v. State, 911 N.E.2d 700, 707 (Ind. Ct. App. 2009), trans. denied.              “This

discretion is limited only by the principle that the conditions imposed must be reasonably

related to the treatment of the defendant and the protection of public safety.” Stott v.

State, 822 N.E.2d 176, 179-80 (Ind. Ct. App. 2005), trans. denied. Further, the language

of probation conditions must describe with sufficient clarity the particular misconduct

that will result in penal consequences; a lack of such clarity can result in a probationer’s

due process rights being violated. Hunter v. State, 883 N.E.2d 1161, 1163-64 (Ind.

2008).      When a defendant contends a probation condition is unduly intrusive on a

constitutional right, we balance the following factors: 1) the purpose to be served by

probation; 2) the extent to which probationers should enjoy the constitutional rights

enjoyed by law-abiding citizens; and 3) the needs of law enforcement. Stott, 822 N.E.2d

at 180.

          The particular provisions Armes challenges are:

          16. You shall have no contact with your victim or victim’s family unless
          approved in advance by your probation officer and treatment provider for

                                               3
        the benefit of the victim. Contact includes face-to-face, telephonic, written,
        electronic, or any indirect contact via third parties.
        17. You shall have no contact with any person under the age of 16 unless
        you receive court approval or successfully complete a court-approved sex
        offender treatment program, pursuant to IC 35-38-2-2.4. Contact includes
        face-to-face, telephonic, written, electronic, or any indirect contact via third
        parties.

Appellant’s Appendix at 28.

        Beginning with Condition 17,1 Armes argues that Hunter requires a finding that

the condition is ambiguous and thus a violation of his due process rights. We disagree.

In Hunter, Theron Hunter’s probation included a condition that he “must never be alone

with or have contact with any person under the age of 18. Contact includes face-to-face,

telephonic, written, electronic, or any indirect contact via third parties. You must report

any incidental contact with persons under age 18 to your probation officer . . . .” 883

N.E.2d at 1162. The trial court concluded Hunter violated this condition because he was

“living in a residence located approximately 15 feet from a house trailer where three (3)

minor children reside with their parents and that he has been in the house trailer at least

once a week while the children were present.” Id.

        Hunter argued the evidence was insufficient to establish that he had “contact” with

the children.       In defining the word contact, our supreme court noted that “the word

‘contact’ is not commonly understood to occur by mere presence alone.” Id. at 1164.

However, the evidence demonstrated only that Hunter occasionally was in the presence

of the minor children. There was no evidence of any form of communication or physical

contact. Thus, our supreme court concluded, “[t]he probation condition in this case


        1
          Except for the list of what “contact” includes, Condition 17 is an almost verbatim recitation of Indiana
Code section 35-38-2-2.4.
                                                        4
lacked sufficient clarity to provide the defendant with fair notice that the conduct at issue

would constitute a violation of probation.” Id. Since its holding was predicated on the

trial court’s conclusion that Hunter’s being in the presence of minor children equated to

“contact” with children for the purposes of his probation condition, which did not happen

here, the supreme court’s conclusion is not directly applicable. However, it is instructive.

       Armes argues Condition 17 is ambiguous, overbroad, unconstitutionally vague,

and unreasonable because it “does not appear to exclude mere presence from its

prohibitions as to contact.” Brief of the Appellant at 8. Consequently, he argues, he is

prohibited from being in a grocery store and seeing a child face-to-face, responding to the

solicitation of a Girl Scout to buy cookies, or ordering fast food at a restaurant where the

employee is under sixteen years of age. In light of Hunter, however, we must disagree

with Armes that Condition 17 prohibits his merely being in the presence of or having

incidental interaction with children. We agree with our supreme court that the language

of the condition does not prohibit merely being in the presence of children, and we

conclude the condition is not ambiguous, overbroad, unconstitutionally vague, or

unreasonable.   See also Smith v. State, 727 N.E.2d 763, 768 (Ind. Ct. App. 2000)

(concluding the parameters spelled out in Indiana Code section 35-38-2-2.4 are not

overbroad).

       Armes also argues Condition 16 is ambiguous, overbroad, unconstitutionally

vague, and unreasonable. He lodges the same argument that “contact” is vague, but in

addition, he contends the condition is unconstitutional because it prohibits him from

having contact with the family of his victims, which also happens to be his family since

the victims were his daughters. Specifically, Armes contends the Due Process Clause of
                                             5
the Fourteenth Amendment, which “applies to certain family activities and a right of

sexual intimacy,” and the First Amendment, which provides freedom of association, are

both violated by Condition 16. Br. of the Appellant at 11.

      While it may be permissible for probation conditions to intrude on a defendant’s

constitutional rights, we must weigh certain factors to determine if such intrusion is too

great. Stott, 822 N.E.2d at 180. Potential purposes to be served by prohibiting a sex

offender from having contact with the victims or their family include keeping the victims

safe, sparing the victims and their family from unnecessary reminders of the harm done

by the defendant, and aiding the defendant in rehabilitation by keeping him out of

potentially troubling situations. The extent to which probationers convicted of a sexual

offense should be able to contact their family members is great, so long as it is not the

victims or other minor children, or possibly adult family members affected by the sexual

abuse. To the extent Armes’s family includes minor children or others affected by his

criminal behavior, there is tremendous law enforcement need for Condition 16.

      We conclude any infringement of Armes’s constitutional rights are not overly

intrusive because Condition 16 says Armes can have contact with family if it is approved

in advance by his probation officer and treatment provider.        Considering the fact-

sensitive nature of family structures and the fact that N.A. and M.A. might be residing

with one or more family members, it is entirely reasonable to construct his probation

condition in this manner. It would be unreasonable to expect the trial court to hear

evidence about every single member of Armes’s extended family and recite in a

probation condition which family members he may contact, at what times, and in what

manner.
                                            6
                                      II. Sentencing

       “The Court may revise a sentence authorized by statute if, after due consideration

of the trial court’s decision, the Court finds that the sentence is inappropriate in light of

the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B).

“[W]hether we regard a sentence as appropriate . . . turns on our sense of the culpability

of the defendant, the severity of the crime, the damage done to others, and myriad other

factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224

(Ind. 2008).

       Armes pleaded guilty to two counts of Class B felony sexual misconduct with a

minor. The sentencing range for a Class B felony is six to twenty years, with an advisory

sentence of ten years.     Ind. Code § 35-50-2-5.       Armes argues his near-maximum

sentences were inappropriate. As to the nature of his offenses, Armes states “neither of

the victims indicated she had suffered any harm which exceeded that normally associated

with such offenses,” “one of his daughters reported she no longer needed counseling,”

and there is “no evidence that either victim suffered any lasting physical harm.” Br. of

the Appellant at 16. Examining the record, some evidence indicates otherwise. Although

N.A. told police she felt she did not need to see therapists anymore, the victims’ aunt

stated that N.A. “is holding in her feelings more than [M.A.] and tries to act like it

doesn’t bother her. ‘But you can tell it does’ . . . .” Appellant’s App. at 115. She also

stated M.A. “has never acted like a normal child since returning to Greene County . . .

due to the molestation beginning prior to their return,” and M.A. “has never had a

childhood and is serious about everything. ‘She’s not carefree like other children.’” Id.


                                             7
Further, as the trial court found, Armes abused his position of trust and authority, and he

did so for at least a few years.

       As to Armes’s character, while it is true that Armes pleaded guilty, it is important

to note that in return for him doing so, the State dropped five of his seven initial charges.

While it may be true he saved the State time and resources, he also had something to gain

by pleading guilty. Similarly, although he demonstrated remorse at sentencing, he also

indicated that his sexual conduct with his daughters went on for a period of “a few

years.” Transcript at 49. In light of that fact, we do not find his remorse at sentencing

particularly compelling.     In addition to the factors found by the trial court, Armes

contends he has a history of depression and anxiety, he has only a ninth grade education,

he supported his three children largely on his own, and he has had steady employment.

       As the trial court found, Armes has a lengthy juvenile and criminal history.

Despite the fact that his criminal record does not include any prior sexual offenses, it

indicates Armes’s inability to abide by the rule of law, despite many chances at

rehabilitation. To the extent Armes previously provided for his daughters and maintained

steady employment, suffered from depression and anxiety, and obtained only a ninth

grade education, this is overshadowed by the sexual abuse he inflicted upon his daughters

in recent years. For these reasons, Armes has failed to demonstrate that his sentence is

inappropriate in light of the nature of his offenses and his character.

                                         Conclusion

       Armes’s probation conditions are not ambiguous, overbroad, unconstitutionally

vague, or unreasonable, and his sentence is not inappropriate. We therefore affirm.

       Affirmed.
                                              8
MAY, J., and PYLE, J., concur.




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