MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                              FILED
this Memorandum Decision shall not be                                    Dec 07 2018, 9:39 am

regarded as precedent or cited before any                                     CLERK
                                                                          Indiana Supreme Court
court except for the purpose of establishing                                 Court of Appeals
                                                                               and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Derek Wayne Levi,                                        December 7, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-755
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana                                         The Honorable Michael J. Cox,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         82C01-1709-F5-5671



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-755 | December 7, 2018                   Page 1 of 16
[1]   Derek Wayne Levi appeals his conviction for failure to register as a sex offender

      as a level 5 felony. Levi raises three issues which we revise and restate as:


        I.    Whether the trial court erred in denying his motion to dismiss;

       II.    Whether the trial court abused its discretion in instructing the jury;
              and

      III.    Whether the evidence is sufficient to sustain Levi’s conviction.


      We affirm.


                                      Facts and Procedural History

[2]   On April 12, 2001, Levi was convicted of sexual misconduct with a minor. At

      that time, Ind. Code § 5-2-12-13 provided:


              (a) Except as provided in subsection (b), an offender’s duty to
              register expires ten (10) years after the date the offender is
              released from prison or any other facility operated by the
              department of correction, placed on parole, or placed on
              probation, whichever occurs last.


              (b) An offender who is found to be a sexually violent predator by
              a court under IC 35-38-1-7.5(b) is required to register for an
              indefinite period unless a court, assisted by a board of experts,
              finds that the offender is no longer a sexually violent predator
              under IC 35-38-1-7.5(c).


      (Subsequently amended by Pub. L. No. 238-2001, § 13 (eff. July 1, 2001); Pub.

      L. No. 116-2002, § 16 (eff. July 1, 2002); and Pub. L. No. 222-2003, § 1 (eff.

      July 1, 2003); repealed by Pub. L. No. 140-2006, § 41 (eff. July 1, 2006); and

      Pub. L. No. 173-2006, § 55 (eff. July 1, 2006)).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-755 | December 7, 2018   Page 2 of 16
[3]   Levi was incarcerated for his 2001 offense for a period of approximately six

      years and was released sometime in 2006.


[4]   In 2006, Ind. Code § 5-2-12-13 was repealed and recodified at Ind. Code § 11-8-

      8-19. The General Assembly amended Ind. Code § 11-8-8-19, effective July 1,

      2008, to provide that “[t]he registration period is tolled during any period that

      the sex or violent offender is incarcerated. The registration period does not

      restart if the offender is convicted of a subsequent offense; however, if the

      subsequent offense is a sex or violent offense, a new registration period may be

      imposed in accordance with this chapter.” See Pub. L. No. 119-2008, § 8 (eff.

      July 1, 2008).1


[5]   Since 2006, Levi was incarcerated for other offenses for approximately six

      years. On August 28, 2017, Levi was released. A Sex or Violent Offender

      Registration Form dated August 28, 2017, listed Levi’s address as 1817 N.

      Fares Avenue, an address corresponding to that of the Esquire Inn in

      Evansville, Indiana; the registration start date as December 18, 2006; and the

      registration end date as June 26, 2023. Levi’s handwritten initials appear on the

      form and attest to the information.


[6]   On August 30, 2017, Levi met with Christina Skie, his parole officer. On

      September 4, 2017, Levi checked out of the Esquire Inn, and Priti Grigorian,




      1
        Ind. Code § 11-8-8-19 was subsequently amended by Pub. L. No. 114-2012, § 26 (eff. July 1, 2012); Pub. L.
      No. 214-2013, § 12 (eff. July 1, 2013); Pub. L. No. 158-2013, § 176 (eff. July 1, 2014); Pub. L. No. 168-2014,
      § 23 (eff. July 1, 2014); and Pub. L. No. 5-2015, § 33 (eff. April 15, 2015).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-755 | December 7, 2018                   Page 3 of 16
      the manager at the Esquire Inn, told him to call his parole officer. On

      September 6, 2017, Skie had an appointment with Levi at his residence, but

      Levi appeared at her office early that morning. Levi told Skie that the

      assistance to pay for his room ended, that he was staying with a friend at that

      time, and that he would call her by the end of the day with the new address

      because he did not know it. Skie told Levi that he needed to register and

      notified Vanderburgh County Sheriff’s Detective Mike Robinson that Levi was

      no longer staying at the motel. That same day, Levi filled out a Sex or Violent

      Offender Registration Form again listing the address of the Esquire Inn. Levi

      did not call Skie that day but called her on September 9, 2017, and told her that

      his address was 1021 Edgar Street. On September 11, 2017, Skie saw Levi and

      reminded him again that he needed to register.


[7]   On September 13, 2017, the State charged Levi with failure to register as a sex

      or violent offender as a level 5 felony. The State alleged an enhanced charge of

      a level 5 felony based on the allegation that Levi was convicted and sentenced

      on April 7, 2016, in the Vanderburgh Superior Court under cause number

      82C01-1510-F5-6356 for a violation of failure to register as a sex offender.


[8]   On December 14, 2017, Levi filed a motion to dismiss asserting that he was

      convicted of an offense that required him to register for a term of ten years, that

      ten years had elapsed since his release, and that he had no further obligation to

      register. On December 18, 2017, the State filed an objection to Levi’s motion to

      dismiss. On January 10, 2018, the court held a hearing, and on January 29,

      2018, it denied the motion.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-755 | December 7, 2018   Page 4 of 16
[9]    On February 1, 2018, the court held a jury trial. Outside the presence of the

       prospective jurors, the prosecutor stated she had filed a motion in limine and

       that it was not appropriate for Levi to argue in front of the jury that the law

       requiring him to register no longer applied to him. Levi’s counsel indicated that

       Levi was no longer required to register and, when asked how he was going to

       “get that into evidence,” answered that he was going to ask the “various

       individuals what the law was at the time of his plea and when he began to

       register and . . . whether or not 10 years had elapsed since then . . . .”

       Transcript Volume III at 7. The court denied the State’s motion in limine.


[10]   During his opening statement, Levi’s counsel stated:


               It’s going to be encumberant [sic] for you to find out which set of
               law, which set of rules that we’re playing by. If you use from
               2006, late 2006, early 2007, ten years from that date, [Levi] no
               longer has to register under Indiana code 11-88 [sic], which is the
               statutory scheme, they will try to say that the change of the law
               extends that time out for other reasons.


       Id. at 101. He also stated: “[O]ur contention is, and we will be arguing at the

       end, that September 6, 2017, or September 7, 2017, the date upon which they

       allege he violated the law was subsequent to the 10 years, that he no longer had

       an obligation, was not a proper person under the statutory scheme when he was

       first convicted in 2001 to have to register.” Id. at 101-102.


[11]   Skie testified that the Department of Correction (“DOC”) determines the end

       date of a person’s registration time period. During cross-examination, Levi’s

       counsel showed Skie a printout of the “2008 Senate and Act of Bill.” Id. at 118.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-755 | December 7, 2018   Page 5 of 16
       When asked if she would agree with the characterization that “it’s not 10 years

       necessarily any more, but in 2008 they changed that law,” Skie answered: “I

       guess I agree with that.” Id. at 119. She testified that the DOC calculated a

       registration end date of June 6, 2023, based upon the days that Levi was not

       incarcerated and that he had subsequent incarceration of approximately six

       years. On redirect examination, Skie testified that Levi’s registration period

       was scheduled to end in 2023 when he was released in August 2017 and that

       Levi had been incarcerated for six to seven years in his original ten-year

       registration period.


[12]   Detective Robinson testified that he received the Sex or Violent Offender

       Registration Form from the DOC. When asked if he knew approximately how

       many times Levi had been incarcerated since his release in 2006, Detective

       Robinson answered: “I can count confidently just with my dealings with him it

       had been three times that I know of for registry violations off just firsthand

       knowledge.” Id. at 171. Levi’s counsel objected, stated that he thought “we

       weren’t going to the reasons for that, only that he was incarcerated, the number,

       not the type,” and moved for a mistrial. Id. After some discussion, the court

       overruled Levi’s motion and offered to give an admonition, but Levi’s counsel

       indicated that he did not want to “bring specific attention to it.” Id. at 175.


[13]   On cross-examination, Levi’s counsel questioned Detective Robinson about the

       law at the time Levi committed his offense in 2001 and the amendments.

       Levi’s counsel also showed Detective Robinson a printout of the Senate Bill

       from 2008 and questioned him regarding the amendment. Detective Robinson

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-755 | December 7, 2018   Page 6 of 16
       indicated that the decision on tolling was done by the DOC and was based on

       the 2008 amendment.


[14]   During the beginning of a discussion regarding the final jury instructions, the

       court stated that it had heard argument on the instructions in chambers. Levi’s

       counsel proposed a jury instruction detailing the length of time registration was

       required under the law that existed prior to July 1, 2008. The court granted

       Levi’s proposed instruction and gave the instruction as Final Instruction No. 3.

       The court included one of the State’s proposed instructions as Final Instruction

       No. 4 which provides in part: “The statute defining when a person is required to

       register as a sex or violent offender, after July 1, 2008, reads in part as follows . .

       . . The registration period is tolled during any period that the sex or violent

       offender is incarcerated. . . .” Appellant’s Appendix Volume II at 79.


[15]   The court and the parties also discussed Final Instruction No. 5, which states:


               The court decided that the law after July 1, 2008 applies in this
               case. Nevertheless, the defense may argue that the defendant is
               not a proper person required to register because you are the
               finder of both the law and the facts.


       Id. at 80. Levi’s counsel objected and argued:


               [T]he instructions that were tendered by the State and the defense
               are in fact the law as they exists [sic] or pattern jury instructions,
               the Court has taken it upon itself to introduce what is labeled as
               instruction 5 which I believe invades the province of the jury to
               some extent, I think it also draws specific attention to a hearing
               held outside the presence of the jury back on January 10th and
               ultimately decided on January 29th which is the Motion to
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-755 | December 7, 2018   Page 7 of 16
        Dismiss. Again, as stated earlier, the Motion to Dismiss is silent
        as to the rationale why, but nonetheless it was decided in that
        way. The Court I think by bringing this to their attention invades
        the province of the jury, it is not a pattern jury instruction that’s
        been reviewed and authorized by judicial committee, and believe
        that it’s prejudicial to my client.


Transcript Volume III at 220. The prosecutor stated:


        [I]t’s an accurate statement in the State’s opinion, it’s been the
        State’s position that we essentially relitigated the Motion to
        Dismiss throughout the trial and I think it’s important for the
        jury to know that the Court has made a decision previously on
        that, it’s just as if we had had a Motion to Suppress, we had a
        hearing outside the presence of the jury, and the Court ruled that
        the evidence is admissible and what defense has done is
        essentially relitigated the Motion to Suppress in that scenario in
        front of the jury and that’s generally not allowed and the Court
        has made a legal determination as is the Court’s job and duty and
        the Court has done that twice now that the law as it stood in
        2008 applies to the defendant, so the Court has given defense
        significantly way [sic] in relitigating the Motion to Dismiss and I
        think it’s only fair and appropriate that the jury understand
        what’s happening and what the Court has done and what the
        Court has allowed.


Id. at 220-221. The court stated:


        The Court has given the defense significant leeway in this case to
        argue something that it ordinarily would not, that the Court
        believes that the determination of law, the Court’s determination
        of the law is final but nevertheless the defense has been vehement
        in its position that they would have the right since the jury is,
        determines both the law and the facts, to have the opportunity to
        make that argument and the Court has allowed the defense to

Court of Appeals of Indiana | Memorandum Decision 18A-CR-755 | December 7, 2018   Page 8 of 16
                  examine the State’s witnesses with regard to what the law was
                  prior to July 1 of 2008 and of course what the law was after July
                  1 of 2008, so the Court believes in order to not confuse the jury
                  the Court’s instruction number 5 was appropriate.


       Id. at 222-223. The court also noted that Final Instruction No. 5 was “not in its

       original form, the Court did incorporate two of the defendant’s request[s] for

       changes made to that instruction, even though the defendant still objected to

       it.”2 Id. at 223. The court read the instructions to the jury.


[16]   The jury found Levi guilty of failure to register as a level 6 felony. Levi pled

       guilty to the enhancement to a level 5 felony. On March 2, 2018, the court

       sentenced Levi to five years in the DOC.


                                                       Discussion

                                                             I.


[17]   The first issue is whether the trial court erred in denying Levi’s motion to

       dismiss. Levi argues that the registration period was not tolled pursuant to the

       2008 amendment to Ind. Code § 11-8-8-19 during his periods of incarceration

       and the 2008 law constitutes an ex post facto law as applied to him. The State

       argues that the conduct triggering the application of the 2008 amendment

       occurred in 2010, 2012, 2014, and 2016, there is no retroactivity in play, and the




       2
           The record does not indicate what changes were made to Final Instruction No. 5.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-755 | December 7, 2018       Page 9 of 16
       relevant portions of the sex offender registration act are not a violation of the ex

       post facto clause.3


[18]   We generally review the denial of a motion to dismiss for an abuse of

       discretion. Tyson v. State, 51 N.E.3d 88, 90 (Ind. 2016). However, where the

       arguments present questions of law, we consider them de novo. Id.


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

       passed.” IND. CONST. art. 1, § 24. This provision prohibits the passage of any

       law which imposes a punishment for an act which was not punishable at the

       time it was committed or imposes additional punishment to that then

       prescribed. Gonzalez v. State, 980 N.E.2d 312, 316 (Ind. 2013).


[20]   “[W]e are aided by the principle that every statute stands before us clothed with

       the presumption of constitutionality until that presumption is clearly overcome

       by a contrary showing.” Jensen v. State, 905 N.E.2d 384, 390 (Ind. 2009). “The

       party challenging the constitutionality of the statute bears the burden of proof,

       and all doubts are resolved against that party.” Id.; see also Tyson, 51 N.E.3d at

       90-91. “If 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




       3
         The State cites an Indiana Offender Database Search which reveals that Levi was sentenced for failure to
       register as a sex offender in 2010, 2012, 2014, and 2016.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-755 | December 7, 2018                Page 10 of 16
       requires that conclusion.” Jensen, 905 N.E.2d at 390-391 (quoting State Bd. of

       Tax Comm’rs v. Town of St. John, 702 N.E.2d 1034, 1037 (Ind. 1998)).


[21]   We find Bridges v. State in which this Court addressed a similar argument

       instructive. In that case, we held:


               Bridges contends that the 2008 amendments’ tolling provision
               was applied to him retroactively and therefore violated our state’s
               prohibition against ex post facto laws. But Bridges committed
               his subsequent offenses in 2010, 2011, and 2013, years after the
               2008 amendments became effective. Thus, no retroactive
               application took place, and without retroactive application, there
               can be no ex post facto violation. Indeed, this statute does not
               necessarily apply to all people who have already committed sex
               offenses—rather, the statute’s plain language makes clear that it
               applies only to people who, after having committed a sex offense,
               subsequently commit an additional offense that leads to a new
               sentence of incarceration. Bridges’s registration was tolled not
               because of his 2002 child molestation conviction, but because,
               after his release in 2006 and after the 2008 amendments became
               effective, he committed and was convicted of and sentenced for
               new offenses. And because Bridges committed his subsequent
               offenses years after the 2008 amendments became effective, he
               had fair notice and warning that he would be subjected to the
               tolling provision for his registration if he became incarcerated
               after 2008.


       109 N.E.3d 453, 456 (Ind. Ct. App. 2018). We held that we were compelled to

       find that tolling Bridge’s registration did not change the legal consequences of

       the acts that he completed before the 2008 amendments became effective

       because the statute that contains the tolling provision was clear and

       unambiguous on its face. Id. We concluded that tolling Bridge’s registration on

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-755 | December 7, 2018   Page 11 of 16
       the sex offender register did not violate our state’s prohibition against ex post

       facto laws. Id.


[22]   The record reveals that Levi was convicted of sexual misconduct with a minor

       in April 2001 and was released sometime in 2006. Under Ind. Code § 5-2-12-13

       in effect at the time of his original offense, he was required to register for ten

       years after his release from prison. Levi had a subsequent incarceration of

       approximately six years following his release in 2006. He asserts that the only

       relevant date is the date of his original predicate sex offense and does not

       discuss the timing of his subsequent offenses which resulted in his incarceration

       after the 2008 amendment. We conclude that Levi has not carried his burden of

       demonstrating that as applied to him the statute violates the Indiana

       constitutional prohibition against ex post facto laws.


                                                         II.


[23]   The next issue is whether the trial court abused its discretion in instructing the

       jury. Generally, “[t]he purpose of an instruction is to inform the jury of the law

       applicable to the facts without misleading the jury and to enable it to

       comprehend the case clearly and arrive at a just, fair, and correct verdict.”

       Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind. 2003), cert. denied, 540 U.S. 1150,

       124 S. Ct. 1145 (2004). Instruction of the jury is generally within the discretion

       of the trial court and is reviewed only for an abuse of that discretion. Id. at

       1163-1164. To constitute an abuse of discretion, the instruction given must be

       erroneous, and the instructions taken as a whole must misstate the law or


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-755 | December 7, 2018   Page 12 of 16
       otherwise mislead the jury. Benefiel v. State, 716 N.E.2d 906, 914 (Ind. 1999),

       reh’g denied, cert. denied, 531 U.S. 830, 121 S. Ct. 83 (2000).


[24]   Before a defendant is entitled to a reversal, he must affirmatively show that the

       erroneous instruction prejudiced his substantial rights. Lee v. State, 964 N.E.2d

       859, 862 (Ind. Ct. App. 2012) (citing Gantt v. State, 825 N.E.2d 874, 877 (Ind.

       Ct. App. 2005)), trans. denied. An error is to be disregarded as harmless unless it

       affects the substantial rights of a party. Id. (citing Oatts v. State, 899 N.E.2d 714,

       727 (Ind. Ct. App. 2009); Ind. Trial Rule 61).


[25]   Levi argues that Final Instruction No. 5 bound the conscience of the jury. He

       asserts that the most obvious interpretation of the trial court’s use of the term

       “applies” is that the registration requirement applies to Levi but “it was solely

       the jury’s prerogative to determine . . . whether the registration requirement no

       longer applied because the ten year period had already expired.” Appellant’s

       Brief at 32-33. He contends that the “trial court’s imprimatur for a finding of

       guilt in this case by expressing its order that the registration law ‘appl[ied]’ to

       Levi was a powerful force that a jury would not likely disregard lightly.” Id. at

       33. The State argues that the instruction is not misleading and “reminds the

       jury that it was free to side not only with the defense, generally speaking, but

       with this particular defense to this particular charge, and in this particular case.”

       Appellee’s Brief at 28-29.


[26]   Preliminary Instruction No. 7 and Final Instruction No. 10 state: “Under the

       Constitution of Indiana, you have the right to determine both the law and the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-755 | December 7, 2018   Page 13 of 16
       facts. My instructions are your best source in determining the law.”

       Appellant’s Appendix Volume II at 64, 85. Preliminary Instruction No. 10

       states in part: “Nothing I say or do is intended to suggest what you should

       believe about the facts in this case, or what your verdict should be. Each of

       you, as jurors, must determine the facts and the verdict.” Id. at 66. Final

       Instruction No. 5 states:


               The court decided that the law after July 1, 2008 applies in this
               case. Nevertheless, the defense may argue that the defendant is
               not a proper person required to register because you are the
               finder of both the law and the facts.


       Id. at 80.


[27]   In light of the instructions indicating that the jurors determine the law, the

       questioning of the witnesses by Levi’s counsel with respect to the 2008

       amendment, the nature of the issue, and the court’s inclusion of Final

       Instruction No. 3 detailing the law prior to the 2008 amendment at Levi’s

       request, we cannot say that the trial court abused its discretion in giving Final

       Instruction No. 5.


                                                        III.


[28]   The next issue is whether the evidence is sufficient to sustain Levi’s conviction.

       When reviewing claims of insufficiency of the evidence, we do not reweigh the

       evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,

       817 (Ind. 1995), reh’g denied. We look to the evidence and the reasonable


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-755 | December 7, 2018   Page 14 of 16
       inferences therefrom that support the verdict. Id. The conviction will be

       affirmed if there exists evidence of probative value from which a reasonable jury

       could find the defendant guilty beyond a reasonable doubt. Id.


[29]   Levi stipulated at trial that he was convicted of sexual misconduct with a minor

       on or about April 12, 2001, and that the conviction carried a ten-year

       registration. On appeal, he argues that there was not sufficient evidence that he

       was required to register and that the only evidence from which to infer how

       long he was subsequently incarcerated was the registration end date on his sex

       offender registration form which listed June 26, 2023. He asserts that the State

       presented no evidence or testimony that he was incarcerated for six years

       following his release for the predicate offense of sexual misconduct with a

       minor.


[30]   The record contains the Sex or Violent Offender Registration Form which lists:

       “**Registration End Date: 06/26/2023.” State’s Exhibit 2 at 2. Levi’s

       handwritten initials appear on this document after the following statement: “I

       attest that the information listed above is accurate and complete. I

       acknowledge that the double asterisk (**) designates the information that will

       be published on the Indiana sex and violent offender web site.” Id. We note

       that Skie, Levi’s parole officer, indicated that the registration end date was

       based on the days that Levi was not incarcerated and that Levi had subsequent

       incarceration of approximately six years. On redirect examination, Skie

       indicated that Levi had been incarcerated for six or seven years during his



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-755 | December 7, 2018   Page 15 of 16
       original ten-year registration period and that he went to the DOC three or four

       times when he was released to parole for the sexual misconduct conviction.


[31]   Based upon our review of the record, we conclude that the State presented

       evidence of a probative nature from which a trier of fact could find beyond a

       reasonable doubt that Levi committed the offense of failure to register as a sex

       offender.


                                                   Conclusion

[32]   For the foregoing reasons, we affirm Levi’s conviction.


[33]   Affirmed.


       Altice, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-755 | December 7, 2018   Page 16 of 16
