Harris v. State

• Decision Date: 27 March 2013
• Docket Number: No. 20A04–1204–CR–225.,20A04–1204–CR–225.
• Citation: 985 N.E.2d 767
• Parties: Michael L. HARRIS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

985 N.E.2d 767

Michael L. HARRIS, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 20A04–1204–CR–225.

Court of Appeals of Indiana.

March 27, 2013.

Unconstitutional as Applied

West's A.I.C. 35–42–4–12Michael L. Harris, New Castle, IN, Appellant Pro Se.

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant–Defendant, Michael L. Harris (Harris), appeals his conviction and sentence for Count I, failure to register as a sex offender, a Class D felony, Ind.Code § 11–8–8–17; and Count II, sex offender internet offense, a Class A misdemeanor, I.C. § 35–42–4–12.

We affirm in part and reverse in part.

ISSUES

Harris raises three issues on appeal, which we restate as the following four issues:

(1) Whether Harris's convictions under I.C. § 11–8–8–17 and I.C. § 35–42–4–12 violate the First Amendment of the United States Constitution;

(2) Whether Harris's conviction under I.C. § 11–8–8–17 violates Harris's right of free expression under the Indiana Constitution;

(3) Whether I.C. § 11–8–8–8 constitutes an ex post facto law under the Indiana Constitution as applied to Harris; and

(4) Whether the evidence was sufficient to convict Harris of failure to register as a sex offender under I.C. § 11–8–8–17.

FACTS AND PROCEDURAL HISTORY

In 1999, Harris was convicted of Class B felony child molestation and sentenced to ten years' incarceration. Harris was released to parole and reincarcerated on multiple occasions until his sentence was completed in 2008. Initially, Harris was required to register as a sex offender for ten years commencing December 1, 2008; however, by operation of law, Harris's statuschanged to that of a sexually violent predator. As a result, he is subject to lifetime registration and reporting requirements.

Following his release from incarceration, Harris filled out a sex and violent registration offender form provided by the Elkhart County Sheriff's Department. The registration form contained spaces for Harris to provide his “E-mail/Chat room/Instant Messaging/Social Networking Site Names” but these were left blank. (State's Exhibit No. 2 p. 1). The last page of the form contains a preprinted affirmation and series of acknowledgements. The affirmation provided that Harris had truthfully answered the form under penalties of perjury. The acknowledgements included a warning that persons convicted of certain crimes, including child molesting, “may be prohibited from communicating via chat rooms, instant messaging or social networking sites in which persons under the age of 18 are allowed to access or use. Violation is a Class A [m]isdemeanor for the first offense and [Class] D [f]elony for each and every one thereafter.” (State's Exh. No. 2 p. 3). Harris's signature appears on the last page of the form and alongside the date of December 2, 2008. On the same page, witness signatures dated December 2, 2008, March 2, 2009 and June 1, 2009 also appear.

Detective Brian Holloman of the Elkhart County Sheriff's Department (Detective Holloman) began working with the county sex offender registry in May 2006 and has been “[s]olely running it since July of 2006” and oversees the county's average of 400 sex offenders. (Transcript p. 79). In June 2009, Detective Holloman received information that Harris “had a MySpace profile” and began investigating. (Tr. p. 86). Detective Holloman went to the MySpace website and found Harris's profile page with a user name of “filmmaker 54.” The profile page contained Harris's photograph, biographical information, interests, and listed his marital status as single. In response to a subpoena, MySpace, Inc. provided Detective Holloman with account information: the account had been created on May 5, 2009 and was registered in Harris' name along with an America Online, Inc., (AOL) email address of filmmaker 54@ aol. com.

A subpoena was thereafter sent to AOL, which provided Detective Holloman with account information for “filmmaker54.” The account information included a list of associated “screen names,” including “MichaHarr5,” “Mlharrismedia,” “Rjharrishome,” as well as other screen names, which were apparently also used as email addresses. (State's Exh. No. 5 p. 5). The account was registered under the name of Harris's wife and paid for with her credit card. Her address and telephone number were the same as reported by Harris on his sex and violent offender registration form. The membership had been active since “03–01–15.” (State's Exh. No. 5 p. 7).

On November 9, 2009, the State filed an Information charging Harris with failure to register as a sex offender, a Class D felony, I.C. § 11–8–8–17; and a sex offender internet offense, a Class A misdemeanor, I.C. § 35–42–4–12. On December 3, 2009, Harris provided an updated registration form, which listed the AOL email addresses but no social networking user names. Harris attached a note indicating that he had provided this information under protest and without admitting that he had used or intended to use these email addresses.

On May 26, 2010, Harris filed a petition for relief from retroactive application of I.C. §§ 11–8–8–8; –17; and § 35–42–4–12 alleging primarily as applied ex post facto violations under the Indiana Constitution. On September 7, 2010, Harris, by counsel, filed a motion to dismiss all charges based on ex post facto and free speech violations. On September 29, 2010, the trial court held a hearing on the motions and subsequently denied them on October 21, 2010.

On January 23, 2012, a jury trial was held. Harris was found guilty as charged on both Counts. On February 27, 2012, the trial court sentenced Harris to three years' incarceration at the Department of Correction on Count I with a concurrent one year sentence on Count II.

Harris now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. First Amendment

Harris contends that his convictions under I.C. §§ 11–8–8–17 and 35–42–4–12 violate the First Amendment to the United States Constitution. The First Amendment provides in relevant part that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const., Amdt. 1. The First Amendment is applicable to the states via the Fourteenth Amendment. Shuger v. State, 859 N.E.2d 1226 (Ind.Ct.App.2007), trans. denied.

Harris makes essentially two arguments that the statutes violate his First Amendment rights.¹ Regarding I.C. § 11–8–8–8 and –17, he argues that anonymity is protected under the First Amendment and the disclosure requirements constitute an involuntary relinquishment of his anonymity thereby violating the First Amendment.² His argument is more straightforward regarding I.C. § 35–42–4–12. Harris argues that by banning his use of social networking websites accessible by persons under the age of eighteen, the State has impermissibly restricted his First Amendment right to free expression, whether political, religious, commercial, or personal.

Both parties characterize the statutes at issue as content neutral. Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). “A law is content neutral if it regulates only the time, place, or manner of speech irrespective of content.” Shuger, 859 N.E.2d at 1232. The appropriate constitutional test for a content neutral regulation is “whether it is narrowly tailored to serve a significant governmental interest while leaving open ample alternative channels for communicationof the information.” State v. Economic Freedom Fund, 959 N.E.2d 794, 802 (Ind.2011). The State has the burden of proof. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994).

A. I.C. § 11–8–8–8(a)(7)

1. Statute at Issue

Indiana's Sex Offender Registration Act (INSORA), codified at I.C. ch. 11–8–8, requires persons convicted of a sex or violent offense to register with and report to local law enforcement. I.C. §§ 11–8–8–4; –14. Sex offenders must fulfill a number of obligations, including providing personal information. SeeI.C. § 11–8–8–8. Harris is a sexually violent predator and therefore must register and provide information under I.C. § 11–8–8–8. See Lemmon v. Harris, 949 N.E.2d 803, 804–09 (Ind.2011). Subsection (a)(7) requires offenders to provide certain personal information pertaining to the Internet:

Any electronic mail address, instant messaging username, electronic chat room username, or social networking web site username ³ that the sex or violent offender uses or intends to use.

I.C. § 11–8–8–8(a)(7). Failure to register is punishable as a Class C or D felony under I.C. § 11–8–8–17. Failure to register includes not only a knowing or intentional “material misstatement” but also an omission of information when registering. I.C. § 11–8–8–17(a)(3).

Harris describes himself as a political activist who is vehemently opposed to sex offender registry and related laws. He cites newspapers, government websites, online forums and attorney websites as examples of websites requiring an email address as a prerequisite to communicate. He alleges that although he has spoken out publicly about his concerns; however, “because of his business interests, personal safety concerns for he [sic] an[d] his family and to avoid retaliation, and his tenuous situation as a person required to register as a sex offender, there are times when it is prudent for [him] to comment or speak anonymously.” (Appellant's Br. p. 14). By requiring disclosure of his email addresses, Harris argues that I.C. § 11–8–8–8(a)(7) prohibits “true anonymity of speech since [Harris] is required to give the very persons or organizations he may be speaking out against the identifiers he would otherwise be able to use with anonymity (in the public...