FILED
Feb 14 2017, 9:18 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Charles Hayes Curtis T. Hill, Jr.
Hayes Ruemmele, LLC f/k/a Attorney General
Sweeney Hayes, LLC
Indianapolis, Indiana Jody Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, February 14, 2017
Appellant-Plaintiff, Court of Appeals Case No.
29A02-1606-CR-1265
v. Appeal from the Hamilton
Superior Court
Sameer Girish Thakar, The Honorable Wayne A.
Appellee-Defendant. Sturtevant, Judge
Trial Court Cause No.
29D05-1602-FD-1056
Barnes, Judge.
Case Summary
[1] The State appeals the trial court’s dismissal of its charging information against
Sameer Girish Thakar for one count of Class D felony dissemination of matter
harmful to minors. We affirm.
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Issue
[2] The sole issue is whether the statutes criminalizing and defining dissemination
of matter harmful to minors are unconstitutionally vague as applied to the
alleged conduct in which Thakar engaged.
Facts
[3] On February 9, 2016, the State filed an information charging Thakar with Class
D felony dissemination of matter harmful to minors. Specifically, the State
alleged that, on January 28, 2014, Thakar electronically transmitted a
photograph of his erect penis to L.S., a sixteen-year-old girl who lived in
Oregon. The State also alleged that Thakar knew L.S. was sixteen when he
sent her the photograph.
[4] Thakar moved to dismiss the charging information, based on this court’s
decision in Salter v. State, 906 N.E.2d 212 (Ind. Ct. App. 2009). In response, the
State argued Salter was inapplicable because the age of sexual consent in
Oregon is eighteen. The trial court dismissed the information, and the State
now appeals.
Analysis
[5] Thakar asserted in his motion to dismiss that the statute criminalizing
dissemination of matter harmful to minors is unconstitutionally vague as
applied to his alleged conduct. Indiana Code Section 35-34-1-4 “provides a
non-exclusive list of reasons allowing dismissal of an indictment or
information.” State v. Davis, 898 N.E.2d 281, 285 (Ind. 2008). Subsection
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(a)(11) of the statute permits dismissal for “[a]ny other ground that is a basis for
dismissal as a matter of law.” Courts have the inherent power to dismiss
criminal charges if prosecution of such charges would violate a defendant’s
constitutional rights. Id. “A violation of a defendant’s constitutional right to
due process certainly fits in that category.” Id. The general standard of review
for the dismissal of a charging information is for an abuse of discretion. Id.
However, we review constitutional challenges to a statute de novo. Morgan v.
State, 22 N.E.3d 570, 573 (Ind. 2014).
[6] A defendant challenging a statute as unconstitutionally vague bears the burden
of overcoming the presumption that the statute is valid. Brown v. State, 868
N.E.2d 464, 467 (Ind. 2007). A void for vagueness challenge is controlled by
due process principles. Id. A criminal statute is void for vagueness if it does not
clearly define its prohibitions. Id. “A criminal statute may be invalidated for
vagueness for either of two independent reasons: (1) for failing to provide
notice enabling ordinary people to understand the conduct that it prohibits, and
(2) for the possibility that it authorizes or encourages arbitrary or discriminatory
enforcement.” Id. (citing City of Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct.
1849, 1859 (1999)). Additionally, a penal statute must give a person of ordinary
intelligence fair notice that his or her conduct is forbidden so that no person is
held criminally responsible for conduct that he or she could not reasonably
understand to be proscribed. Id. (quoting Healthscript, Inc. v. State, 770 N.E.2d
810, 816 (2002) (in turn quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.
Ct. 808, 812 (1954))). However, a statute need not specifically list all items of
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prohibited conduct, so long as it informs the individual of generally proscribed
conduct. Id. “The examination of a vagueness challenge is performed in light
of the facts and circumstances of each individual case.” Id.
[7] We also believe it is pertinent to mention Indiana legal principles regarding
interpretation of criminal statutes claimed to be ambiguous. Namely, a penal
statute is ambiguous if it allows for more than one reasonable interpretation.
Day v. State, 57 N.E.3d 809, 813 (Ind. 2016). If a penal statute is ambiguous,
the rule of lenity applies. Id. Under that rule, courts must narrowly interpret
criminal statutes in the defendant’s favor. Id. at 814. “That rule is grounded in
two principles: criminal statutes should give fair warning about what conduct
they prohibit; and legislatures, not courts, should decide what conduct is
criminal.” Id.
[8] The State makes no procedural argument that this case was improperly resolved
by a motion to dismiss. The alleged facts, assumed to be true for purposes of
our review, are that Thakar knowingly electronically transmitted a picture of his
erect penis to a sixteen-year-old girl in Oregon, where the age of consent is
eighteen. See Oregon Rev. Stat. § 163.415(1)(a)(B). Indiana Code Section 35-
49-3-3(a)(1) provided in January 2014 that a person who knowingly or
intentionally disseminated matter to minors that is harmful to minors
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committed a Class D felony.1 Additionally, Indiana Code Section 35-49-2-2
states:
A matter or performance is harmful to minors for purposes of this
article if:
(1) it describes or represents, in any form, nudity, sexual
conduct, sexual excitement, or sado-masochistic abuse;
(2) considered as a whole, it appeals to the prurient interest in
sex of minors;
(3) it is patently offensive to prevailing standards in the adult
community as a whole with respect to what is suitable matter for
or performance before minors; and
(4) considered as a whole, it lacks serious literary, artistic,
political, or scientific value for minors.
[9] In Salter, we addressed a case almost identical to this one. The defendant in
that case electronically transmitted images of his genitals to a sixteen-year-old
girl in Delaware and was charged with multiple counts of Class D felony
dissemination of matter harmful to minors. As in Oregon, the age of consent in
Delaware is eighteen. The defendant moved to dismiss the charges based on
unconstitutional vagueness, which the trial court denied.
1
The offense is now a Level 6 felony; the elements of the offense remain the same.
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[10] On appeal, this court reversed in a 2-1 decision. The majority noted that, in
Indiana, the age of consent generally is sixteen years old. Salter, 906 N.E.2d at
223 (citing I.C. § 35-42-4-9).2 Thus, the majority observed:
Such sexual activity could involve varying degrees of nudity and
necessarily involves some exposure of the genitals. By setting the
legal age of consent at sixteen, the Indiana legislature has made
an implied policy choice that in-person viewing of another
person’s genitals is ‘suitable matter’ for a sixteen- or seventeen-
year-old child. That being so, how could Salter have known that
a picture of his genitals would be ‘harmful,’ that is, not ‘suitable,’
for M.B.? Asked another way, if such images are harmful to
sixteen- and seventeen-year-old children, then why would our
legislature allow those children to view the same matter in-
person, in the course of sexual activity?
Id. In other words, the majority held there was a lack of clear notice that
sending a picture of one’s genitals to a sixteen-year-old was “patently offensive
to prevailing standards in the adult community as a whole with respect to what
is suitable matter for or performance before minors,” under subsection (3) of the
statutory definition of “matter harmful to minors.”
[11] The dissenting opinion in Salter stated in part, “the implication that our
legislature explicitly authorizes or even encourages sex at age sixteen is
misleading. Rather, our legislature has simply chosen not to criminalize adults
2
Under the child seduction statute, sexual acts between an adult and a child between sixteen and less than
eighteen years of age are criminal if the adult is in one of the explicitly-named positions of authority or trust
over the child. See I.C. § 35-42-4-7. There is no allegation that Thakar was in any such position over L.S.
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having sex with sixteen and seventeen year olds in the sexual misconduct with a
minor statute.” Salter, 906 N.E.2d at 225 (Vaidik, J., dissenting). The dissent
continued:
the fact that our legislature has decided not to criminalize sex
between adults and sixteen and seventeen year olds does not
mean that an adult’s dissemination or display of pictures of
genitals to a minor is not patently offensive to prevailing
standards in the adult community as a whole with respect to
what is suitable matter for or performance before minors.
Id. The dissent concluded that, even if the defendant could have had sex with a
consenting sixteen-year-old, it did not “change the fact that our legislature has
decided to criminalize disseminating or displaying matter that is harmful to all
minors, regardless of whether they have consented to receiving such matter.”
Id.
[12] In this appeal, the State makes no attempt to argue that the present case is in
any way distinguishable from Salter. Rather, it urges this panel to disagree with
the majority opinion in that case and to essentially adopt the dissenting
position. We decline to do so and, instead, state our agreement with the Salter
majority.
[13] The State reiterates the dissent’s comment that the legislature did not intend to
“authorize” or “encourage” sixteen year olds to have sex with adults by
establishing sixteen as the age of consent for purposes of the criminal law. We
respectfully disagree that the legislature did not “authorize” such conduct. By
choosing not to subject adults to punishment for such activity, that is precisely
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what it has done. As for whether the legislature intended to “encourage” such
conduct, it is not the government’s duty or prerogative to encourage any
particular persons to have sex. We believe any conjecture on this point is not
pertinent to our discussion.
[14] The State also asserts that it is logical to distinguish between in-person sexual
activity between an adult and a sixteen-year-old and the dissemination of sexual
material from an adult to a sixteen year old, and to punish the second type of
conduct but not the first. It contends that the dissemination of such material
can have a “coarsening effect . . . on a minor’s view of sexual activity” and may
tend “to sexualize minors in an unhealthy way . . . .” Appellant’s Br. pp. 15-16.
Regardless of whether the legislature could choose to make such a distinction as
the State claims should exist, the fact remains that it did not expressly do so.
And without clearly stating such a distinction, we believe the dissemination of
harmful matter statute is vague, ambiguous, and must be construed against the
State. The risk of “sexualizing” a sixteen-year-old arises most compellingly
from in-person, actual sexual conduct, not the transmission of images.
Additionally, in-person sexual conduct carries a number of risks, such as
disease, unintended pregnancy, and even physical injury or violence, that are
absent from the transmission of images. Without some clear statement by the
legislature to the contrary, we conclude reasonable persons would find it
confusing for the State to permit actual sexual activity between adults and
sixteen year olds while criminalizing the transmission of sexual images from an
adult to a sixteen-year-old.
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[15] The State also notes that persons under eighteen are forbidden from entering
“strip clubs,” citing Indiana Code Sections 7.1-5-7-10 and -11 and Sections 1-
15.2-1 and 1-16.1-3 of Title 905 of the Indiana Administrative Code. It
contends this indicates a general legislative policy of forbidding persons under
eighteen from viewing nudity, even if they can consent to sexual activity.
However, the provisions cited by the State more generally concern
establishments that serve alcohol, or the banning of live sex acts in such
establishments, and do not reflect a specific policy with regards to minors
viewing nudity.
[16] We find more guidance from our State’s statutes criminalizing public indecency
and public nudity. Appearing in public while nude with the intent to be seen by
any other person is a Class B misdemeanor. I.C. § 35-45-4-1.5(c). However,
being over eighteen years old and appearing in public while nude “with the
intent to be seen by a child less than sixteen (16) years of age commits public
indecency, a Class A misdemeanor.” I.C. § 35-45-4-1(b). For victims sixteen
years old and over, Class A misdemeanor public indecency requires a showing
of public sexual intercourse or other sexual conduct, fondling, or appearing
nude with the intent to arouse the sexual desires of the defendant or any other
person. I.C. § 35-45-4-1(a). These statutes seem to reflect a legislative policy
that children under sixteen years old require more protection with respect to the
viewing of nudity than sixteen and seventeen year olds—and more precisely,
that sixteen and seventeen year olds are treated the same as adults when it
comes to viewing nudity.
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[17] Both the State and the Salter dissent raise the issue of consent or lack thereof.
Namely, they suggest that not prosecuting cases such as Salter’s and Thakar’s
could lead to sixteen and seventeen year olds receiving nude or pornographic
pictures from adults without the youth’s consent. We observe that the
“consent” of a child younger than sixteen years old to receiving harmful matter
is legally irrelevant, just as his or her “consent” to sexual conduct likewise
would be irrelevant. Consent does not suddenly become an issue when the
child turns sixteen.3 Lack of consent as to sexual activity with sixteen or
seventeen year olds is addressed by our adult rape statutes, but there is no
comparable statute regarding unwanted receipt of “harmful” matter. In fact,
the closest parallel to nonconsensual viewing of another’s genitals is found in
the public indecency and nudity statutes, and, as we have noted, those statutes
treat sixteen and seventeen year olds the same as adults.
[18] The State also suggests that the legislature’s failure to take any action to amend
the statutes regarding dissemination of matter harmful to minors after Salter was
decided somehow represents a rejection of Salter’s holding. If anything, the
legislature’s inaction points to the opposite. Judicial interpretation of a statute,
accompanied by substantial legislative inaction for a considerable time, may be
understood to signify the General Assembly’s acquiescence and agreement with
the judicial interpretation. Fraley v. Minger, 829 N.E.2d 476, 492 (Ind. 2005).
3
There is no indication in the record here as to whether L.S. consented to receiving a picture of Thakar’s
penis.
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We need not place too much emphasis on the legislature’s inaction here,
especially given that the Indiana Supreme Court has not weighed in on the
issue. See id. Still, it has been almost eight years since Salter found these
statutes to be unconstitutionally vague and ambiguous with respect to
transmission of nude images by adults to sixteen year olds. Moreover, the
majority expressly stated at the conclusion of its decision, “we realize our
decision is sure to inspire opposition. But . . . our legislature has decided to
protect sixteen- and seventeen-year-olds . . . in different ways than it protects
other minors. Opposition to that policy choice should be voiced to the
legislature, not to the courts.” Salter, 906 N.E.2d at 223. Despite these
comments, no change has been made to the statutes aside from a general
reclassification of the offense from a Class D to a Level 6 felony.
[19] Finally, we note that the State makes no substantive argument on appeal that
Oregon’s age of consent of eighteen should be relevant to our analysis. It
merely mentions that fact in passing. Whether Thakar could be prosecuted for
any crime in Oregon or in federal court is beyond the scope of this opinion. We
are concerned here strictly with Indiana’s laws and what crimes may be
prosecuted in Indiana’s courts. In doing so, we conclude, as the majority did in
Salter, that the statutes criminalizing and defining dissemination of matter
harmful to a minor are unconstitutionally vague and ambiguous with respect to
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an adult transmitting sexual, non-obscene4 images to a sixteen- or seventeen-
year-old, at least where that adult could not be prosecuted for child seduction.
We construe the statutes as currently not permitting prosecution of such acts.
Conclusion
[20] We reaffirm the majority holding in Salter. The trial court properly relied upon
that holding in dismissing the charging information against Thakar.
[21] Affirmed.
Kirsch, J., and Robb, J., concur.
4
There is no argument that the image of Thakar’s erect penis qualified as “obscene” under the general
definition of such matter applicable to all pornography under Indiana Code Sections 35-49-2-1 and 35-49-3-1.
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