Clinton Bryan Davis v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 17 2017, 7:54 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kenneth I. Sondik Curtis T. Hill, Jr. Fishers, Indiana Attorney General of Indiana Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Clinton Bryan Davis, February 17, 2017 Appellant-Defendant, Court of Appeals Case No. 29A02-1607-CR-1620 v. Appeal from the Hamilton Superior Court State of Indiana, The Honorable William J. Hughes, Appellee-Plaintiff. Judge Trial Court Cause No. 29D03-1411-F3-9175

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 29A02-1607-CR-1620 | February 17, 2017 Page 1 of 8 STATEMENT OF THE CASE [1] Appellant-Defendant, Clinton B. Davis (Davis), appeals his status as a sex or

violent offender following his conviction for criminal confinement, a Level 5

felony, Ind. Code § 35-42-3-3(b)(1)(C).

[2] We affirm.

ISSUE [3] Davis raises one issue on appeal, which we restate as follows: Whether Davis’

obligation to register as a sex or violent offender is contrary to due process.

FACTS AND PROCEDURAL HISTORY [4] On the afternoon of November 7, 2014, fifteen-year-old K.F. II and three of his

friends from school—B.S., B.H., and H.S.—were socializing and listening to

music at K.F. II’s house, located at 2019 State Road 32 West in Westfield,

Hamilton County, Indiana. At approximately 1:00 p.m., K.F. II heard loud

knocking at the front door. Before he had an opportunity to answer the door,

however, a family friend, Bryan Davis (Bryan), and his two adult sons,

Christopher Davis (Christopher) and Davis, entered the home. A few months

earlier, Bryan had loaned $5.00 to K.F. II, and he directed Christopher and

Davis to collect payment from K.F. II.

[5] K.F. II indicated that he might have some money in his bedroom, where B.S.,

B.H. and H.S. were congregated, and Christopher and Davis followed him as

he went to retrieve it. Once in K.F. II’s bedroom, Christopher and Davis

Court of Appeals of Indiana | Memorandum Decision 29A02-1607-CR-1620 | February 17, 2017 Page 2 of 8 demanded their father’s money, but K.F. II did not have the full amount.

Angry over the shortage, Christopher and Davis each punched K.F. II in the

face. The second punch, from Christopher, caused K.F. II to fall to the floor as

K.F. II’s friends watched in fear, unable to leave the room. Christopher then

held K.F. II in a chokehold as Davis repeatedly hit and kicked him in the face.

At some point, Christopher threatened that he would kill K.F. II if he did not

pay back the $5.00. Christopher finally released K.F. II, and the three men left

the house after a neighbor intervened and after K.F. II’s father promised to

resolve the debt. K.F. II sustained “significant abrasions and swelling to his

face, particularly around his left eye.” (Tr. Vol. II, p. 5).

[6] On November 10, 2014, the State filed an Information, charging Davis with

Count I, robbery resulting in bodily injury, a Level 3 felony, I.C. § 35-42-5-1(1);

Count II, burglary resulting in bodily injury, a Level 3 felony, I.C. § 35-43-2-

1(2); Count III, criminal confinement resulting in bodily injury, a Level 5

felony, I.C. § 35-42-3-3(b)(1)(C); Count IV, intimidation, a Level 6 felony, I.C.

§ 35-45-2-1(a)(1),(b)(1)(A); and Count V, residential entry, a Level 6 felony, I.C.

§ 35-43-2-1.5. On June 2-3, 2015, the trial court conducted a jury trial. At the

close of the evidence, the jury returned a verdict of guilty for Count III, criminal

confinement as a Level 5 felony. On all other charges, the jury found Davis not

guilty. The trial court entered judgments of conviction and acquittal in

accordance with the jury’s verdict. On June 29, 2015, the trial court held a

sentencing hearing. The trial court imposed a sentence of five years, with two

Court of Appeals of Indiana | Memorandum Decision 29A02-1607-CR-1620 | February 17, 2017 Page 3 of 8 years executed in the Indiana Department of Correction, one year executed in

Community Corrections, and two years suspended to probation.

[7] In approximately March of 2016, Davis discovered that, by virtue of being

convicted of criminal confinement of a minor, he would be required to register

and report in accordance with Indiana’s Sex Offender Registration Act

(SORA). As such, on June 16, 2016, Davis filed a petition to file a belated

notice of appeal pursuant to Indiana Post-Conviction Rule 2(1), which the trial

court granted on June 22, 2016. Davis now appeals. Additional facts will be

provided as necessary.

DISCUSSION AND DECISION [8] Davis challenges the constitutionality of the SORA, claiming in particular that

his classification as a “sex offender” for the commission of a non-sexual offense

violates his due process rights. 1 (Appellant’s Br. p. 8). When considering the

constitutionality of a statute, “we presume that the statute is valid and place a

heavy burden on the challenger, who must clearly overcome that presumption.”

Gibson v. Ind. Dep’t of Correction, 899 N.E.2d 40, 49 (Ind. Ct. App. 2008), trans.

1 Davis acknowledges that he did not raise this issue before the trial court. “Contrary authority exists as to whether a constitutional claim may be raised for the first time on appeal,” with certain case law indicating that the constitutionality of a statute may be raised at any stage of the proceeding and other authority indicating that the failure to properly raise a constitutional challenge via a motion to dismiss waives the matter for appeal. Hucker v. State, 4 N.E.3d 797, 799 n.1 (Ind. Ct. App. 2014) (citing Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992), and Payne v. State, 484 N.E.2d 16, 18 (Ind. 1985)). Nevertheless, in 2013, the Indiana Supreme Court “acknowledged this conflict and stated that appellate courts have discretion to address a constitutional claim on the merits, despite the possibility of forfeiture for failure to raise the issue below.” Id. (citing Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53-54 (Ind. 2013)). We elect to resolve the current matter on its merits.

Court of Appeals of Indiana | Memorandum Decision 29A02-1607-CR-1620 | February 17, 2017 Page 4 of 8 denied. “All reasonable doubts must be resolved in favor of the statute’s

constitutionality.” Id. The Indiana General Assembly “has wide latitude in

determining public policy.” Id. (citing Boehm v. Town of St. John, 675 N.E.2d

318, 321 (Ind. 1996)). As such, our court does not “substitute [its] beliefs as to

the wisdom of a particular statute for [that] of the Legislature, a more politically

responsive branch of government.” Id. (citing King v. S.B., 837 N.E.2d 965, 971

(Ind. 2005)). More specifically, “‘[a] statute is not unconstitutional simply

because the court might consider it born of unwise, undesirable, or ineffectual

policies.’” Id. (alteration in original) (quoting State v. Rendleman, 603 N.E.2d

1333, 1334 (Ind. 1992)).

[9] The SORA, Indiana Code chapter 11-8-8, governs the registration requirements

of individuals who have been convicted of certain offenses. Prior to 2007, the

SORA consisted of “a ‘sex offender registry’ for enumerated ‘sex offenses.’”

Marlett v. State, 878 N.E.2d 860, 868 (Ind. Ct. App. 2007), trans. denied.

However, “the General Assembly amended the laws regarding the [r]egistry so

that it [now] includes ‘violent’ as well as ‘sex’ offenses.” Id. Accordingly,

individuals who reside in Indiana and who are considered to be a “sex or

violent offender” must “register with the local law enforcement authority in the

county” where the sex or violent offender resides, is employed, and/or is

enrolled as a student.” I.C. § 11-8-8-7(b)-(d). The registration information

provided to local law enforcement is maintained on a “sex and violent offender

registry web[]site” in order to “inform the general public about the identity,

Court of Appeals of Indiana | Memorandum Decision 29A02-1607-CR-1620 | February 17, 2017 Page 5 of 8 location, and appearance of every sex or violent offender” residing within

Indiana. I.C. § 36-2-13-5.5(a).

[10] Pursuant to Indiana Code section 11-8-8-5(a)(12), a “sex or violent offender”

includes a person convicted of criminal confinement, “if the victim is less than

eighteen (18) years of age, and the person who confined or removed the victim

is not the victim’s parent or guardian.” Here, it is undisputed that Davis was

convicted of criminal confinement, a conviction which he does not challenge,

and the victim, K.F. II, was fifteen years old at the time of the confinement.

Thus, Davis is automatically classified as a sex or violent offender and will be

required to register as such. According to Davis, in Indiana, “an offender can

be guilty of criminal confinement even where confinement was not his purpose

or intention.” (Appellant’s Br. p. 11). Thus, he insists that “Indiana’s criminal

confinement statute casts such a wide net such that defining anyone convicted

thereunder as a sex offender whenever the victim is a minor is not reasonably

related to the government’s legitimate interest in protecting the public against

sex offenders.” (Appellant’s Br. p. 11).

[11] The Fourteenth Amendment to the United States Constitution provides that no

State shall “deprive any person of life, liberty, or property, without due process

of law.” In this case, Davis has raised a substantive due process claim.

“Substantive due process prohibits state action that deprives one of life, liberty,

or property without a rational basis for the deprivation.” Teer v. State, 738

Court of Appeals of Indiana | Memorandum Decision 29A02-1607-CR-1620 | February 17, 2017 Page 6 of 8 N.E.2d 283, 289 (Ind. Ct. App. 2000), trans. denied. 2 “In order to conform with

substantive due process, a law that does not impact a fundamental right must

only bear a rational relationship to a legitimate state interest.” Marlett, 878

N.E.2d at 869.

[12] Here, Davis “concedes that his interest in not being mislabeled as a sex offender

does not impinge on a ‘fundamental right.’” (Appellant’s Br. p. 8). Davis

primarily relies on case law from outside jurisdictions to support his contention

that “classifying individuals convicted of offenses lacking a sexual element is not

rationally related to the government interest in protecting the public from child

predators and the like.” (Appellant’s Br. p. 9). However, our court has already

addressed the issue at hand. In Marlett, 878 N.E.2d at 868, after the defendant

was convicted of criminal confinement of a minor, he challenged the

constitutionality of the SORA based on the fact that he committed “a crime that

did not have an overt sexual component.” We stated that “[s]everal courts have

found requiring a defendant to be placed on an offender registry for committing

the equivalent of criminal confinement of a minor [meets] [the rational basis]

test.” Id. at 869. Because the SORA “now includes ‘violent’ as well as ‘sex’

offenses[,]” we concluded that there was no basis to reject those holdings and

held that there was no constitutional violation for labeling the defendant as a

2 We note that Davis has not set forth a constitutional basis for his argument. However, because he relies on federal cases to discuss rational basis review, we will presume that his due process argument pertains to the federal Constitution and find that he has waived any due process claim under Article 1, Section 12 of the Indiana Constitution. See Ind. Appellate Rule 46(A)(8)(a).

Court of Appeals of Indiana | Memorandum Decision 29A02-1607-CR-1620 | February 17, 2017 Page 7 of 8 sex or violent offender as a result of his conviction for criminal confinement of a

minor. Id.

[13] Similarly, despite his contention that he will be labeled as a “sex offender”

under Indiana Code section 11-8-8-4.5(a)(12), we find that Davis’ crime is

clearly “characterized as ‘violent,’ rather than ‘sexual.’” Id. at 868-69; see I.C. §

11-8-8-5(a)(12). 3 The evidence establishes that, along with his brother, Davis

confined K.F. II as he repeatedly hit and kicked him in the face—all in an effort

to collect a $5.00 debt. Thus, requiring Davis to register is rationally related to

the State’s interest in notifying and protecting the public from violent offenders.

CONCLUSION [14] Based on the foregoing, we conclude that Davis’ obligation to register as a sex

or violent offender does not run afoul of due process; therefore, the SORA is

not unconstitutional as applied to him.

[15] Affirmed.

[16] Crone, J. and Altice, J. concur

3 We do recognize that Indiana Code section 11-8-8-4.5, which defines “sex offender[s],” and Indiana Code section 11-8-8-5, which defines “sex or violent offender[s],” contain nearly identical lists of crimes. As such, under Indiana Code section 11-8-8-4.5(a)(12), an individual is a “sex offender” if convicted of criminal confinement of a minor, and under Indiana Code section 11-8-8-5(a)(12), an individual is a “sex or violent offender” if convicted of criminal confinement of a minor. While this does not change our holding—as the fact remains that Davis is a violent offender subject to registration—we do note that it would be the role of the General Assembly, rather than our court, to consolidate or clarify these statutes.

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