      MEMORANDUM DECISION
                                                                      Jul 20 2015, 9:02 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Cara Schaefer Wieneke                                     Gregory F. Zoeller
      Wieneke Law Office, LLC                                   Attorney General of Indiana
      Plainfield, Indiana
                                                                Tyler G. Banks
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Paul Scott Campbell,                                     July 20, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               73A01-1502-CR-46
              v.
                                                               Appeal from the Shelby Superior
      State of Indiana,                                        Court
                                                               The Honorable Jack A. Tandy,
      Appellee-Plaintiff,                                      Judge
                                                               Cause No. 73D01-1108-FA-14




      Robb, Judge.



                                 Case Summary and Issue
[1]   Paul Campbell entered a plea of guilty to two counts of child molesting and was

      sentenced to sixteen years of imprisonment followed by eight years of

      Court of Appeals of Indiana | Memorandum Decision 73A01-1502-CR-46| July 20, 2015       Page 1 of 8
      probation, subject to the standard conditions of probation as well as terms of

      probation specific to sex offenders. In this belated appeal,1 Campbell contends

      the trial court erred in imposing certain sex offender conditions of probation.

      The State concedes, and we agree, that two of the challenged conditions of

      probation are impermissibly vague, and we remand to the trial court to clarify

      Campbell’s sex offender conditions of probation.



                             Facts and Procedural History
[2]   In August 2011, the State charged Campbell with one count of Class A felony

      child molesting and one count of Class C felony child molesting. In February

      2012, the State and Campbell entered into a plea agreement pursuant to which

      Campbell entered a plea of guilty to Class B felony child molesting as a lesser

      included offense of the Class A felony charge and also entered a plea of guilty

      to Class C felony child molesting. The plea agreement provided that Campbell

      would be sentenced to sixteen years for the Class B felony, all executed, and

      eight years for the Class C felony, to be served consecutively to the Class B

      felony sentence but all suspended to probation. The plea agreement contained

      several specific conditions of probation, as well as the additional term that “sex

      offender terms of probation shall apply.” Appellant’s Appendix at 27.




      1
       Campbell was not informed at his sentencing hearing of his right to appeal his sentence. In February 2015,
      on Campbell’s motion, the trial court granted him permission to file a belated notice of appeal.

      Court of Appeals of Indiana | Memorandum Decision 73A01-1502-CR-46| July 20, 2015                Page 2 of 8
[3]   In April 2012, Campbell was sentenced pursuant to the plea agreement to

      sixteen years executed and eight years suspended to probation. Campbell

      signed off on the standard and special conditions of probation and also on

      twenty-nine “recommended special probation conditions for adult sex

      offenders.” Id. at 35-38. Included among those special sex offender probation

      conditions were the following:

              11. . . . You shall not visit strip clubs, adult bookstores, motels
              specifically operated for sexual encounters, peep shows, bars where
              partially nude or exotic dancers perform, or businesses that sell sexual
              devices or aids.
              ***
              16. You shall notify your probation officer of your establishment of an
              intimate and/or sexual relationship. . . .
              ***
              19. You 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.
      Id. at 35-37 (emphasis added). Campbell now appeals these three special sex

      offender conditions of probation, contending they are impermissibly vague or

      overbroad.



                                 Discussion and Decision
                                     I. Standard of Review
[4]   “Probation is a criminal sanction wherein a convicted defendant specifically

      agrees to accept conditions upon his behavior in lieu of imprisonment.”

      Carswell v. State, 721 N.E.2d 1255, 1258 (Ind. Ct. App. 1999). A trial court has

      Court of Appeals of Indiana | Memorandum Decision 73A01-1502-CR-46| July 20, 2015   Page 3 of 8
      broad discretion to determine appropriate conditions of a defendant’s

      probation, although the conditions must be “reasonably related to the treatment

      of the defendant and the protection of public safety.” Bratcher v. State, 999

      N.E.2d 864, 873 (Ind. Ct. App. 2013) (quotation omitted), trans. denied. The

      conditions must also be sufficiently clear so that they “describe with clarity and

      particularity the misconduct that will result in penal consequences.” Id. at 874-

      75 (quotation omitted).


                    II. Sex Offender Conditions of Probation
                                            A. Condition 11
[5]   Sex Offender Probation Condition 11 prohibits Campbell from, in part, visiting

      a business that sells sexual devices or aids. In Collins v. State, 911 N.E.2d 700

      (Ind. Ct. App. 2009), trans. denied, this court considered a challenge to a

      condition of probation that also included the prohibition against visiting

      “businesses that sell sexual devices or aids.” Id. at 714. Noting that as written,

      the term was vague and broad enough to extend to drug stores, we remanded

      for the trial court to clarify this condition of the defendant’s probation. Id.; see

      also Bleeke v. State, 982 N.E.2d 1040, 1051-52 (Ind. Ct. App. 2013), summarily

      aff’d on this ground, 6 N.E.3d 907 (Ind. 2014). Likewise, Campbell notes that a

      “sexual aid” could include, for instance, a condom, which is sold in businesses

      such as drug stores, groceries, and convenience stores. The State concedes that

      precedent from this court holds that Condition 11 of Campbell’s probation is

      impermissibly vague and should be remanded to the trial court for clarification.

      See Brief of Appellee at 3.
      Court of Appeals of Indiana | Memorandum Decision 73A01-1502-CR-46| July 20, 2015   Page 4 of 8
                                            B. Condition 16
[6]   Sex Offender Probation Condition 16 requires Campbell to notify his probation

      officer of any intimate or sexual relationship into which he enters. In Bleeke, the

      defendant challenged a condition of probation prohibiting him from

      establishing an intimate or sexual relationship with any adult without prior

      approval from his parole officer. 982 N.E.2d at 1052. Noting the definitions of

      “intimate” as “marked by close acquaintance, association, or familiarity,” or “a

      close friend or confidant,” we held that the term “intimate” was impermissibly

      vague because it did not indicate how such a relationship would be measured or

      when a casual relationship would cross into an intimate relationship. Id. The

      supreme court summarily affirmed this decision, noting the condition was

      impermissible “[w]ithout further clarification or specificity as to what conduct

      would result in [defendant’s] return to prison for violating [the condition] in

      accordance with the Court of Appeals decision below . . . .” 6 N.E.3d at 921-

      22. Again, the State concedes that precedent indicates Condition 16 is

      impermissibly vague and should be remanded to the trial court for clarification.

      See Brief of Appellee at 4.


                                            C. Condition 19
[7]   Finally, Sex Offender Probation Condition 19 prohibits Campbell from ever

      being alone with or having contact with any person under eighteen years old.

      Campbell contends this condition, too, is impermissibly vague and overbroad,

      citing Hunter v. State, 883 N.E.2d 1161 (Ind. 2008), and McVey v. State, 863

      N.E.2d 434 (Ind. Ct. App. 2007), trans. denied. The State disagrees, citing

      Court of Appeals of Indiana | Memorandum Decision 73A01-1502-CR-46| July 20, 2015   Page 5 of 8
      Bratcher, 999 N.E.2d 864; Rexroat v. State, 966 N.E.2d 165 (Ind. Ct. App. 2012),

      trans. denied; and Smith v. State, 727 N.E.2d 763 (Ind. Ct. App. 2000), as

      authority for upholding this condition.


[8]   In general, when this type of probation condition specifically includes

      “incidental contact,” it has been held to be overbroad. See McVey, 863 N.E.2d

      at 449 (holding that although probation condition that defendant “never be

      alone with or have contact with any person under the age of 18,” defining

      contact to include “face-to-face, telephonic, written, electronic, or any indirect

      contact via third parties,” and requiring him to “report any incidental contact with

      persons under age 18 to your probation officer within 24 hours of the contact,”

      reduced the potential for access to children, it was overbroad in prohibiting

      incidental contact) (emphasis added); see also Hunter, 883 N.E.2d at 1164

      (holding defendant’s probation should not have been revoked for violation of

      probation condition nearly identical to that in McVey because the prohibition

      against “contact” did not reasonably communicate to the defendant that it

      included “mere presence”).


[9]   On the other hand, when the condition does not explicitly include incidental

      contact, we have held that it should be read so as not to prohibit incidental

      contact and is therefore not overbroad. See Bratcher, 999 N.E.2d at 875-76

      (condition that defendant “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,” and defining contact to include “face-to-face,

      telephonic, written, electronic, or any indirect contact via third parties,” was

      Court of Appeals of Indiana | Memorandum Decision 73A01-1502-CR-46| July 20, 2015   Page 6 of 8
       reasonably related to the treatment of the defendant and the protection of the

       public and because it contained no specific prohibition against incidental

       contact, was not vague or overbroad); Rexroat, 966 N.E.2d at 173 (citing the

       holding in Smith that the statute authorizing this condition of probation is not

       vague or overbroad because it is inherent in the statute that a probationer is not

       required to avoid inadvertent or unintentional contact with minors, 727 N.E.2d

       at 767-68 (construing Ind. Code § 35-38-2-2.4), and holding that a probation

       condition that defendant “have no contact with any person under the age of 18

       unless approved by probation” was not overbroad because it is likewise inherent

       in this condition of probation that incidental contact with minors is not

       prohibited).


[10]   Condition 19 of Campbell’s probation does not include a specific prohibition

       against incidental contact, and thus is more like the condition addressed in

       Bratcher than that in McVey. However, the actual text of the condition could be

       read to prohibit such contact as it states Campbell “must never . . . have contact

       with” a minor. See App. at 37. We would hope that no trial court would find a

       violation over the kind of incidental contact that is inherent in everyday life

       even under the condition as written. However, because we are remanding to

       the trial court to clarify two other conditions, there is no harm in requiring the

       trial court to also clarify that incidental contact is not prohibited by this

       condition and will not subject Campbell to further court proceedings.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1502-CR-46| July 20, 2015   Page 7 of 8
                                               Conclusion
[11]   We conclude that two of the challenged conditions of probation are

       impermissibly vague and that the third could also be clearer on its face. We

       therefore remand this case to the trial court to clarify the scope of Conditions

       11, 16, and 19 so that Campbell is adequately apprised of the conduct that will

       result in penal consequences.


[12]   Remanded.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1502-CR-46| July 20, 2015   Page 8 of 8
