                                                                               FILED
                                                                           Aug 03 2020, 8:38 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Michael C. Keating                                         Curtis T. Hill, Jr.
      Law Offices of Steven K. Deig, LLC                         Attorney General of Indiana
      Evansville, Indiana                                        David A. Arthur
                                                                 Senior Deputy Attorney General
                                                                 Aaron T. Craft
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Shawn Spencer,                                             August 3, 2020
      Appellant-Petitioner,                                      Court of Appeals Case No.
                                                                 20A-MI-636
              v.                                                 Appeal from the Vanderburgh
                                                                 Circuit Court
      State of Indiana,                                          The Honorable David D. Kiely,
      Appellee-Respondent.                                       Judge
                                                                 The Honorable Michael J. Cox,
                                                                 Magistrate
                                                                 Trial Court Cause No.
                                                                 82C01-1812-MI-6465



      Mathias, Judge.


[1]   Shawn Spencer (“Spencer”) filed a petition in Vanderburgh Circuit Court

      asking the court to remove his designation as a sexually violent predator

      (“SVP”), which the trial court denied. Spencer appeals and presents one issue


      Court of Appeals of Indiana | Opinion 20A-MI-636 | August 3, 2020                            Page 1 of 17
      for our review, which we restate as whether Spencer is an SVP based on his two

      1996 convictions in Florida for lewd acts upon a child.


[2]   We reverse and remand.


                                   Facts and Procedural History
[3]   The facts underlying this case appear to be mostly undisputed. In November

      1995, Spencer, who was eighteen years old at the time, had sexual intercourse

      with a fifteen-year-old girl. As a result of this incident, on July 10, 1996, the

      State of Florida charged Spencer with committing a lewd act upon a child.

      Specifically, the charging information alleged that Spencer:


               did, in violation of Florida Statute 800.04(3), commit an act
               defined as sexual battery on [redacted], a child under the age of
               sixteen years, and in furtherance thereof [Spencer] did with his
               penis penetrate or have union with the vagina of [redacted].


      Ex. Vol., Joint Ex. 1, p. 10.1


[4]   On May 7, 1997, the State of Florida charged Spencer in another cause with a

      different count of committing a lewd act on another child. The charging

      information in this cause2 alleged that Spencer:




      1
       Spencer notes that, according to the police report, the sexual activity between him and the fifteen-year-old
      girl was consensual, but this does not appear to be a material element of the crime he was charged with in
      Florida.
      2
       The State charged Spencer in this cause with three counts, but he ultimately pleaded guilty to only the
      charge we set forth.

      Court of Appeals of Indiana | Opinion 20A-MI-636 | August 3, 2020                                 Page 2 of 17
               did, in violation of Florida Statute 800.04(1), handle or fondle
               [redacted] a child under the age of sixteen (16), in a lewd,
               lascivious or indecent manner, and in furtherance thereof
               [Spencer] did handle or fondle the vaginal area of [redacted].


      Id. at 25. The police report in this case indicates that Spencer put his hands

      inside the pants of a ten- or eleven-year-old girl3 and fondled her vagina.


[5]   On June 2, 1997, Spencer pleaded guilty to the above two counts. The Florida

      trial court sentenced him to four years of “youthful offender treatment”

      followed by two years of probation on the first count and to ten years of

      probation on the second count, to be served concurrently. Id. at 27. As a result

      of his convictions, Spencer was required to register in Florida as a sex offender,

      apparently for the rest of his life. See Tr. p. 8.


[6]   In March 2016, Spencer moved to Indiana. As required by Indiana law,

      Spencer registered as a sex offender in Indiana. At some point in late 2018, the

      Vanderburgh County Sheriff’s office telephoned Spencer and informed him that

      he was being designated as an SVP. The individual who informed Spencer of

      his new designation told him that he could appeal this decision and that he

      could obtain “paperwork” when he came in to register. The Sheriff’s office,

      however, never notified Spencer in writing of the change of his designation.




      3
        Spencer states in his brief that the victim was eleven years old. But the State correctly notes that this was the
      victim’s age in November 1996, when she reported the crime to the police. The victim stated that the
      touching occurred two years prior to May 1996.

      Court of Appeals of Indiana | Opinion 20A-MI-636 | August 3, 2020                                     Page 3 of 17
[7]   On December 5, 2018, Spencer filed a petition in the trial court to remove his

      designation as an SVP. The trial court held a hearing on the petition on March

      29, 2019, at the conclusion of which it took the matter under advisement and

      instructed the parties to file briefs on the issue. After the parties submitted their

      briefs, the trial court entered an order on March 9, 2020, denying Spencer’s

      petition. This appeal ensued.


            I. Spencer Did Not Fail to Exhaust Available Administrative Remedies

[8]   We first address what the State claims is a dispositive issue: whether Spencer’s

      claim is precluded because he failed to exhaust his administrative remedies. It is

      well-settled that, if an administrative remedy is available, it must be pursued

      before a claimant is allowed access to the courts. Grdinich v. Plan Comm’n for

      Town of Hebron, 120 N.E.3d 269, 276 (Ind. Ct. App. 2019) (citing Town Council

      of New Harmony v. Parker, 726 N.E.2d 1217, 1224 (Ind. 2000), modified on reh’g

      737 N.E.2d 719). If an administrative remedy is readily available, filing a claim

      in court is not a suitable alternative. Id. (citing Carter v. Nugent Sand Co., 925

      N.E.2d 356, 360 (Ind. 2010)). The failure to exhaust administrative remedies is

      a procedural error that does not affect a trial court’s subject matter jurisdiction.

      Id. at 274–75 (citing First Am. Title Ins. Co. v. Robertson, 19 N.E.3d 757, 760 (Ind.

      2014), modified on reh’g on other grounds, 27 N.E.3d 768 (Ind. 2015)). And there

      are exceptions to the general requirement to exhaust administrative remedies,

      e.g. “exhaustion is not required where it would be futile, where the agency

      action is ultra vires, where exhaustion would cause irreparable injury, or where

      other equitable considerations preclude exhaustion[.]” Graham v. Town of

      Court of Appeals of Indiana | Opinion 20A-MI-636 | August 3, 2020            Page 4 of 17
       Brownsburg, 124 N.E.3d 1241, 1247 (Ind. Ct. App. 2019), trans. denied (citations

       omitted).


[9]    In the present case, the State contends that Spencer failed to exhaust the

       administrative remedies that were available to him, specifically referring to an

       exhibit submitted by the State, obtained from the Department of Correction’s

       (“DOC”) website, titled “Indiana Registration Appeal Procedure for Non-

       Incarcerated Registrants” (the “DOC Appeal Procedure”). Ex. Vol., State’s Ex.

       A, p. 37.


[10]   The DOC Appeal Procedure sets forth the manner in which a “Local Law

       Enforcement Authority”4 may implement a “Proposed Change” 5 to the

       information regarding a “Local Subject”6 in the Indiana Sex and Violent

       Offender Registry. It also sets forth the administrative procedure by which the

       Local Subject can protest any Proposed Change and, if necessary, appeal this

       decision to the DOC. The “general rule” of the DOC Appeal Procedure

       provides:


                2. Substance of the procedure.


       4
        A “Local Law Enforcement Authority” is defined as “[t]he chief of police of a consolidated city or (2) the
       sheriff of a county that does not contain a consolidated city.” Id. at § 1(c).
       5
         A “Proposed Change” is defined as a proposal by the Local Law Enforcement Authority to “add public
       information to the Registry or to update the public information in the Registry in order to reflect a change in
       the residence, temporary location, employment, educational institution, appearance, conviction information,
       registration status, or other circumstance of a Local Subject, as required by the Indiana Code.” Id. at § 1(e)
       (emphasis added).
       6
         A “Local Subject” is defined as “[a] person whom a Local Law Enforcement Authority or the Department
       [of Correction] determines is subject to registration on the Registry but who is not confined in the custody of
       the Department.” Id. at § 1(d).

       Court of Appeals of Indiana | Opinion 20A-MI-636 | August 3, 2020                                  Page 5 of 17
             a. The general rule.
                  i. A Local Law Enforcement Authority shall notify a
                  Local Subject in writing any time it
                       (a) proposes to enter a new Local Subject into the
                       Registry; or
                       (b) proposes to change, to add to, or to subtract from
                       public information previously entered into the
                       Registry; or
                       (c) refuses a Local Subject’s written request or notice
                       to change, to add to, or to subtract from public
                       information previously entered into the Registry.

                                                  ***

                  iii. When the Local Subject believes that the entry,
                  change, or refusal will result in an error, the Local Subject
                  has a right to protest, first to the Local Law Enforcement
                  Authority and then, if necessary, by appeal to the
                  Department.
                  iv. The Local Subject must raise all issues at the time of
                  the Protest and any Appeal, and a failure to raise any
                  issue at the first opportunity will result in a waiver of that
                  issue.
                  v. This procedure allows for a single administrative
                  protest followed by a single appeal within a specific time
                  period, and does not permit a second or subsequent
                  administrative challenge, to a Local Subject’s inclusion in
                  the Registry or to changes in the Registry or refusals to
                  change the Registry, except that a new Protest and Appeal
                  will be permitted when the Local Subject’s circumstances
                  change, such as when a court order changes the Local
                  Subject’s criminal status.


Id. at § 2 (emphasis added).




Court of Appeals of Indiana | Opinion 20A-MI-636 | August 3, 2020                Page 6 of 17
[11]   The DOC Appeal Procedure then lays out the procedure to be followed by the

       Local Law Enforcement Authority when it intends to make a Proposed Change

       to the Registry:


               3. []
                                                           ***
                    b. When a Local Law Enforcement Authority plans to
                    implement a Proposed Change, it creates a Specimen[7]
                    showing the public information about the Local Subject that
                    the Registry will display, and advises the Local Subject of the
                    date upon which it intends to display the public information.
                    c. The Local Law Enforcement Authority gives a copy of
                    the Specimen and notification of the date upon which it
                    intends to display the public information to the Local
                    Subject, either by personally delivering a copy to the Local
                    Subject or by mailing a copy of the Specimen to the Local
                    Subject by first-class mail. . . .


       Id. at § 3. The Local Law Enforcement Authority must notify the Local Subject

       of a Proposed Change “at least 7 calendar days before the Proposed Posting

       Date if notice is given to the Local Subject in person,” or “at least 10 calendar

       days before the Proposed Posting Date if notice is sent to the Local Subject by

       mail.” Id. at § 11.a.


[12]   If a Local Subject disagrees with a Proposed Change, he or she may protest the

       change with the Local Law Enforcement Authority. In such a protest:




       7
         A “Specimen” is defined as “[a] photocopy, screen shot, or other documentary representation of the public
       information concerning the Local Subject that the Local Law Enforcement Authority intends to publish
       through the Registry.” Id. at § 1(j).

       Court of Appeals of Indiana | Opinion 20A-MI-636 | August 3, 2020                               Page 7 of 17
               5. The Local Subject may raise any of the following claims in a
               Protest:
                    a. The Local Law Enforcement Authority’s Proposed
                    Change would add the Local Subject to the Registry
                    incorrectly because either
                         i. The Local Subject should not be added, or
                         ii. The public information about the Local Subject is
                         incorrect or incomplete;
                    b. The Local Law Enforcement Authority’s Proposed
                    Change would make the listed public information about the
                    Local Subject incorrect or incomplete;
                    c. The Local Law Enforcement Authority’s Refusal makes
                    the listed public information about the Local Subject incorrect
                    or incomplete; or
                    d. A combination of two or more of the foregoing claims.


               6. Subjects of the Protest.
                    The Protest is limited to the specific change, or refusal to
                    change, and therefore its subject matter is limited to:
                    a. Adding the Local Subject to the Registry;
                    b. The material to be newly added;
                    c.   Any material to be newly removed;
                    d. Any material that should have been newly added or
                    removed but was not added or removed due to the Local Law
                    Enforcement Authority’s Refusal;
                    e. A combination of two or more of the foregoing matters.


       Id. at §§ 5–6.


[13]   Importantly, the DOC Appeal Procedure also provides:


               4. The right of Protest.
                    The right of Protest arises only upon any of the following
                    events:
       Court of Appeals of Indiana | Opinion 20A-MI-636 | August 3, 2020           Page 8 of 17
                    a. A Local Law Enforcement Authority notifies a Local
                    Subject of a Proposed Change;
                    b. A Local Law Enforcement Authority notifies a Local
                    Subject of a Refusal;
                    c.   A combination of the above; or
                    d. The passage of 30 calendar days, without any ruling, from
                    the day a Local Subject requests or notifies the Local Law
                    Enforcement Authority to change, to add to, or to subtract
                    from public information previously entered into the registry.


       Id. at § 4 (emphases added). If the Local Subject is unsatisfied with the response

       to the Protest, or if thirty days have passed since the Local Subject submitted

       the Protest, then the Local Subject may submit an Appeal to the DOC. The

       DOC must then notify the Local Subject of its ruling on the Appeal “in writing

       by first-class mail sent to the address specified in the Protest.” Id. at § 10.b.


[14]   Lastly, DOC Appeal Procedure sets forth the notice requirements:


               12. Notices to Local Subjects.
                    a. Notice of this procedure
                         i. The Department shall publish these rules in a
                         prominent place in that part of its web site that deals with
                         sex and violent offenders and as part of the Registry.
                         ii. As provided above in Section 2, every Local Law
                         Enforcement Authority shall provide written notice to
                         the Local Subject.
                              (a) At the time the Local Subject first registers with the
                              Local Law Enforcement Authority, and at such
                              additional times, if any, as the local Law Enforcement
                              Authority deems appropriate, the notice shall inform
                              the Local Subject of the existence and nature of this
                              procedure in the language provided in Subsection
                              12.a.iii below.

       Court of Appeals of Indiana | Opinion 20A-MI-636 | August 3, 2020               Page 9 of 17
                              (b) Whenever the Local Law Enforcement Authority
                              proposes to modify an existing entry in the Registry
                              or refuses a request filed under this procedure to
                              update an existing Registry entry, the notice shall
                              inform the Local Subject of the right to
                              reconsideration in the language provided in
                              Subsection 12.b below.
                         iii. The written notice required under Subsection
                         2.a.i.(a) and under Subsection 12.a.ii.(a) shall include
                         the following language:
                                                           ***
                         Your right to reconsideration of this action. Be advised of
                         the following:
                         1. You have the right to protest against the action
                         described in this document, but you must act quickly or
                         you will lose that right.
                         2. If you do protest and your protest is denied, you have a
                         right to appeal that decision to the Indiana Department of
                         Correction, but you must act quickly or you will lose that
                         right.
                         3. There are specific rules that set out how, when, and to
                         whom you may protest and appeal. If you do not follow
                         those rules, you may lose the right to any review of the
                         action described in this document. Those rules have been
                         provided to you already, but you may read a complete
                         and current copy of the whole procedure on the part of
                         the web site of The Indiana Department of Correction
                         that deals with sex and violent offenders. You also may
                         read a complete and current copy at the Registry web site.


       Id. at § 12.


[15]   Considering the DOC Appeal Procedure as a whole, we agree with Spencer

       that, before he could avail himself of the administrative remedies provided

       therein, the Local Law Enforcement Authority—here, the Vanderburgh County


       Court of Appeals of Indiana | Opinion 20A-MI-636 | August 3, 2020            Page 10 of 17
       Sheriff—was required to notify him of any Proposed Change of his status in the

       Registry and do so in writing or in person.


[16]   The requirement of written notification is repeated throughout the DOC Appeal

       Procedure: first, when the Local Law Enforcement Authority decides to

       implement a Proposed Change. Indeed, the Local Law Enforcement Authority

       is required to give the Local Subject a Specimen (“[a] photocopy, screen shot,

       or other documentary representation of the public information concerning the

       Local Subject that the Local Law Enforcement Authority intends to publish

       through the Registry”) indicating the Proposed Change either in person or by

       first class mail. See id. at §§ 3(c), 1(j). More importantly, Section 12 provides

       that the Local Law Enforcement Authority shall provide written notice to the

       Local subject whenever the Authority proposes to modify an existing entry in

       the Registry. Id. at § 12.a(ii)(b) (emphasis added).


[17]   Thus, when Section 4 of the DOC Appeal Procedure states that the right of

       protest arises only when the Local Law Enforcement Authority notifies a Local

       Subject of a Proposed Change, the remaining sections of the Procedure

       establish that such notice must be in writing. Here, there is no evidence that the

       Vanderburgh County Sheriff’s office ever gave Spencer a copy of the Specimen

       or other written notice of its Proposed Change, i.e., that Spencer would be

       designated as an SVP, with the more onerous registration requirements that

       accompany such a designation. See note 9, supra. Under these facts and

       circumstances, we cannot say that Spencer failed to exhaust his administrative

       remedies, because such remedies were not available to him due to the failure of

       Court of Appeals of Indiana | Opinion 20A-MI-636 | August 3, 2020          Page 11 of 17
       the Sheriff’s office to provide Spencer with written notice of its Proposed

       Change to the Registry.8


                       II. Spencer is Not a Sexually Violent Predator per Statute

[18]   The main issue on appeal is whether Spencer’s two Florida convictions qualify

       him as an SVP in Indiana.9 The statute defining the term “sexually violent

       predator” provides in relevant part:


                (b) A person who:

                     (1) being at least eighteen (18) years of age, commits an
                     offense described in:

                                                                 ***


       8
         The State argues that it was Spencer’s burden to show that he had exhausted his administrative remedies.
       However, in Jackson v. Wrigley, 921 N.E.2d 508, 512 (Ind. Ct. App. 2010), we held that the failure to exhaust
       administrative remedies is an affirmative defense that the defendant bears the burden of establishing. We held
       the same in Alkhalidi v. Indiana Department of Correction, 42 N.E.3d 562, 566 (Ind. Ct. App. 2015). In the latter
       case, we distinguished our supreme court’s holding in Young v. State, 888 N.E.2d 1255, 1257 (Ind. 2008),
       where the court admonished a post-conviction petitioner seeking educational credit time that he must “show
       in the first place what the relevant DOC administrative grievance procedures are, and then that he has
       exhausted them at all levels.” Id. In Alkhalidi, we noted that the petitioner’s claim was one for replevin, not
       post-conviction relief, and that the failure to exhaust administrative remedies was therefore properly
       considered as an affirmative defense. 42 N.E.3d at 566. Here too, Spencer does not seek post-conviction
       relief, and we therefore consider the failure to exhaust administrative remedies as an affirmative defense for
       which the State failed to meet its burden of proof.
       9
         Spencer does not challenge his designation as a sex offender, just his designation as an SVP. As noted by
       the State, Spencer must register as a sex offender for life because he committed at least one of his crimes
       when he was eighteen years old and his victim was less than twelve years old. Ind. Code § 11-8-8-19(c).
       Spencer also has to register for life because he committed two unrelated sex offenses, see id. § 19(e), and
       because he was required to register for life in Florida. Id. § 19(f); see also Tr. p. 8 (Spencer testifying that he
       was required to register for life in Florida). Still, if designated as an SVP, Spencer must follow more onerous
       registration requirements, including: being contacted by local law enforcement every ninety days, Ind. Code §
       11-8-8-13(a)(2), being personally visited by local law enforcement every ninety days, I.C. § 11-8-8-13(a)(4),
       reporting to local law enforcement, registering in person, and being photographed every ninety days, Ind.
       Code § 11-8-8-14(b), advising the police if he is away from home for more than seventy-two hours and
       registering with local law enforcement each time he is in a location for more than seventy-two hours. Ind.
       Code § 11-8-8-18. Moreover, the failure of an SVP to possess identification is a Level 6 felony instead of a
       Class A misdemeanor, as it is for a sex offender. Ind. Code § 11-8-8-15(c).

       Court of Appeals of Indiana | Opinion 20A-MI-636 | August 3, 2020                                   Page 12 of 17
                        (C) IC 35-42-4-3 [child molesting] as a Class A or Class B
                        felony (for a crime committed before July 1, 2014) or a
                        Level 1, Level 2, Level 3, or Level 4 felony (for a crime
                        committed after June 30, 2014);

                                                              ***

                        (K) a crime under the laws of another jurisdiction,
                        including a military court, that is substantially equivalent
                        to any of the offenses listed in clauses (A) through (J);

                                                           ***

               is a sexually violent predator. . . .


       Ind. Code § 35-38-1-7.5.10


[19]   Spencer claims that he does not meet the definition of an SVP as set forth in this

       section. He first claims that he is not an SVP because the crimes he committed

       in Florida are not substantially equivalent to Class A or Class B felony child

       molesting. The State does not claim otherwise, and we agree.


[20]   Prior to the 2014 amendments to the Indiana Criminal Code, child molesting as

       a Class A or Class B felony was defined as follows:


               A person who, with a child under fourteen (14) years of age,
               performs or submits to sexual intercourse or deviate sexual
               conduct commits child molesting, a Class B felony. However, the
               offense is a Class A felony if:



       10
          Effective July 1, 2020, Indiana Code section 35-38-1- 7.5(b)(1) was amended to remove subsection (K). See
       P.L.142-2020 § 60. Under the statute as it exists today, Spencer, whose crimes were committed in the State of
       Florida, would appear not be an SVP under subsection 7.5(b). Spencer claims that this amendment is not at
       issue in the present case, and we therefore do not address it.

       Court of Appeals of Indiana | Opinion 20A-MI-636 | August 3, 2020                               Page 13 of 17
                   (1) it is committed by a person at least twenty-one (21) years
                   of age;
                   (2) it is committed by using or threatening the use of deadly
                   force or while armed with a deadly weapon;
                   (3) it results in serious bodily injury; or
                   (4) the commission of the offense is facilitated by furnishing
                   the victim, without the victim’s knowledge, with a drug . . . or
                   a controlled substance . . . or knowing that the victim was
                   furnished with the drug or controlled substance without the
                   victim’s knowledge.


       Ind. Code § 35-42-4-3(a). Here, the victim in Spencer’s Florida conviction

       involving sexual intercourse was not under the age of fourteen. And the Florida

       conviction involving the younger girl did not involve sexual intercourse or

       deviate sexual conduct. Moreover, at the time of his Florida crimes, Spencer

       was not yet twenty-one years old, he did not use or threaten the use of a deadly

       weapon, his crimes did not result in serious bodily injury, nor is there any

       indication that they were facilitated by him furnishing any drug or controlled

       substance to the victims without their knowledge. In other words, Spencer’s

       Florida crimes were not substantially equivalent to the crimes of Class A or

       Class B felony child molesting as defined in Indiana. As noted, the State does

       not contend otherwise.


[21]   Instead, the State contends that Spencer’s Florida convictions are substantially

       equivalent to Level 4 felony child molesting. Level 4 felony child molesting is

       defined as follows:




       Court of Appeals of Indiana | Opinion 20A-MI-636 | August 3, 2020            Page 14 of 17
               A person who, with a child under fourteen (14) years of age,
               performs or submits to any fondling or touching, of either the
               child or the older person, with intent to arouse or to satisfy the
               sexual desires of either the child or the older person, commits
               child molesting, a Level 4 felony.


       Ind. Code § 35-42-4-3(b).


[22]   Spencer does not deny that his Florida conviction for fondling the young girl is

       substantially equivalent to Level 4 felony child molesting. He argues, however,

       that because his crime was committed before July 1, 2014, he does not meet the

       definition of an SVP under this section. We agree.


[23]   The plain language of Indiana Code section 35-38-1-7.5(b)(1)(C) clearly

       provides that a person is an SVP if they commit the offense of child molesting

       “as a . . . Level 1, Level 2, Level 3, or Level 4 felony (for a crime committed

       after June 30, 2014).” And subsection 7.5(b)(1)(K) states that a person is an

       SVP if they commit “a crime under the laws of another jurisdiction . . . that is

       substantially equivalent to any of the offenses listed in clauses (A) through

       (J)[.]” Accordingly, for Spencer to be an SVP as defined by this statute, he must

       have committed a crime that is substantially equivalent to the offenses listed in

       subsections (A) through (J), which include child molesting “as a . . . Level 1,

       Level 2, Level 3, or Level 4 felony (for a crime committed after June 30,

       2014)[.]” Because Spencer committed his crime before June 30, 2014, he cannot

       be an SVP based on his commission of a crime that is substantially equivalent

       to Level 4 felony child molesting. In short, Spencer is not an SVP as defined in

       Indiana Code section 35-38-1-7.5(b).

       Court of Appeals of Indiana | Opinion 20A-MI-636 | August 3, 2020            Page 15 of 17
[24]   The State insists that “there is no statute that says that the date of the crime in

       the other State is the date to use.” Appellee’s Br. at 16. To the contrary,

       subsection 7.5(b)(1)(C) clearly states that to meet the definition of an SVP for

       having committed the crime of child molesting as a Level 4 felony, the crime

       must be “committed after June 30, 2014.”


[25]   Still, the State contends that Spencer’s status is properly elevated to SVP

       because, when determining a person’s status as a sex offender, we consider the

       “the laws in effect at the time the offender moved to Indiana.” Appellee’s Br. at

       16 (citing Ammons v. State, 50 N.E.3d 143, 144 (Ind. 2016); Tyson v. State, 51

       N.E.3d 88, 90 (Ind. 2016); State v. Zerbe, 50 N.E.3d 368, 369 (Ind. 2016)).11 As

       we have explained above, the law in effect in 2016 when Spencer moved to

       Indiana provided that, to be an SVP, he must have committed a crime

       substantially equivalent to child molesting as a Level 4 felony “for crimes

       committed after June 30, 2014.” He did not, and he is therefore not an SVP

       under the statute that existed at the time he moved to Indiana.




       11
          The State also cites Cowan v. Carter, 130 N.E.3d 1165, 1169 (Ind. Ct. App. 2019), trans. denied, in support of
       its position. At issue in that case was “whether the definition of a sex or violent offender found in Indiana
       Code section 11-8-8-5(b)(1), which became effective on July 1, 2006, [could] be applied to [Cowan] for an act
       that occurred [in Michigan] on April 1, 2006.” Id. at 1168. In Cowan, at the time of the Michigan offense,
       Cowan would not have had to register in Indiana had he moved here, “but in 2006, the statute defining who
       is required to register was amended . . . to include a person who is required to register in any other
       jurisdiction.” Id. at 1169. Cowan claimed that this was an ex post facto violation. In rejecting this claim, we
       held that “Cowan fell within the statutory definition of a sex or violent offender as it existed when he moved to
       Indiana despite the fact his Michigan offense pre-dated the amendment. In other words, it is the status of the
       offender when he or she comes to Indiana that matters for purposes of the definition, not the date of the
       offense.” Id. (emphasis added). We do not read Cowan as contrary to our holding. In fact, our holding is
       directly in line with Cowan, as it is the statutory definition of an SVP as it existed when Spencer moved to
       Indiana that controls.

       Court of Appeals of Indiana | Opinion 20A-MI-636 | August 3, 2020                                  Page 16 of 17
                                                   Conclusion
[26]   The State failed to establish its affirmative defense of Spencer’s failure to

       exhaust his administrative remedies. And Spencer does not meet the statutory

       definition of an SVP as it existed in 2016 when he moved to Indiana. We

       therefore reverse the judgment of the trial court and remand with instructions

       that the trial court grant Spencer’s petition to remove his designation as an SVP.


[27]   Reversed and remanded.


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




       Court of Appeals of Indiana | Opinion 20A-MI-636 | August 3, 2020         Page 17 of 17
