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State v. Thakar

Supreme Court of Indiana

October 2, 2017

State of Indiana, Appellant (Plaintiff below),
v.
Sameer Girish Thakar, Appellee (Defendant below).

         Appeal from the Hamilton Superior Court, No. 29D05-1602-FD-1056 The Honorable Wayne A. Sturtevant, Judge

         On Petition to Transfer from the Indiana Court of Appeals, No. 29A02-1606-CR-1265

          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, Indiana

          Massa, Justice.

         The 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.

         Facts and Procedural History

         According 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.

         The 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.[1] 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).

         We granted transfer, thereby vacating the Court of Appeals' decision below. Ind. Appellate Rule 58(A).

         Standard of Review

         "We 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).

         The Dissemination Statute Is Not Unconstitutionally Vague.

         "'Due 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 ยง 35-49-3-3(a)(1). Furthermore, Indiana Code section 35-49-1-4 (2008) defines "minor" as "any individual ...


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