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McClernon v. State

Court of Appeals of Indiana

December 30, 2019

James C. McClernon, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

          Appeal from the Vanderburgh Circuit Court The Honorable David D. Kiely, Judge The Honorable Kelli E. Fink, Magistrate Trial Court Cause No. 82C01-1903-F5-1766

          ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana

          NAJAM, JUDGE.

         Statement of the Case

         [¶1] James C. McClernon brings this interlocutory appeal from the trial court's denial of his motion to dismiss the State's charge against him for failing to register vehicle information, as a Level 5 felony.[1] McClernon raises a single issue for our review, namely, whether Indiana Code Section 11-8-8-8(a)(1)'s requirement that a sex offender register vehicle information for any vehicle the offender "operates on a regular basis" is void for vagueness. We hold that longstanding principles of statutory construction require the language at issue to be read under an objective reasonableness standard-that is, whether one operates a vehicle on a regular basis is to be determined by asking whether reasonable persons would know that McClernon's conduct put him at risk. Under that standard, the statutory language is not constitutionally deficient. Accordingly, we affirm the trial court's denial of McClernon's motion to dismiss.

         Facts and Procedural History[2]

         [¶2] According to the State's probable cause affidavit:

[McClernon, t]he suspect in this offense[, ] is . . . a registered sex offender in Vanderburgh County, Indiana. The suspect was convicted of Sexual Assault . . . in Thunder Bay[, ]
Canada[, ] . . . [i]n Aug[ust] 2013. After serving his sentence[] there, he was required to register as a sex or violent offender upon his release. A review from the Indiana Department of Correction[] determined that the suspect's Canadian [o]ffense is equivalent to attempted Criminal Deviant Conduct[, as] a Class B felony[, ] and that the suspect must register as a Sexually Violent Predator for life.
The suspect was also convicted for I.C. 11-8-8 failure to register as a sex or violent offender[] in the Vanderburgh County Court System . . . on 08-17-2016.
The suspect's signed and initialed Sex and Violent Offender Registration forms are on file[] and reflect that he has acknowledged his duties and obligations as a registered sex offender. A copy of the Indiana Sex Offender Registration Laws was also made available to him.
The suspect last registered with the Vanderburgh County Sheriff's Office [the "VCSO"] on the following dates: 01-25-2019, 02-04-2019, 02-13-2019, 02-22-2019, and 03-01-2019. On all of these dates the suspect did not report any vehicles, which is a duty and obligation as a registrant.
On 02-04-2019, after not registering a vehicle, VCSO Receptionist A. Nilssen observed the suspect leave the VCSO . . . and drive away in an older model red Chevy pick-up truck. . . .
On 02-06-2019, the suspect was stopped in a vehicle that matched the same vehicle that Nilssen observed him driving away in on 02-04-2019. . . . Officer N. Jones confirmed that the suspect was driving a suspected stolen vehicle and stopped him. [McClernon] stated that he had the truck for about [five] days and was using it to scrap for extra money. . . .
The suspect was observed driving away from the VCSO . . . on 02-04-2019 after not registering the vehicle[] and was stopped in said . . . vehicle on 02-06-2019 . . . and admitted that he was using it to scrap for about [five] days. This is a violation of I.C.[] 11-8-8-8.
On 03-08-2019, the suspect arrived [at] the VCSO . . . for his registration update. Upon arrival he was taken into custody . . . . Deputy Hatfield asked if the suspect wished to talk with him and the suspect agreed and signed a Miranda Warning acknowledging this.
The suspect stated to Deputy Hatfield that he was in fact utilizing the red Chevy truck . . . . The suspect advised that he received the vehicle from [a third party] on the Saturday before he was stopped in it. This date would have been 2-2-19. The suspect advised he was using the vehicle to help his ex[-]wife move items. The suspect advised he believed he was returning the vehicle after using it. The suspect advised the [person] who gave him the vehicle never answered his phone so the suspect could not return it. The suspect then advised he would proceed to continue to utilize the vehicle until he was stopped in it on 2-6-19. The suspect advised he used the vehicle to obtain money by scrapping metal, to transport him to places, as well as [to] sleep inside of it. The suspect further advised he used this vehicle to get him to the [VCSO] so that he could complete his Sex and Violent Offender Registry form on 2-4-19. The suspect advised[, ] even though he was utilizing the vehicle at the time he completed his Sex or Violent Offender registration, he did not register the vehicle. The suspect ...

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