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State v. Thakar

Court of Appeals of Indiana

February 14, 2017

State of Indiana, Appellant-Plaintiff,
v.
Sameer Girish Thakar, Appellee-Defendant.

         Appeal 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, Indiana

          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.

         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 (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 ...


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