James C. McClernon, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
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
of the Case
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. 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.
and Procedural History
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
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
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