      MEMORANDUM DECISION
                                                                      Mar 03 2015, 9:07 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
      Kristin A. Mulholland                                    Gregory F. Zoeller
      Crown Point, Indiana                                     Attorney General of Indiana
                                                               J.T. Whitehead
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Sidney Lamour Tyson,                                     March 3, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               45A03-1405-CR-143
              v.                                               Appeal from the
                                                               Lake Superior Court
      State of Indiana,                                        The Honorable Salvador Vasquez,
                                                               Judge
      Appellee-Plaintiff
                                                               Cause No. 45G01-1301-FD-11




      Kirsch, Judge.

[1]   In this interlocutory appeal, Sidney Lamour Tyson challenges the trial court’s

      denial of his motion to dismiss the charge of Class D felony failure to register as

      a sex offender, contending that it was an ex post facto violation to require him

      to register under the Indiana Sex Offender Registration Act (“SORA”) when, at


      Court of Appeals of Indiana | Memorandum Decision 45A03-1405-CR-143 | March 3, 2015    Page 1 of 6
      the time he committed his offence in Texas, Indiana’s definition of sex offender

      would not have required him to register.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On February 20, 2002, Tyson was adjudicated a delinquent in the state of Texas

      for the offense of aggravated sexual assault committed on August 22, 2001. As

      a result of his adjudication, Tyson was placed on probation for two years.

      Under the Texas Code of Criminal Procedure, he was required to register as a

      sex offender. Tyson’s registration requirement in Texas commenced February

      27, 2002, with an end date of February 19, 2014.


[4]   Tyson moved to Indiana in 2009. On December 26, 2012, Tyson’s vehicle was

      stopped by Merrillville Police Department for having an expired license plate.

      The officer learned through a background check that Tyson was required to

      register as a sex offender in Texas for the time period of February 27, 2002

      through February 19, 2014. The officer checked the Lake County Sexual

      Offender Registry, and it showed no record of Tyson registering as a sex

      offender in Indiana.


[5]   On January 17, 2013, the State charged Tyson with Class D felony failure to

      register as a sex offender. On February 12, 2014, Tyson filed a motion to

      dismiss, which the trial court denied on February 25, 2014. Tyson now files

      this interlocutory appeal.



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                                     Discussion and Decision
[6]   Tyson argues that SORA as applied to him violates the ex post facto prohibition

      of the United States Constitution and the Indiana Constitution, both of which

      contain prohibitions against the passage of ex post facto laws. U.S. Const. art.

      I, § 10; Ind. Const. art 1, § 24. The United States Constitution provides that

      “[n]o State shall . . . pass any . . . ex post facto Law.” U.S. Const. art. I, § 10.

      The Indiana Constitution provides that “[n]o ex post facto law . . . shall ever be

      passed.” Ind. Const. art. 1, § 24. Among other things, “[t]he ex post facto

      prohibition forbids the Congress and the States to enact any law ‘which imposes

      a punishment for an act which was not punishable at the time it was

      committed; or imposes additional punishment to that then prescribed.’” Weaver

      v. Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v. Missouri, 71 U.S. (4

      Wall.) 277, 325-26, 18 L. Ed. 356 (1866)). The policy underlying the Ex Post

      Facto Clause is to give effect to the fundamental principle that persons have a

      right to fair warning of that conduct which will give rise to criminal penalties.

      Hevner v. State, 919 N.E.2d 109, 111 (Ind. 2010) (citing Armstrong v. State, 848

      N.E.2d 1088, 1093 (Ind. 2006)).


[7]   Tyson contends that the trial court erred when it denied his motion to dismiss

      his charge of failure to register as a sex offender. He claims that, when applied

      to him, SORA violates the prohibition against ex post facto laws. Tyson asserts

      that, at the time he committed his predicate offense in Texas, there was no

      requirement in Indiana that a thirteen-year-old register as a sex offender

      because the offender was required to do so in Texas and that, therefore, he did

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      not have fair warning of the sex offender registry penalty at the time he

      committed his offense in Texas. He further argues that, to impose a registration

      requirement upon him based on the 2006 amendment of SORA that changed

      the definition of sex offender in Indiana violated the prohibition on ex post

      facto laws.


[8]   The prohibition against ex post facto laws applies only when a new law imposes

      a punishment for an act which was not punishable at the time it was committed

      or imposes additional punishment to that then prescribed. Sewell v. State, 973

      N.E.2d 96, 102 (Ind. Ct. App. 2012) (quotations omitted). “The critical

      question in evaluating an ex post facto claim ‘is whether the law changes the legal

      consequences of acts completed before its effective date.’” United States v. Brady,

      26 F.3d 282, 291 (2nd Cir.1994) (quoting Weaver, 450 U.S. at 31).


[9]   In the present case, on February 20, 2002, Tyson was adjudicated a delinquent

      for the offense of aggravated sexual assault committed on August 22, 2001 in

      the state of Texas. As a result of this adjudication, he was required to register

      as a sex offender in Texas from the date of February 27, 2002 until February 19,

      2014. In 2006, SORA was amended to include in the definition of sex offender

      “a person who is required to register as a sex offender in any jurisdiction.” Ind.

      Code § 11-8-8-5(b)(1). Tyson became a resident of Indiana in 2009. At the time

      of his relocation to Indiana, therefore, an individual relocating to Indiana who

      was required to register as a sex offender in any jurisdiction was considered a

      sex offender in Indiana and was required to register in Indiana. When Tyson

      moved to Indiana in 2009, he became a resident of Indiana and subjected

      Court of Appeals of Indiana | Memorandum Decision 45A03-1405-CR-143 | March 3, 2015   Page 4 of 6
       himself to the existing laws of Indiana governing sex offender registration.

       Before Tyson moved to Indiana, he was already required to register as a sex

       offender in Texas. Therefore, Indiana did not add to Tyson’s burden or add

       any new punishment by respecting the registration requirements of another

       state.


[10]   The fundamental principle behind the Ex Post Facto Clause is that a person has

       a right to fair warning of that conduct which will give rise to criminal penalties.

       Hevner, 919 N.E.2d at 111. Here, Tyson had fair warning of the registration

       requirement that would result from becoming a resident of Indiana in 2009. He

       was already required to register in Texas until February 19, 2014, and the

       provision that required individuals moving to Indiana to register as a sex

       offender if they were required to register as a sex offender in another

       jurisdiction had been in effect since 2006, three years prior to his relocation.

       Therefore, he did not become a sex offender, subject to registration

       requirements, upon moving to Indiana, but instead, remained a sex offender, as

       previously adjudicated, until the conclusion of his registration period.


[11]   Additionally, Tyson’s full registration requirement from Texas was effective

       under Indiana law because “[a] person who is required to register as a sex . . .

       offender in any jurisdiction shall register for the period required by the other

       jurisdiction or the period described in this section, whichever is longer.” Ind.

       Code § 11-8-8-19(f). Although Tyson’s registration requirement appears to have

       ended prior to this appeal, the question before us is whether the trial court erred

       when it denied Tyson’s motion to dismiss his charge for failure to register,

       Court of Appeals of Indiana | Memorandum Decision 45A03-1405-CR-143 | March 3, 2015   Page 5 of 6
       which offense occurred in December 2012. Tyson’s Texas registration

       requirement extended until February 2014. Even though he is no longer

       required to register, he was required to do so in 2012 at the time he was

       charged.


[12]   We conclude that Tyson had fair warning and notice that when he moved to

       Indiana and subjected himself to Indiana’s laws, that he was required to register

       as a sex offender. No new duty was imposed on Tyson as he was already

       required to register in Texas, and the legal requirement that such registration

       continue upon his relocation to Indiana already existed at the time of his move

       in 2009 as SORA had changed in 2006. Therefore, Tyson’s status as a sex

       offender was not triggered by moving to Indiana; it merely maintained the

       status as it was. His requirement to continue registration as it already existed

       was triggered when Tyson chose to subject himself to Indiana law by moving to

       Indiana. Because Tyson had fair warning of the registration requirement,

       SORA was not an ex post facto violation as applied to Tyson. Therefore,

       because Tyson was lawfully required to register as a sex offender, the trial court

       did not err when it denied Tyson’s motion to dismiss.


[13]   Affirmed.


       Friedlander, J., and Crone, J., concur.




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