from the Hamilton Superior Court, No. 29D05-1602-FD-1056 The
Honorable Wayne A. Sturtevant, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
Attorneys for Appellant Curtis T. Hill, Jr. Attorney General
of Indiana Ellen H. Meilaender Jodi K. Stein Deputy Attorneys
General Indianapolis, Indiana
Attorneys for Appellee Jane H. Ruemmele Charles C. Hayes
Hayes Ruemmele, LLC f/k/a Sweeney Hayes, LLC Indianapolis,
State charged then-38-year-old Sameer Girish Thakar with
Class D felony dissemination of matter harmful to minors
under Indiana Code section 35-49-3-3(a)(1) (2008) ("the
Dissemination Statute"), after Thakar sent a photograph
of his erect penis to a 16-year-old girl. The trial court
dismissed the charges, relying upon Salter v. State,
906 N.E.2d 212 (Ind.Ct.App. 2009), trans. not
sought, which found the Dissemination Statute void for
vagueness as applied, because the intended recipient met
Indiana's age of consent to sexual activity. We now
overrule Salter, hold that the Dissemination Statute
is not unconstitutionally vague, and reverse.
and Procedural History
to the charging information, in 2014, 38-year-old Thakar
began chatting online under the username "sam_sam"
with L.S., a 16-year-old girl in Oregon. Approximately one
hour after learning L.S.'s age, he sent her a photo of
his erect penis. Shortly thereafter Oregon FBI agents reached
out to the Fishers Police Department with this information,
and when officers went to Thakar's house, he was
cooperative in the extreme: Thakar admitted to the
conversation under his username "sam_sam, "
identified L.S. by name, and identified printouts of pictures
he had sent, including the photograph of his penis.
State of Indiana charged Thakar under the Dissemination
Statute, and Thakar moved to dismiss on constitutional
grounds, claiming the Statute was void for vagueness. In
support, Thakar relied upon Salter v. State, 906
N.E.2d 212 (Ind.Ct.App. 2009) (electronic transmission of a
photo of an erect penis to a 16-year-old girl out of state),
where the court found the Dissemination Statute void for
vagueness as applied, because the age of consent to sexual
activity (absent unique circumstances) is only 16 in Indiana
pursuant to Indiana Code section 35-42-4-9 (2008). 906 N.E.2d
at 223. The trial court agreed and dismissed the
charge, the State appealed, and our Court of Appeals
affirmed, again based on Salter. State v.
Thakar, 71 N.E.3d 27 (Ind.Ct.App. 2017).
granted transfer, thereby vacating the Court of Appeals'
decision below. Ind. Appellate Rule 58(A).
review a trial court's ruling on a motion to dismiss a
charging information for an abuse of discretion . . . [and a]
trial court  abuses its discretion when it misinterprets
the law." An-Hung Yao v. State, 975 N.E.2d
1273, 1276 (Ind. 2012). A challenge to the constitutionality
of a statute is a "pure question of law, " which we
review de novo. State v. Doe, 987 N.E.2d
1066, 1070 (Ind. 2013). "'[A]ll statutes are
presumptively constitutional, and the court must resolve all
reasonable doubts concerning a statute in favor of
constitutionality.'" Tiplick v. State, 43
N.E.3d 1259, 1262 (Ind. 2015) (quoting Dep't of State
Revenue v. Caterpillar, Inc., 15 N.E.3d 579, 587 (Ind.
2014)). That being said, unlike the higher burden faced by
those making a facial constitutional challenge, those
challenging the statute as applied "need only show the
statute is unconstitutional on the facts of the particular
case." State v. Zerbe, 50 N.E.3d 368, 369 (Ind.
2016) (internal quotations omitted).
Dissemination Statute Is Not Unconstitutionally
process principles advise that a penal statute is void for
vagueness if it does not clearly define its prohibitions,
'" and one such source of vagueness is if the
statute lacks "'notice enabling ordinary people to
understand the conduct that it prohibits.'"
Tiplick, 43 N.E.3d at 1262 (quoting Brown v.
State, 868 N.E.2d 464, 467 (Ind. 2007)). Here, the
Dissemination Statute made it a Class D felony at the time to
"knowingly or intentionally . . . disseminate matter
to minors that is harmful to minors[.]" Ind. Code §
35-49-3-3(a)(1). Furthermore, Indiana Code section 35-49-1-4
(2008) defines "minor" as "any individual