MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 31 2018, 7:24 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kevin Wild Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jessie Laudig, August 31, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1712-CR-2857 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Grant W. Appellee-Plaintiff. Hawkins, Judge Trial Court Cause No. 49G05-1703-F5-10775
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2857 | August 31, 2018 Page 1 of 13 Case Summary [1] Following a bench trial, Jessie Laudig (“Laudig”) was convicted of Failure to
Register as a Sex or Violent Offender, as a Level 5 felony.1 Laudig now
appeals, challenging the sufficiency of the evidence supporting his conviction.
[2] We reverse.
Facts and Procedural History [3] On March 22, 2017, the State charged Laudig with Failure to Register as a Sex
Offender, as a Level 6 felony, alleging, in pertinent part, that Laudig, “having
registered homeless, failed to register at least once every seven (7) days.” App.
Vol. II at 20. The State also alleged that the offense should be elevated to a
Level 5 felony because of a prior conviction for failure to register. Laudig
waived his right to a jury, and a bench trial was conducted in October 2017.
[4] At trial, there was evidence that Laudig had been living in a “tent city” in an
area of Indianapolis known as “the Jungle.” On August 18, 2016, Laudig had
signed a detailed registration form containing, among other things, a physical
description and a photograph. The form had “Annual” handwritten at the top,
and contained this address: “KOWEBA ST/JUNGLE RIGHT SIDE OF THE
PARKING LOT AT THE END RED/GRAY TENT INDIANAPOLIS, IN
1 Ind. Code § 11-8-8-17(a)(4), -17(b).
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2857 | August 31, 2018 Page 2 of 13 46204.” Ex. Vol. at 41. For several weeks thereafter, approximately every
seven days, Laudig signed a form indicating that he still lived at that address.
[5] On September 21, 2016, Laudig signed a change form, and specified that he
was now living in an alley near a particular intersection. On September 29,
2016, Laudig signed another change form, which stated that he was again living
in the Jungle; the address he provided was: “98 South Koweba/the Jungle
Right side of parking lot.” Id. at 35. About every seven days thereafter, Laudig
signed a form indicating that he was still living at that address. Then, on
December 7, 2016, Laudig submitted another change form in which he again
provided the “98 S Koweba” address, but specified that he had moved from a
red and black tent to a blue tent with a silver tarp. Id. at 38. Thereafter, Laudig
signed a registry form approximately every seven days, indicating that he lived
at the same address. After signing the form on January 12, 2017, Laudig did
not register again within the next seven days, which led to the State filing the
instant charges in March of 2017.2
[6] The State adduced testimony from Christopher Jaussaud (“Jaussaud”), who
was employed by the Marion County Sheriff’s Office. Jaussaud testified that he
was assigned to look into Laudig’s duty to register after Laudig did not again
2 There was evidence that, around late March or early April of 2017, the Jungle was cleared out and those living there were relocated. At trial, the State did not direct evidence or argument toward whether Laudig failed to register by not updating his address after relocating from the Jungle. Rather, the State focused on the time period identified in the charging information—that is, whether, Laudig failed to register again within seven days of January 12, thereby committing a crime “[o]n or about January 20, 2017.” App. Vol. II at 20.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2857 | August 31, 2018 Page 3 of 13 register. Jaussad did not go look for Laudig at the provided address because
there was “not enough time” and it was “too big of an area.” Tr. Vol. II at 23.
Jaussaud testified that he was “familiar with where the Jungle was,” id. at 20,
and described the location as a “stretch of trees” east and west of Koweba—
near East Washington Street and the railroad—an area that constituted a
“homeless camp,” id. at 21.
[7] The court heard argument concerning whether Laudig was statutorily obligated
to register every seven days or could register less frequently. Laudig argued that
he was subject to annual registration and was therefore “not required to register
again until January of 2018 if he were still living at the Jungle.” Id. at 57. The
court ultimately found that Laudig was guilty of the elevated offense, and
imposed a four-year suspended sentence with three years of probation.
[8] Laudig now appeals.
Discussion and Decision [9] When reviewing a challenge to the sufficiency of evidence supporting a
conviction, we neither reweigh evidence nor judge witness credibility; instead
we consider only the evidence and the reasonable inferences that favor the
judgment of conviction. Leonard v. State, 80 N.E.3d 878, 882 (Ind. 2017).
Moreover, to the extent that a sufficiency challenge involves statutory
interpretation, we review questions of law de novo. See Edmonds v. State, 100
N.E.3d 258, 261 (Ind. 2018). We will ultimately affirm the conviction if there is
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2857 | August 31, 2018 Page 4 of 13 probative evidence from which a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt. Leonard, 80 N.E.3d at 882.
[10] The State charged Laudig under Indiana Code Section 11-8-8-17(a)(4). In
relevant part, this section reads as follows: “A sex or violent offender who
knowingly or intentionally . . . fails to register in person as required under this
chapter . . . commits a Level 6 felony.” I.C. § 11-8-8-17(a). The State also
alleged that the offense should be elevated to a Level 5 felony based on a prior
conviction, pursuant to Indiana Code Section 11-8-8-17(b).
[11] Laudig does not dispute his status as a sex or violent offender, or his pertinent
prior conviction. Laudig also appears to concede that he failed to register again
within seven days of January 12, 2017. Laudig instead asserts that he satisfied
his registration requirement by providing the address of the Jungle, and was not
statutorily required to register every seven days during the relevant timeframe.
[12] A sex or violent offender who resides in Indiana is obligated to register, I.C. §
11-8-8-7(a), which means to “report in person to a local law enforcement
authority and provide” certain information, I.C. § 11-8-8-4. “A sex or violent
offender resides in Indiana if . . . [t]he sex or violent offender spends or intends
to spend at least seven (7) days (including part of a day) in Indiana during a one
hundred eighty (180) day period.” I.C. § 11-8-8-7(a)(1). Further, “[a] sex or
violent offender who resides in Indiana shall register with the local law
enforcement authority in the county where the sex or violent offender resides.”
I.C. § 11-8-8-7(b). Indiana’s registry statutes recognize three types of in-state
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2857 | August 31, 2018 Page 5 of 13 residences: (1) a principal residence, (2) a temporary residence, and (3) a
residence that is neither a principal residence nor a temporary residence. See
I.C. §§ 11-8-8-8(a)(1), -12(b), & -12(c).
Principal Residence [13] In general, a registration must include, among other things, the “sex or violent
offender’s . . . principal residence address.” I.C. § 11-8-8-8(a)(1). Furthermore,
“a sex or violent offender who is required to register . . . shall, at least one (1)
time every three hundred sixty-five (365) days . . . (1) report in person to the
local law enforcement authority; (2) register; and (3) be photographed by the
local law enforcement authority.” I.C. § 11-8-8-14. However, “[i]f a sex or
violent offender . . . changes . . . principal residence address . . . the sex or
violent offender shall report in person to the local law enforcement
authority . . . not more than seventy-two (72) hours after the address change.”
I.C. § 11-8-8-11.
Temporary Residence [14] Yet, if a “sex or violent offender . . . resides in a temporary residence,” the
individual must register more frequently. I.C. § 11-8-8-12(b). A “‘temporary
residence’ means a residence (1) that is established to provide transitional
housing for a person without another residence; and (2) in which a person is not
typically permitted to reside for more than thirty (30) days in a sixty (60) day
period.” I.C. § 11-8-8-12(a). When the sex or violent offender resides in a
temporary residence, the individual “shall register in person” within seventy-
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2857 | August 31, 2018 Page 6 of 13 two hours of moving into the temporary residence, and then register “at least
once every seven (7) days” thereafter. I.C. § 11-8-8-12(b).
No Principal or Temporary Residence [15] If, however, “[a] sex or violent offender . . . does not have a principal residence
or temporary residence,” then the individual “shall report in person . . . at least
once every seven (7) days to report an address for the location” where the
individual “will stay during the time in which [he] . . . lacks a principal address
or temporary residence.” I.C. § 11-8-8-12(c).
[16] It is undisputed that Laudig reported in person in early 2017, and signed a form
indicating that he still lived at the address for the Jungle. Based upon the
foregoing statutes, if the Jungle was Laudig’s “principal residence,” then
Laudig was not required to report in person every seven days, as he would if he
had a different type of residence. See I.C. §§ 11-8-8-14(a), 11-8-8-11(a). We
must, then, determine the meaning of “principal residence.” Our legislature has
provided the following definition:
As used in this chapter, ‘principal residence’ means the residence where a sex or violent offender spends the most time. The term includes a residence owned or leased by another person if the sex or violent offender:
(1) does not own or lease a residence; or
(2) spends more time at the residence owned or leased by the other person than at the residence owned or leased by the sex or violent offender.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2857 | August 31, 2018 Page 7 of 13 I.C. § 11-8-8-3.
[17] The State does not dispute that Laudig was living in the Jungle, and the
evidence indicates that Laudig spent most of his time there. Thus, we must
consider whether living in a tent in the Jungle constitutes a residence. Our
legislature has not provided an independent definition for “residence” in the
context of sex or violent offender registration.
[18] “When construing a statute our primary goal is to ascertain the legislature’s
intent.” Suggs v. State, 51 N.E.3d 1190, 1194 (Ind. 2016). “[W]e look first to
the statutory language itself and give effect to the plain and ordinary meaning of
statutory terms.” Id. “If a statute is unambiguous, that is, susceptible to but
one meaning, we must give the statute its clear and plain meaning.” State v.
Evans, 810 N.E.2d 335, 337 (Ind. 2004) (quotation marks omitted). “Only if the
text is ambiguous do we turn to the canons of statutory construction, guided by
the goal of discerning and effectuating the intent of the legislature.” J.D.M. v.
State, 68 N.E.3d 1073, 1077 (Ind. 2017). Nonetheless, “criminal statutes must
be strictly construed against the State, and may not be enlarged beyond the fair
meaning of the language used.” Suggs, 51 N.E.3d at 1194 (quotation marks
omitted). Moreover, “the rule of lenity . . . requires us to interpret ambiguous
criminal statutes ‘in the defendant’s favor as far as the language can reasonably
support.’” Calvin v. State, 87 N.E.3d 474, 478-79 (Ind. 2017) (emphasis
removed) (quoting Day v. State, 57 N.E.3d 809, 813 (Ind. 2016)).
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2857 | August 31, 2018 Page 8 of 13 [19] The State directs us to the following definition for “residence” contained in
Indiana Code Section 3-5-2-42.5: “‘Residence’ means the place: (1) where a
person has the person’s true, fixed, and permanent home and principal
establishment; and (2) to which the person has, whenever absent, the intention
of returning.” Relying upon this definition, the State argues that “[t]he tent that
Laudig stayed in was neither ‘fixed’ nor ‘permanent,’” and that “it could have
been blown away by a gust of wind.”3 Appellee’s Br. at 9. Yet, the State
provides no explanation for why this definition of residence—which is
contained in Title 3, a title pertaining to elections—applies to a statute in Title
11, which instead pertains to corrections. Compare I.C. § 3-5-2-42.5 with I.C. §
11-8-8-3. Furthermore, in a different statute in Title 3, our legislature expressly
provided that definitions in Title 3 apply “throughout this title.” I.C. § 3-5-2-1.
Moreover, in other contexts, when our legislature has intended to invoke the
definition of residence contained in Title 3, it has done so by providing a clear
cross-reference to that statutory definition. See, e.g., I.C. § 31-34-18-6.1
(specifying, in matters involving Children in Need of Services, that certain steps
need not be taken when the child will be placed in “an entity or a facility
that . . . is not a residence (as defined in IC 3-5-2-42.5)”); I.C. § 7.1-5-12-5
3 We suspect many Hoosiers would take exception to the State’s suggestion that one has no principal residence if that residence is susceptible to being blown away by a gust of wind. See Southern Indiana EF-4, National Weather Service, https://www.weather.gov/lmk/03022012_EF4.htm (last visited Aug. 10, 2018) (describing damage from a tornado that blew across parts of southern Indiana: “several well-built brick homes were destroyed” despite having “anchor bolts attached to steel plates and a concrete foundation”; one home was “lifted” and “slid 65 yards off its foundation” while “[a]nother home was completely demolished and thrown downwind several hundred yards”).
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2857 | August 31, 2018 Page 9 of 13 (listing exceptions to a prohibition on smoking in certain places, among them,
“[t]he premises of a business that is located in the business owner’s private
residence (as defined in IC 3-5-2-42.5)”). Here, however, our legislature
declined to provide a cross-reference to the definition in Title 3, suggesting that
it did not intend for the definition to apply to the instant statute in Title 11.
[20] Nonetheless, we note that the State’s proffered definition is essentially a
codified definition of the common law concept of domicile. Compare I.C. § 3-5-
2-42.5 with State Election Bd. v. Bayh, 521 N.E.2d 1313, 1317 (Ind. 1988)
(“Domicile means the place where a person has his true, fixed, permanent
home and principal establishment, and to which place he has, whenever he is
absent, the intention of returning.” (quotation marks removed)). In some
contexts, the Indiana Supreme Court has “interpreted residence to mean
domicile.” Bayh, 521 N.E.2d at 1317. Yet, an individual can have just one
domicile. See id. (“Establishing a new residence or domicile terminates the
former domicile.”). The instant statute, however, contemplates a “principal
residence,” implicitly recognizing that—in this context—an individual may
have more than one residence. I.C. § 11-8-8-3 (“As used in this chapter,
‘principal residence’ means the residence where a sex or violent offender spends
the most time.”). Thus, we are not persuaded to consult only the definition set
forth in Title 3.
[21] We note also that our legislature has used the phrase “principal residence”
when enabling a “consumer” to obtain a security freeze to prevent the release of
credit information. See I.C. §§ 24-5-24.5-1, -12. In that context, “consumer”
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2857 | August 31, 2018 Page 10 of 13 means “an individual whose principal residence is in Indiana.” I.C. § 24-5-
24.5-1. The phrase “principal residence” is not otherwise defined—but, under
the State’s proffered reading, Laudig would be ineligible for this form of credit
protection because his tent is not sufficiently fixed and permanent. Ultimately,
the definition to which the State directs us within Title 3 of the election laws
does not make sense when applied in Title 24, and we decline to now apply the
definition in Title 11.
[22] We are left with an undefined term. “We give undefined terms their plain and
ordinary meaning, and we may consult English language dictionaries when
they are helpful in determining that meaning.” In re Estate of Kent, 99 N.E.3d
634, 638 (Ind. 2018). Black’s Law Dictionary gives several definitions for
“residence,” including the following germane definitions: “The act or fact of
living in a given place for some time”; “The place where one actually lives, as
distinguished from a domicile”; “A house or other fixed abode; a dwelling.”
Residence, Black’s Law Dictionary (10th ed. 2014). Moreover, a different
dictionary provides these pertinent definitions: “[T]he act or fact of abiding or
dwelling in a place for some time . . . an act of making one’s home in a place”;
“[T]he place where one actually lives or has his home as distinguished from his
technical domicile;” “[A] temporary or permanent dwelling place, abode, or
habitation to which one intends to return as distinguished from a place of
temporary sojourn or transient visit”; “[T]he place where something is
permanently established”; “[A] building used as a home.” Webster’s Third
New Int’l Dictionary 1931 (2002).
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2857 | August 31, 2018 Page 11 of 13 [23] The State maintains that Laudig did not provide the address for a “principal
residence” because his living situation was not fixed or permanent. The State
also points out that Laudig did not have permission to be on the property.
However, we conclude that the term “residence” is reasonably susceptible to
more than one meaning; indeed, under several of the dictionary definitions, an
individual could establish a residence somewhere irrespective of whether he had
obtained permission to reside on the property, and even if his physical shelter
“could have been blown away by a gust of wind.” Appellee’s Br. at 9. Further,
when previously considering a registrant’s obligation to timely update his
address, we identified the purpose of that statute: “to inform police of the
current location of offenders for surveillance and notification purposes.”
Milliner v. State, 890 N.E.2d 789, 792 (Ind. Ct. App. 2008), trans. denied. As the
trial court noted, “if the purpose of giving an address is so they’ll know where
to find him – which I think is the purpose of the registry – he could have been
found pretty easily.” Tr. Vol. II at 60.
[24] We must interpret ambiguous statutes in the defendant’s favor as far as the
language can reasonably support. Calvin, 87 N.E.3d at 478-79. Our legislature
ultimately created three categories of registrants: (1) those with a principal
residence; (2) those residing in a specific kind of transitional housing; and (3)
those in neither of the foregoing categories. See I.C. §§ 11-8-8-8(a)(1), -12(b), &
-12(c). An individual who has registered with a “principal residence” is not
required to register every seven days thereafter. See I.C. § 11-8-8-11, -14.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2857 | August 31, 2018 Page 12 of 13 [25] Although Laudig was “homeless” in one sense, the uncontroverted evidence
indicates that he was not transient during the pertinent period of time and could
be located in the Jungle. Absent a more specific definition from our legislature,
the statutory framework permits a reasonable reading that Laudig identified his
principal residence when he provided the address for the Jungle and described
his tent therein. Thus, we must construe the statute in Laudig’s favor, which
leads us to conclude that Laudig registered his principal residence. At that
point, then, Laudig was not required to register every seven days. Moreover, as
law enforcement did not go look for Laudig, there is no indication that Laudig
was not actually living at the identified location. Thus, there is no evidence that
Laudig had a change of residence necessitating his obligation to report. We
accordingly conclude that there is insufficient evidence that Laudig violated
Indiana Code Section 11-8-8-17(a)(4) by failing to again register in January of
2017. We therefore reverse the conviction.
[26] Reversed.
Mathias, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1712-CR-2857 | August 31, 2018 Page 13 of 13