Anthony Scott Bratcher v. State of Indiana

FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

STACY R. ULIANA GREGORY F. ZOELLER
Bargersville, Indiana Attorney General of Indiana

ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA
Nov 19 2013, 6:21 am
ANTHONY SCOTT BRATCHER, )
)
Appellant-Defendant, )
)
vs. ) No. 90A02-1301-CR-3
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE WELLS CIRCUIT COURT
The Honorable Kenton W. Kiracofe, Judge
Cause No. 90C01-1206-FB-6

November 19, 2013

OPINION – FOR PUBLICATION

PYLE, Judge
STATEMENT OF THE CASE

Anthony Scott Bratcher (“Bratcher”) appeals his sentence, following his guilty

plea, for Class B felony child molesting.1 Bratcher also challenges the sex offender

probation conditions that restrict his access to the internet and that limit his contact with

children, arguing that they are vague, overbroad, and unconstitutional as applied to him.

We affirm.

ISSUES

1. Whether Bratcher’s sentence is inappropriate pursuant to Indiana
Appellate Rule 7(B).

2. Whether the trial court abused its discretion by imposing sex
offender probation conditions that restrict Bratcher’s access to the
internet and his contact with children.

FACTS

On June 4, 2012, eighteen-year-old Bratcher pulled down the pants of a five-year-

old neighbor girl, A.E.D., and then touched and kissed her “pee pee” or vaginal area. (Tr.

27). A.E.D. immediately reported the molestation to her parents, who called the police.

When the police interviewed Bratcher, he admitted that he had touched and kissed

A.E.D.’s vagina and stated that it “excite[d] him” when he did so. (Tr. 28). Additionally,

Bratcher told police that he had also kissed A.E.D. on the lips.

The State charged Bratcher with Class B felony child molesting. On October 19,

2012, Bratcher pled guilty as charged without a plea agreement. The trial court held a

sentencing hearing on December 10, 2012. The presentence investigation report (“PSI”)

1
Ind. Code § 35-42-4-3(a).
2
revealed that Bratcher, who was nineteen years old at sentencing, has a history of juvenile

adjudications, including an adjudication for Class B felony child molesting if committed

by an adult. Bratcher’s juvenile adjudications began at age twelve and required

placement in a juvenile facility from age thirteen to eighteen.

Specifically, in August 2005, when Bratcher was twelve years old, he was

adjudicated as delinquent for running away from home and committing criminal

mischief. He spent one month in the Allen County Juvenile Center (“the juvenile

center”) and was then released to juvenile probation. Two months later, while still on

probation, Bratcher received his second adjudication, this time for Class D felony theft if

committed by an adult. Bratcher spent another month at the juvenile center, was placed

on probation for this theft adjudication in December 2005, and then released from

probation in August 2006. One month after being released from probation, Bratcher

received his second adjudication for Class D felony theft if committed by an adult.

In January 2007, while on probation for theft, thirteen-year-old Bratcher admitted

to molesting an eight-year-old neighbor boy and was adjudicated a delinquent for Class B

felony child molesting if committed by an adult. Bratcher spent the next four plus years

on probation in various juvenile placement facilities for this child molesting adjudication.

After two and one-half years in a more restrictive placement, Bratcher was transitioned to

a less restrictive group home placement. However, due to interacting and socializing

problems in this setting, he had to be moved back to a more structured placement to

“ensure he was not a danger to the community.” (App. 157). During the four plus years

of juvenile placement, he violated probation seven times and also received a reprimand

3
for Class A misdemeanor battery. An addendum to the PSI reveals that Bratcher violated

probation by writing a sexually explicit letter to a teacher, pushing a duress button at

school, breaking the leg of a chair and threatening staff with it, destroying property,

engaging in inappropriate behavior, and failing to comply with staff requests.

While Bratcher was in these juvenile placement facilities, he participated in groups

to address “sex offending issues, anger management, addiction issues, thinking errors,

and daily living skills.” (Tr. 132). As part of his placement, he was placed in the

Aftercare Phase of the Adolescent Sex Offender Program. In late October 2011,

eighteen-year-old Bratcher was released from placement from his child molestation

adjudication and was returned to the custody of his mother. Approximately seven months

later, Bratcher committed the molestation at issue in this appeal.

During the sentencing hearing, the State presented testimony from the probation

officer regarding Bratcher’s scores on various risk assessment instruments. The

probation officer explained that the Indiana Risk Assessment System (“IRAS”) was an

instrument for assessing all offenders by using broad categories while the STATIC 99

was a specific tool for assessing a sex offender’s risk of reoffending. The probation

officer explained that Bratcher’s score on the IRAS indicated a moderate risk to reoffend

while his score on the STATIC 99 revealed a high risk of reoffending on sex offenses.

During the hearing, Bratcher stated that the majority of the time he spent in the

juvenile placement facilities was focused mainly on anger and social interaction issues

and not as much on sex offender therapy. He claimed that he did not participate in sex

offender therapy until the last few months of his placement.

4
The trial court found the following mitigating factors: (1) Bratcher immediately

confessed to the crime; and (2) Bratcher’s guilty plea, which spared the victim from

testifying at trial. The trial court found the following aggravating circumstances: (1)

Bratcher’s juvenile delinquent history; (2) the victim’s young age of five years old; (3)

Bratcher’s history of violating juvenile probation. When sentencing Bratcher, the trial

court stated:

Concerning the Court is that this is now the second victim [Bratcher]
has created. First victim being eight years old when the offense was
committed, the second one now five, it concerns the Court the he commits
this offense within six months or more, very short period of time of being
released from in placement, that’s concerning. Also concerned that based
on what I read in the presentence investigation report[,] Mr. Bratcher does
not have the family and social support when he is release and my concern, I
have two concerns, one for Mr. Bratcher in that he is going to exit the
prison gates with literally no support, second concern is he is going to exit
the prison gates with very little education or training or counseling for his
offenses here that apparently now have shown a little bit of pattern and my
concern is he will reoffend if he does not receive some type of treatment. I
realize [Bratcher’s] counsel’s concern that this sets him up for, sets him up
for failure if he is given any time on probation, but I also think that without
some type of counseling it also sets him up for failure and also places the
community at risk because now we have someone who has now twice
violated small children and he’s going to be a very young man when he is
released and will be placed in the community with little or no support
system in place.
The concern to the Court is and I’m not surprised by the moderate
risk on the IRAS assessment based upon this Court’s experience with
individuals charged with sex crimes to be a situation where they do have
little or no criminal history and so the Court’s not entirely surprised with
the IRAS assessment. I think the STATIC 99 indicator is a little more
appropriate as well as it shows he would be a high risk to reoffend. I think
the State’s position reflects the concerns the Court has that 1) the Defendant
be held accountable for his actions; and 2) that gives him potentially the
resources he’ll need to be part of society because ultimately he’s going to
be back in society in this community once he’s finished serving his
sentence and so hopefully he can put an end to his behavior and stop
victimizing individuals and potentially become a productive adult and do

5
what he needs to do to manage the urges and things that he apparently has
here.

(Tr. 40). The trial court then imposed a twenty (20) year sentence, with fifteen (15) years

executed in the Department of Correction and five (5) years suspended to probation.

The trial court also issued an Order of Probation, which contained general

conditions of probation, and an Addendum Order of Probation, which contained “special

conditions” of probation “as a result of [Bratcher’s] sex offense conviction[.]” (App. 39).

These special conditions included the following, which Bratcher challenges in this

appeal:

15. You shall 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, pursuant to IC 35-38-2-2.4. Contact includes
face-to-face, telephonic, written, electronic, or any indirect contact via third
parties.
*****
17. You shall not participate in any activity which involves children under
18 years of age, such as, but not limited to, youth groups, Boy Scouts, Girl
Scouts, Brownies, 4-H, YMCA, YWCA, or youth sports teams, unless
given permission by the Court.
*****
21. You shall not access the Internet or any other on-line service through
use of a computer, cell phone, iPod, Xbox, Blackberry, personal digital
assistant (PDA), pagers, Palm Pilots, televisions, or any other electronic
device at any location (including your place of employment) without prior
approval of your probation officer. This includes any Internet service
provider, bulletin board system, e-mail system or any other public or
private computer network. You shall not possess or use any encryption
technique or program.
*****
23. You are prohibited from accessing or using certain web sites, chat
room, or instant messaging programs frequented by children. You are
prohibited from deleting, erasing, or tampering with information on your
personal computer with intent to conceal an activity prohibited by this
condition. *Required as a condition of probation by IC 35-38-2-2.2(4).

6
(App. 40-41). The trial court read these probation conditions to Bratcher during the

sentencing hearing, and he did not object to them. Bratcher did, however, ask the trial

court if the condition regarding restricted access to the internet was to apply at all times

or only during probation. The trial court responded that it applied while he was on

probation and instructed him that he could speak to his probation officer about obtaining

internet access. Bratcher replied that he would need access to the internet for

employment purposes because applications were “all online now.” (Tr. 47). The trial

court responded that Bratcher would be able to talk with his probation officer about “how

[he could] do that in the future[.]” (Tr. 47). Bratcher signed the Addendum Order of

Probation and agreed to comply with “special probation conditions.” (App. 41).

Bratcher now appeals his sentence and these special probation conditions.

DECISION

1. Sentence

Bratcher contends that his sentence for his Class B felony child molesting

conviction is inappropriate. Specifically, Bratcher argues that the trial court’s imposition

of the “maximum” sentence was inappropriate because it was his first adult conviction

and because he pled guilty. (Bratcher’s Br. 7). He also suggests that the trial court erred

by considering his risk assessment scores on the STATIC 99. Bratcher asks this Court to

revise his sentence to the advisory term of ten (10) years with four (4) years suspended to

probation.

We may revise a sentence if it is inappropriate in light of the nature of the offense

and the character of the offender. Ind. Appellate Rule 7(B). The defendant has the

7
burden of persuading us that his sentence is inappropriate. Childress v. State, 848 N.E.2d

1073, 1080 (Ind. 2006). The principal role of a Rule 7(B) review “should be to attempt to

leaven the outliers, and identify some guiding principles for trial courts and those charged

with improvement of the sentencing statutes, but not to achieve a perceived ‘correct’

result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a

sentence is inappropriate ultimately turns on “the culpability of the defendant, the

severity of the crime, the damage done to others, and a myriad of other factors that come

to light in a given case.” Id. at 1224. Additionally, “[u]nder Indiana law, several tools

are available to the trial court to use in fashioning an appropriate sentence for a convicted

offender.” Sharp v. State, 970 N.E.2d 647, 650 (Ind. 2012). These “penal tools”—which

include suspension of all or a portion of the sentence, probation, home detention,

community corrections program placement, executed time in a Department of Correction

facility, concurrent rather than consecutive sentences, and restitution and fines—“form an

integral part of the actual aggregate penalty faced by a defendant and are thus properly

considered as part of the sentence subject to appellate review and revision.” Id. (citing

Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010)).

When determining whether a sentence is inappropriate, we acknowledge that the

advisory sentence “is the starting point the Legislature has selected as an appropriate

sentence for the crime committed.” Childress, 848 N.E.2d at 1081. Here, Bratcher pled

guilty as charged to the Class B felony child molesting charge without a written plea

8
agreement.2 The sentencing range for a Class B felony is between six (6) and twenty (20)

years, with the advisory sentence being ten (10) years. I.C. § 35-50-2-5. The trial court

imposed a twenty (20) year sentence, with fifteen (15) years executed and five (5) years

suspended to probation.

We first address Bratcher’s contention that his sentence is inappropriate because it

was a “maximum” sentence. We have previously explained that “for purposes of Rule

7(B) review, a maximum sentence is not just a sentence of maximum length, but a fully

executed sentence of maximum length” and that “[a]nything less harsh, be it placement in

community corrections, probation, or any other available alternative to prison, is simply

not a maximum sentence.” Jenkins v. State, 909 N.E.2d 1080, 1085-86 (Ind. Ct. App.

2009), trans. denied. Here, the trial court suspended a portion of Bratcher’s sentence

and placed him on probation. Thus, Bratcher did not receive a maximum sentence for

purposes of Appellate Rule 7(B). See id.

Moving to the nature of Bratcher’s offense to which he pled guilty, we can see

from the record before us, which includes the police report that was attached to the PSI,

that A.E.D. was playing with other children at a neighbor’s house where Bratcher was

staying. After the other children left, Bratcher went inside the house with A.E.D.

Bratcher kissed the five-year-old girl on the lips, pulled down her pants, and kissed and

2
We note that Indiana Code § 35-35-3-3(a) requires that a plea agreement on a felony charge be made “in
writing” and “before the defendant enters a plea of guilty.” Recently, we explained that “‘[t]he purpose
behind [Indiana Code § 35-35-3-3] is to insure that a defendant does not base his guilty plea upon certain
promises made by the prosecutor where the judge has in fact not accepted the [S]tate’s
recommendation.’” Gil v. State, 988 N.E.2d 1231, 1234 n.2 (Ind. Ct. App. 2013) (quoting Davis v. State,
418 N.E.2d 256, 260 (Ind. Ct. App. 1981)). However, we also explained that “failure to reduce an
agreement to writing need not itself be deemed a sufficient ground for rejection” of a defendant’s guilty
plea. Gil, 988 N.E.2d at 1234 n.2 (quoting Centers v. State, 501 N.E.2d 415, 417–18 (Ind. 1986)).

9
touched her vaginal area. Bratcher told police that he thought A.E.D. was eight or nine

years old. Bratcher also told police that he was going to touch A.E.D.’s butt under her

pants and that he stopped when A.E.D.’s father knocked on the door.

Bratcher attempts to minimize the nature of his offenses by arguing that his

offense was “not more egregious than the average molest” because he was not in a

position of trust and did not physically harm or threaten to harm A.E.D. (Bratcher’s Br.

7). Citing to Tyler v. State, 903 N.E.2d 463, 469 (Ind. 2009), Bratcher argues that “the

nature of [his] offense is more in line with the advisory sentence as contemplated by the

legislature.” (Bratcher’s Br. 8). In Tyler, our Indiana Supreme Court revised the

defendant’s two enhanced Class A felony child molesting sentences to the advisory term

based on the defendant’s lack of position of trust, the lack evidence showing physical

force to the victims, and the defendant’s lack of criminal history for child molesting or

any other sex offense. Tyler, 903 N.E.2d at 469. Here, however, Bratcher does have a

criminal history that specifically involves a prior child molesting.

Indeed, in turning our focus to Bratcher’s character, we see from the record that

Bratcher—who was eighteen years old at the time of his offense—has amassed a criminal

history consisting of five juvenile adjudications that began at age twelve and required

placement in a juvenile facility from age thirteen to eighteen. Most troubling is that

Bratcher has a juvenile adjudication for Class B felony child molesting, which is the

same offense he committed here against A.E.D. When Bratcher was thirteen years old

and on probation for theft, he was adjudicated a delinquent for Class B felony child

molesting for molesting an eight-year-old neighbor boy. He spent the rest of his juvenile

10
life in various juvenile placement facilities for this child molesting adjudication. During

this time, he violated probation seven times and received a reprimand for committing

battery. As part of his placement, he was placed in the Aftercare Phase of the Adolescent

Sex Offender Program. Bratcher was released from juvenile placement to the custody of

his mother when he was eighteen years old. However, approximately seven months after

his release, he committed the child molestation at issue in this appeal.

Arguing that he is not the worst of the worst offenders, Bratcher urges this Court

to look at his young age, his willingness to plead guilty, and his troubled childhood when

assessing his character. Bratcher argues that his guilty plea “reflect[ed] significantly on

his character” and seems to suggest that it was not given proper consideration by the trial

court. (Bratcher’s Br. 10). The record, however, reveals that the trial court recognized

Bratcher’s age when sentencing him and specifically found his willingness to confess to

the crime and plead guilty as mitigating circumstances. Furthermore, to the extent that

Bratcher is challenging the weight of the significance that the trial court allocated to

guilty plea, we reject such argument. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.

2007) (explaining that the relative weight assigned to mitigators is not subject to

appellate review), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

We acknowledge that the PSI reflects that Bratcher has had a troubled childhood.

Bratcher reported to the probation officer who compiled the PSI that he had been

physically abused by his mother and stepfather and that he had been molested by his

brother when he was eight years old. Bratcher further reported that he had previously

taken medication for attention deficit hyperactivity disorder, conduct disorder, and

11
depression. Bratcher also reported that his mother and stepfather informed him that he

was not welcome at their home upon his release from incarceration.

While Bratcher’s troubled childhood that resulted in juvenile adjudications and

placement in juvenile facilities is a consideration in a review of his character, so too is his

behavior while in those juvenile facilities. Bratcher repeatedly violated probation under

his various dispositional orders. Most significant of all these violations was that Bratcher

committed child molesting while on juvenile probation for theft.

Finally, we reject Bratcher’s suggestion that the trial court erred by referring to

Bratcher’s risk assessment scores on the STATIC 99. Our Indiana Supreme Court has

explained that scores on a probation department’s risk assessment instrument “are not

intended to serve as aggravating or mitigating circumstances nor to determine the gross

length of sentence[.]” Malenchik v. State, 928 N.E.2d 564, 575 (Ind. 2010). Instead,

these “offender assessment instruments are appropriate supplemental tools for judicial

consideration at sentencing” and can be used by the trial court “in formulating the manner

in which a sentence is to be served.” Id.

Here, the trial court used Bratcher’s risk of reoffending assessment when

formulating Bratcher’s sentence and in deciding to place Bratcher on probation. Thus,

the trial court did not err by considering Bratcher’s risk of reoffending when crafting his

sentence. Indeed, the record before us indicates that Bratcher is not just at a risk for

reoffending; he did reoffend. Moreover, he committed the current child molesting

offense within mere months of being released from juvenile placement from his

adjudication for child molesting. Furthermore, the PSI indicates that Bratcher received

12
sex offender therapy, although he claims that his juvenile placements did not focus on sex

offender therapy until the last few months. No matter what intensity or duration of

therapy he received, the record supports that he did indeed receive sex offender therapy

but that such treatment did not result in effective rehabilitation.

Bratcher has not persuaded us that his sentence is inappropriate. Therefore, we

affirm the trial court’s sentence.

2. Probation Conditions

Bratcher contends that four of his sex offender probation conditions are

“unconstitutional as applied to him.” (Bratcher’s Br. 12).3 Specifically, Bratcher argues

that the two probation conditions that restrict his contact and interaction with children

(conditions 15 and 17) are vague or overbroad and that the two conditions relating to

restrictions on his internet usage (conditions 21 and 23) are unduly intrusive. Bratcher

asks that we order the trial court to vacate these four probation conditions.

“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). Trial courts have broad discretion in

determining the appropriate conditions of a defendant’s probation. Hevner v. State, 919

N.E.2d 109, 113 (Ind. 2010). “This discretion is limited only by the principle that the

3
While Bratcher argues that these probation conditions are unconstitutional “as applied” to him, we note
that an “as applied” challenge generally applies only to a challenge to statutes or regulations. See Harris
v. State, 985 N.E.2d 767, 774 n.1 (Ind. Ct. App. 2013) (“An ‘as applied’ challenge asks a reviewing court
to “declare the challenged statute or regulation unconstitutional on the facts of the particular case.”),
trans. denied. Some of Bratcher’s challenged probation conditions are based on statutes that require the
imposition of certain restrictions for sex offenders. See, e.g., Ind. Code §§ 35-38-2-2.2; 35-38-2-2.4.
Bratcher, however, does not challenge the statutes underlying the probation conditions.
13
conditions imposed must be reasonably related to the treatment of the defendant and the

protection of public safety.” Stott v. State, 822 N.E.2d 176, 179–80 (Ind. Ct. App. 2005),

trans. denied. Thus, “our review is essentially limited to determine whether the

conditions placed on the defendant are reasonably related to attaining these goals.”

Carswell, 721 N.E.2d at 1258. We will not set aside a trial court’s probation terms unless

it has abused its discretion. Collins v. State, 911 N.E.2d 700, 707 (Ind. Ct. App. 2009),

trans. denied.

“‘Convicted individuals do not enjoy the same constitutional protections as law-

abiding citizens[,]’” and “probation conditions that intrude upon constitutionally

protected rights are not necessarily invalid.” Taylor v. State, 820 N.E.2d 756, 761 (Ind.

Ct. App. 2005) (quoting Johnson v. State, 659 N.E.2d 194, 200 (Ind. Ct. App. 1995),

reh’g denied), trans. denied. See also Gaither v. Indiana Dep’t of Correction, 971

N.E.2d 690, 695 (Ind. Ct. App. 2012) (explaining that “probation conditions may impinge

upon a probationer’s right to exercise an otherwise constitutionally protected right”).

Where, as here, a defendant contends that a probation condition is unduly intrusive upon

a constitutional right, the following three factors must be balanced: (1) the purpose

sought to be served by probation; (2) the extent to which constitutional rights enjoyed by

law-abiding citizens should be afforded to probationers; and (3) the legitimate needs of

law enforcement. Smith v. State, 779 N.E.2d 111, 117 (Ind. Ct. App. 2002), trans.

denied.

A. Waiver

14
Before turning to our review of Bratcher’s challenged probation conditions, we

first address the State’s waiver argument. The State argues that Bratcher has waived any

challenge to his probation conditions because he did not object to them at sentencing and

because he signed the special probation condition form, agreeing to comply with the

conditions. In support of its waiver argument, the State cites Hale v. State, 888 N.E.2d

314, 319 (Ind. Ct. App. 2008), trans. denied, and Stott, 822 N.E.2d at 179.

We acknowledge that our Court has issued differing opinions regarding whether a

defendant’s lack of objection to probation conditions at the trial level will waive an

appellate challenge to those conditions. Indeed, in Hale and Stott, two panels of our

Court held that the individual defendants in those cases had waived appellate review of

their probation conditions by failing to object to the probation conditions at the

sentencing hearing. Hale, 888 N.E.2d at 319; Stott, 822 N.E.2d at 179. See also Patton

v. State, 990 N.E.2d 511, 514 (Ind. Ct. App. 2013) (citing Hale, 888 N.E.2d at 319).

However, in Piercefield v. State, 877 N.E.2d 1213, 1218 (Ind. Ct. App. 2007),

trans. denied, another panel of this Court, rejected the State’s argument that a defendant

had waived his challenge to a probation condition by failing to object to the condition and

by signing the probation condition form. The Piercefield Court analogized an appeal of

probationary conditions to an appeal of a sentence, “which we may review ‘without

insisting that the claim first be presented to the trial judge’” and held that a challenge to

probationary conditions need not be raised before the trial court to permit appellate

review. Piercefield, 877 N.E.2d at 1218 (quoting Kincaid v. State, 837 N.E.2d 1008,

15
1010 (Ind. 2005)). The Piercefield Court also held that the defendant’s signature on the

probation form did not constitute a waiver of the issue on appeal. Id.

We agree with the logical reasoning of Piercefield and conclude that Bratcher has

not waived appellate review of his probation conditions. Thus, we will review Bratcher’s

challenge to the conditions of his probation.4

B. Contact with Children

Bratcher challenges the following two sex offender probation conditions that limit

or restrict his contact with children:

(App. 40).

Bratcher argues that these probation conditions are vague and overbroad,

suggesting that they are not sufficiently clear to inform him of what conduct would result

in a violation of probation. The State contends that both conditions are sufficiently clear

and asserts that probation conditions with similar restrictions have already been upheld

by this Court and should be again in this matter.

4
Indeed, even the Hale and Stott panels of our Court reviewed the defendants’ challenges to their
probation conditions despite holding that the defendants had waived appellate review by failing to object.
See Hale, 888 N.E.2d at 319; Stott, 822 N.E.2d at 179. See also Patton, 990 N.E.2d at 515.
16
Our Court has previously observed that “child molesters molest children to whom

they have access.” Smith, 779 N.E.2d at 117 (citing Carswell, 721 N.E.2d at 1259). As

a result, “probation conditions that reduce the potential for access to children are

reasonable.” Id. Nonetheless, probation conditions must be sufficiently clear such that

they “describe with clarity and particularity the misconduct that will result in penal

consequences.” Hunter v. State, 883 N.E.2d 1161, 1163 (Ind. 2008). See also McVey v.

State, 863 N.E.2d 434, 447 (Ind. Ct. App. 2007) (“A probationer has a due process right

to conditions of supervised release that are sufficiently clear to inform him of what

conduct will result in his being returned to prison.”), reh’g denied, trans. denied. A

probation condition is considered vague “only if individuals of ordinary intelligence

would not comprehend it to adequately inform them of the conduct to be proscribed.”

Patton, 990 N.E.2d at 516. The probation condition “need not list, with itemized

exactitude, every item of conduct that is prohibited.” Id.

Turning to Bratcher’s challenge to probation condition 15, we reject Bratcher’s

suggestion that we should overturn his probation condition as we did the probation

conditions in McVey or Collins. In McVey, we held that the probation condition that

prohibited the defendant from being alone with or having contact—including, “face-to-

face, telephonic, written, electronic, or any indirect contact via third parties”—with

minors was reasonably related to the treatment of the defendant and the protection of

public safety, but we overturned the probation condition because it required the defendant

to report “incidental contact” with minors, which we determined to be overbroad. See

McVey, 863 N.E.2d at 449. See also Collins, 911 N.E.2d at 715 (remanding probation

17
condition based on its inclusion of language prohibiting “incidental contact” with

minors).

Here, however, Bratcher’s probation condition 15 contains no prohibition against

“incidental contact.” Instead, we find Bratcher’s probation condition substantially similar

to the probation condition we upheld in Rexroat v. State, 966 N.E.2d 165 (Ind. Ct. App.

2012), trans. denied. In Rexroat, the defendant challenged the probation condition that

provided that he “shall have no contact with any person under the age of 18 unless

approved by probation. Contact includes face-to-face, telephonic, written, electronic, or

any indirect contact via third parties.” Rexroat, 966 N.E.2d at 167. In Rexroat, we

pointed out that the probation condition at issue did not explicitly prohibit incidental

contact, and we refused to construe the probation condition to include a prohibition

against incidental contact with minors, especially since we had already held in Smith that

the statute upon which the probation condition was based, Indiana Code § 35-38-2-2.4,

could not be construed to prohibit a probationer from inadvertent or unintentional contact

with minors. Id. at 173 (citing Smith, 727 N.E.2d at 768). Thus, in Rexroat, we held that

the probation condition prohibiting contact with minors was neither vague nor overbroad.

Rexroat, 966 N.E.2d at 173.

Bratcher’s probation condition 15 is reasonably related to Bratcher’s treatment and

to the protection of public safety. Additionally, just as in Rexroat, we conclude that

Bratcher’s probation condition restricting his contact with minors is not vague or

overbroad. See also Smith, 779 N.E.2d at 117 (upholding the defendant’s probation

conditions that restricted him from being alone with minors and from participating in

18
activities involving minors where those conditions were reasonably related to the

treatment of the defendant and protection of public safety and children); Stott, 822 N.E.2d

at 179-80 (holding that the defendant’s probation condition that restricted his contact with

minors was a protective measure for children and would assist the defendant in his

rehabilitation). Thus, we conclude that the trial court did not abuse its discretion by

imposing probation condition 15.

Bratcher suggests that the language of probation condition 17, which restricts him

from “participat[ing] in any activity which involves children under 18 years of age,” is

unconstitutionally vague or overbroad and contends that it would prohibit him from

constitutionally-protected activities, such as attending church services. As Bratcher

acknowledges, our Court has already upheld this exact probation condition in Collins. In

Collins, we acknowledged that some of the language, when take in isolation, was vague

but explained why the condition was nevertheless acceptable.

[W]e conclude that [the probation condition at issue] consists of somewhat
vague language that might otherwise be inadequate were it not sufficiently
clarified elsewhere in the stipulation. While we acknowledge that “any
activity which involves children under 18 years of age” would, if standing
alone, provide for no predictable standard for behavior, the stipulation also
included a list of prohibited activities, including “Boy Scouts, Brownies, 4–
H, YMCA, YWCA, or youth sports teams[,]” which are all examples of
organized youth activities typically supervised by adults. We conclude the
above list sufficiently clarifies that Collins is not to be one of those adults
in a supervisory role in the named or similar organizations. So, contrary to
[the defendant’s] assertion, we conclude that [the probation condition]
would not prevent him from attending activities such as church services,
but that it would prevent him from teaching Sunday School or supervising a
youth group at the church. The language in [the probation condition] is
adequate to provide [the defendant] with a predictable standard for his
actions in this regard.

19
Collins, 911 N.E.2d at 716. Just as in Collins, we conclude that the restricting language

of Bratcher’s probation condition 17 provides him with a predictable standard and is not

impermissibly vague.5 Thus, Bratcher’s challenge to condition 17 is without merit. See,

e.g., id. See also Smith, 779 N.E.2d at 117 (upholding probation condition specifying

that probationer could “not participate in activities that involve children under the age of

eighteen, such as Boy Scouts and Girl Scouts” and explaining that this probation

condition was a protective measure for children and would assist the probationer in his

rehabilitation). As a result, we conclude that the trial court did not abuse its discretion

by imposing probation condition 17.

B. Internet Usage

Bratcher also challenges the following two sex offender probation conditions that

limit or restrict his internet usage:

21. You shall not access the Internet or any other on-line service through
use of a computer, cell phone, iPod, Xbox, Blackberry, personal digital
assistant (PDA), pagers, Palm Pilots, televisions, or any other electronic
device at any location (including your place of employment) without prior
approval of your probation officer. This includes any Internet service
provider, bulletin board system, e-mail system or any other public or
private computer network. You shall not possess or use any encryption
technique or program.
*****
23. You are prohibited from accessing or using certain web sites, chat
room, or instant messaging programs frequented by children. You are
prohibited from deleting, erasing, or tampering with information on your
personal computer with intent to conceal an activity prohibited by this
condition. *Required as a condition of probation by IC 35-38-2-2.2(4).[6]

5
We note that one member of our panel dissented to the probation condition in Collins, concluding that it
was “unconstitutionally vague.” See Collins, 911 N.E.2d at 716 (Crone, J., dissenting).
6
Ind. Code § 35-38-2-2.2(4) provides that “[a]s a condition of probation for a sex offender . . . the court
shall . . . prohibit the sex offender from:

20
(App. 40-41).

Bratcher contends that these probation conditions that restrict his internet usage

are overbroad, unduly intrusive, and violate his First Amendment rights because they

place an “entire blanket prohibition” on his access to the internet. (Bratcher’s Br. 14).

Bratcher acknowledges that probation conditions containing a similar internet restriction

have been upheld in McVey; nevertheless, he asserts that the holding in McVey should be

“reconsidered” in light of the holdings in Harris v. State, 985 N.E.2d 767 (Ind. Ct. App.

2013), trans. denied, and Doe v. Marion County Prosecutor, 705 F.3d 694 (7th Cir.

2013). (Bratcher’s Br. 15). Bratcher suggests that, based on Doe, his probation

conditions should be “narrowly tailored so as not to overly restrict his First Amendment

right to free speech.” (Bratcher’s Reply Br. 8).

In Doe, a certified class of Marion County residents—who were required to

not subject to any form of supervised release—filed a suit challenging Indiana Code § 35-

42-4-12 as unconstitutional and seeking a permanent injunction against enforcement of

the statute. Doe, 705 F.3d at 696. The version of this statute in effect at the time the

defendant class filed its suit provided that it was a Class A misdemeanor if a sex offender

knowingly or intentionally used social networking sites, instant messaging, or chat room

programs that the offender knew were accessible by a person less than eighteen years old.

(A) accessing or using certain web sites, chat rooms, or instant messaging programs
frequented by children; and

(B) deleting, erasing, or tampering with information on the sex offender’s personal
computer with intent to conceal an activity prohibited by clause (A).
21
See Ind. Code § 35-42-4-12(e).7 Applying an intermediate level of scrutiny to the content

neutral statute, the Seventh Circuit Court held that Indiana Code § 35-42-4-12 was

unconstitutional because it was “not narrowly tailored to serve the state’s interest” as it

“broadly prohibit[ed] substantial protected speech rather than specifically targeting the

evil of improper communication to minors.” Id. at 695. The Doe Court, however,

cautioned that its opinion should not be interpreted as setting limits on courts when

setting probation conditions:

Finally, this opinion should not be read to affect district courts’ latitude in
fashioning terms of supervised release . . . or states from implementing
similar solutions. Our penal system necessarily implicates various
constitutional rights, and we review sentences under distinct doctrines.
Terms of supervised release, for instance, must be reasonably related to the
[sentencing] factors and involve[ ] no greater deprivation of liberty than is
reasonably necessary. Thus, in assessing the need for incapacitation, a
court could conceivably limit a defendant’s Internet access if full access
posed too high a risk of recidivism. The alternative to limited Internet
access may be additional time in prison, which is surely more restrictive of
speech than a limitation on electronics. This option is not without limits,
but terms of supervised release or parole may offer viable constitutional
alternatives to the blanket ban—imposed outside the penal system—in this
case.

Doe, 705 F.3d at 703 (internal citations and quotation marks omitted).

In Harris, a defendant was convicted, under Indiana Code § 35-42-4-12, of a Class

A misdemeanor sex offender internet offense. Harris, 985 N.E.2d at 773-74. On appeal,

the defendant challenged the constitutionality of the statute, arguing that the ban of his

use of social networking websites impermissibly restricted his First Amendment rights.

Id. at 774. Our Court concluded that the State had “significant interests associated with

7
Indiana Code § 35-42-4-12 at issue in Doe was enacted in 2008 by P.L. 119-2008, Sec. 18. After Doe,
the statute was subsequently amended by P.L. 247-2013, Sec. 8, effective July 1, 2013, and by P.L. 158-
2013, Sec. 448, effective July 1, 2014.
22
the regulation of sex offender internet usage” but, relying on the analysis and holding in

Doe, we held that Indiana Code § 35-42-4-12 was not narrowly tailored because it

prohibited speech that did not involve harmful interactions with minors. Id. at 779-80.

Finding that the statute was unconstitutional as applied to the defendant, we reversed his

conviction under the statute. Id. at 781.

The State argues that the holdings in Doe and Harris do not apply to this case

because Bratcher, as a sex offender on probation, is in “a significantly different position”

than the offenders in Doe and Harris. (State’s Br. 17). The State also contends that “the

Doe Court [has] disavowed attempts such as Bratcher’s to use Doe’s holding to

undermine the validity of probation conditions imposed by a trial court.” (State’s Br. 16).

A panel of this Court recently agreed with the State’s argument about the

inapplicability of the holding and analysis of Doe to probation conditions that limit

internet access to sex offenders on probation. See Patton, 990 N.E.2d at 515.8 In Patton,

the defendant/sex offender had the exact same probation condition as Bratcher’s

condition 23. We rejected the defendant’s reliance on Doe to argue that his First

Amendment rights were violated by his probation condition and held that the probation

condition was neither overbroad nor vague. Specifically, we explained:

In this case, Patton is a sex offender on supervised release that places him
in a significantly different position than the class of sex offenders in Doe
and renders the holding in that case inapplicable to him. Time and again,
we have observed that conditions of probation may impinge upon a
probationer’s right to exercise an otherwise constitutionally protected right
because “probationers simply do not enjoy the freedoms to which ordinary

8
The opinion in Patton was issued just after briefing was completed in this appeal.
23
citizens are entitled.” Purdy v. State, 708 N.E.2d 20, 22 (Ind. Ct. App.
1999).

Here, Patton’s internet restriction specifically applies to websites that are
“frequented by children.” I.C. § 35–38–2–2.2(4). In our view, this internet
restriction while Patton is on probation is reasonably and directly related to
deterring Patton from having contact with children and to protecting the
public. See United States v. Zinn, 321 F.3d 1084, 1093 (11th Cir. 2003)
(recognizing that “the concomitant dangers of the internet and the need to
protect both the public and sex offenders themselves from its potential
abuses”). Also, Patton’s internet restriction is tailored to him as a sex
offender and serves the legitimate needs of law enforcement to monitor and
restrict his activities with children for this initial period following his
conviction.

On the other hand, we note that the internet restriction as applied to Patton
does not prohibit him from searching for employment, gaining additional
education, or reading a newspaper. The condition prohibits Patton from
accessing only those internet-related activities used by children, which are
directly related to his position as a sex offender on probation. See Harris v.
State, 836 N.E.2d 267, 275 (Ind. Ct. App. 2005) (holding that an internet
restriction on a parolee reasonably related to the State’s goals of
reintegrating the parolee into his community, protecting the general public,
and preventing future crime does not unduly infringe upon the parolee’s
First Amendment rights).

Patton, 990 N.E.2d at 515-16.

Just as in Patton, we conclude that the holding and analysis of Doe is inapplicable

to Bratcher’s challenge of his probation conditions. Additionally, we conclude that

Bratcher’s probation conditions 21 and 23 are neither overbroad or vague and that they

are reasonably related to attaining the goals of rehabilitation and protecting the public.

Indeed, our Court has explained that because “child molesters molest children to whom

they have access[,]” conditions of probation that “reduce the potential for access to

children are reasonable.” Smith, 779 N.E.2d at 117 (citing Carswell, 721 N.E.2d at

1259). Finally, contrary to Bratcher’s argument, neither condition imposes a complete

24
prohibition on his use of the internet or social networking websites. Condition 21 simply

requires him to acquire the approval of his probation officer, and condition 23

specifically applies to websites “frequented by children.” Accordingly, we conclude that

the trial court did not abuse its discretion by imposing probation conditions 21 and 23.

See, e.g., Patton, 990 N.E.2d at 515-16 (upholding sex offender’s probation condition

that prohibited him from accessing websites frequented by children); McVey, 863 N.E.2d

at 450 (holding that the defendant/child molester’s probation condition—which restricted

his internet access unless he had prior approval of his probation officer—was reasonably

related to his reintegration into the community and to protecting the public); Smith, 779

N.E.2d at 118 (holding that the trial court did not err by restricting the defendant/child

molester’s access to computers and online computer services). See also Harris v. State,

836 N.E.2d 267, 275 (Ind. Ct. App. 2005) (holding that a parole condition, which

restricted a parolee’s access to the internet unless he had prior approval of his parole

officer, was reasonably related to reintegrating the parolee into his community and

protecting the general public and did not violate parolee’s First Amendment rights).

Affirmed.

BARNES, J., concur.

CRONE, J., concur in part, dissent in part with opinion

25
IN THE
COURT OF APPEALS OF INDIANA

ANTHONY SCOTT BRATCHER, )
)
Appellant-Defendant, )
)
vs. ) No. 90A02-1301-CR-3
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

CRONE, Judge, concurring in part and dissenting in part

I concur in the majority’s opinion except for the affirmance of probation condition

17. Consistent with my position in Collins, I believe that condition is unconstitutionally

vague. Therefore, I respectfully dissent as to that issue.