from the Hamilton Superior Court Trial Court Cause No.
29D05-1602-FD-1056 Honorable Wayne A. Sturtevant, Judge
Attorney for Appellant Charles Hayes Hayes Ruemmele, LLC
f/k/a Sweeney Hayes, LLC Indianapolis, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
Jody Kathryn Stein Deputy Attorney General Indianapolis,
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.
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.
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.
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.
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 (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).
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 ...