MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    Dec 15 2015, 6:45 am
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
Derick W. Steele                                        Gregory F. Zoeller
Kokomo, Indiana                                         Attorney General of Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

John Norris,                                            December 15, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A05-1507-CR-797
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable William C.
Appellee-Plaintiff.                                     Menges, Jr., Judge
                                                        Trial Court Cause No.
                                                        34D01-1404-FB-218



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-797 | December 15, 2015      Page 1 of 7
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, John Norris (Norris), appeals a condition of his

      probation.


[2]   We affirm.


                                                    ISSUE

[3]   Norris raises one issue on appeal, which we restate as: Whether the trial court

      abused its discretion by imposing a sex offender probation condition that

      restricts Norris from having contact with children under sixteen years of age.


                             FACTS AND PROCEDURAL HISTORY


[4]   In the summer of 2012, sixteen-year-old S.M. was visiting with Norris at his

      house, located at 1323 East Murden Street, Kokomo, Indiana. While S.M. was

      asleep, Norris used his cell phone to record himself unzipping S.M.’s top,

      revealing her nipple, and using his finger to rub her exposed nipple. In that

      same video, Norris fondled S.M.’s buttocks and back.


[5]   In December 2012, fifteen-year-old A.H. was babysitting Norris’ minor

      children. On December 3, 2012, Norris set up a hidden camera and recorded

      A.H. taking a shower. Later that day, Norris set up a camera and recorded

      A.H. sitting on a chair only wearing a top with her legs spread open. Norris

      also video-recorded as he inserted two vibrators in A.H.’s vagina. Again on

      December 16, 2012, Norris recorded A.H. sitting on a chair with her legs spread

      open toward the camera. Also, Norris recorded himself inserting a vibrator


      Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-797 | December 15, 2015   Page 2 of 7
      inside A.H.’s vagina, and he made a close-up video of her genitals. In addition,

      Norris recorded himself having sexual intercourse with A.H. On February 22,

      2014, S.M.’s mother found a micro SD card in her apartment. S.M.’s mother

      put the card into her cell phone to view the contents, and she saw videos of her

      daughter being molested by Norris. S.M.’s mother later turned the micro SD

      card over to the police. The micro SD card also contained the video recordings

      of Norris molesting A.H.


[6]   On April 14, 2014, the State charged Norris with Count I, sexual misconduct

      with a minor, a Class C felony; Count II, child exploitation, a Class C felony;

      Counts III-IV, sexual misconduct with a minor, Class B felonies; and Count V,

      child exploitation, a Class C felony. On January 20, 2015, the State added

      Count VI, child exploitation, a Class C felony. On May 8, 2015, Norris agreed

      to plead guilty to Counts I, II, III, and VI, in exchange for the State dismissing

      the other charges. On June 3, 2015, pursuant to the plea agreement, the trial

      court sentenced Norris to eight years in the Department of Correction (DOC)

      with two years suspended to probation on Counts I and II. On Count III,

      Norris was ordered to serve an executed consecutive sentence of fourteen years

      in the DOC. Lastly, on Count VI, Norris was ordered to serve a six-year

      sentence concurrent with Count III. Norris’ aggregate sentence is twenty years.

      Additionally, Norris agreed to be subjected to the “special rules of probation for

      sex offenders.” (Appellant’s App. p. 53). As one of his conditions for

      probation, Norris was ordered to have no contact with any person under the




      Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-797 | December 15, 2015   Page 3 of 7
      age of sixteen unless he received court approval or successfully completed a

      court-approved sex offender treatment program.


[7]   Norris now appeals. Additional facts will be provided as necessary.


                                 DISCUSSION AND DECISION

[8]   Norris contends that Condition 20 of his sex offender probation conditions is

      unconstitutional as applied to him. Specifically, Norris argues that one of his

      daughters was nine months old at the time of the sentencing, and Condition 20

      prohibits him from having contact with his child. He further argues that he

      “cannot even ask a relative to wish his children a Merry Christmas . . . or even

      Happy Birthday.” (Appellant’s Br. p. 4).


[9]   “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). Trial courts have broad

      discretion in determining the appropriate conditions of a defendant’s probation.

      Hevner v. State, 919 N.E.2d 109, 113 (Ind. 2010). “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. Thus, “our

      review is essentially limited to determine whether the conditions placed on the

      defendant are reasonably related to attaining these goals.” Carswell, 721 N.E.2d

      at 1258. We will not set aside a trial court’s probation terms unless it has




      Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-797 | December 15, 2015   Page 4 of 7
       abused its discretion. Collins v. State, 911 N.E.2d 700, 707 (Ind. Ct. App. 2009),

       trans. denied.


[10]   “‘Convicted individuals do not enjoy the same constitutional protections as

       law-abiding citizens[,]’” and “probation conditions that intrude upon

       constitutionally protected rights are not necessarily invalid.” Taylor v. State, 820

       N.E.2d 756, 761 (Ind. Ct. App. 2005) (quoting Johnson v. State, 659 N.E.2d 194,

       200 (Ind. Ct. App. 1995), reh’g denied), trans. denied. See also Gaither v. Ind. Dep’t

       of Correction, 971 N.E.2d 690, 695 (Ind. Ct. App. 2012) (explaining that

       “probation conditions may impinge upon a probationer’s right to exercise an

       otherwise constitutionally protected right”). Where, as here, a defendant

       contends that a probation condition is unduly intrusive upon a constitutional

       right, the following three factors must be balanced: (1) the purpose sought to be

       served by probation; (2) the extent to which constitutional rights enjoyed by

       law-abiding citizens should be afforded to probationers; and (3) the legitimate

       needs of law enforcement. Smith v. State, 779 N.E.2d 111, 117 (Ind. Ct. App.

       2002), trans. denied.


[11]   Special Condition 20 reads:

               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
               [Indiana Code section] 35-38-2-2.4. Contact includes face-to-
               face, telephonic, written, electronic, or any indirect contact via
               third parties.

       (Appellant’s App. p. 87).

       Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-797 | December 15, 2015   Page 5 of 7
[12]   Norris posits that the imposition of Condition 20 improperly infringes upon his

       fundamental right to family integrity because he has a child under the age of

       sixteen. As noted above, convicted individuals do not enjoy the same

       constitutional protections as law-abiding citizens. See Taylor, 820 N.E.2d at

       761. Moreover, this court has previously observed that “child molesters molest

       children to whom they have access.” Smith, 779 N.E.2d at 117 (citing Carswell,

       721 N.E.2d at 1259). As a result, “probation conditions that reduce the

       potential for access to children are reasonable.” Id.


[13]   Norris molested both S.M. and A.H. in his home where he lived with his minor

       children. Having no contact with minors helps prevent further children from

       the harm that Norris perpetrated against S.M. and A.H. Moreover, we note

       that Norris is not entirely prohibited from establishing and maintaining a

       relationship with his daughter. Rather, he is required to receive court approval

       or successfully complete a court-approved sex offender treatment program

       pursuant to Indiana Code section 35-38-2-2.4 before having any contact. In

       light of the foregoing, we agree with the trial court and conclude that no contact

       with anyone under sixteen is a reasonable probation condition related to the

       goal of protecting the community while rehabilitating Norris.


                                              CONCLUSION

[14]   Based on the foregoing, we conclude that the challenged probation condition is

       reasonably related to the goals of rehabilitation and public safety and

       accordingly, the trial court did not abuse its discretion.


       Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-797 | December 15, 2015   Page 6 of 7
[15]   Affirmed.


[16]   Brown, J. and Altice, J. concur




       Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-797 | December 15, 2015   Page 7 of 7
