ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joel M. Schumm Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
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No. 49S05-0612-CR-494
RICHARD BROWN, Appellant (Defendant below),
v.
STATE OF INDIANA, Appellee (Plaintiff below).
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Appeal from the Marion Superior Court, No. 49F09-0407-FD-137884
The Honorable Mark Stoner, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0506-CR-321
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June 22, 2007
Dickson, Justice.
The defendant, Richard Carlos Brown, appeals his convictions and resulting sentence on
three counts of criminal confinement and three counts of identity deception, all class D felonies.
The Court of Appeals reversed the criminal confinement convictions, finding the applicable
statutory provisions unconstitutionally vague, but it affirmed the convictions for identity decep-
tion and remanded for sentencing. Brown v. State, 848 N.E.2d 699, 713, 716 (Ind. Ct. App.
2006), aff'd on reh., 856 N.E.2d 739 (Ind. Ct. App. 2006). Both the defendant and the State
sought transfer, which we granted. Brown v. State, 860 N.E.2d 599 (Ind. 2006) (table). Finding
that the criminal confinement statute cannot serve as a basis for the convictions in this case and
that the evidence is insufficient to establish all of the statutory elements of identity deception, we
reverse.
The criminal charges stemmed from a series of incidents in which the defendant, pretend-
ing to work for a radio station, telephoned at least three adult men and falsely informed them of a
radio contest in which they could each win a new car or cash if they would drive from their
places of employment to a particular address (which happened to be the defendant's residence),
enter and remove all of their clothes, and exchange them for a T-shirt. Each of the men appeared
at the defendant's home, and two of the men satisfied the fictitious contest requirements but re-
ceived no prize. Each man contacted the radio station and discovered that it had no such em-
ployee and was not sponsoring any such contest.
The defendant asserts numerous issues on appeal, but two are dispositive.
1. Criminal Confinement as Removal by Fraud or Enticement
The defendant contends that the criminal confinement convictions fail for vagueness be-
cause the statute provides neither adequate notice to defendants about what conduct has been
criminalized nor minimal guidelines to distinguish criminal from innocent conduct. The State
denies that the statutory language is vague, especially when applied to the defendant in this case,
and that, because the defendant's conduct "was clearly fraud and/or enticement, his conduct falls
squarely within the confines of the statute, and the statute was not vague as applied to him." Ap-
pellee's Br. at 16.
Each of the three counts of criminal confinement charged that the defendant knowingly
used "fraud" or "enticement" to "remove [a person] from one place to another. . . ." Appellant's
App'x at 80, 81. To the extent pertinent to these charges, the applicable statute provided:
(a) A person who knowingly or intentionally:
(1) . . .
(2) removes another person, by fraud, enticement, force, or threat of force, from one (1)
place to another;
commits criminal confinement . . ., . . . a Class D felony.
2
Ind. Code § 35-42-3-3(a) (2004) (emphasis added) (amended 2006).
A challenge to the validity of a statute must overcome a presumption that the statute is
constitutional. State v. Lombardo, 738 N.E.2d 653, 655 (Ind. 2000). The party challenging the
statute has the burden of proving otherwise. Brady v. State, 575 N.E.2d 981, 984 (Ind. 1991).
Due process principles advise that a penal statute is void for vagueness if it does not
clearly define its prohibitions. Klein v. State, 698 N.E.2d 296, 299 (Ind. 1998) (citing Grayned
v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)). 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 possi-
bility that it authorizes or encourages arbitrary or discriminatory enforcement. City of Chicago
v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 1859, 144 L.Ed.2d 67, 79-80 (1999); Healthscript,
Inc. v. State, 770 N.E.2d 810, 815-16 (Ind. 2002). A related consideration is the requirement that
a penal statute give a person of ordinary intelligence fair notice that his contemplated conduct is
forbidden so that "no man shall be held criminally responsible for conduct which he could not
reasonably understand to be proscribed." Healthscript, Inc., 770 N.E.2d at 816 (quoting United
States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 946 (1954)). In State v.
Downey, 476 N.E.2d 121, 123 (Ind. 1985), this Court emphasized that "there must be something
in a criminal statute to indicate where the line is to be drawn between trivial and substantial
things so that erratic arrests and convictions for trivial acts and omissions will not occur. It can-
not be left to juries, judges, and prosecutors to draw such lines." Accordingly, the statutory lan-
guage must "convey sufficiently definite warning as to the proscribed conduct when measured by
common understanding." Rhinehardt v. State, 477 N.E.2d 89, 93 (Ind. 1985).
But a statute "is not void for vagueness if individuals of ordinary intelligence could com-
prehend it to the extent that it would fairly inform them of the generally proscribed conduct."
Klein, 698 N.E.2d at 299; accord Lombardo, 738 N.E.2d at 656. And the statute does not have
to list specifically all items of prohibited conduct; rather, it must inform the individual of the
conduct generally proscribed. Lombardo, 738 N.E.2d at 656. The examination of a vagueness
challenge is performed in light of the facts and circumstances of each individual case. Id.
3
The defendant's vagueness claim focuses on three terms in the statute: "remove," "fraud,"
and "enticement." To determine whether the vagueness doctrine applies, we consider each of
these terms not in isolation, but in context. The statute does not provide a particular definition
for any of these three terms. In our evaluation of the defendant's vagueness claim, which hinges
upon how ordinary people understand statutory language, we prefer to consult standard diction-
aries, not a specialized legal dictionary as cited by the State.
Such dictionaries advise that "remove" means to move from a place or position. 1 The
statute thus proscribes conduct that causes another person to move from one place to another for
reasons identified as improper: fraud, enticement, force, or threat of force. The word "remove,"
as used in the statute, rather straightforwardly and fairly informs a reasonably intelligent person
that it is unlawful to cause another person to move from a place or location for specified im-
proper reasons. We reject the defendant's claim that the statute is unconstitutionally vague by
reason of its use of the word "remove."
But the terms "fraud" and "enticement," as used in the statute, are problematic. Ordinary
people commonly understand "fraud" to mean "trickery," "deception," or "deceit." 2 Thus under-
stood, the offense of criminal confinement, a class D felony, would be committed whenever a
person knowingly or intentionally causes another person to change location by means of trickery,
deception, or deceit. The scope of such proscription would embrace a vast assortment of very
acceptable and even salutary conduct that is clearly not criminal in nature, e.g., using misleading
reasons to secure a person's attendance for their surprise birthday celebration; evoking Santa
Claus's watchful eye to induce a child to go to bed; employing flattery or exaggeration to moti-
vate another person to attend an event; asserting an untruth to persuade an Alzheimer's patient to
enter the location of a caregiver.
1
See, e.g., The American Heritage Dictionary 1046 (2d ed. 1985) ("[t]o move from a position occupied");
The Random House College Dictionary 1116 (Rev. ed. 1984) ("to move from a place or position").
2
See, e.g., The American Heritage Dictionary 531 (2d ed. 1985) ("1. A deception deliberately practiced in
order to secure unfair or unlawful gain. 2. A piece of trickery"); Webster's Ninth New Collegiate Dic-
tionary 490 (1987) ("1 a: DECEIT, TRICKERY; specif[ically]: intentional perversion of truth in order to
induce another to part with something of value or to surrender a legal right b: an act of deceiving or mis-
representing: TRICK").
4
Criminal confinement for removal by enticement can likewise be applied to criminalize
an assortment of legitimate, normal everyday behavior. The word "enticement" is commonly
understood to mean the act of attracting, luring, or tempting another by arousing hope or desire. 3
The offense of criminal confinement, a class D felony, would thus occur whenever a person
knowingly or intentionally arouses hope or desire in another person to lure or attract the other to
change location. Literally, this proscription would include a broad array of quite acceptable hu-
man behavior, e.g., intra-spousal and parent-child communications to induce a change in loca-
tion; commercial advertising to entice travel or visits to stores or events; religious appeals to fos-
ter church attendance. As to both fraud and enticement, the possibilities seem endless.
Such obvious possibilities of intuitively improper applications of the criminal confine-
ment statute is persuasive evidence that, with respect to removal by fraud or enticement, the stat-
ute fails to "indicate where the line is to be drawn between trivial and substantial things so that
erratic arrests and convictions for trivial acts and omissions will not occur." Downey, 476
N.E.2d at 123. And it is likewise vulnerable because it authorizes or encourages arbitrary or dis-
criminatory enforcement. Healthscript, 770 N.E.2d at 815-16. As it seeks to prohibit removal by
fraud or enticement, the criminal confinement statute fails to inform the individual of the conduct
generally proscribed. Lombardo, 738 N.E.2d at 656.
We therefore conclude that the criminal confinement statute, Ind. Code § 35-42-3-3, as to
its inclusion of the words "fraud" and "enticement," is void for vagueness, and cannot be a basis
for the defendant's convictions in this case. But this does not invalidate the statute as a whole.
To preserve the constitutionality of a criminal statute, courts "may give it a narrowing construc-
tion to save it from nullification, where such construction does not establish a new or different
policy basis and is consistent with legislative intent." Downey, 476 N.E.2d at 123. 4
3
See, e.g., The American Heritage Dictionary 457 (2d ed. 1985) (defining "entice" to mean: "To attract
by arousing hope or desire; lure"); Webster's Ninth New Collegiate Dictionary 415 (1987) (definining
"entice" to mean: "to attract artfully or adroitly or by arousing hope or desire: TEMPT").
4
In Downey, this Court construed a criminal statute defining the offense of neglect of a dependent to ex-
clude the word "may" in the phrase "that may endanger his life or health." Ind. Code 35-1-46-1-4(a)(1)
(emphasis added) (since amended).
5
As noted above, the statute is not infirm by reason of the term "remove." We therefore
construe the Indiana criminal confinement statute to exclude from Section 3-3(a)(2) the phrase
"by fraud, enticement," leaving it intact as to its proscription against a person who knowingly or
intentionally "removes another person by force or threat of force" from one place to another.
Because the defendant was convicted of removing persons by fraud and/or enticement, we re-
verse his criminal confinement convictions.
2. Identity Deception as Using Information that Identifies an Individual
The defendant contends that the evidence is insufficient to establish the elements of the
three identity deception charges because there was no evidence that he used the identifying in-
formation of a particular individual.
Each of the three counts of identity deception charged that the defendant "did knowingly
use the identifying information of another person, namely Radio Now (93.1), without the other
person's consent and with the intent to harm or defraud another person, . . and/or profess to be
another person, that is: an agent of Radio Now (93.1)." Appellant's App'x at 80-81. To the ex-
tent pertinent to these charges, the applicable statute provided:
(a) . . ., a person who knowingly or intentionally . . . uses the identifying information of
another person:
(1) without the other person's consent; and
(2) with intent to:
(A) harm or defraud another person;
(B) . . .; or
(C) profess to be another person;
commits identity deception, a Class D felony.
Ind. Code § 35-43-5-3.5(a) (2004) (amended 2006). For the purposes of this provision, and as
relevant to the charged offense, the phrase "identifying information" is specifically defined to
mean "information that identifies an individual, including an individual's . . . name, address, date
of birth, place of employment, employer identification number, mother's maiden name, Social
Security number, or any identification number issued by a governmental entity . . ." Ind. Code §
35-43-5-1(h) (2004) (emphasis added) (current version at Ind. Code § 35-43-5-1(i)). The word
6
"individual" is commonly understood to refer to a single human being, 5 in contrast to "person,"
which can mean either an individual human being or a corporation or other legal entity. 6
In addressing a claim of insufficient evidence, an appellate court considers only the pro-
bative evidence and reasonable inferences supporting the judgment to assess whether a reason-
able trier of fact could have found the defendant guilty beyond a reasonable doubt. Whedon v.
State, 765 N.E.2d 1276, 1277 (Ind. 2002). Applying this standard, the trial evidence establishes
that the defendant spoke to three people about the phony contest, each time identifying himself
as a representative of the radio station, a corporation. And with at least one of the people, the
defendant claimed to be "Scott Ross," a representative of the radio station. But this was a ficti-
tious name created by the defendant and did not coincide with any real person.
When construing a penal statute, ambiguous language must be construed strictly against
the State and in favor of the accused. Merritt v. State, 829 N.E.2d 472, 475 (Ind. 2005). Apply-
ing the phrase "identifying information" as defined by the statute, the charge against the defen-
dant required the State to prove that the defendant used an individual's name, address, date of
birth, or other identifiers, to commit the charged crime. While there was evidence that the de-
fendant used information identifying the corporate radio station without its consent, there was no
evidence that he used the name, address, date of birth, or other identifiers of any existing human
being in perpetrating his hoax.
Because the evidence does not establish that the defendant committed the offense by us-
ing information specifically identifying another individual human being, the evidence is insuffi-
cient to prove all of the elements of the charged crimes of identity deception.
5
See, e.g., American Heritage Dictionary 656 (2d ed. 1985) (defining the noun "individual" to mean: "A
single human being considered separately from a group or from society."); Random House College Dic-
tionary 678 (Rev. ed. 1984) (defining the noun "individual" to mean: "a single human being, as distin-
guished from a group.")
6
See, e.g., American Heritage Dictionary 925 (2d ed. 1985) (in part defining the noun "person" to mean:
"A human being or organization with legal rights and duties."); Random House College Dictionary 990
(Rev. ed. 1984) (in part defining the noun "person" to mean: "a human being, a group of human beings, a
corporation, an estate, or other legal entity recognized by law as having rights and duties.")
7
Conclusion
The defendant's convictions for criminal confinement and identity deception are each re-
versed, and we remand for further proceedings in conformity with this opinion.
Sullivan, Boehm, and Rucker, JJ., concur. Shepard, C.J., dissents as to part 1 and concurs as to
part 2, without separate opinion.
8