MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Jan 10 2020, 5:36 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James D. Crum                                            Curtis T. Hill, Jr.
Coots, Henke & Wheeler, P.C.                             Attorney General of Indiana
Carmel, Indiana
                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Nicholas Medalen,                                        January 10, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1522
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable Michael A. Casati,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         29D01-0207-FB-52



Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1522 | January 10, 2020                 Page 1 of 9
[1]   Nicholas Medalen appeals the trial court’s determination that he violated a

      condition of his probation. He also appeals the sentence the trial court imposed

      after revoking his probation. We affirm.


[2]   In 2003, Medalen pleaded guilty to five counts of child molesting, all Class C

      felonies. On May 6, 2004, the trial court imposed an aggregate sentence of

      forty years, with twenty years suspended. The conditions of his probation

      included the following: “No viewing or possession of any pornographic or

      sexually explicit materials.” Tr. Vol. 3, State’s Ex. 4, p. 64. In the sentencing

      order, the trial court further explained the condition as follows:


              Defendant shall not possess or view any pornographic or sexually
              explicit materials, including, but not limited to: videos, television
              programs, DVDs, CDs, magazines, books, Internet web sites,
              games, sexual devices or aids, or any material which depicts
              partial or complete nudity or sexually explicit language or any
              other materials related to illegal or deviant sexual interests or
              behaviors.


      Id., State’s Ex. 3, p. 59. Medalen did not appeal his sentence.


[3]   Medalen completed the executed portion of his sentence and was released to

      probation. In November 2013, the State filed an information of violation of

      probation. Medalen was arrested. In April 2014, the trial court held a fact-

      finding hearing, determined Medalen had violated a condition of probation,

      and sentenced him to serve ten years of his previously-suspended sentence.

      Medalen did not appeal.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1522 | January 10, 2020   Page 2 of 9
[4]   Medalen finished serving that sentence and was again released to probation,

      under the supervision of the Hamilton County Courts Department of Probation

      Services (“probation department”). Upon his release, Medalen moved into a

      men’s shelter in Terre Haute, Indiana. The shelter’s manager, Matthew

      Mahoney, drove Medalen to his appointments. Mahoney noticed Medalen

      liked to draw and was impressed by one of his drawings, so he bought drawing

      supplies for him.


[5]   On November 1, 2018, the probation department filed an information of

      violation of probation, alleging that Medalen had violated a term of his

      probation by looking at pornography on a computer at a job center. The trial

      court issued an arrest warrant, and Medalen was arrested at the shelter.

      Immediately after Medalen was removed from the premises, Mahoney packed

      up Medalen’s belongings and prepared to move them and his mattress into

      storage, per the shelter’s usual procedures. When Mahoney moved the

      mattress, he found approximately fifty images and drawings hidden

      underneath. One of the documents was the drawing that Mahoney had

      watched Medalen draw. The images and drawings included depictions of nude

      or mostly-nude females, some of whom were underage. Mahoney secured the

      documents and later arranged to deliver them to the probation department.


[6]   On February 19, 2019, the State filed another information of violation of

      probation. The State alleged Medalen had violated a condition of probation by

      possessing pornography and/or sexually explicit materials.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1522 | January 10, 2020   Page 3 of 9
[7]   On June 27, 2019, the court held a fact-finding hearing. After the hearing, the

      court determined Medalen had violated a condition of probation by possessing

      pornography and/or sexually explicit materials, as alleged in the February 19,
                                                                 1
      2019 information of violation of probation. The court revoked his probation

      and ordered him to serve the remaining ten years of his sentence at the Indiana

      Department of Correction. This appeal followed.


                                                           1.
[8]   Medalen first challenges the trial court’s revocation of his probation. He frames

      his appeal as a challenge to the sufficiency of the evidence, but in substance he

      argues that the condition of probation banning him from possessing
                                                                                                       2
      pornography or sexually explicit materials is unconstitutionally vague. We

      therefore address this appeal as a constitutional challenge.


[9]   The State argues that Medalen’s constitutional claim is procedurally barred

      because he failed to object to the conditions of his probation at his sentencing

      hearing in 2004 or pursue a timely appeal after sentencing. The State further

      argues the vagueness claim is waived because he did not present it to the trial

      court during probation revocation proceedings. The State’s arguments are well




      1
       The court declined to determine that Medalen had violated a condition of probation as alleged in the
      November 1, 2018 information of violation of probation.
      2
       Medalen argues that the condition of probation at issue here has already “been found to be overbroad, and
      vague,” in cases involving other defendants, and need not be addressed again here. Appellant’s Br. p. 5. We
      disagree. Medalen bears the burden of proving the trial court erred by misapplying the prior cases to the facts
      and circumstances of his case.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1522 | January 10, 2020                     Page 4 of 9
       taken, but given that Medalen is presenting a constitutional claim, we choose to

       address the merits of his appeal. See Payne v. State, 484 N.E.2d 16 (Ind. 1985)

       (addressing a constitutional vagueness claim despite waiver).


[10]   In general, trial courts enjoy broad discretion in establishing a defendant’s

       conditions of probation, and we review a probation order for an abuse of

       discretion. Weida v. State, 94 N.E.3d 682 (Ind. 2018). When a defendant, like

       Medalen, challenges a probation condition on constitutional grounds such as

       vagueness, our standard of review is de novo. Id.


[11]   The Indiana Supreme Court has explained how it reviews vagueness claims as

       follows:


               When faced with a vagueness challenge to a probation condition,
               i.e., the condition lacks the requisite clarity and particularity, we
               employ the same standard we apply when evaluating penal
               statutes for vagueness. We will find a probation condition
               unconstitutionally vague only if individuals of ordinary
               intelligence would not comprehend it to adequately inform them
               of the conduct to be proscribed. Probation conditions, like
               criminal statutes, sufficiently inform probationers of restricted
               actions when they identify the generally proscribed conduct.
               Fastidious specificity is not required. In other words, probation
               conditions need not list, with itemized exactitude, every item of
               conduct that is prohibited.


               When considering a vagueness challenge, we confine ourselves to
               the facts and circumstances of the case before us. We will not
               allow a probationer to devise hypothetical situations that might
               demonstrate vagueness. What’s more, we take the challenged
               probation provisions or language in context, not in isolation.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1522 | January 10, 2020   Page 5 of 9
       Id. at 688 (quotations and citations omitted).


[12]   Medalen claims that the condition of his probation that bars him from

       possessing pornographic or sexually explicit materials, as set forth in the

       conditions of his probation and the trial court’s sentencing order, is

       unconstitutionally vague. He cites McVey v. State, 863 N.E.2d 434 (Ind. Ct.

       App. 2007), trans. denied, and Fitzgerald v. State, 805 N.E.2d 857 (Ind. Ct. App.

       2004), in which panels of this Court invalidated as vague conditions of

       probation similar to the condition at issue here. In McVey, the challenged

       condition of probation stated:


               [You] shall not possess or view any pornographic or sexually
               explicit materials, including but not limited to: videos, television
               programs, DVDs, CDs, magazines, books, Internet web sites,
               games, sexual devices or aids, or any material which depicts
               partial or complete nudity or sexually explicit language or any
               other materials related to illegal or deviant interests or behaviors
               ….


       863 N.E.2d at 447. The condition of probation at issue in Fitzgerald, 805

       N.E.2d 857, was identical to the condition in McVey. We are also aware of

       Smith v. State, 779 N.E.2d 111, 118 (Ind. Ct. App. 2002), trans. denied, in which

       the Court concluded a condition of probation barring Smith from possessing

       “pornographic or sexually explicit materials” was unconstitutionally vague.


[13]   McVey, Fitzgerald, and Smith are procedurally distinguishable from Medalen’s

       case. Those three cases involved direct appeals from sentencing, in which the

       appellants challenged their conditions of probation in the abstract. There were

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1522 | January 10, 2020   Page 6 of 9
       no facts indicating that a violation had occurred. By contrast, in Medalen’s

       case the State alleged that he violated a condition of his probation, and there are

       concrete facts and circumstances to consider.


[14]   Medalen hid approximately fifty images and drawings under his mattress.

       Some of the images and drawings depicted adult women in swimsuits and

       lingerie, displaying bare buttocks and mostly uncovered breasts. An individual

       of ordinary intelligence might or might not understand that such documents

       were barred by the condition of probation at issue here. See, e.g., Foster v. State,

       813 N.E.2d 1236, 1237 (Ind. Ct. App. 2004) (reversing revocation of Foster’s

       probation; Foster was found to have “three Stuff for Men magazines and two

       Maxim magazines on the nightstand beside [his] bed,” and the condition of

       probation banning possession of pornographic material was deemed

       unconstitutionally vague).


[15]   But Medalen also possessed several drawings of nude female children, with

       their genitals clearly depicted, engaging in sexual behavior. One of the persons

       depicted is television character Lisa Simpson, who is generally known to be a

       child. Possession of a drawing “that depicts or describes sexual conduct by a

       child who the person knows is less than eighteen (18) years of age or who

       appears to be less than eighteen (18) years of age, and that lacks serious literary,

       artistic, political, or scientific value” is a Level 6 felony in Indiana. Ind. Code §

       35-42-4-4 (2017).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1522 | January 10, 2020   Page 7 of 9
[16]   There can be no doubt that child pornography would be included in the

       definition of “pornographic” or “illegal” materials as explained by the

       sentencing court in Medalen’s case. Tr. Vol. 3, State’s Ex. 3, p. 59. We

       conclude from the facts and circumstances of this case that an individual of

       ordinary intelligence would have understood that possessing sexual images of

       nude children violated the conditions of Medalen’s probation, especially since

       his underlying convictions were for child molestation. He has failed to

       demonstrate that the condition of his probation at issue is unconstitutionally

       vague.


                                                         2.
[17]   Medalen claims in passing that the trial court erred in ordering him to serve the

       remainder of his suspended sentence. In support of this claim, he generally

       asserts that sentencing him to ten years in prison “for being in possession of

       photographs of scantily clad women and drawings of nude cartoon characters”

       was an abuse of discretion. Appellant’s Br. p. 7. Medalen does not cite to any

       authorities in support of his claim. An appellant’s brief must contain “the

       contentions of the appellant on the issues presented,” “supported by citations to

       the authorities, statutes, and the Appendix or parts of the Record on Appeal

       relied on . . . .” Ind. Appellate Rule 46(A)(8)(a). We will not review the record

       and research authorities to make arguments on Medalen’s behalf. He has

       waived this claim for appellate review. See Burnell v. State, 110 N.E.3d 1167

       (Ind. Ct. App. 2018) (deeming waived seven of appellant’s eight claims for

       failure to provide arguments supported by citations to legal authority).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1522 | January 10, 2020   Page 8 of 9
[18]   For the reasons stated above, we affirm the judgment of the trial court.


[19]   Judgment affirmed.


       Robb, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1522 | January 10, 2020   Page 9 of 9
