MEMORANDUM DECISION
Jul 20 2015, 9:02 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Gregory F. Zoeller
Wieneke Law Office, LLC Attorney General of Indiana
Plainfield, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Paul Scott Campbell, July 20, 2015
Appellant-Defendant, Court of Appeals Case No.
73A01-1502-CR-46
v.
Appeal from the Shelby Superior
State of Indiana, Court
The Honorable Jack A. Tandy,
Appellee-Plaintiff, Judge
Cause No. 73D01-1108-FA-14
Robb, Judge.
Case Summary and Issue
[1] Paul Campbell entered a plea of guilty to two counts of child molesting and was
sentenced to sixteen years of imprisonment followed by eight years of
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probation, subject to the standard conditions of probation as well as terms of
probation specific to sex offenders. In this belated appeal,1 Campbell contends
the trial court erred in imposing certain sex offender conditions of probation.
The State concedes, and we agree, that two of the challenged conditions of
probation are impermissibly vague, and we remand to the trial court to clarify
Campbell’s sex offender conditions of probation.
Facts and Procedural History
[2] In August 2011, the State charged Campbell with one count of Class A felony
child molesting and one count of Class C felony child molesting. In February
2012, the State and Campbell entered into a plea agreement pursuant to which
Campbell entered a plea of guilty to Class B felony child molesting as a lesser
included offense of the Class A felony charge and also entered a plea of guilty
to Class C felony child molesting. The plea agreement provided that Campbell
would be sentenced to sixteen years for the Class B felony, all executed, and
eight years for the Class C felony, to be served consecutively to the Class B
felony sentence but all suspended to probation. The plea agreement contained
several specific conditions of probation, as well as the additional term that “sex
offender terms of probation shall apply.” Appellant’s Appendix at 27.
1
Campbell was not informed at his sentencing hearing of his right to appeal his sentence. In February 2015,
on Campbell’s motion, the trial court granted him permission to file a belated notice of appeal.
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[3] In April 2012, Campbell was sentenced pursuant to the plea agreement to
sixteen years executed and eight years suspended to probation. Campbell
signed off on the standard and special conditions of probation and also on
twenty-nine “recommended special probation conditions for adult sex
offenders.” Id. at 35-38. Included among those special sex offender probation
conditions were the following:
11. . . . You shall not visit strip clubs, adult bookstores, motels
specifically operated for sexual encounters, peep shows, bars where
partially nude or exotic dancers perform, or businesses that sell sexual
devices or aids.
***
16. You shall notify your probation officer of your establishment of an
intimate and/or sexual relationship. . . .
***
19. You must never be alone with or have contact with any person
under the age of 18. Contact includes face-to-face, telephonic, written,
electronic or any indirect contact via third parties.
Id. at 35-37 (emphasis added). Campbell now appeals these three special sex
offender conditions of probation, contending they are impermissibly vague or
overbroad.
Discussion and Decision
I. Standard of Review
[4] “Probation is a criminal sanction wherein a convicted defendant specifically
agrees to accept conditions upon his behavior in lieu of imprisonment.”
Carswell v. State, 721 N.E.2d 1255, 1258 (Ind. Ct. App. 1999). A trial court has
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broad discretion to determine appropriate conditions of a defendant’s
probation, although the conditions must be “reasonably related to the treatment
of the defendant and the protection of public safety.” Bratcher v. State, 999
N.E.2d 864, 873 (Ind. Ct. App. 2013) (quotation omitted), trans. denied. The
conditions must also be sufficiently clear so that they “describe with clarity and
particularity the misconduct that will result in penal consequences.” Id. at 874-
75 (quotation omitted).
II. Sex Offender Conditions of Probation
A. Condition 11
[5] Sex Offender Probation Condition 11 prohibits Campbell from, in part, visiting
a business that sells sexual devices or aids. In Collins v. State, 911 N.E.2d 700
(Ind. Ct. App. 2009), trans. denied, this court considered a challenge to a
condition of probation that also included the prohibition against visiting
“businesses that sell sexual devices or aids.” Id. at 714. Noting that as written,
the term was vague and broad enough to extend to drug stores, we remanded
for the trial court to clarify this condition of the defendant’s probation. Id.; see
also Bleeke v. State, 982 N.E.2d 1040, 1051-52 (Ind. Ct. App. 2013), summarily
aff’d on this ground, 6 N.E.3d 907 (Ind. 2014). Likewise, Campbell notes that a
“sexual aid” could include, for instance, a condom, which is sold in businesses
such as drug stores, groceries, and convenience stores. The State concedes that
precedent from this court holds that Condition 11 of Campbell’s probation is
impermissibly vague and should be remanded to the trial court for clarification.
See Brief of Appellee at 3.
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B. Condition 16
[6] Sex Offender Probation Condition 16 requires Campbell to notify his probation
officer of any intimate or sexual relationship into which he enters. In Bleeke, the
defendant challenged a condition of probation prohibiting him from
establishing an intimate or sexual relationship with any adult without prior
approval from his parole officer. 982 N.E.2d at 1052. Noting the definitions of
“intimate” as “marked by close acquaintance, association, or familiarity,” or “a
close friend or confidant,” we held that the term “intimate” was impermissibly
vague because it did not indicate how such a relationship would be measured or
when a casual relationship would cross into an intimate relationship. Id. The
supreme court summarily affirmed this decision, noting the condition was
impermissible “[w]ithout further clarification or specificity as to what conduct
would result in [defendant’s] return to prison for violating [the condition] in
accordance with the Court of Appeals decision below . . . .” 6 N.E.3d at 921-
22. Again, the State concedes that precedent indicates Condition 16 is
impermissibly vague and should be remanded to the trial court for clarification.
See Brief of Appellee at 4.
C. Condition 19
[7] Finally, Sex Offender Probation Condition 19 prohibits Campbell from ever
being alone with or having contact with any person under eighteen years old.
Campbell contends this condition, too, is impermissibly vague and overbroad,
citing Hunter v. State, 883 N.E.2d 1161 (Ind. 2008), and McVey v. State, 863
N.E.2d 434 (Ind. Ct. App. 2007), trans. denied. The State disagrees, citing
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Bratcher, 999 N.E.2d 864; Rexroat v. State, 966 N.E.2d 165 (Ind. Ct. App. 2012),
trans. denied; and Smith v. State, 727 N.E.2d 763 (Ind. Ct. App. 2000), as
authority for upholding this condition.
[8] In general, when this type of probation condition specifically includes
“incidental contact,” it has been held to be overbroad. See McVey, 863 N.E.2d
at 449 (holding that although probation condition that defendant “never be
alone with or have contact with any person under the age of 18,” defining
contact to include “face-to-face, telephonic, written, electronic, or any indirect
contact via third parties,” and requiring him to “report any incidental contact with
persons under age 18 to your probation officer within 24 hours of the contact,”
reduced the potential for access to children, it was overbroad in prohibiting
incidental contact) (emphasis added); see also Hunter, 883 N.E.2d at 1164
(holding defendant’s probation should not have been revoked for violation of
probation condition nearly identical to that in McVey because the prohibition
against “contact” did not reasonably communicate to the defendant that it
included “mere presence”).
[9] On the other hand, when the condition does not explicitly include incidental
contact, we have held that it should be read so as not to prohibit incidental
contact and is therefore not overbroad. See Bratcher, 999 N.E.2d at 875-76
(condition that defendant “have no contact with any person under the age of 16
unless you receive court approval or successfully complete a court-approved sex
offender treatment program,” and defining contact to include “face-to-face,
telephonic, written, electronic, or any indirect contact via third parties,” was
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reasonably related to the treatment of the defendant and the protection of the
public and because it contained no specific prohibition against incidental
contact, was not vague or overbroad); Rexroat, 966 N.E.2d at 173 (citing the
holding in Smith that the statute authorizing this condition of probation is not
vague or overbroad because it is inherent in the statute that a probationer is not
required to avoid inadvertent or unintentional contact with minors, 727 N.E.2d
at 767-68 (construing Ind. Code § 35-38-2-2.4), and holding that a probation
condition that defendant “have no contact with any person under the age of 18
unless approved by probation” was not overbroad because it is likewise inherent
in this condition of probation that incidental contact with minors is not
prohibited).
[10] Condition 19 of Campbell’s probation does not include a specific prohibition
against incidental contact, and thus is more like the condition addressed in
Bratcher than that in McVey. However, the actual text of the condition could be
read to prohibit such contact as it states Campbell “must never . . . have contact
with” a minor. See App. at 37. We would hope that no trial court would find a
violation over the kind of incidental contact that is inherent in everyday life
even under the condition as written. However, because we are remanding to
the trial court to clarify two other conditions, there is no harm in requiring the
trial court to also clarify that incidental contact is not prohibited by this
condition and will not subject Campbell to further court proceedings.
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Conclusion
[11] We conclude that two of the challenged conditions of probation are
impermissibly vague and that the third could also be clearer on its face. We
therefore remand this case to the trial court to clarify the scope of Conditions
11, 16, and 19 so that Campbell is adequately apprised of the conduct that will
result in penal consequences.
[12] Remanded.
May, J., and Mathias, J., concur.
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