Christopher Vandenberg v. Indiana Department of Correction (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 10, 2020
• Docket: 20A-PL-363
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 10 2020, 8:33 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Philip C. Sheward Curtis T. Hill, Jr. Thomas S. Bowman Attorney General of Indiana Allen Wellman McNew Harvey, LLP Steven J. Hosler Greenfield, Indiana Aaron T. Craft Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christopher Vandenberg, July 10, 2020 Appellant-Plaintiff, Court of Appeals Case No. 20A-PL-363 v. Appeal from the Marion Superior Court Indiana Department of The Honorable Ian Stewart, Correction, Magistrate Appellee-Defendant. Trial Court Cause No. 49D11-1903-PL-10525

Mathias, Judge.

[1] Christopher Vandenberg (“Vandenberg”) was convicted of two sex offenses,

and the Indiana Department of Correction (“DOC”) determined that he was

Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020 Page 1 of 10 required to register as a sex offender for life. Vandenberg filed a declaratory

judgment action in Marion Superior Court seeking a determination that he was

required to register as a sex offender for ten years, not for life. The trial court

granted the DOC’s motion for summary judgment. Vandenberg appeals and

argues that because his offenses are not unrelated, he is required to register as a

sex offender for only ten years. Concluding that Vandenberg’s offenses are not

unrelated, we reverse and remand.

Facts and Procedural History [2] On April 29, 2017, Vandenberg’s wife, A.W., reported to the police that she

had discovered on Vandenberg’s laptop computer nude photos of her twelve-

year-old daughter, J.H., and a video of J.H. changing in her room after

showering. The video appeared to have been taken with a hidden camera.

Based on this information, on July 6, 2017, the police obtained a warrant to

search Vandenberg’s home. During the execution of this warrant, the police

seized a Dell laptop computer, a Dell desktop computer, an Asus laptop

computer, a Western Digital external hard drive, an external USB flash drive,

and a box of CDs.

[3] A subsequent search of these items revealed a digital video recording on the

Dell laptop with a file name of “20170119_181125874_00-170701005200.mp4,”

which depicted J.H. entering her bedroom wearing a towel, facing a mirror, and

opening the towel, exposing her breasts and genital area. A search of

Vandenberg’s mobile phone revealed the same video file. The police also

discovered that three other video files had been deleted from the phone, one of Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020 Page 2 of 10 which was named “house 3.mp4.” Appellant’s App. pp. 36, 48. The police were

unable to determine the content of the deleted files.

[4] On July 28, 2017, the police received a call from the owner of the restaurant

where Vandenberg had recently worked. The owner informed the police that he

had discovered a USB drive with a “concerning” video on it. Appellant’s App.

pp. 32, 44. When the police searched the USB drive, they discovered a file

named “house 3.mp4.” This file appeared to be a copy of the file found on

Vandenberg’s laptop and phone depicting J.H. coming into her bedroom after

showering. The creation date of the file on the drive was July 12, 2017, several

days after the search and seizure of the items found in Vandenberg’s home.

[5] On November 21, 2017, the State charged Vandenberg in Marion County with

one count of Level 5 felony child exploitation and two counts of Level 6 felony

possession of child pornography, based on the materials found during the

search of his home.

[6] The State charged Vandenberg on November 26, 2017, in Boone County with

one count of Level 5 felony child exploitation and one count of Level 6 felony

possession of child pornography, based on the file found on the drive.

[7] On December 14, 2018, Vandenberg pleaded guilty to the Level 5 felony charge

in Boone County and was sentenced to six years with two years suspended to

probation. On January 8, 2019, Vandenberg pleaded guilty to the Level 5 felony

charge in Marion County and was sentenced to an additional term of six years

with two years suspended to probation. All other counts were dismissed.

Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020 Page 3 of 10 [8] The DOC notified Vandenberg that he would be required to register as a sex

offender for the remainder of his life pursuant to Indiana Code section 11-8-8-

19(e). Vandenberg’s subsequent administrative appeals were denied. On March

14, 2019, Vandenberg filed a complaint for declaratory judgment in Marion

Superior Court, asking the trial court to conclude that Vandenberg should only

be required to register as a sex offender for ten years, not for life. Both parties

then filed motions for summary judgment, and the trial court held a summary

judgment hearing on January 23, 2020. The following day, the trial court

entered an order granting the DOC’s motion for summary judgment and

denying Vandenberg’s motion. Vandenberg now appeals.

Standard of Review [9] Vandenberg appeals the trial court’s order granting the DOC’s motion for

summary judgment. Our standard for reviewing a trial court’s order granting a

motion for summary judgment is well settled: a trial court should grant a

motion for summary judgment only when the evidence shows that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law. Altevogt v. Brand, 963 N.E.2d 1146, 1150 (Ind. Ct.

App. 2012) (citing Ind. Trial Rule 56(C)). An appellate court reviewing a trial

court’s summary judgment ruling must construe all facts and reasonable

inferences in favor of the non-moving party and determine whether the moving

party has shown from the designated evidence that there is no genuine issue as

to any material fact and that it is entitled to judgment as a matter of law. Id.

(citing Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010)). Where

Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020 Page 4 of 10 the relevant facts are not in dispute and the interpretation of a statute is at issue,

the matter is a pure question of law for which summary judgment is particularly

appropriate. Clem v. Watts, 27 N.E.3d 789, 791 (Ind. Ct. App. 2015).

[10] The interpretation of a statute is a question of law that we review de novo.

Green v. State, 945 N.E.2d 205, 208 (Ind. Ct. App. 2011) (citing Montgomery v.

State, 878 N.E.2d 262, 266 (Ind. Ct. App. 2007)). We presume that the General

Assembly intended for the statutory language to be applied in a logical manner

consistent with the statute’s underlying policies and goals. Id. (citing Gauvin v.

State, 883 N.E.2d 99, 103 (Ind. 2008)). If a statute is clear and unambiguous, we

need not apply any rules of construction other than to require that words and

phrases be taken in their plain, ordinary, and usual sense. Id. But if a statute is

susceptible to more than one reasonable interpretation, it is ambiguous and

must be construed to determine legislative intent. Id. (citing Cochran v. State, 859

N.E.2d 727, 729 (Ind. Ct. App. 2007)).

[11] We also keep in mind that penal statutes must be strictly construed against the

State. Id. (citing Jacobs v. State, 640 N.E.2d 61, 64 (Ind. Ct. App. 1994), trans.

denied). But this does not mean that a statute should be interpreted in an overly

narrow manner so as to exclude cases fairly covered by it; we should instead

interpret the statute so as to give efficient operation to the expressed intent of

the legislature. Id.

Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020 Page 5 of 10 Indiana Sex Offender Registration Act [12] Vandenberg claims that he is not required to register for life as a sex offender

under the Indiana Sex Offender Registration Act (“SORA”). Section 19 of

SORA provides in relevant part:

(a) Except as provided in subsections (b) through (f), a sex or violent offender is required to register under this chapter until the expiration of ten (10) years after the date the sex or violent offender:

(1) is released from a penal facility (as defined in IC 35-31.5-2- 232) or a secure juvenile detention facility of a state or another jurisdiction;

(2) is placed in a community transition program;

(3) is placed in a community corrections program;

(4) is placed on parole; or

(5) is placed on probation;

for the sex or violent offense requiring registration, whichever occurs last. . . .

***

(e) A sex or violent offender who is convicted of at least two (2) unrelated offenses under section 5(a)1 of this chapter is required to register for life.

1 This section defines a “sex or violent offender” as a person convicted of any of several offenses, which includes child exploitation. I.C. § 11-8-8-5(a)(4).

Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020 Page 6 of 10 Ind. Code § 11-8-8-19 (emphasis added). Thus, under SORA, a sex offender

must at minimum register for ten years, but must register for life if the offender

is convicted of two “unrelated” sex offenses. The question here is whether

Vandenberg’s two offenses are “unrelated.”

Discussion and Decision [13] Vandenberg claims that the two offenses for which he was convicted are not

unrelated because they were based on the same video involving the same

victim. The DOC claims that the offenses are unrelated because he first created

and transferred the video to his laptop and phone at home, and later, after his

laptop and phone had been searched, copied the video file to a USB drive at

work.

[14] Our research has revealed one prior case in which we have construed the

meaning of “unrelated offenses” in Subsection 19(e). In Nichols v. State, 947

N.E.2d 1011 (Ind. Ct. App. 2011), we determined that “Subsection 11-8-8-19(e)

addresses the factual and substantive relationship among offenses, not the

procedural aspects of [a] case[.]” Id. at 1016. In that case, the defendant argued

that his multiple sex offense convictions were not unrelated, and that he was

therefore not required to register for life. Specifically, Nichols argued that the

term “unrelated” as it is used in Subsection 19(e) should be interpreted in the

same manner as it is in the habitual offender statute, which authorizes sentence

enhancements when a defendant has “accumulated the required number of

prior unrelated felony convictions.” Ind. Code § 35-50-2-8(a).

Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020 Page 7 of 10 [15] Nichols argued “that registration for life is only required where a second offense

was committed after the defendant was sentenced for a first offense.” Nichols,

947 N.E.2d at 1015. We rejected this argument, noting that “Subsection 19(e)

says ‘two (2) unrelated offenses,’ and not . . . ‘prior unrelated felony

convictions.’” Id. at 1015–16 (quoting I.C. § 11-8-8-19(e), I.C. § 35-50-2-8(a)). We

observed that the absence of the words “‘prior’ and ‘felony convictions’ in

SORA makes it clear that the legislature intended for the statute to apply

broadly, that is, to multiple sex offenses without regard to their sequence or

status of adjudication. Had the legislature intended otherwise, it would have

stated otherwise.” Id. at 1016. We held that, under the plain and ordinary

meaning of the word “unrelated,” “it is clear that ‘unrelated offenses’ applies to

offenses independent of one another—not offenses in sequence where the first

offense has already resulted in a conviction and sentencing.” Id.

[16] Nichols had been convicted of three sex offenses against two victims in two

different counties, and the offenses in the first county were committed against a

different victim and during a different period of time from the offenses in the

second county. We reasoned that “the only connection of any sort between the

offenses for which Nichols was convicted [was] the consolidation of the

proceedings,” and this procedural connection was not a relationship between

the offenses. Id. Thus, because Nichols’ offenses were unrelated, he was

required to register as a sex offender for life. Id.

[17] Here, Vandenberg points out that, unlike Nichols, whose offenses were

committed against two victims in different counties at various times,

Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020 Page 8 of 10 Vandenberg’s offenses involved the same victim and the same video. The DOC

argues that Nichols merely rejected the habitual-offender interpretation of the

term “unrelated,” but did not affirmatively hold that “multiple victims or any

other factor is necessary to render multiple offenses ‘unrelated.’” Appellee’s Br.

at 13. And the DOC insists that, as in Nichols, Vandenberg’s offenses are

unrelated because they occurred in different counties, at different times, and

involved different conduct.

[18] The term “unrelated” is defined as “not connected in any way: DISCRETE,

SEPARATE,” Merriam-Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/unrelated (last visited June 25, 2020)

[https://perma.cc/6TA8-R9YE], and “[h]aving no connection or common

link.” The New Shorter Oxford English Dictionary (1993). Here, under the

plain, ordinary meaning of the word “unrelated,” we can only conclude that

Vandenberg’s offenses are not unrelated. That is, we cannot agree that his

offenses are “not connected in any way,” or that they have “no connection or

common link.” They are clearly connected and do have a common link: both

offenses are based on Vandenberg’s creation, possession, and storage of the

same video file involving the same victim. In the words of the Nichols court, the

factual and substantive relationship among Vandenberg’s offenses are not

independent of one another. 947 N.E.2d at 1016.

Conclusion [19] Because Vandenberg’s offenses are not unrelated as that term is used in Indiana

Code section 11-8-8-19(e), he is not required to register as a sex offender for life Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020 Page 9 of 10 under SORA. Instead, he is required to register for a period of ten years, and

the trial court erred as matter of law in concluding otherwise. We therefore

reverse the order of the trial court granting the DOC’s motion for summary

judgment and remand with instructions that the court grant Vandenberg’s

motion for summary judgment and enter an order declaring that Vandenberg is

required to register as a sex offender for a period of ten years.

[20] Reversed and remanded.

Riley, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-PL-363 | July 10, 2020 Page 10 of 10