MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Jul 26 2017, 10:15 am

this Memorandum Decision shall not be                                           CLERK
regarded as precedent or cited before any                                   Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
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
Glen E. Koch II                                          Curtis T. Hill, Jr.
Boren, Oliver & Coffey, LLP                              Attorney General of Indiana
Martinsville, Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Matthew R. Gouldsmith,                                   July 26, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         55A01-1605-CR-1022
        v.                                               Appeal from the Morgan Circuit
                                                         Court
State of Indiana,                                        The Honorable Matthew Hanson,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         55C01-1408-FB-1291



Bailey Judge.




Court of Appeals of Indiana | Memorandum Decision 55A01-1605-CR-1022 | July 26, 2017                Page 1 of 14
                                              Case Summary
[1]   Matthew Gouldsmith (“Gouldsmith”) was convicted of three counts of Sexual

      Misconduct with a Minor, as Class B felonies;1 one count of Child Exploitation,

      as a Class C felony;2 and two counts of Voyeurism, as Class D felonies. 3 The

      trial court sentenced him to an aggregate term of imprisonment of thirty-one

      years, with eleven years suspended to probation. He now appeals.


[2]   We affirm in part, reverse in part, and remand.



                                                    Issues
[3]   Gouldsmith presents two issues for our review. We restate these as:

                    I.      Whether the trial court abused its discretion when it
                            denied certain of Gouldsmith’s for-cause challenges to
                            jurors; and


                   II.      Whether the trial court abused its discretion in fixing the
                            terms of Gouldsmith’s probation.




      1
          Ind. Code § 35-42-4-9(a)(1).
      2
          I.C. § 35-42-4-4(b)(1).
      3
          I.C. §§ 35-45-4-5(b)(2), -(c)(1).


      Court of Appeals of Indiana | Memorandum Decision 55A01-1605-CR-1022 | July 26, 2017   Page 2 of 14
                            Facts and Procedural History
[4]   Gouldsmith, who lived in Martinsville, had a teenaged son who dated M.B. In

      the summer of 2012, after M.B. had graduated from middle school, Gouldsmith

      met M.B. after sending her a message through Facebook. During their

      exchange of messages, M.B. told Gouldsmith that she attended school with his

      son and that Gouldsmith’s son was her ex-boyfriend. M.B. lived in Brooklyn,

      Indiana, at the time, and both she and Gouldsmith frequented the same comic

      book store in Martinsville.


[5]   One day during the summer of 2012, Gouldsmith asked M.B. to go to his house

      to watch movies and play video games. M.B. agreed to go with Gouldsmith,

      and later went home.


[6]   Later in the summer of 2012, Gouldsmith again asked M.B. to come to his

      home from the comic book store. Around this time, M.B. had begun taking a

      gym class during the summer, and Gouldsmith offered to give her a ride to

      school the next morning if she wanted to stay the night. M.B. agreed, and went

      to sleep in a bedroom alone, with Gouldsmith sleeping in a separate room.

      However, during some point in the night, M.B. awoke to find Gouldsmith in

      bed with her. Though M.B. tried to squirm away, Gouldsmith drew closer. He

      eventually removed M.B.’s pants and underwear and penetrated her vagina

      with his penis. The next day, Gouldsmith drove M.B. to her gym class.


[7]   Later again that summer, M.B. stayed the night at Gouldsmith’s home.

      Gouldsmith again performed sexual intercourse upon M.B. As time went on,

      Court of Appeals of Indiana | Memorandum Decision 55A01-1605-CR-1022 | July 26, 2017   Page 3 of 14
       the frequency of M.B.’s visits to Gouldsmith’s home increased, as did the

       frequency of sexual activity, which included vaginal, anal, and oral intercourse.

       This continued through the summer of 2013, when M.B. reached fifteen years

       of age. Eventually, Gouldsmith was engaging in sexual acts with M.B. three to

       five times per week.


[8]    M.B. and Gouldsmith also exchanged numerous text messages throughout their

       interactions. Gouldsmith would show M.B. nude photos of himself, and M.B.

       sent photos of herself to Gouldsmith. On two occasions, Gouldsmith took

       photos through a cracked door of an undressed M.B. dressing herself while

       M.B. was unaware of Gouldsmith’s presence.


[9]    Gouldsmith eventually decided to open his own comic book shop in

       Martinsville, and offered to hire M.B. to help with work at the shop.

       Gouldsmith usually paid M.B. with cigarettes, rather than with money.

       Eventually, in 2014, the sexual relationship between Gouldsmith and M.B.

       ended after a dispute between the two.


[10]   In June 2014, M.B. demanded in a text message that Gouldsmith pay her $200

       every other week and threatened to tell police about the sexual activity between

       them, which she said “‘by law is statutory rape.’” (Tr. Vol. 4 at 172.)

       Gouldsmith in turn contacted police to ask them to intervene by stopping

       M.B.’s communication with him. During the subsequent police investigation,

       M.B. stood by her allegations concerning Gouldsmith’s conduct. Gouldsmith

       was subsequently arrested.


       Court of Appeals of Indiana | Memorandum Decision 55A01-1605-CR-1022 | July 26, 2017   Page 4 of 14
[11]   On August 27, 2014, Gouldsmith was charged with four counts of Sexual

       Misconduct with a Minor; one count of Child Exploitation; and two counts of

       Voyeurism. On January 14, 2016, the State amended the charging information,

       and proceeded to trial with three counts of Sexual Misconduct with a Minor,

       one count of Child Exploitation, and two counts of Voyeurism.


[12]   On January 25, 2016, a jury trial commenced and jury selection was conducted.

       Based upon information in the juror questionnaires related to prior sexual

       assault victimization or knowledge of others who had been victims of sexual

       assault, individual voir dire was conducted of members of the venire. The trial

       court struck a number of the members of the venire and denied several of

       Gouldsmith’s for-cause objections. Jury selection proceeded and Gouldsmith

       lodged more peremptory challenges, striking from the jury two venirepersons

       against whom he had previously lodged for-cause objections that the trial court

       denied.


[13]   A trial was conducted on January 26 through January 28, 2016. At the

       conclusion of the trial, the jury found Gouldsmith guilty of three counts of

       Sexual Misconduct with a Minor, one count of Child Exploitation, and two

       counts of Voyeurism.


[14]   On April 5, 2016, the trial court entered judgment of conviction and sentenced

       Gouldsmith to an aggregate term of imprisonment of thirty-one years, with

       eleven years suspended to probation. Four years of the probation were to be

       served as monitored probation. A number of conditions were imposed as part


       Court of Appeals of Indiana | Memorandum Decision 55A01-1605-CR-1022 | July 26, 2017   Page 5 of 14
       of Gouldsmith’s probation, including terms that prohibited Gouldsmith from

       patronizing adult bookstores and other establishments and from engaging in

       certain kinds of sexual relationships.


[15]   This appeal ensued.



                                  Discussion and Decision
                                       For-Cause Challenges
[16]   Gouldsmith’s first contention on appeal is that the trial court abused its

       discretion when it denied his for-cause challenges as to three members of the

       venire. We generally review a trial court’s decision on for-cause challenges for

       an abuse of discretion. Oswalt v. State, 19 N.E.3d 241, 245 (Ind. 2014). Because

       the trial court is uniquely positioned to observe and assess the demeanor of

       potential jurors during questioning by counsel, we afford substantial deference

       to trial court decisions on for-cause challenges. Id. We will therefore “‘find

       error only if the decision is illogical or arbitrary.’” Id. (quoting Whiting v. State,

       969 N.E.2d 24, 29 (Ind. 2012)).


[17]   An appellant must have preserved for appellate review the trial court’s denial of

       a for-cause objection, and failure to do so results in procedural default. Id. at

       246. This requirement, known as the exhaustion rule, “requires parties to

       peremptorily remove jurors whom the trial court refuses to strike for cause or

       show that they ‘had already exhausted [their] allotment of peremptories’ at the

       time they request for-cause removal.” Id. (quoting Whiting, 969 N.E.2d at 30).

       Court of Appeals of Indiana | Memorandum Decision 55A01-1605-CR-1022 | July 26, 2017   Page 6 of 14
       An appellate court will find reversible error “‘only where the defendant

       eventually exhausts all peremptories and is forced to accept either an

       incompetent or an objectionable juror.’” Id. (quoting Whiting, 969 N.E.2d at

       30).


[18]   In articulating the exhaustion rule, the Indiana Supreme Court has counseled

       parties to avoid waiver. The Indiana Supreme Court has twice observed that

       preservation of an appeal from the allegedly erroneous denial of for-cause

       objections requires both 1) exhaustion of a party’s peremptory strikes, and 2)

       that the objecting party “made a record of [its] desire and inability to strike”

       objectionable jurors. Merritt v. Evansville-Vanderburgh School Corp., 765 N.E.2d

       1232, 1238 (Ind. 2002) (concluding that failure to use peremptory strikes and to

       make a record of the inability to strike additional jurors subject to for-cause

       challenges resulted in waiver of appellate review); Oswalt, 19 N.E.3d at 248

       (finding appeal preserved when the defendant extinguished his peremptory

       challenges and had “‘a record that says … I’m out of preempts and I’m not

       getting who I want.’”). The purpose of a contemporaneous objection “is to

       promote fair trial by precluding a party from sitting idly by and appearing to

       assent to an offer of evidence or ruling by the court only to cry foul when the

       outcome goes against him.” Purifoy v. State, 821 N.E.2d 409, 412 (Ind. Ct. App.

       2005) (citation and quotation marks omitted), trans. denied. The

       contemporaneous objection rule requires objections be voiced in time “so that

       harmful error may be avoided or corrected and a fair and proper verdict will be

       secured.” Id.


       Court of Appeals of Indiana | Memorandum Decision 55A01-1605-CR-1022 | July 26, 2017   Page 7 of 14
[19]   Here, Gouldsmith contends that he satisfied the exhaustion rule. Gouldsmith

       notes that he used all his peremptory challenges against venirepersons, some of

       whom were individuals against whom he lodged for-cause challenges that the

       trial court denied, but that he had exhausted his peremptory challenges so that

       an objectionable juror—venireperson forty—was seated. The State, on the

       other hand, argues that Gouldsmith did not properly preserve this issue for

       appeal because he “failed to make a record in the trial court that he had

       exhausted his allotment of peremptory challenges and was therefore forced to

       accept Juror forty by the trial court’s ruling on his challenge for cause.”

       Appellee’s Br. P. 13.


[20]   We agree with the State. Gouldsmith did not make an appropriate record. The

       record does not reflect any indication that, when the trial court seated

       venireperson forty on the jury, Gouldsmith made any objection or provided

       other notice to the court that he had extinguished his peremptory strikes, that he

       would use such strike on venireperson forty if he had any remaining, and that

       he therefore was being forced to go to trial with an objectionable juror. Thus,

       though he contends that he had extinguished his peremptory challenges, he did

       not make a record of that extinguishment by lodging an objection to the fact

       that he was being forced to go to trial with objectionable jurors. As in Merritt,

       765 N.E.2d at 1238, Gouldsmith has waived appellate review of the trial court’s

       denial of his for-cause challenges.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1605-CR-1022 | July 26, 2017   Page 8 of 14
                                         Terms of Probation
[21]   Gouldsmith’s second contention on appeal is that the trial court abused its

       discretion in setting the terms of his probation. Trial courts have broad

       discretion in establishing conditions of probation to safeguard the general public

       and to create law-abiding citizens. Patton v. State, 990 N.E.2d 511, 514 (Ind. Ct.

       App. 2013). “Conditions of probation should effectuate the supervision

       required to achieve probation goals and, therefore, must be functionally and

       rationally related to the probationer’s rehabilitative needs and to society’s

       interests.” Id. We will only set aside a trial court’s terms of probation when the

       court has abused its discretion. Id. An abuse of discretion occurs when the

       decision is clearly against the logic and effect of the facts and circumstances

       before it, or the reasonable, probable, and actual deductions to be drawn

       therefrom. Id. (citation and quotation marks omitted).


[22]   Here, Gouldsmith lodged timely objections to several of the conditions of

       probation that the trial court imposed, and he challenges those conditions of

       probation on appeal. Gouldsmith identifies as flawed terms 12 and 17 of his

       probation. Term 12 provides:

               You shall not possess obscene matter as defined by IC 35-49-2-1
               or child pornography as defined in 18 U.S.C. § 2256(8), including
               but not limited to: videos, magazines, books, DVD’s, and
               material downloaded from the Internet. You shall not visit strip
               clubs, adult bookstores, motels specifically operated for sexual
               encounters, peep shows, bars where partially nude or exotic
               dancers perform, or businesses that sell sexual devices or aids.


       Court of Appeals of Indiana | Memorandum Decision 55A01-1605-CR-1022 | July 26, 2017   Page 9 of 14
       (App’x Vol. II at 56.) Term 17 provides, “You shall not engage in a sexual

       relationship with any person who has children under the age of 16 years unless

       given permission by the court and your treatment provider.” (Id.)


[23]   Gouldsmith contends that these provisions of the probation order impermissibly

       infringe on one or another of his constitutional rights. However, “conditions of

       supervision may restrict a probationer’s activities ‘substantially beyond the

       ordinary restrictions imposed by law on an individual citizen.’” Patton, 990

       N.E.2d at 515. Probation conditions “may impinge upon a probationer’s right

       to exercise an otherwise constitutionally protected right because ‘probationers

       simply do not enjoy the freedoms to which ordinary citizens are entitled.’” Id.

       (quoting Purdy v. State, 708 N.E.2d 20, 22 (Ind. Ct. App. 1999)). When a

       defendant challenges a term of probation as unduly intruding upon a

       constitutional right, we review that claim by means of a balancing test that

       looks to the following three factors: 1) the purpose to be served by probation; 2)

       the extent to which constitutional rights enjoyed by law-abiding citizens should

       be enjoyed by probationers; and 3) the legitimate needs of law enforcement. Id.


                                                    Term 12
[24]   Gouldsmith identifies term 12 as suffering several infirmities. We find some of

       Gouldsmith’s contentions well-founded, and others less so.


[25]   Gouldsmith correctly observes that this Court has found as unconstitutionally

       vague a prohibition upon visiting “businesses that sell sexual devices or aids.”

       Collins v. State, 911 N.E.2d 700, 713 (Ind. Ct. App. 2009), trans. denied. In

       Court of Appeals of Indiana | Memorandum Decision 55A01-1605-CR-1022 | July 26, 2017   Page 10 of 14
       Collins, this Court held that that language was vague enough to include

       establishments like drug stores, and remanded the trial court’s order for

       clarification. Id. The same language used in Collins was used in Gouldsmith’s

       probation order.


[26]   The State attempts to salvage this language by placing it in context with other

       businesses listed in term 12, which lists adult bookstores, establishments

       employing exotic dancers, and other such locations. The State argues that the

       intent of the provision is clear: the purpose is to preclude Gouldsmith from

       visiting establishments related to sexual arousal and gratification. Yet the

       provision at issue here uses the same language as in Collins, together with the

       word “or”: “or businesses that sell sexual devices or aids.” (App’x Vol. II at

       56.) The word “or” is disjunctive, and does not make the words that follow

       dependent upon the words that precede the preposition for plain meaning. See,

       e.g., Curtis v. State, 937 N.E.2d 868, 872 (Ind. Ct. App. 2010) (noting that “or”

       and “and” are distinct terms, and “or” generally indicates the disjunctive).

       “Or” continues to retain a disjunctive meaning, and the challenged language

       related to businesses selling sexual aids has already been held to be

       unconstitutionally vague. The State suggests that, given the holding in Collins

       and the disjunctive language of the probation condition, we should read the

       clause in context as prohibiting visits to “businesses that [predominantly] sell

       sexual devices or aids.” (Appellee’s Br. at 20.) We decline the State’s

       invitation to rewrite the terms of a probation provision that this Court has




       Court of Appeals of Indiana | Memorandum Decision 55A01-1605-CR-1022 | July 26, 2017   Page 11 of 14
       already found to be vague. The State’s argument is unpersuasive, and, like the

       Collins Court, we reverse this portion of the probation order for clarification.


[27]   Gouldsmith also challenges the portion of term 12 that prohibits him from

       patronizing such businesses as strip clubs, motels operated for engaging in

       sexual activity, and adult bookstores. Gouldsmith contends that this restriction

       is “overly broad and unduly burdensome and intrudes upon [his] right of

       association” (Appellant’s Br. at 26), and infringes upon his “constitutional

       protection to personal decisions relating to marriage, procreation,

       contraception, family relationships, child rearing, and education.” Lawrence v.

       Texas, 539 U.S. 558, 574 (2003).


[28]   We disagree. The purpose of this condition of Gouldsmith’s probation is to

       manage some facets of his sexual conduct, for which he has been subjected to

       multiple criminal convictions and required to register as a sex offender. The

       core rights protected by the Fourteenth Amendment, as expressed in Lawrence,

       are fundamental personal choices related to family, relationships, and

       childbirth. See id. (observing that “[p]ersons in a homosexual relationship may

       seek autonomy for these purposes” and striking as unconstitutional a criminal

       statute against sodomy); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S.

       833, 851 (1992) (reiterating the recognition of autonomy in personal decisions

       related to marriage and contraception as “central to personal dignity and

       autonomy”). Gouldsmith, however, does not articulate how the ability to see

       nude dancers or to buy pornographic videos is central to his choices concerning

       family relationships or personal dignity. Further, the State notes that

       Court of Appeals of Indiana | Memorandum Decision 55A01-1605-CR-1022 | July 26, 2017   Page 12 of 14
       Gouldsmith’s conduct in this case involved accessing and viewing videos and

       images of his victim, suggesting that a restriction on Gouldsmith’s access to and

       consumption of sexually-related media is related to law enforcement needs. We

       accordingly find no error in this portion of term 12 that prohibits Gouldsmith’s

       patronizing of adult bookstores, strip clubs, and the like.


                                                    Term 17
[29]   We turn now to the other probation condition Gouldsmith challenges, term 17.

       That term prohibits Gouldsmith from having a sexual relationship with another

       person who has children under sixteen years of age without Gouldsmith having

       obtained prior permission from the court and his treatment provider.

       Gouldsmith again contends that this probation condition violates his

       constitutional rights as articulated in, inter alia, Lawrence and Casey. Gouldsmith

       acknowledges that a court may properly impose reasonable conditions of

       probation that restrict a probationer’s access to children. See McVey v. State, 863

       N.E.2d 434, 449 (Ind. Ct. App. 2007) (noting that “probation conditions that

       reduce the potential for access to children are reasonable”), trans. denied.

       However, he contends that the condition at issue here is unduly restrictive of his

       rights and is vague.


[30]   We agree with Gouldsmith that the condition is overly broad, but on a different

       basis from that which he presents. The probation condition at issue provides

       that Gouldsmith may not engage in a “sexual relationship” with someone who

       has a child aged sixteen years or less without prior permission from the court

       and a treatment provider. (Appellant’s App’x at 56.) This provision would
       Court of Appeals of Indiana | Memorandum Decision 55A01-1605-CR-1022 | July 26, 2017   Page 13 of 14
       encompass a wide variety of relationships, notably an incidental or one-time

       sexual encounter with another adult when Gouldsmith would and could have

       no knowledge of the person’s family status or of their children. Because it lacks

       sufficient clarity to put Gouldsmith on notice of what circumstances he should

       avoid, the provision is overly broad. We accordingly remand for clarification of

       this provision.



                                               Conclusion
[31]   Gouldsmith has waived review of the trial court’s denial of his for-cause

       challenges to certain members of the jury venire. Portions of the probation

       conditions imposed upon Gouldsmith are overly broad, and we accordingly

       remand the case for clarification of these provisions.


[32]   Affirmed in part, reversed in part, and remanded.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1605-CR-1022 | July 26, 2017   Page 14 of 14
