                                                                                           FILED
                                                                                       Feb 14 2017, 9:18 am

                                                                                           CLERK
                                                                                       Indiana Supreme Court
                                                                                          Court of Appeals
                                                                                            and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Charles Hayes                                              Curtis T. Hill, Jr.
      Hayes Ruemmele, LLC f/k/a                                  Attorney General
      Sweeney Hayes, LLC
      Indianapolis, Indiana                                      Jody Kathryn Stein
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana




                                                  IN THE
          COURT OF APPEALS OF INDIANA

      State of Indiana,                                          February 14, 2017
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 29A02-1606-CR-1265
              v.                                                 Appeal from the Hamilton
                                                                 Superior Court
      Sameer Girish Thakar,                                      The Honorable Wayne A.
      Appellee-Defendant.                                        Sturtevant, Judge
                                                                 Trial Court Cause No.
                                                                 29D05-1602-FD-1056



      Barnes, Judge.


                                              Case Summary
[1]   The State appeals the trial court’s dismissal of its charging information against

      Sameer Girish Thakar for one count of Class D felony dissemination of matter

      harmful to minors. We affirm.
      Court of Appeals of Indiana | Opinion 29A02-1606-CR-1265 | February 14, 2017                Page 1 of 12
                                                       Issue
[2]   The sole issue is whether the statutes criminalizing and defining dissemination

      of matter harmful to minors are unconstitutionally vague as applied to the

      alleged conduct in which Thakar engaged.


                                                      Facts
[3]   On February 9, 2016, the State filed an information charging Thakar with Class

      D felony dissemination of matter harmful to minors. Specifically, the State

      alleged that, on January 28, 2014, Thakar electronically transmitted a

      photograph of his erect penis to L.S., a sixteen-year-old girl who lived in

      Oregon. The State also alleged that Thakar knew L.S. was sixteen when he

      sent her the photograph.


[4]   Thakar moved to dismiss the charging information, based on this court’s

      decision in Salter v. State, 906 N.E.2d 212 (Ind. Ct. App. 2009). In response, the

      State argued Salter was inapplicable because the age of sexual consent in

      Oregon is eighteen. The trial court dismissed the information, and the State

      now appeals.


                                                    Analysis
[5]   Thakar asserted in his motion to dismiss that the statute criminalizing

      dissemination of matter harmful to minors is unconstitutionally vague as

      applied to his alleged conduct. Indiana Code Section 35-34-1-4 “provides a

      non-exclusive list of reasons allowing dismissal of an indictment or

      information.” State v. Davis, 898 N.E.2d 281, 285 (Ind. 2008). Subsection
      Court of Appeals of Indiana | Opinion 29A02-1606-CR-1265 | February 14, 2017   Page 2 of 12
      (a)(11) of the statute permits dismissal for “[a]ny other ground that is a basis for

      dismissal as a matter of law.” Courts have the inherent power to dismiss

      criminal charges if prosecution of such charges would violate a defendant’s

      constitutional rights. Id. “A violation of a defendant’s constitutional right to

      due process certainly fits in that category.” Id. The general standard of review

      for the dismissal of a charging information is for an abuse of discretion. Id.

      However, we review constitutional challenges to a statute de novo. Morgan v.

      State, 22 N.E.3d 570, 573 (Ind. 2014).


[6]   A defendant challenging a statute as unconstitutionally vague bears the burden

      of overcoming the presumption that the statute is valid. Brown v. State, 868

      N.E.2d 464, 467 (Ind. 2007). A void for vagueness challenge is controlled by

      due process principles. Id. A criminal statute is void for vagueness if it does not

      clearly define its prohibitions. Id. “A criminal statute may be invalidated for

      vagueness for either of two independent reasons: (1) for failing to provide

      notice enabling ordinary people to understand the conduct that it prohibits, and

      (2) for the possibility that it authorizes or encourages arbitrary or discriminatory

      enforcement.” Id. (citing City of Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct.

      1849, 1859 (1999)). Additionally, a penal statute must give a person of ordinary

      intelligence fair notice that his or her conduct is forbidden so that no person is

      held criminally responsible for conduct that he or she could not reasonably

      understand to be proscribed. Id. (quoting Healthscript, Inc. v. State, 770 N.E.2d

      810, 816 (2002) (in turn quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.

      Ct. 808, 812 (1954))). However, a statute need not specifically list all items of

      Court of Appeals of Indiana | Opinion 29A02-1606-CR-1265 | February 14, 2017   Page 3 of 12
      prohibited conduct, so long as it informs the individual of generally proscribed

      conduct. Id. “The examination of a vagueness challenge is performed in light

      of the facts and circumstances of each individual case.” Id.


[7]   We also believe it is pertinent to mention Indiana legal principles regarding

      interpretation of criminal statutes claimed to be ambiguous. Namely, a penal

      statute is ambiguous if it allows for more than one reasonable interpretation.

      Day v. State, 57 N.E.3d 809, 813 (Ind. 2016). If a penal statute is ambiguous,

      the rule of lenity applies. Id. Under that rule, courts must narrowly interpret

      criminal statutes in the defendant’s favor. Id. at 814. “That rule is grounded in

      two principles: criminal statutes should give fair warning about what conduct

      they prohibit; and legislatures, not courts, should decide what conduct is

      criminal.” Id.


[8]   The State makes no procedural argument that this case was improperly resolved

      by a motion to dismiss. The alleged facts, assumed to be true for purposes of

      our review, are that Thakar knowingly electronically transmitted a picture of his

      erect penis to a sixteen-year-old girl in Oregon, where the age of consent is

      eighteen. See Oregon Rev. Stat. § 163.415(1)(a)(B). Indiana Code Section 35-

      49-3-3(a)(1) provided in January 2014 that a person who knowingly or

      intentionally disseminated matter to minors that is harmful to minors




      Court of Appeals of Indiana | Opinion 29A02-1606-CR-1265 | February 14, 2017   Page 4 of 12
      committed a Class D felony.1 Additionally, Indiana Code Section 35-49-2-2

      states:


                 A matter or performance is harmful to minors for purposes of this
                 article if:


                 (1)  it describes or represents, in any form, nudity, sexual
                 conduct, sexual excitement, or sado-masochistic abuse;


                 (2)    considered as a whole, it appeals to the prurient interest in
                 sex of minors;


                 (3)    it is patently offensive to prevailing standards in the adult
                 community as a whole with respect to what is suitable matter for
                 or performance before minors; and


                 (4)    considered as a whole, it lacks serious literary, artistic,
                 political, or scientific value for minors.


[9]   In Salter, we addressed a case almost identical to this one. The defendant in

      that case electronically transmitted images of his genitals to a sixteen-year-old

      girl in Delaware and was charged with multiple counts of Class D felony

      dissemination of matter harmful to minors. As in Oregon, the age of consent in

      Delaware is eighteen. The defendant moved to dismiss the charges based on

      unconstitutional vagueness, which the trial court denied.




      1
          The offense is now a Level 6 felony; the elements of the offense remain the same.


      Court of Appeals of Indiana | Opinion 29A02-1606-CR-1265 | February 14, 2017            Page 5 of 12
[10]   On appeal, this court reversed in a 2-1 decision. The majority noted that, in

       Indiana, the age of consent generally is sixteen years old. Salter, 906 N.E.2d at

       223 (citing I.C. § 35-42-4-9).2 Thus, the majority observed:

                Such sexual activity could involve varying degrees of nudity and
                necessarily involves some exposure of the genitals. By setting the
                legal age of consent at sixteen, the Indiana legislature has made
                an implied policy choice that in-person viewing of another
                person’s genitals is ‘suitable matter’ for a sixteen- or seventeen-
                year-old child. That being so, how could Salter have known that
                a picture of his genitals would be ‘harmful,’ that is, not ‘suitable,’
                for M.B.? Asked another way, if such images are harmful to
                sixteen- and seventeen-year-old children, then why would our
                legislature allow those children to view the same matter in-
                person, in the course of sexual activity?


       Id. In other words, the majority held there was a lack of clear notice that

       sending a picture of one’s genitals to a sixteen-year-old was “patently offensive

       to prevailing standards in the adult community as a whole with respect to what

       is suitable matter for or performance before minors,” under subsection (3) of the

       statutory definition of “matter harmful to minors.”


[11]   The dissenting opinion in Salter stated in part, “the implication that our

       legislature explicitly authorizes or even encourages sex at age sixteen is

       misleading. Rather, our legislature has simply chosen not to criminalize adults




       2
         Under the child seduction statute, sexual acts between an adult and a child between sixteen and less than
       eighteen years of age are criminal if the adult is in one of the explicitly-named positions of authority or trust
       over the child. See I.C. § 35-42-4-7. There is no allegation that Thakar was in any such position over L.S.

       Court of Appeals of Indiana | Opinion 29A02-1606-CR-1265 | February 14, 2017                          Page 6 of 12
       having sex with sixteen and seventeen year olds in the sexual misconduct with a

       minor statute.” Salter, 906 N.E.2d at 225 (Vaidik, J., dissenting). The dissent

       continued:

               the fact that our legislature has decided not to criminalize sex
               between adults and sixteen and seventeen year olds does not
               mean that an adult’s dissemination or display of pictures of
               genitals to a minor is not patently offensive to prevailing
               standards in the adult community as a whole with respect to
               what is suitable matter for or performance before minors.


       Id. The dissent concluded that, even if the defendant could have had sex with a

       consenting sixteen-year-old, it did not “change the fact that our legislature has

       decided to criminalize disseminating or displaying matter that is harmful to all

       minors, regardless of whether they have consented to receiving such matter.”

       Id.


[12]   In this appeal, the State makes no attempt to argue that the present case is in

       any way distinguishable from Salter. Rather, it urges this panel to disagree with

       the majority opinion in that case and to essentially adopt the dissenting

       position. We decline to do so and, instead, state our agreement with the Salter

       majority.


[13]   The State reiterates the dissent’s comment that the legislature did not intend to

       “authorize” or “encourage” sixteen year olds to have sex with adults by

       establishing sixteen as the age of consent for purposes of the criminal law. We

       respectfully disagree that the legislature did not “authorize” such conduct. By

       choosing not to subject adults to punishment for such activity, that is precisely
       Court of Appeals of Indiana | Opinion 29A02-1606-CR-1265 | February 14, 2017   Page 7 of 12
       what it has done. As for whether the legislature intended to “encourage” such

       conduct, it is not the government’s duty or prerogative to encourage any

       particular persons to have sex. We believe any conjecture on this point is not

       pertinent to our discussion.


[14]   The State also asserts that it is logical to distinguish between in-person sexual

       activity between an adult and a sixteen-year-old and the dissemination of sexual

       material from an adult to a sixteen year old, and to punish the second type of

       conduct but not the first. It contends that the dissemination of such material

       can have a “coarsening effect . . . on a minor’s view of sexual activity” and may

       tend “to sexualize minors in an unhealthy way . . . .” Appellant’s Br. pp. 15-16.

       Regardless of whether the legislature could choose to make such a distinction as

       the State claims should exist, the fact remains that it did not expressly do so.

       And without clearly stating such a distinction, we believe the dissemination of

       harmful matter statute is vague, ambiguous, and must be construed against the

       State. The risk of “sexualizing” a sixteen-year-old arises most compellingly

       from in-person, actual sexual conduct, not the transmission of images.

       Additionally, in-person sexual conduct carries a number of risks, such as

       disease, unintended pregnancy, and even physical injury or violence, that are

       absent from the transmission of images. Without some clear statement by the

       legislature to the contrary, we conclude reasonable persons would find it

       confusing for the State to permit actual sexual activity between adults and

       sixteen year olds while criminalizing the transmission of sexual images from an

       adult to a sixteen-year-old.


       Court of Appeals of Indiana | Opinion 29A02-1606-CR-1265 | February 14, 2017   Page 8 of 12
[15]   The State also notes that persons under eighteen are forbidden from entering

       “strip clubs,” citing Indiana Code Sections 7.1-5-7-10 and -11 and Sections 1-

       15.2-1 and 1-16.1-3 of Title 905 of the Indiana Administrative Code. It

       contends this indicates a general legislative policy of forbidding persons under

       eighteen from viewing nudity, even if they can consent to sexual activity.

       However, the provisions cited by the State more generally concern

       establishments that serve alcohol, or the banning of live sex acts in such

       establishments, and do not reflect a specific policy with regards to minors

       viewing nudity.


[16]   We find more guidance from our State’s statutes criminalizing public indecency

       and public nudity. Appearing in public while nude with the intent to be seen by

       any other person is a Class B misdemeanor. I.C. § 35-45-4-1.5(c). However,

       being over eighteen years old and appearing in public while nude “with the

       intent to be seen by a child less than sixteen (16) years of age commits public

       indecency, a Class A misdemeanor.” I.C. § 35-45-4-1(b). For victims sixteen

       years old and over, Class A misdemeanor public indecency requires a showing

       of public sexual intercourse or other sexual conduct, fondling, or appearing

       nude with the intent to arouse the sexual desires of the defendant or any other

       person. I.C. § 35-45-4-1(a). These statutes seem to reflect a legislative policy

       that children under sixteen years old require more protection with respect to the

       viewing of nudity than sixteen and seventeen year olds—and more precisely,

       that sixteen and seventeen year olds are treated the same as adults when it

       comes to viewing nudity.


       Court of Appeals of Indiana | Opinion 29A02-1606-CR-1265 | February 14, 2017   Page 9 of 12
[17]   Both the State and the Salter dissent raise the issue of consent or lack thereof.

       Namely, they suggest that not prosecuting cases such as Salter’s and Thakar’s

       could lead to sixteen and seventeen year olds receiving nude or pornographic

       pictures from adults without the youth’s consent. We observe that the

       “consent” of a child younger than sixteen years old to receiving harmful matter

       is legally irrelevant, just as his or her “consent” to sexual conduct likewise

       would be irrelevant. Consent does not suddenly become an issue when the

       child turns sixteen.3 Lack of consent as to sexual activity with sixteen or

       seventeen year olds is addressed by our adult rape statutes, but there is no

       comparable statute regarding unwanted receipt of “harmful” matter. In fact,

       the closest parallel to nonconsensual viewing of another’s genitals is found in

       the public indecency and nudity statutes, and, as we have noted, those statutes

       treat sixteen and seventeen year olds the same as adults.


[18]   The State also suggests that the legislature’s failure to take any action to amend

       the statutes regarding dissemination of matter harmful to minors after Salter was

       decided somehow represents a rejection of Salter’s holding. If anything, the

       legislature’s inaction points to the opposite. Judicial interpretation of a statute,

       accompanied by substantial legislative inaction for a considerable time, may be

       understood to signify the General Assembly’s acquiescence and agreement with

       the judicial interpretation. Fraley v. Minger, 829 N.E.2d 476, 492 (Ind. 2005).




       3
        There is no indication in the record here as to whether L.S. consented to receiving a picture of Thakar’s
       penis.

       Court of Appeals of Indiana | Opinion 29A02-1606-CR-1265 | February 14, 2017                     Page 10 of 12
       We need not place too much emphasis on the legislature’s inaction here,

       especially given that the Indiana Supreme Court has not weighed in on the

       issue. See id. Still, it has been almost eight years since Salter found these

       statutes to be unconstitutionally vague and ambiguous with respect to

       transmission of nude images by adults to sixteen year olds. Moreover, the

       majority expressly stated at the conclusion of its decision, “we realize our

       decision is sure to inspire opposition. But . . . our legislature has decided to

       protect sixteen- and seventeen-year-olds . . . in different ways than it protects

       other minors. Opposition to that policy choice should be voiced to the

       legislature, not to the courts.” Salter, 906 N.E.2d at 223. Despite these

       comments, no change has been made to the statutes aside from a general

       reclassification of the offense from a Class D to a Level 6 felony.


[19]   Finally, we note that the State makes no substantive argument on appeal that

       Oregon’s age of consent of eighteen should be relevant to our analysis. It

       merely mentions that fact in passing. Whether Thakar could be prosecuted for

       any crime in Oregon or in federal court is beyond the scope of this opinion. We

       are concerned here strictly with Indiana’s laws and what crimes may be

       prosecuted in Indiana’s courts. In doing so, we conclude, as the majority did in

       Salter, that the statutes criminalizing and defining dissemination of matter

       harmful to a minor are unconstitutionally vague and ambiguous with respect to




       Court of Appeals of Indiana | Opinion 29A02-1606-CR-1265 | February 14, 2017   Page 11 of 12
       an adult transmitting sexual, non-obscene4 images to a sixteen- or seventeen-

       year-old, at least where that adult could not be prosecuted for child seduction.

       We construe the statutes as currently not permitting prosecution of such acts.


                                                   Conclusion
[20]   We reaffirm the majority holding in Salter. The trial court properly relied upon

       that holding in dismissing the charging information against Thakar.


[21]   Affirmed.


       Kirsch, J., and Robb, J., concur.




       4
        There is no argument that the image of Thakar’s erect penis qualified as “obscene” under the general
       definition of such matter applicable to all pornography under Indiana Code Sections 35-49-2-1 and 35-49-3-1.

       Court of Appeals of Indiana | Opinion 29A02-1606-CR-1265 | February 14, 2017                   Page 12 of 12
