State v. Katz

Decision Date18 January 2022
Docket Number20S-CR-632
PartiesState of Indiana, Appellant (Plaintiff below), v. Conner Katz, Appellee (Defendant below).
CourtIndiana Supreme Court

Argued: June 24, 2021

Direct Appeal from the Steuben Circuit Court No. 76C01-2005-CM-421 The Honorable Randy Coffey, Magistrate

ATTORNEYS FOR APPELLANT

Theodore E. Rokita

Attorney General of Indiana

Jodi K. Stein

Caryn N. Szyper

Deputy Attorneys General

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Stacy R. Uliana

Bargersville, Indiana

ATTORNEYS FOR AMICI CURIAE CYBER CIVIL RIGHTS

INITIATIVE AND DOCTOR MARY ANNE FRANKS

Eric M. Hylton

Riley Bennett Egloff LLP

Indianapolis, Indiana

OPINION

Massa, Justice.

In the modern age of social media, when anyone with a phone can instantaneously publish images worldwide, new potential harms arise unimaginable a generation ago. One such unfortunate phenomenon has come to be known as "revenge porn." To punish and deter it, the General Assembly in 2019 enacted Indiana Code section 35-45-4-8, which criminalizes the non-consensual distribution of an "intimate image." In this case, Conner Katz-unbeknownst to his girlfriend-captured cell phone video of her performing oral sex on him, then sent it to another person. He was charged under the statute, and in a pre-trial motion to dismiss, challenged its constitutionality on free speech grounds. The trial court dismissed, finding the entire statute violated the state and federal constitutions. The State disagreed and appealed. Katz cross-appealed, arguing we need not reach the question of constitutionality because dismissal should be upheld for failure to state an offense. Because we conclude the State sufficiently alleged an offense, and because we find the statute constitutional, we reverse and remand.

Facts and Procedural History

On May 28, 2020, the State charged Katz with distribution of an intimate image as a Class A misdemeanor. See Ind. Code § 35-45-4-8(d) (2019). The information alleged: "On or about or between March 12, 2020, and March 15, 2020 . . . Conner Katz, being a person who knows or reasonably should know that [R.S.] did not consent to the distribution of an intimate image of her, did distribute the intimate image of [R.S.]." Appellant's App. Vol. II, p.8. The probable cause affidavit alleged the following sequence of events. On March 12, Katz took a video of his then-girlfriend R.S. performing oral sex on him without her knowledge. This occurred at Katz's college fraternity house in Angola, Indiana. Katz sent the video to his ex-girlfriend, C.H., via Snapchat.[1] C.H. thought R.S. was aware of the video, but a few days later, Katz told C.H. not to mention "anything about the video he sent through Snapchat" to R.S. Appellee's App. Vol. II, p.6. C.H. then contacted R.S. to let her know what Katz sent. After C.H. informed her about the video, R.S. confronted Katz via text message. Katz admitted to sending the video and was apologetic, stating he knew it was wrong to send the video and should not have sent it without her knowledge. On March 26, R.S.'s lawyer reported the incident to the Angola Police Department. A detective spoke to both R.S. and C.H. later that day. R.S. provided the detective with the text messages of her conversations with C.H. and Katz. C.H. provided additional details, including that the video showed Katz "holding a female's hair while her head went up and down towards [his] penis." Id. She also told the detective that the female was clothed, and she "could not see the female's face in the video but assumed it was [R.S.]" Id.

After being charged, Katz moved to dismiss on multiple grounds. He argued the State failed to sufficiently allege a violation of the statute because the video did not show the victim's face or his penis. He also argued the statute is unconstitutional under Article 1, Section 9 of the Indiana Constitution and the First Amendment to the United States Constitution. Katz argued this Court has found "that when a statute tends to restrict and inhibit the right of free speech and impose a restraint upon the interchange of thought and opinion," it is invalid under Article 1, Section 9. Appellant's App. Vol. II, p.27 (internal quotation marks omitted). Under the First Amendment, Katz argued the statute is overbroad and a content-based restriction that does not survive strict scrutiny. Katz relied on two state intermediate appellate decisions from Minnesota and Texas that found similar statutes unconstitutional under the First Amendment. See State v. Casillas, 938 N.W.2d 74 (Minn.Ct.App. 2019), rev'd, 952 N.W.2d 629 (Minn. 2020), cert. denied, 142 S.Ct. 90 (2021); Ex parte Jones, No. 12-17-00346-CR, 2018 WL 2228888 (Tex. App. May 16, 2018), rev'd, No. PD-0552-18, 2021 WL 2126172 (Tex. Crim. App. May 26, 2021) (per curiam).

The trial court dismissed the case because it concluded the statute was unconstitutional under Article 1, Section 9 and the First Amendment. Finding "no reason why the logic contained in the Minnesota and Texas decisions would not apply to the Indiana Statute," the trial court adopted the holdings and decisions of Casillas and Ex parte Jones. Appellant's App. Vol. II, pp. 47-48. For the reasons stated in those cases, the trial court found Indiana Code section 35-45-4-8 was overbroad and unconstitutional under the First Amendment and unconstitutional under the Indiana Constitution without further explanation. It also rejected Katz's other arguments, including that the State failed to allege an offense.

The State appealed directly to this Court under Indiana Appellate Rule 4(A)(1)(b).[2] The State first argues the statute "is not unconstitutionally overbroad because, by its limiting language, the statute does not apply to third persons, which was [Katz's] sole argument below." Appellant's Br. at 12. Second, it argues the statute is a content-neutral restriction on speech that passes intermediate scrutiny. But even if the statute is content based, the State argues it survives strict scrutiny because it "serves the compelling state interest of privacy and is narrowly tailored and the least restrictive means to solve the distribution problem." Id. Katz cross-appealed, arguing we need not reach the constitutional issues because "dismissal should be upheld on grounds that the State failed to state an offense." Appellee's Br. at 2, 12. The State responded that the cross-appeal attacks the sufficiency of the evidence, which is an improper basis for a motion to dismiss for failure to state an offense. The Cyber Civil Rights Initiative and Dr. Mary Anne Franks submitted an amicus brief in support of the constitutionality of the statute.

Standard of Review

We review a "ruling on a motion to dismiss a charging information for an abuse of discretion, which occurs only if a trial court's decision is clearly against the logic and effect of the facts and circumstances." Gutenstein v. State, 59 N.E.3d 984, 994 (Ind.Ct.App. 2016), trans. denied. "The constitutionality of an Indiana statute is a pure question of law we review de novo." Horner v. Curry, 125 N.E.3d 584, 588 (Ind. 2019). "These statutes, however, come to us 'clothed with the presumption of constitutionality until clearly overcome by a contrary showing.'" Id. (quoting Whistle Stop Inn, Inc. v. City of Indianapolis, 51 N.E.3d 195, 199 (Ind. 2016)).

Discussion and Decision

This Court has repeatedly "refused to adjudicate constitutional questions when presented with other dispositive issues." Ind. Wholesale Wine &amp Liquor Co. v. State ex rel. Ind. Alcoholic Beverage Comm'n, 695 N.E.2d 99, 108 (Ind. 1998). Adhering to this doctrine of judicial restraint, we will first determine whether the State sufficiently alleged an offense. See Bayh v. Sonnenburg, 573 N.E.2d 398, 402 (Ind. 1991) ("[C]onstitutional issues are to be avoided as long as there are potentially dispositive statutory or common law issues still alive."). Because we conclude the State sufficiently alleged an offense, we will then address the constitutionality of the statute, which we ultimately uphold.

I. The State sufficiently alleged an offense.

"The purpose of the charging information is to provide a defendant with notice of the crime of which he is charged so that he is able to prepare a defense." State v. Laker, 939 N.E.2d 1111, 1113 (Ind.Ct.App. 2010), trans. denied. To be sufficient, an information "generally need[] only contain a statement of the essential facts constituting the offense charged, as well as the statutory citation, the time and place of the commission of the offense, [and] the identity of the victim." Pavlovich v. State, 6 N.E.3d 969, 975 (Ind.Ct.App. 2014) (internal quotation marks omitted), trans. denied. A court may dismiss a charging information if the "facts stated do not constitute an offense," but this only occurs when the information is facially deficient in stating an alleged crime. I.C. § 35-34-1-4(a)(5); Gutenstein, 59 N.E.3d at 994. In deciding whether a charging "information fails to state facts constituting an offense, we take the facts alleged in the information as true." Pavlovich, 6 N.E.3d at 974.

Katz has argued the State failed to allege an offense because R.S was not identifiable, and "neither R.S.'s mouth nor Katz' [sic] sex organ were [sic] shown." Appellee's Br. at 19. Whether the image sufficiently depicted an "intimate image" is an evidentiary question for the jury at trial; it is not properly raised by a motion to dismiss. See Schutz v. State, 275 Ind. 9, 13, 413 N.E.2d 913, 916 (1981) (noting an "information may not be questioned on the ground of insufficient evidence"); State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind.Ct.App. 2003) ("Questions of fact to be decided at trial or facts constituting a defense are not properly raised by...

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