      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                          FILED
      regarded as precedent or cited before any                                  Jul 10 2020, 8:33 am

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


      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Philip C. Sheward                                         Curtis T. Hill, Jr.
      Thomas S. Bowman                                          Attorney General of Indiana
      Allen Wellman McNew Harvey, LLP
                                                                Steven J. Hosler
      Greenfield, Indiana                                       Aaron T. Craft
                                                                Deputy Attorneys General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Christopher Vandenberg,                                   July 10, 2020
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                20A-PL-363
              v.                                                Appeal from the Marion Superior
                                                                Court
      Indiana Department of                                     The Honorable Ian Stewart,
      Correction,                                               Magistrate
      Appellee-Defendant.                                       Trial Court Cause No.
                                                                49D11-1903-PL-10525



      Mathias, Judge.


[1]   Christopher Vandenberg (“Vandenberg”) was convicted of two sex offenses,

      and the Indiana Department of Correction (“DOC”) determined that he was

      Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020                       Page 1 of 10
      required to register as a sex offender for life. Vandenberg filed a declaratory

      judgment action in Marion Superior Court seeking a determination that he was

      required to register as a sex offender for ten years, not for life. The trial court

      granted the DOC’s motion for summary judgment. Vandenberg appeals and

      argues that because his offenses are not unrelated, he is required to register as a

      sex offender for only ten years. Concluding that Vandenberg’s offenses are not

      unrelated, we reverse and remand.


                                  Facts and Procedural History
[2]   On April 29, 2017, Vandenberg’s wife, A.W., reported to the police that she

      had discovered on Vandenberg’s laptop computer nude photos of her twelve-

      year-old daughter, J.H., and a video of J.H. changing in her room after

      showering. The video appeared to have been taken with a hidden camera.

      Based on this information, on July 6, 2017, the police obtained a warrant to

      search Vandenberg’s home. During the execution of this warrant, the police

      seized a Dell laptop computer, a Dell desktop computer, an Asus laptop

      computer, a Western Digital external hard drive, an external USB flash drive,

      and a box of CDs.


[3]   A subsequent search of these items revealed a digital video recording on the

      Dell laptop with a file name of “20170119_181125874_00-170701005200.mp4,”

      which depicted J.H. entering her bedroom wearing a towel, facing a mirror, and

      opening the towel, exposing her breasts and genital area. A search of

      Vandenberg’s mobile phone revealed the same video file. The police also

      discovered that three other video files had been deleted from the phone, one of
      Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020   Page 2 of 10
      which was named “house 3.mp4.” Appellant’s App. pp. 36, 48. The police were

      unable to determine the content of the deleted files.


[4]   On July 28, 2017, the police received a call from the owner of the restaurant

      where Vandenberg had recently worked. The owner informed the police that he

      had discovered a USB drive with a “concerning” video on it. Appellant’s App.

      pp. 32, 44. When the police searched the USB drive, they discovered a file

      named “house 3.mp4.” This file appeared to be a copy of the file found on

      Vandenberg’s laptop and phone depicting J.H. coming into her bedroom after

      showering. The creation date of the file on the drive was July 12, 2017, several

      days after the search and seizure of the items found in Vandenberg’s home.


[5]   On November 21, 2017, the State charged Vandenberg in Marion County with

      one count of Level 5 felony child exploitation and two counts of Level 6 felony

      possession of child pornography, based on the materials found during the

      search of his home.


[6]   The State charged Vandenberg on November 26, 2017, in Boone County with

      one count of Level 5 felony child exploitation and one count of Level 6 felony

      possession of child pornography, based on the file found on the drive.


[7]   On December 14, 2018, Vandenberg pleaded guilty to the Level 5 felony charge

      in Boone County and was sentenced to six years with two years suspended to

      probation. On January 8, 2019, Vandenberg pleaded guilty to the Level 5 felony

      charge in Marion County and was sentenced to an additional term of six years

      with two years suspended to probation. All other counts were dismissed.

      Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020   Page 3 of 10
[8]   The DOC notified Vandenberg that he would be required to register as a sex

      offender for the remainder of his life pursuant to Indiana Code section 11-8-8-

      19(e). Vandenberg’s subsequent administrative appeals were denied. On March

      14, 2019, Vandenberg filed a complaint for declaratory judgment in Marion

      Superior Court, asking the trial court to conclude that Vandenberg should only

      be required to register as a sex offender for ten years, not for life. Both parties

      then filed motions for summary judgment, and the trial court held a summary

      judgment hearing on January 23, 2020. The following day, the trial court

      entered an order granting the DOC’s motion for summary judgment and

      denying Vandenberg’s motion. Vandenberg now appeals.


                                          Standard of Review
[9]   Vandenberg appeals the trial court’s order granting the DOC’s motion for

      summary judgment. Our standard for reviewing a trial court’s order granting a

      motion for summary judgment is well settled: a trial court should grant a

      motion for summary judgment only when the evidence shows that there is no

      genuine issue as to any material fact and that the moving party is entitled to a

      judgment as a matter of law. Altevogt v. Brand, 963 N.E.2d 1146, 1150 (Ind. Ct.

      App. 2012) (citing Ind. Trial Rule 56(C)). An appellate court reviewing a trial

      court’s summary judgment ruling must construe all facts and reasonable

      inferences in favor of the non-moving party and determine whether the moving

      party has shown from the designated evidence that there is no genuine issue as

      to any material fact and that it is entitled to judgment as a matter of law. Id.

      (citing Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010)). Where

      Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020   Page 4 of 10
       the relevant facts are not in dispute and the interpretation of a statute is at issue,

       the matter is a pure question of law for which summary judgment is particularly

       appropriate. Clem v. Watts, 27 N.E.3d 789, 791 (Ind. Ct. App. 2015).


[10]   The interpretation of a statute is a question of law that we review de novo.

       Green v. State, 945 N.E.2d 205, 208 (Ind. Ct. App. 2011) (citing Montgomery v.

       State, 878 N.E.2d 262, 266 (Ind. Ct. App. 2007)). We presume that the General

       Assembly intended for the statutory language to be applied in a logical manner

       consistent with the statute’s underlying policies and goals. Id. (citing Gauvin v.

       State, 883 N.E.2d 99, 103 (Ind. 2008)). If a statute is clear and unambiguous, we

       need not apply any rules of construction other than to require that words and

       phrases be taken in their plain, ordinary, and usual sense. Id. But if a statute is

       susceptible to more than one reasonable interpretation, it is ambiguous and

       must be construed to determine legislative intent. Id. (citing Cochran v. State, 859

       N.E.2d 727, 729 (Ind. Ct. App. 2007)).


[11]   We also keep in mind that penal statutes must be strictly construed against the

       State. Id. (citing Jacobs v. State, 640 N.E.2d 61, 64 (Ind. Ct. App. 1994), trans.

       denied). But this does not mean that a statute should be interpreted in an overly

       narrow manner so as to exclude cases fairly covered by it; we should instead

       interpret the statute so as to give efficient operation to the expressed intent of

       the legislature. Id.




       Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020   Page 5 of 10
                            Indiana Sex Offender Registration Act
[12]   Vandenberg claims that he is not required to register for life as a sex offender

       under the Indiana Sex Offender Registration Act (“SORA”). Section 19 of

       SORA provides in relevant part:


                (a) Except as provided in subsections (b) through (f), a sex or
                violent offender is required to register under this chapter until the
                expiration of ten (10) years after the date the sex or violent
                offender:


                    (1) is released from a penal facility (as defined in IC 35-31.5-2-
                    232) or a secure juvenile detention facility of a state or
                    another jurisdiction;

                    (2) is placed in a community transition program;

                    (3) is placed in a community corrections program;

                    (4) is placed on parole; or

                    (5) is placed on probation;

                for the sex or violent offense requiring registration, whichever
                occurs last. . . .

                                                           ***

                (e) A sex or violent offender who is convicted of at least two (2)
                unrelated offenses under section 5(a)1 of this chapter is required to
                register for life.




       1
         This section defines a “sex or violent offender” as a person convicted of any of several offenses, which
       includes child exploitation. I.C. § 11-8-8-5(a)(4).

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020                       Page 6 of 10
       Ind. Code § 11-8-8-19 (emphasis added). Thus, under SORA, a sex offender

       must at minimum register for ten years, but must register for life if the offender

       is convicted of two “unrelated” sex offenses. The question here is whether

       Vandenberg’s two offenses are “unrelated.”


                                       Discussion and Decision
[13]   Vandenberg claims that the two offenses for which he was convicted are not

       unrelated because they were based on the same video involving the same

       victim. The DOC claims that the offenses are unrelated because he first created

       and transferred the video to his laptop and phone at home, and later, after his

       laptop and phone had been searched, copied the video file to a USB drive at

       work.


[14]   Our research has revealed one prior case in which we have construed the

       meaning of “unrelated offenses” in Subsection 19(e). In Nichols v. State, 947

       N.E.2d 1011 (Ind. Ct. App. 2011), we determined that “Subsection 11-8-8-19(e)

       addresses the factual and substantive relationship among offenses, not the

       procedural aspects of [a] case[.]” Id. at 1016. In that case, the defendant argued

       that his multiple sex offense convictions were not unrelated, and that he was

       therefore not required to register for life. Specifically, Nichols argued that the

       term “unrelated” as it is used in Subsection 19(e) should be interpreted in the

       same manner as it is in the habitual offender statute, which authorizes sentence

       enhancements when a defendant has “accumulated the required number of

       prior unrelated felony convictions.” Ind. Code § 35-50-2-8(a).


       Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020   Page 7 of 10
[15]   Nichols argued “that registration for life is only required where a second offense

       was committed after the defendant was sentenced for a first offense.” Nichols,

       947 N.E.2d at 1015. We rejected this argument, noting that “Subsection 19(e)

       says ‘two (2) unrelated offenses,’ and not . . . ‘prior unrelated felony

       convictions.’” Id. at 1015–16 (quoting I.C. § 11-8-8-19(e), I.C. § 35-50-2-8(a)). We

       observed that the absence of the words “‘prior’ and ‘felony convictions’ in

       SORA makes it clear that the legislature intended for the statute to apply

       broadly, that is, to multiple sex offenses without regard to their sequence or

       status of adjudication. Had the legislature intended otherwise, it would have

       stated otherwise.” Id. at 1016. We held that, under the plain and ordinary

       meaning of the word “unrelated,” “it is clear that ‘unrelated offenses’ applies to

       offenses independent of one another—not offenses in sequence where the first

       offense has already resulted in a conviction and sentencing.” Id.


[16]   Nichols had been convicted of three sex offenses against two victims in two

       different counties, and the offenses in the first county were committed against a

       different victim and during a different period of time from the offenses in the

       second county. We reasoned that “the only connection of any sort between the

       offenses for which Nichols was convicted [was] the consolidation of the

       proceedings,” and this procedural connection was not a relationship between

       the offenses. Id. Thus, because Nichols’ offenses were unrelated, he was

       required to register as a sex offender for life. Id.


[17]   Here, Vandenberg points out that, unlike Nichols, whose offenses were

       committed against two victims in different counties at various times,

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020   Page 8 of 10
       Vandenberg’s offenses involved the same victim and the same video. The DOC

       argues that Nichols merely rejected the habitual-offender interpretation of the

       term “unrelated,” but did not affirmatively hold that “multiple victims or any

       other factor is necessary to render multiple offenses ‘unrelated.’” Appellee’s Br.

       at 13. And the DOC insists that, as in Nichols, Vandenberg’s offenses are

       unrelated because they occurred in different counties, at different times, and

       involved different conduct.


[18]   The term “unrelated” is defined as “not connected in any way: DISCRETE,

       SEPARATE,” Merriam-Webster Online Dictionary, https://www.merriam-

       webster.com/dictionary/unrelated (last visited June 25, 2020)

       [https://perma.cc/6TA8-R9YE], and “[h]aving no connection or common

       link.” The New Shorter Oxford English Dictionary (1993). Here, under the

       plain, ordinary meaning of the word “unrelated,” we can only conclude that

       Vandenberg’s offenses are not unrelated. That is, we cannot agree that his

       offenses are “not connected in any way,” or that they have “no connection or

       common link.” They are clearly connected and do have a common link: both

       offenses are based on Vandenberg’s creation, possession, and storage of the

       same video file involving the same victim. In the words of the Nichols court, the

       factual and substantive relationship among Vandenberg’s offenses are not

       independent of one another. 947 N.E.2d at 1016.


                                                  Conclusion
[19]   Because Vandenberg’s offenses are not unrelated as that term is used in Indiana

       Code section 11-8-8-19(e), he is not required to register as a sex offender for life
       Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020   Page 9 of 10
       under SORA. Instead, he is required to register for a period of ten years, and

       the trial court erred as matter of law in concluding otherwise. We therefore

       reverse the order of the trial court granting the DOC’s motion for summary

       judgment and remand with instructions that the court grant Vandenberg’s

       motion for summary judgment and enter an order declaring that Vandenberg is

       required to register as a sex offender for a period of ten years.


[20]   Reversed and remanded.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020   Page 10 of 10
