FILED
Jul 31 2019, 10:08 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bryan L. Ciyou Curtis T. Hill, Jr.
Ciyou & Dixon, P.C. Attorney General of Indiana
Indianapolis, Indiana Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Reid Cowan, July 31, 2019
Appellant-Petitioner, Court of Appeals Case No.
19A-MI-402
v. Appeal from the Allen Superior
Court
Robert E. Carter, The Honorable Frances C. Gull,
Appellee-Respondent. Judge
Trial Court Cause No.
02D05-1810-MI-954
Robb, Judge.
Court of Appeals of Indiana | Opinion 19A-MI-402 | July 31, 2019 Page 1 of 10
Case Summary and Issue
[1] Reid Cowan appeals the trial court’s dismissal of his petition for writ of habeas
corpus that alleged the Indiana Department of Correction (“DOC”) is
unlawfully subjecting him to lifetime parole. Concluding that Cowan is subject
to the lifetime parole requirement, we affirm.
Facts and Procedural History
[2] The facts, primarily taken from Cowan’s petition, are that in April 2006,
Cowan committed the offense of possessing child pornography in Michigan. In
June 2007, he was convicted pursuant to a plea agreement for the charge of
child sexually abusive activity1 and in August 2007, he was sentenced to eleven
months, all suspended, and a five-year probationary period. He was also
required to register in Michigan as a sex offender for twenty-five years. See
Appellant’s Amended Appendix, Volume 2 at 35. When Cowan later moved to
Indiana, his probation was transferred here.
[3] In November 2007, Cowan had sexual contact with a fourteen-year-old in
Indiana. As a result of this contact, Cowan was charged in December 2007
with three counts of sexual misconduct with a minor, all Class B felonies, and
one count of criminal confinement. In January 2008, he was convicted
1
Mich. Comp. Laws § 750.145c(2).
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pursuant to a plea agreement of two counts of sexual misconduct with a minor
and sentenced to ten years in the DOC.
[4] Cowan completed his Indiana sentence in November 2017 and was
subsequently notified by the DOC that he was classified as a sexually violent
predator (“SVP”) due to his two sex crime convictions. This status subjected
him to lifetime parole.
[5] In October 2018, Cowan filed a Petition for Writ of Habeas Co[r]pus objecting
to his classification as an SVP and the imposition of lifetime parole because the
“law enabling lifetime parole, and the amended definition of an SVP became
effective July 1, 2006, three months after [he] committed the Michigan offence
[sic] on April 1, 2006.” Id. at 12.2 Cowan therefore argued the application of
these laws to him violate the ex post facto clauses of the state and federal
constitutions. See id. at 13 (citing U.S. Const. art. I, § 10 and Ind. Const. art. 1,
§ 24).
[6] The DOC filed a motion to dismiss Cowan’s petition for failure to state a claim
upon which relief could be granted, inasmuch as there is no ex post facto
violation in part because Cowan “is an SVP by operation of law because he
committed his Indiana crime while required to register as a sex offender
2
Robert Carter, Commissioner of the Indiana Department of Correction, is named as the defendant because
“[h]e is responsible for the implementation and enforcement of lifetime parole[.]” Id. at 10.
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because of his Michigan crime.” Id. at 27 (citing Ind. Code § 11-8-8-5(b)(1)).
The trial court dismissed Cowan’s petition. Cowan now appeals.
Discussion and Decision
I. Standard of Review
[7] A motion to dismiss for failure to state a claim tests the legal
sufficiency of the claim, not the facts supporting it. When ruling
on a motion to dismiss, the court must view the pleadings in the
light most favorable to the nonmoving party, with every
reasonable inference construed in the non-movant’s favor. We
review a trial court’s grant or denial of a Trial Rule 12(B)(6)
motion de novo. We will not affirm such a dismissal unless it is
apparent that the facts alleged in the challenged pleading are
incapable of supporting relief under any set of circumstances.
Thornton v. State, 43 N.E.3d 585, 587 (Ind. 2015) (internal citations and
quotations omitted).
II. Cowan’s Status
[8] Cowan frames his issue on appeal as whether the definition of a sex or violent
offender found in Indiana Code section 11-8-8-5(b)(1), which became effective
on July 1, 2006, can be applied to him for an act that occurred on April 1, 2006.
See Amended Brief of Appellant at 12. Essentially, Cowan argues that because
he committed his offense in Michigan prior to the amendment to section 11-8-8-
5(b), he was not required to register as a sex offender in Indiana for that offense
and therefore, he was not a sex or violent offender subject to Indiana’s
Court of Appeals of Indiana | Opinion 19A-MI-402 | July 31, 2019 Page 4 of 10
registration requirements when he committed the Indiana offenses and cannot
be classified as an SVP subject to lifetime parole.
[9] The State argues Cowan has waived the issue of whether he was required to
register in Indiana because of his Michigan conviction by not raising it in the
trial court. Cowan may not have specifically articulated his argument in these
words in his petition, but he did argue that the “‘previously unrelated
conviction’ that triggered [his] lifetime parole . . . occurred on April 1, 2006,
three months before Indiana Code § 35-38-1-7.5(b)(2) and Indiana Code 11-8-8-
5 went into effect.” Appellant’s Amended App., Vol. 2 at 17. Essentially, his
argument to the trial court was that the “scheme of law that requires [Cowan]
to be placed on lifetime parole was not in place when [he] committed the
Michigan crime.” Id. at 21. Because of the way the statutes are interrelated,
this is broad enough to encompass his current argument and we decline to
decide this case on waiver.
[10] On April 1, 2006, when Cowan committed his Michigan offense, Indiana Code
section 5-2-12-4, the precursor to Indiana Code section 11-8-8-5, defined a “sex
or violent offender” as a person who had been convicted of any of fourteen
listed sex or violent offenses, Ind. Code § 5-2-12-4(a), and included a delinquent
act by a child who met certain conditions, Ind. Code § 5-2-12-4(b). On July 1,
2006, section 5-2-12-4 was repealed and replaced by Indiana Code section 11-8-
8-5, which increased the number of crimes which qualify a person as a sex or
violent offender and amended subsection (b) to include not only a delinquent
child in the definition of a sex or violent offender but also “a person who is
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required to register as a sex or violent offender in any jurisdiction[.]” Ind. Code
§ 11-8-8-5(b)(1). A sex or violent offender who resides in Indiana is required to
register under chapter 11-8-8. Ind. Code § 11-8-8-7(a)(1).3
[11] Cowan’s main assertion, that the date he committed his out of jurisdiction
offense determines whether he can be classified a sex or violent offender
pursuant to section 11-8-8-5, has already been decided against his position. In
Tyson v. State, 51 N.E.3d 88 (Ind. 2016), the defendant was adjudicated
delinquent in 2002 in Texas for a crime requiring that he register as a sex
offender until 2014. At the time of his offense, he would not have had to
register in Indiana if he moved here, but in 2006, the statute defining who is
required to register was amended as described above to include a person who is
required to register in any other jurisdiction. In 2009, the defendant moved to
Indiana, and a few years later, a police officer who pulled him over for driving
with an expired license discovered that he was required to (and did) register as a
sex offender in Texas but had not registered in Indiana. The State charged the
defendant with failure to register as a sex offender. See Ind. Code § 11-8-8-
17(a). The defendant moved to dismiss the charge, “arguing that enforcing the
registry requirement constituted an ex post facto violation since his offense
occurred before the change to [Indiana’s] definition of sex offender took effect.”
3
Indiana Code section 11-8-8-7 describes who is required to register; section 11-8-8-19 states the duration of
the obligation to register. “A person who is required to register as a sex or violent offender in any jurisdiction
shall register for the period required by the other jurisdiction or the period described in this section,
whichever is longer.” Ind. Code § 11-8-8-19(f).
Court of Appeals of Indiana | Opinion 19A-MI-402 | July 31, 2019 Page 6 of 10
Tyson, 51 N.E.3d at 90. The trial court denied his motion, and our supreme
court affirmed:
[T]he effects of the amended definition of sex offender in Indiana
Code section 11-8-8-5(b)(1), as applied to [the defendant], are
regulatory and non-punitive. This outcome makes sense in light
of other as-applied ex post facto challenges to the Sex Offender
Registration Act we’ve previously considered: unlike Wallace [v.
State, 905 N.E.2d 371 (Ind. 2009)], where the offender had no
obligation to register anywhere before the Act was passed, [the
defendant] was required to register in Texas years before our
statutory definition was amended to include him. His
circumstances are much more similar to those in Jensen [v. State,
905 N.E.2d 384 (Ind. 2009)], and [Lemmon v.] Harris [949 N.E.2d
803 (Ind. 2011)], where both offenders already had to register;
the challenged amendments merely lengthened that requirement.
We simply cannot say that transferring the obligation upon
moving is any more punitive than lengthening it to potentially
last a lifetime.
Finding [the defendant] merely maintained his sex offender
status across state lines, we conclude he has failed to show the
amended definition retroactively punishes him in violation of our
Constitution’s prohibition against ex post facto laws.
Id. at 96.
[12] Although the context of this case and Tyson are different, the principle is the
same: just as the defendant in Tyson could be charged with failure to register in
Indiana despite the fact that his out-of-state offense pre-dated the amendment to
section 11-8-8-5(b), Cowan fell within the statutory definition of a sex or violent
offender as it existed when he moved to Indiana despite the fact his Michigan
Court of Appeals of Indiana | Opinion 19A-MI-402 | July 31, 2019 Page 7 of 10
offense pre-dated the amendment. In other words, it is the status of the
offender when he or she comes to Indiana that matters for purposes of the
definition, not the date of the offense. When Cowan moved to Indiana, he was
a sex offender obligated to register in Michigan and he merely maintained that
status and the corresponding obligations when he crossed state lines; he suffered
no additional burden by being subject to the Indiana registration requirement
then in effect. Cf. State v. Zerbe, 50 N.E.3d 368, 370-71 (Ind. 2016) (holding, in a
case seeking removal from the sex offender registry, that the amended definition
of sex or violent offender is non-punitive; “although the amended definition
results in the affirmative obligation to notify another state government . . ., the
significant responsibilities with respect to [the defendant’s] registration are
merely maintained across state lines, to be fulfilled where he currently lives and
works”).
[13] Cowan cites Hevner v. State, 919 N.E.2d 109 (Ind. 2010), in support of his
position, asserting that the decisions in Tyson and Zerbe are “directly opposite to
the reasoning it espoused in Hevner[.]” Reply Br. of Appellant at 10. Hevner did
hold that the retroactive application of an amended statute that required the
defendant, a first-time possessor of child pornography, to register as a sex
offender was an ex post facto violation. 919 N.E.2d at 113. In Hevner, the
defendant committed his crime in 2005 and at that time, a person convicted for
the first time of possessing child pornography was not considered a sex
offender. The statute was amended while he was awaiting trial to add first time
possession to the list of crimes qualifying a person as a sex offender and when
Court of Appeals of Indiana | Opinion 19A-MI-402 | July 31, 2019 Page 8 of 10
the defendant was convicted in 2008, he was ordered to register. Our supreme
court held this imposed a burden that added punishment “beyond that which
could have been imposed when [the defendant’s] crime was committed.” Id.
However, Hevner did not address a defendant who already had sex offender
status at the time the statute changed. Therefore, Hevner is not inconsistent with
Tyson or Zerbe and does not help Cowan. Pursuant to the decisions of our
supreme court, when Cowan came to Indiana, he was a sex or violent offender
because he was required to register in Michigan.
[14] The fact that Cowan is a sex or violent offender as defined by section 11-8-8-
5(b)(1) in turn determines whether or not he is an SVP subject to lifetime
parole. As relevant to this case, Indiana Code section 35-38-1-7.5(b)(2) states
that a person who “commits a sex offense (as defined in IC 11-8-8-5.2) while
having a previous unrelated conviction for a sex offense for which the person is
required to register as a sex or violent offender under IC 11-8-8” is an SVP.4
When Cowan committed sexual misconduct with a minor in Indiana in
November 2007, he already had an unrelated conviction for a sex offense in
Michigan for which he was required to register under chapter 11-8-8. He is
therefore an SVP as defined by statute. And Indiana Code section 35-50-6-1(e),
which states that when an SVP completes his or her fixed term of
4
Indiana Code section 11-8-8-5.2 defines a “sex offense” as an offense listed in section 11-8-8-4.5(a). The list
of crimes in section 11-8-8-4.5(a) includes sexual misconduct with a minor as a Class B felony. Ind. Code §
11-8-8-4.5(a)(8). Cowan pleaded guilty to two counts of Class B felony sexual misconduct with a minor
while he was still under the obligation to register for his Michigan conviction.
Court of Appeals of Indiana | Opinion 19A-MI-402 | July 31, 2019 Page 9 of 10
imprisonment, “the person shall be placed on parole for the remainder of the
person’s life[,]” therefore applies.
[15] Cowan was required to register in Michigan as a sex offender when he moved
to Indiana, and at that time, a person who was required to register in another
jurisdiction was defined as a sex or violent offender who was required to
register here. Therefore, when Cowan committed a sex offense in Indiana, he
had a previous unrelated conviction for a sex offense for which he was required
to register which made him an SVP subject to lifetime parole. The DOC is not
unlawfully subjecting him to that requirement and the trial court did not err in
dismissing his petition arguing otherwise.
Conclusion
[16] The trial court did not err in dismissing Cowan’s petition because it is apparent
that the facts alleged in his pleading are incapable of supporting relief under any
set of circumstances. The judgment of the trial court is affirmed.
[17] Affirmed.
Baker, J., and Najam, J., concur.
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