FILED Dec 30 2019, 9:14 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
James C. McClernon, December 30, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1305 v. Appeal from the Vanderburgh Circuit Court State of Indiana, The Honorable David D. Kiely, Appellee-Plaintiff. Judge The Honorable Kelli E. Fink, Magistrate Trial Court Cause No. 82C01-1903-F5-1766
Najam, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 1 of 19 Statement of the Case [1] James C. McClernon brings this interlocutory appeal from the trial court’s
denial of his motion to dismiss the State’s charge against him for failing to
register vehicle information, as a Level 5 felony. 1 McClernon raises a single
issue for our review, namely, whether Indiana Code Section 11-8-8-8(a)(1)’s
requirement that a sex offender register vehicle information for any vehicle the
offender “operates on a regular basis” is void for vagueness. We hold that
longstanding principles of statutory construction require the language at issue to
be read under an objective reasonableness standard—that is, whether one
operates a vehicle on a regular basis is to be determined by asking whether
reasonable persons would know that McClernon’s conduct put him at risk.
Under that standard, the statutory language is not constitutionally deficient.
Accordingly, we affirm the trial court’s denial of McClernon’s motion to
dismiss.
Facts and Procedural History 2 [2] According to the State’s probable cause affidavit:
[McClernon, t]he suspect in this offense[,] is . . . a registered sex offender in Vanderburgh County, Indiana. The suspect was convicted of Sexual Assault . . . in Thunder Bay[,]
1 The State alleged an enhanced offense based on a prior failure-to-register conviction. 2 We held oral argument at Owen Valley High School on November 19, 2019. We extend our sincerest gratitude to the faculty, staff, and students for their hospitality. We also commend counsel for their excellent written and oral advocacy.
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 2 of 19 Canada[,] . . . [i]n Aug[ust] 2013. After serving his sentence[] there, he was required to register as a sex or violent offender upon his release. A review from the Indiana Department of Correction[] determined that the suspect’s Canadian [o]ffense is equivalent to attempted Criminal Deviant Conduct[, as] a Class B felony[,] and that the suspect must register as a Sexually Violent Predator for life.
The suspect was also convicted for I.C. 11-8-8 failure to register as a sex or violent offender[] in the Vanderburgh County Court System . . . on 08-17-2016.
The suspect’s signed and initialed Sex and Violent Offender Registration forms are on file[] and reflect that he has acknowledged his duties and obligations as a registered sex offender. A copy of the Indiana Sex Offender Registration Laws was also made available to him.
The suspect last registered with the Vanderburgh County Sheriff’s Office [the “VCSO”] on the following dates: 01-25- 2019, 02-04-2019, 02-13-2019, 02-22-2019, and 03-01-2019. On all of these dates the suspect did not report any vehicles, which is a duty and obligation as a registrant.
On 02-04-2019, after not registering a vehicle, VCSO Receptionist A. Nilssen observed the suspect leave the VCSO . . . and drive away in an older model red Chevy pick-up truck. . . .
On 02-06-2019, the suspect was stopped in a vehicle that matched the same vehicle that Nilssen observed him driving away in on 02-04-2019. . . . Officer N. Jones confirmed that the suspect was driving a suspected stolen vehicle and stopped him. [McClernon] stated that he had the truck for about [five] days and was using it to scrap for extra money. . . .
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 3 of 19 The suspect was observed driving away from the VCSO . . . on 02-04-2019 after not registering the vehicle[] and was stopped in said . . . vehicle on 02-06-2019 . . . and admitted that he was using it to scrap for about [five] days. This is a violation of I.C.[] 11-8-8-8.
On 03-08-2019, the suspect arrived [at] the VCSO . . . for his registration update. Upon arrival he was taken into custody . . . . Deputy Hatfield asked if the suspect wished to talk with him and the suspect agreed and signed a Miranda Warning acknowledging this.
The suspect stated to Deputy Hatfield that he was in fact utilizing the red Chevy truck . . . . The suspect advised that he received the vehicle from [a third party] on the Saturday before he was stopped in it. This date would have been 2-2-19. The suspect advised he was using the vehicle to help his ex[-]wife move items. The suspect advised he believed he was returning the vehicle after using it. The suspect advised the [person] who gave him the vehicle never answered his phone so the suspect could not return it. The suspect then advised he would proceed to continue to utilize the vehicle until he was stopped in it on 2-6-19. The suspect advised he used the vehicle to obtain money by scrapping metal, to transport him to places, as well as [to] sleep inside of it. The suspect further advised he used this vehicle to get him to the [VCSO] so that he could complete his Sex and Violent Offender Registry form on 2-4-19. The suspect advised[,] even though he was utilizing the vehicle at the time he completed his Sex or Violent Offender registration, he did not register the vehicle. The suspect made multiple admissions to Deputy Hatfield that he utilized the above vehicle multiple days before and after registering that he was not utilizing a vehicle. The suspect further admitted to using the above vehicle for personal [use] as well as monetary gains during this time.
Appellant’s App. Vol. 2 at 12-13. Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 4 of 19 [3] Based on those allegations, in March of 2019 the State charged McClernon with
failing to register, as a Level 5 felony. In particular, the State alleged that
McClernon had failed to register the vehicle information 3 for a vehicle that he
“operates on a regular basis,” as required by Indiana Code Section 11-8-8-
8(a)(1) (2019), a provision of Indiana’s Sex Offender Registration Act.
McClernon moved to dismiss the charge on the ground that the vehicle-
information registration requirement is void for vagueness as applied to him.
The trial court denied McClernon’s motion to dismiss. The court then certified
its order for interlocutory appeal, which we accepted.
Discussion and Decision [4] McClernon appeals the trial court’s denial of his motion to dismiss. As the
Indiana Supreme Court has stated:
We review a trial court’s ruling on a motion to dismiss a charging information for an abuse of discretion and a trial court abuses its discretion when it misinterprets the law. A challenge to the constitutionality of a statute is a pure question of law, which we review de novo. All statutes are presumptively constitutional, and the court must resolve all reasonable doubts concerning a statute in favor of constitutionality. That being said, unlike the higher burden faced by those making a facial constitutional challenge, those challenging the statute as applied need only show the statute is unconstitutional on the facts of the particular case.
3 This information includes the “vehicle description, vehicle plate number, and vehicle identification number.” Ind. Code § 11-8-8-8(a)(1) (2019).
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 5 of 19 State v. Thakar, 82 N.E.3d 257, 259 (Ind. 2017) (quotation marks, omissions,
alterations, and citations omitted).
[5] The issue in this appeal also involves questions of statutory interpretation.
When interpreting a statute, our primary goal is to determine and give effect to
the intent of the legislature. Rodriguez v. State, 129 N.E.3d 789, 796 (Ind. 2019).
We must give effect to the plain and ordinary meaning of statutory terms, and
there is a presumption that the legislature intended the statutory language to be
applied logically and consistently with the statute’s underlying policy and goals.
Id.
[6] A penal statute that is “so vague that men of common intelligence must
necessarily guess at its meaning” violates “due process of law.” Connally v. Gen.
Const. Co., 269 U.S. 385, 391 (1926). As the Supreme Court of the United
States has explained:
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, . . . uncertain meanings inevitably lead citizens to steer
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 6 of 19 far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.
Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) (quotation marks,
omissions, and footnotes omitted). And Justice Scalia wrote for the Court,
“[t]he prohibition of vagueness in criminal statutes is a well-recognized
requirement, consonant alike with ordinary notions of fair play and the settled
rules of law, and a statute that flouts it violates the first essential of due
process.” Johnson v. United States, 135 S. Ct. 2551, 2556-57 (2015) (quotation
marks omitted).
[7] But due process does not require perfect statutory precision. While a penal
statute must “give a person of ordinary intelligence fair notice” of what is
proscribed, we will “nullify a statute on constitutional grounds only where such
result is clearly rational and necessary.” Morgan v. State, 22 N.E.3d 570, 574
(Ind. 2014) (quotation marks omitted; emphasis removed). That “‘there may be
marginal cases in which it is difficult to determine the side of the line on which
a particular fact situation falls’ . . . is not a ‘sufficient reason to hold the
language too ambiguous to define a criminal offense.’” Id. at 575 (quoting Roth
v. United States, 354 U.S. 476, 491-92 (1957)). Where imprecise penal statutes
are at issue, “a vagueness challenge based upon Due Process ‘may be overcome
in any specific case where reasonable persons would know that their conduct is
at risk.’” Id. (quoting Maynard v. Cartwright, 486 U.S. 356, 361 (1988)). Thus,
“principles of statutory interpretation instruct . . . to read a reasonableness
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 7 of 19 standard” into imprecise statutory language that might otherwise “lead to
absurd results and exceedingly broad discretion in enforcement.” Id. at 576.
[8] In Morgan, the Indiana Supreme Court held that Indiana’s public-intoxication
statute was not void for vagueness in its proscription of behavior that
“annoys . . . another person.” Id. at 576-77. The Court recognized that “[t]here
is little doubt that the subjective application of the term ‘annoys’ would lead to
absurd results and exceedingly broad discretion in enforcement.” Id. at 576.
The Court further acknowledged the defendant’s argument that “reasonable
people disagree as to what behavior is annoying . . . .” Id. at 574. But the
Court held that the statutory language passed constitutional scrutiny by reading
a reasonable-person standard into the term. Id. at 576-77. As the Court
explained: “an objective reasonableness standard is used in many areas of the
law as an appropriate determinant of liability and thus a guide to conduct, and
it also provides a constraining and intelligible enforcement guideline for police
and prosecutors.” Id. (quotation marks omitted). Therefore, the Court
concluded that “the application of a reasonableness standard to the term
‘annoys’ satisfies constitutional requirements.” Id. at 577.
[9] We hold that the same must be true for Indiana’s requirement that a sex
offender register the information for a vehicle that he “operates on a regular
basis.” I.C. § 11-8-8-8(a)(1). We initially note a common dictionary definition
for the word “regular,” which, as that term is undefined in the Indiana Code, is
the definition that best reflects our legislature’s intent. See Rainbow Realty
Group, Inc. v. Carter, 131 N.E.3d 168, 174 (Ind. 2019). “Regular” is not an
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 8 of 19 obscure term or a term of art. As commonly understood, it means “recurring”
or “conforming” to a “normal or usual manner.” Merriam-Webster Online
Dictionary, http://www.merriam-webster.com/dictionary/regular (last visited
Nov. 22, 2019). However, we agree with McClernon that those definitions
alone do not resolve his vagueness challenge.
[10] Indeed, like the statutory language before the Court in Morgan, there is little
doubt that a subjective application of “operates on a regular basis” would “lead
to absurd results and exceedingly broad discretion in enforcement.” 22 N.E.3d
at 576. And we acknowledge McClernon’s argument that reasonable people
may disagree as to what constitutes a “regular” use. But the statutory language
at issue is not constitutionally deficient when interpreted under a reasonable-
person standard. See id. at 575-77. The reasonable-person standard gives sex-
offender registrants a baseline for determining potentially proscribed conduct,
and it constrains police and prosecutors from engaging in willy-nilly
enforcement. Id. at 576-77. Accordingly, imputing the reasonable-person
standard into the vehicle-information registration requirement, McClernon was
given sufficient notice of the potentially prohibited conduct, and neither
arbitrary nor discriminatory enforcement is authorized or encouraged. Id. at
577.
[11] And, here, a reasonable person would have considered McClernon’s failure to
register the information for the vehicle he operated to have put him at risk
under the statute. According to the probable cause affidavit, McClernon
operated the red Chevy truck for at least five consecutive days. He operated the
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 9 of 19 vehicle to help a third party move personal property; to scrap metal for his own
financial gain; and to transport himself around, including to register himself
with local law enforcement. This conduct, it could be argued, was not a mere
occasional, infrequent, or incidental use. We express no opinion on whether
those alleged facts, if proven, would be sufficient to convict McClernon of the
alleged offense. But they do suffice to demonstrate that, as applied to him
under the reasonable-person standard, Indiana Code Section 11-8-8-8(a)(1) was
not “too ambiguous to define a criminal offense.” Id. at 575.
[12] We also briefly address two federal cases referenced by McClernon on appeal.
First, McClernon cites Whatley v. Zatecky, in which the United States Court of
Appeals for the Seventh Circuit vacated an Indiana defendant’s conviction for
dealing within 1000 feet of a youth program center. The statutory language in
Whatley defined a youth program center as any “building or structure that on a
regular basis” provided certain programs or services for minors. 833 F.3d 762,
765 (7th Cir. 2016) (quoting I.C. § 35-41-1-29(a)).
[13] In agreeing with the defendant in Whatley, the Seventh Circuit held in relevant
part as follows:
the State argues that a person of ordinary intelligence would understand that the number of youth programs held at the Robinson Community Church were sufficient to render it a youth program center. This is essentially an argument that the church held so many programs that it would meet any definition of “regular,” and that [the defendant’s] case is in the core of the conduct prohibited by the statute. But four or six activities a week at a facility that is not otherwise identifiable as a youth
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 10 of 19 program center is nowhere near the core of the statute. Had [the defendant] possessed drugs within 1000 feet of a YMCA or a Boys and Girls Club, there would be no doubt that his conduct was within the core of the law. The State conceded in its argument to the Indiana Supreme Court that churches are not inherently places where children gather, and a handful of weekly events does nothing to provide fair notice or to discourage arbitrary enforcement of the statute.
We twice asked the State at oral argument how many events each week would qualify as “regular,” so as to bring a facility within the limits of the law. The State twice responded, “four.” But the State provided no basis for that arbitrary and convenient number, which coincidentally matched the minimum number of children’s activities held at the Robinson Community Church each week. Without any standard in the statute, in a regulation, or in the Indiana case law, the completely subjective word “regular” invited arbitrary enforcement of this strict liability statute. Grayned, 408 U.S. at 108-09, 92 S. Ct. 2294 (“if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.”). “The dividing line between what is lawful and unlawful cannot be left to conjecture.” Connally, 269 U.S. at 393, 46 S. Ct. 126. But with the wording of Indiana’s statute, a defendant must rely on little more than conjecture to determine what will transform an unmarked building used for some other purpose into a “youth program center.”
Id. at 783 (footnote and record citation omitted).
[14] Second, McClernon relies on an order from the United States District Court for
the Eastern District of Michigan in Doe v. Snyder. In Doe, the court found that
Michigan’s requirement that sex offenders register the information for any
vehicle they “regularly operate” was void for vagueness. 101 F. Supp. 3d 672,
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 11 of 19 686-90 (E.D. Mich. 2015), rev’d on other grounds, 834 F.3d 696, 698-706 (6th Cir.
2016). 4 In so finding, the court reasoned in relevant part as follows:
the commonly accepted meaning of the terms “regularly” and “routinely” do not provide sufficient guidance to law enforcement or registrants to survive a due process challenge both generally and as applied to Plaintiffs. The frequency and consistency with which Doe #1 must drive his employers’ vehicles in order to trigger the registration requirement is unclear. Likewise, it is ambiguous whether Doe #2’s use of his girlfriend’s car a few times a quarter constitutes regular use, particularly in light of the rule of lenity, and a reasonable person and well- intentioned law enforcement officer would struggle to determine whether Doe #4’s occasional use of his mother’s phone was “routine.” The ambiguity in the reporting requirements is further highlighted by officers’ and prosecutors’ responses to informal telephonic survey questions conducted by volunteers for Plaintiffs, law enforcement officers’ answers to deposition questions, and law enforcement officers’ guidance to Plaintiffs.
Volunteers for Plaintiffs asked local law enforcement agencies and prosecutors’ offices how often a registrant could use a vehicle before triggering SORA’s reporting requirements. “[S]ome respondents did not know the answer, and others provided answers ranging from once or twice, to six or seven times, to ‘whatever is reasonable.’” When asked during a deposition whether a registrant who used a vehicle once during a three- month period had to report the vehicle, the law enforcement officer testified, “That would be probably a judgment call by the prosecutor or the law enforcement agency.” He answered in the affirmative when asked if “each law enforcement agency might
4 The United States Court of Appeals for the Sixth Circuit reversed the district court’s judgment on ex post facto grounds and without considering the void-for-vagueness issue.
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 12 of 19 come to a different conclusion about what regular use means.” Furthermore, law enforcement told Doe #4 that “if he borrows a car more than three times he must immediately report in person,” but such use does not clearly trigger SORA’s reporting requirements. Similarly, a local police department informed Ms. Doe that she had to register a vehicle “if she was driving it or if it was parked in her driveway.”
The disparate views of the meaning of the term “regularly use” exemplify the lack of a standardized guidelines for the enforcement of SORA’s reporting provisions. . . .
Id. (record citations omitted; alterations in original).
[15] We do not find either Whatley or Doe persuasive. First, neither the Seventh
Circuit’s opinion nor the district court’s order discusses imputing a reasonable-
person standard into an imprecise penal statute, as the Indiana Supreme Court
and Supreme Court of the United States have both done. See Morgan, 22
N.E.3d at 575-76 (discussing numerous cases). Second, the statutory language
in Whatley involved whether a third party used a structure in a certain way on a
“regular basis,” which third-party activities might be unknowable to a
defendant. That is in stark contrast to the statutory language here, which turns
on how the defendant himself uses a vehicle, information of which the
defendant is obviously aware. Third, McClernon presented no evidence in
support of his motion to dismiss that is on par with the evidence of possible
arbitrary enforcement that was submitted to the district court in Doe. Thus, we
decline to follow Whatley or Doe and instead follow Morgan.
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 13 of 19 [16] In sum, while the statutory requirement that a sex offender register the
information for a vehicle he “operates on a regular basis” might appear to lack
precision, whether one operates a vehicle on a regular basis is to be determined
by asking whether reasonable persons would know that their conduct is at risk
under the statute. Like the statutory language at issue in Morgan, the failure-to-
register statutory language here is not void for vagueness. The reasonable-
person standard provides sufficiently clear guidance to registrants and law
enforcement of potentially proscribed conduct and, as such, passes
constitutional scrutiny. Id. at 575-77. And, at the end of the day, whether
particular conduct violates the statute must be determined by the fact-finder on
a case-by-case basis. E.g., id. at 577. Thus, the trial court did not err when it
denied McClernon’s motion to dismiss, and we affirm the trial court’s
judgment.
[17] Affirmed.
Bailey, J., concurs.
Baker, J., dissents with separate opinion.
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 14 of 19 IN THE COURT OF APPEALS OF INDIANA
James C. McClernon, Court of Appeals Case No. 19A-CR-1305 Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.
Baker, Judge, dissenting.
[18] I respectfully dissent. “[T]he void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a manner that does
not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson,
461 U.S. 352, 357 (1983). And I believe that the statute under which
McClernon was charged was vague enough to violate his due process rights.
[19] From the record, we know that starting February 2, 2019, McClernon operated
a red truck for five days to help his ex-wife move items, to transport him, to
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 15 of 19 obtain money by scrapping metal, to sleep in, and to drive to the Vanderburgh
County Sheriff’s Office to stay current on his sex offender registration
requirements. McClernon was eventually arrested on March 8, 2019.
[20] Indiana Code section 11-8-8-8(a)(1) states, in pertinent part, that as a registered
sex offender, McClernon must register vehicular information, which includes
vehicle description, license plate number, and identification number, for any
vehicle that he operates “on a regular basis[.]” It is this language—“on a regular
basis”—that is at issue. What exactly does “on a regular basis” mean for
purposes of statutory interpretation?
[21] The majority holds that any reasonable person in McClernon’s position would
have known that their conduct could be at risk for criminal prosecution under
the registration statute. See, e.g., Maynard v. Cartwright, 486 U.S. 356, 361
(1988). But the answer, in my opinion, is not so clear-cut. For the following
three reasons, I would reverse the trial court.
[22] First, there is the rule of lenity. “The rule of lenity requires that penal statutes be
construed strictly against the State and any ambiguities resolved in favor of the
accused[.]” Meredith v. State, 906 N.E.2d 867, 872 (Ind. 2009). At its core, this
statute contains ambiguous language that both the trial court and this Court
have had to grapple with. According to the rule of lenity, McClernon should
not be penalized as a result of the ambiguity. And while statutes are not to be
“overly narrowed so as to exclude cases they fairly cover,” Gordon v. State, 981
N.E.2d 1215, 1219 (Ind. Ct. App. 2013), it is far from definitive that
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 16 of 19 McClernon’s five-day stint in the vehicle constitutes behavior that falls under
the ambit of statutorily proscribed conduct.
[23] Next, there is textualism. Justice Neil Gorsuch of the United States Supreme
Court has elaborated on the void-for-vagueness doctrine and how it applies to
criminal penal statutes from a textualist perspective:
In even more extreme circumstances—when a statute is so ambiguous that a judge simply cannot divine its meaning consistent with the judicial role—textualists have long employed the void for vagueness doctrine as a backstop. In that case . . . if a judge cannot know whether or not a statute applies to certain conduct, then the party bearing the burden of persuasion must lose.
Neil Gorsuch et al., A Republic, If You Can Keep It 136-37 (2019). According to
these textualist principles, the void-for-vagueness doctrine steps in when there is
ambiguous statutory language. And because the State had the burden to prove
that the language of “on a regular basis” applies to McClernon’s actions, it must
lose. In other words, textual ambiguities beget greater constitutional protections
for criminal defendants.
[24] Finally, there is the statutory language itself. The majority cannot define what
“on a regular basis” means for purposes of the registration statute as a whole
because the ambiguity of that phrase could result in many divergent
interpretations, definitions, and examples. While the majority does provide a
common dictionary definition of the word “regular,” it concedes that such a
definition alone cannot resolve this vagueness challenge. Faced with this
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 17 of 19 overriding ambiguity, the majority pivots to the reasonable person standard to
summarily conclude that any reasonable person would, of course, know that
conduct like McClernon’s was at risk for criminal prosecution. However, if the
circumstances and individuals at play were different, would the majority arrive
at the same result? Can we confidently say that a woman who drives her
Oldsmobile to church just one day a week operates her vehicle “on a regular
basis”? Are we sure that the sixteen-year-old teenager with a newly minted
driver’s license who practices his parking in the nearby school parking lot
operates his vehicle “on a regular basis”? And what of the mother who drives
her three children to school, soccer practice, and medical appointments? Can
we classify her as someone who operates her vehicle “on a regular basis”?
[25] The majority dismisses the holdings from Whatley v. Zatecky, 833 F.3d 762 (7th
Cir. 2016), and Doe v. Snyder, 101 F.Supp.3d 672 (E.D. Mich. 2015), rev’d on
other grounds, 834 F.3d 696 (6th Cir. 2016), as unpersuasive because those cases
did not impute the reasonable person standard and because their statutory
language and record, respectively, are inapposite to those in this case. The
majority correctly points out that our Supreme Court has imputed the
reasonable person standard into other criminal statutes. Morgan v. State, 22
N.E.3d 570, 575-76 (Ind. 2014). But the Whatley and Doe Courts explained just
how complicated it is to define the term “regular”—which, unlike Morgan,
appears in the statutory language in both Whatley and Doe—and how such
ambiguities affect the rights of criminal defendants. Instead of dismissing these
cases as non-binding and extraneous, I advocate that we look to their holdings
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 18 of 19 as further proof that the answer is not as straightforward as the majority would
suggest. Because of this vagueness and to safeguard McClernon’s constitutional
rights, I would reverse the trial court’s denial of his motion to dismiss.
[26] Therefore, I respectfully dissent.
Court of Appeals of Indiana | Opinion 19A-CR-1305 | December 30, 2019 Page 19 of 19