FILED Jun 27 2023, 8:45 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Daniel K. Whitehead Theodore E. Rokita Yorktown, Indiana Attorney General of Indiana David A. Arthur Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kevin Allen Holladay, June 27, 2023 Appellant-Petitioner, Court of Appeals Case No. 22A-MI-2633 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Scott A. Norrick, Appellee-Respondent Judge Trial Court Cause No. 48C05-2104-MI-159
Opinion by Judge Weissmann Judges Bailey and Brown concur.
Court of Appeals of Indiana | Opinion 22A-MI-2633 | June 27, 2023 Page 1 of 9 Weissmann, Judge.
[1] Fifteen years ago, the Commonwealth of Kentucky required Kevin Holladay to
register as a sex offender for 20 years for his conviction of a sex crime against a
minor. Without registering in Kentucky, Holladay moved to Indiana and
registered here. Thereafter, he petitioned the court to remove him from
Indiana’s sex offender registry, arguing that his Kentucky crime does not render
him a sex offender under the Indiana Code and that requiring him to register is
both an ex post facto punishment and a violation of the Indiana Constitution’s
Privileges and Immunities Clause. We affirm the trial court’s denial of
Holladay’s petition for removal from Indiana’s sex offender registry.
Facts [2] In 2008, Holladay was convicted in Kentucky of sexual abuse in the second
degree. Under the Kentucky Penal Code, “A person is guilty of sexual abuse in
the second degree when . . . [h]e or she is at least eighteen (18) years old but less
than twenty-one (21) years old and subjects another person who is less than
sixteen (16) years old to sexual contact.” KRS § 510.120(1)(a). A defendant
convicted of this crime is required to register under Kentucky’s Sex Offender
Registration Act. KRS § 17.500(5)(a)(2) (defining “registrant” as one who has
committed “[a] criminal offense against a victim who is a minor”); KRS §
17.500(3)(9) (specifying that a “criminal offense against a victim who is a
minor” includes “[s]exual abuse, as set forth in KRS 510.120”).
Court of Appeals of Indiana | Opinion 22A-MI-2633 | June 27, 2023 Page 2 of 9 [3] As Holladay describes his crime, “[t]here was no rape, no criminal deviate
conduct, child molesting, child exploitation, vicarious sexual gratification, child
solicitation or child seduction charged.”1 App. Vol. II, p. 49. Holladay pleaded
guilty and received a one-year executed sentence with five months suspended to
probation. Although the Kentucky court ordered Holladay to register for 20
years, he never did so.
[4] Holladay moved to Indiana at some point after his conviction. And once in
Indiana, Holladay placed his name on the sex offender registry. In April 2022,
Holladay petitioned an Indiana trial court to have his name removed from the
Indiana sex offender registry. The trial court denied Holladay’s request.
Discussion and Decision [5] Holladay makes three arguments on appeal. First, he argues that his registration
as a sex offender in Indiana violates the strictures of Indiana Code § 11-8-8-5
because the statute does not specifically delineate his Kentucky offense as a
crime requiring registration. Second, he contends that his registration
constitutes an ex-post facto punishment in violation of Article 1, Section 24 of
the Indiana Constitution. And third, he asserts that his registration infringes the
Privileges and Immunities Clause of Article 1, Section 23 of the Indiana
Constitution. These claims present questions of law that we consider de novo.
1 As Holladay failed to include in the record any documentation of this crime beyond its Kentucky cause number—which, given that it yields no results when searched, is presumably incorrect—any further details of the crime are unknown.
Court of Appeals of Indiana | Opinion 22A-MI-2633 | June 27, 2023 Page 3 of 9 Tyson v. State, 51 N.E.3d 88, 90 (Ind. 2016). For his constitutional arguments,
Holladay brings as-applied challenges, meaning “he need only show the statute
is unconstitutional ‘on the facts of the particular case.’” State v. Zerbe, 50 N.E.3d
368, 369 (Ind. 2016) (quoting Meredith v. Pence, 984 N.E.2d 1213, 1218 n.6 (Ind.
2016)).
I. Statutory Analysis [6] To begin, Holladay argues that because his Kentucky crime is unlike any of the
specifically listed offenses in Indiana Code § 11-8-8-5(a), the Indiana Legislature
did not intend him to be on the sex offender registry due to his out-of-state
registration. Our reading of the statute, however, convinces us that the out-of-
state registration requirement independently requires his registration, regardless
of any similarities, or lack thereof, with the crimes specifically listed there.
[7] We follow a well-trodden path when confronted with questions of statutory
interpretation. “Our primary goal in interpreting statutes is to determine and
give effect to the Legislature’s intent.” Adams v. State, 960 N.E.2d 793, 798 (Ind.
2012). From the start, “[t]he best evidence of that intent is a statute’s text.” Id.
And “when a statute is clear and unambiguous, we must apply the plain and
ordinary meaning of the language.” Id.
[8] Indiana law requires that any “sex or violent offender” must be placed on the
sex offender registry. Ind. Code § 11-8-8-7(a)(1). The definition of a “sex or
violent offender” is provided by Indiana Code Section § 11-8-8-5. As explained
by the Indiana Supreme Court:
Court of Appeals of Indiana | Opinion 22A-MI-2633 | June 27, 2023 Page 4 of 9 Indiana Code section 11-8-8-5[] defines “sex or violent offender” in two parts. Subsection (a) lists twenty sex crimes in our Indiana Code that, if convicted of any one of them, result in such a classification; subsection (b) adds, “the term includes”:
(1) a person who is required to register as a sex or violent offender in any jurisdiction . . . .
Tyson v. State, 51 N.E.3d 88, 91 (Ind. 2016). Thus, in our Supreme Court’s own
words, subsection (b) “adds” another, alternative registration requirement.
Holladay cites no authority and offers no persuasive argument to the contrary.
Indeed, his main argument, that reading Indiana Code § 11-8-8-7 “as a whole”
reveals the legislature’s intent, works against him.
[9] If the legislature had wanted to limit subsection (b) to only those out-of-state
crimes comparable to the ones listed in subsection (a), it is fully aware of how to
do so. For example, as recently as 2020, the definition of a “sexually violent
predator” provided that the out-of-state registration requirement only attached
so long as the registrant had committed an offense “substantially equivalent to
Free access — add to your briefcase to read the full text and ask questions with AI
FILED Jun 27 2023, 8:45 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Daniel K. Whitehead Theodore E. Rokita Yorktown, Indiana Attorney General of Indiana David A. Arthur Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kevin Allen Holladay, June 27, 2023 Appellant-Petitioner, Court of Appeals Case No. 22A-MI-2633 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Scott A. Norrick, Appellee-Respondent Judge Trial Court Cause No. 48C05-2104-MI-159
Opinion by Judge Weissmann Judges Bailey and Brown concur.
Court of Appeals of Indiana | Opinion 22A-MI-2633 | June 27, 2023 Page 1 of 9 Weissmann, Judge.
[1] Fifteen years ago, the Commonwealth of Kentucky required Kevin Holladay to
register as a sex offender for 20 years for his conviction of a sex crime against a
minor. Without registering in Kentucky, Holladay moved to Indiana and
registered here. Thereafter, he petitioned the court to remove him from
Indiana’s sex offender registry, arguing that his Kentucky crime does not render
him a sex offender under the Indiana Code and that requiring him to register is
both an ex post facto punishment and a violation of the Indiana Constitution’s
Privileges and Immunities Clause. We affirm the trial court’s denial of
Holladay’s petition for removal from Indiana’s sex offender registry.
Facts [2] In 2008, Holladay was convicted in Kentucky of sexual abuse in the second
degree. Under the Kentucky Penal Code, “A person is guilty of sexual abuse in
the second degree when . . . [h]e or she is at least eighteen (18) years old but less
than twenty-one (21) years old and subjects another person who is less than
sixteen (16) years old to sexual contact.” KRS § 510.120(1)(a). A defendant
convicted of this crime is required to register under Kentucky’s Sex Offender
Registration Act. KRS § 17.500(5)(a)(2) (defining “registrant” as one who has
committed “[a] criminal offense against a victim who is a minor”); KRS §
17.500(3)(9) (specifying that a “criminal offense against a victim who is a
minor” includes “[s]exual abuse, as set forth in KRS 510.120”).
Court of Appeals of Indiana | Opinion 22A-MI-2633 | June 27, 2023 Page 2 of 9 [3] As Holladay describes his crime, “[t]here was no rape, no criminal deviate
conduct, child molesting, child exploitation, vicarious sexual gratification, child
solicitation or child seduction charged.”1 App. Vol. II, p. 49. Holladay pleaded
guilty and received a one-year executed sentence with five months suspended to
probation. Although the Kentucky court ordered Holladay to register for 20
years, he never did so.
[4] Holladay moved to Indiana at some point after his conviction. And once in
Indiana, Holladay placed his name on the sex offender registry. In April 2022,
Holladay petitioned an Indiana trial court to have his name removed from the
Indiana sex offender registry. The trial court denied Holladay’s request.
Discussion and Decision [5] Holladay makes three arguments on appeal. First, he argues that his registration
as a sex offender in Indiana violates the strictures of Indiana Code § 11-8-8-5
because the statute does not specifically delineate his Kentucky offense as a
crime requiring registration. Second, he contends that his registration
constitutes an ex-post facto punishment in violation of Article 1, Section 24 of
the Indiana Constitution. And third, he asserts that his registration infringes the
Privileges and Immunities Clause of Article 1, Section 23 of the Indiana
Constitution. These claims present questions of law that we consider de novo.
1 As Holladay failed to include in the record any documentation of this crime beyond its Kentucky cause number—which, given that it yields no results when searched, is presumably incorrect—any further details of the crime are unknown.
Court of Appeals of Indiana | Opinion 22A-MI-2633 | June 27, 2023 Page 3 of 9 Tyson v. State, 51 N.E.3d 88, 90 (Ind. 2016). For his constitutional arguments,
Holladay brings as-applied challenges, meaning “he need only show the statute
is unconstitutional ‘on the facts of the particular case.’” State v. Zerbe, 50 N.E.3d
368, 369 (Ind. 2016) (quoting Meredith v. Pence, 984 N.E.2d 1213, 1218 n.6 (Ind.
2016)).
I. Statutory Analysis [6] To begin, Holladay argues that because his Kentucky crime is unlike any of the
specifically listed offenses in Indiana Code § 11-8-8-5(a), the Indiana Legislature
did not intend him to be on the sex offender registry due to his out-of-state
registration. Our reading of the statute, however, convinces us that the out-of-
state registration requirement independently requires his registration, regardless
of any similarities, or lack thereof, with the crimes specifically listed there.
[7] We follow a well-trodden path when confronted with questions of statutory
interpretation. “Our primary goal in interpreting statutes is to determine and
give effect to the Legislature’s intent.” Adams v. State, 960 N.E.2d 793, 798 (Ind.
2012). From the start, “[t]he best evidence of that intent is a statute’s text.” Id.
And “when a statute is clear and unambiguous, we must apply the plain and
ordinary meaning of the language.” Id.
[8] Indiana law requires that any “sex or violent offender” must be placed on the
sex offender registry. Ind. Code § 11-8-8-7(a)(1). The definition of a “sex or
violent offender” is provided by Indiana Code Section § 11-8-8-5. As explained
by the Indiana Supreme Court:
Court of Appeals of Indiana | Opinion 22A-MI-2633 | June 27, 2023 Page 4 of 9 Indiana Code section 11-8-8-5[] defines “sex or violent offender” in two parts. Subsection (a) lists twenty sex crimes in our Indiana Code that, if convicted of any one of them, result in such a classification; subsection (b) adds, “the term includes”:
(1) a person who is required to register as a sex or violent offender in any jurisdiction . . . .
Tyson v. State, 51 N.E.3d 88, 91 (Ind. 2016). Thus, in our Supreme Court’s own
words, subsection (b) “adds” another, alternative registration requirement.
Holladay cites no authority and offers no persuasive argument to the contrary.
Indeed, his main argument, that reading Indiana Code § 11-8-8-7 “as a whole”
reveals the legislature’s intent, works against him.
[9] If the legislature had wanted to limit subsection (b) to only those out-of-state
crimes comparable to the ones listed in subsection (a), it is fully aware of how to
do so. For example, as recently as 2020, the definition of a “sexually violent
predator” provided that the out-of-state registration requirement only attached
so long as the registrant had committed an offense “substantially equivalent to
any of the offenses” listed in the statute. Ind. Code § 35-38-1-7.5(k) (2020); see
also Spencer v. State, 153 N.E.3d 289, 295-98 (Ind. Ct. App. 2020) (applying Ind.
Code § 35-38-1-7.5). This is essentially the language Holladay asks us to insert
into the statute. But because adding this language would unquestionably alter
both the effect of the statute and the expressed intent of the legislature, we
decline to do so. Ind. Alcohol & Tobacco Comm’n v. Spirited Sales, LLC, 79 N.E.3d
371, 376 (Ind. 2017) (“We may not add new words to a statute which are not
the expressed intent of the legislature.”).
Court of Appeals of Indiana | Opinion 22A-MI-2633 | June 27, 2023 Page 5 of 9 [10] Holladay is thus a “sex or violent offender” per the terms of Indiana Code § 11-
8-8-7(b)(1).
II. Ex Post Facto Clause [11] Holladay next argues that his registration constitutes an ex-post facto
punishment under Article 1, Section 24 of the Indiana Constitution.
[12] Article 1, Section 24 provides that “No ex post facto law . . . shall ever be
passed.” This provision serves to generally prohibit “laws that impose
punishment for an act that was not punishable at the time it was committed or
imposes additional punishment to that then prescribed.” Crowley v. State, 188
N.E.3d 54, 58 (Ind. Ct. App. 2022). “The underlying purpose of the Ex Post
Facto Clause is to give effect to the fundamental principle that persons have a
right to a fair warning of that conduct which will give rise to criminal
penalties.” Wallace v. State, 905 N.E.2d 371, 377 (Ind. 2009).
[13] As Holladay admits, his Kentucky offense and subsequent move to Indiana
both occurred in 2008. The legislature enacted SORA in 1994 and amended the
statute to include the out-of-state registration requirement in 2006. State v. Zerbe,
50 N.E.3d 368, 369 (Ind. 2016). In a pair of cases handed down together, the
Indiana Supreme Court held that no violation of Indiana’s Ex-Post Facto
Clause occurred when offenders had committed their offense before the
enactment of SORA, were required to register in their original states, and had
moved to Indiana after the out-of-state registration requirement went into effect.
Tyson v. State, 51 N.E.3d 88, 90 (Ind. 2016); Zerbe, 50 N.E.3d at 368. In effect,
Court of Appeals of Indiana | Opinion 22A-MI-2633 | June 27, 2023 Page 6 of 9 the Court found that “maintaining a registry requirement across state lines does
not amount to a punitive burden.” Tyson, 51 N.E.3d at 90. By extension,
Holladay is not punitively burdened here.
[14] But undeterred by these cases, Holladay argues that his registration is punitive
because, unlike the registrants in Tyson and Zerbe, he never registered in his
original state. To Holladay, this fact transforms his registration requirement
from the non-punitive act of merely “maintaining” the registration across state
lines at issue in those cases into an additional, affirmative obligation.
[15] Setting aside that there is no ex-post facto violation because Holladay’s crime in
Kentucky and move to Indiana occurred after the current version of SORA
went into effect, we find Holladay’s argument unavailing. He asks us to endorse
a system in which recently convicted sexual offenders would be in a race to
move to Indiana before they could be properly registered to avoid any
registration requirement. This would also imply that a sex offender could duck
their registration obligation in their original state, move to Indiana, and
suddenly claim that registering as a sex offender would be a punitive burden.
Holladay deserves no credit for his failure to register in Kentucky.
[16] Given that Holladay faced no more of a punitive burden than the registrants in
Tyson and Zerbe, we find no violation of Indiana’s Ex-Post Facto Clause.
III. Privileges and Immunities Clause [17] Lastly, Holladay contends that his registration violates Indiana’s Privileges and
Immunities Clause. Article 1, Section 23 of the Indiana Constitution reads: Court of Appeals of Indiana | Opinion 22A-MI-2633 | June 27, 2023 Page 7 of 9 “The General Assembly shall not grant to any citizen, or class of citizens,
privileges or immunities, which, upon the same terms, shall not equally belong
to all citizens.”
[18] In his complaint, Holladay claimed only that his registration infringed his
constitutional “right to travel” and cited a case involving the Federal
Constitution. App. Vol. II, p. 61 (citing Hope v. Comm’r of Ind. Dep’t of Corr., 984
F.3d 532 (7th Cir. 2021), rev’d 9 F.4th 513 (7th Cir. 2021) (en banc)). The State
argues that Holladay waived this issue for failure to raise it before the trial
court. We agree.
[19] To avoid waiver, Indiana courts have long required litigants to first raise the
issue before the trial court. Here, Holladay neither mentioned Article 1, Section
23 nor offered legal analysis on the issue to the trial court. Indeed, in issuing its
order, the trial court did not reference or even hint towards resolving any issue
under Indiana’s Privileges and Immunities Clause—despite otherwise
addressing and answering Holladay’s other statutory and Ex-Post Facto Clause
arguments. Hence, Holladay waived any relief based on this claim for failure to
raise it before the trial court. Plank v. Cmty. Hosp. of Ind., 981 N.E.2d 49, 53 (Ind.
2013) (recognizing the “general rule . . . that failure to challenge the
constitutionality of a statute at trial results in waiver of review on appeal”); see
also Stevens v. State, 691 N.E.2d 412, 429 n.17 (Ind. 1997) (requiring litigants to
present “separate legal analysis” of Indiana Constitutional issues to avoid
waiver).
Court of Appeals of Indiana | Opinion 22A-MI-2633 | June 27, 2023 Page 8 of 9 [20] Holladay has failed to show reversible error in the trial court’s denial of his
petition for removal from Indiana’s sex offender registry.
[21] Affirmed.
Bailey, J., and Brown, J., concur.
Court of Appeals of Indiana | Opinion 22A-MI-2633 | June 27, 2023 Page 9 of 9