ILNews

High court: 'Contact' must be clearly defined

Michael W. Hoskins
January 1, 2008
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The Indiana Supreme Court has determined what kind of "contact" a convicted child molester can have without violating probation.

In the court's 4-1 decision April 2 in Theron W. Hunter v. State of Indiana, No. 69S01-0708-CR-332, the justices reversed Ripley Circuit Judge Carl Taul's 2006 ruling to revoke Hunter's probation. The case is remanded with instruction to reinstate the probation.

Hunter was convicted in 2000 of felony child molesting and sentenced to eight years, with four years suspended. He was released in July 2006 and placed on probation, but three months later the county probation department sought to revoke that probation. The trial court determined he'd violated his probation by living on his father's property 15 feet from his half-sister's mobile home where three children ages 14 to 18 lived, and that he had been in that mobile home remodeling the bathroom at times when the children came home from school. Hunter testified that he'd pack up and leave as quickly as possible about the time school left out, but sometimes he wasn't able to leave before they got home.

At issue was a probation condition that he "must never be alone with or have contact with any person under the age 18 ... Contact includes face-to-face, telephonic, written, electronic, or any indirect contact via third parties." Any "incidental contact" also had to be reported within 24 hours to his probation officer.

While Hunter contended that "contact" meant some type of "interaction," the state construed the word more broadly and argued it meant merely being in the presence of anyone under 18 and that was sufficient to prove a probation violation. The Court of Appeals agreed in a memorandum ruling in June.

But a majority of the state justices disagreed, indicating the wording of the probation condition was "ambiguous" and isn't enough to have revoked Hunter's probation.

In writing for the majority, Justice Brent Dickson noted that Hunter had cited a decade-old appellate ruling of Wright v. State, 688 N.E.2d 224, 266 (Ind. Ct. App. 1997) that quoted Webster's Dictionary in noting "contact" means "establishing of communication with someone" or "to get into communication with," as well as "communication occurs when a person makes something known or transmits information to another." Justice Dickson also observed that the word "is not commonly understood to occur by mere presence alone."

"If the trial court intended a condition of probation to prohibit the defendant from the behavior shown by the evidence in this case, effective deterrence and fair advance notice necessitate that the choice of language must clearly describe the prohibited contact," Justice Dickson wrote. "The probation condition in this case lacked sufficient clarity to provide the defendant with fair notice that the conduct at issue would constitute a violation of probation."

He also wrote that the occasional "incidental contact" with his sister's children didn't constitute a violation because the vagary of the word in this case.

Justice Frank Sullivan disagreed with his colleagues, writing in a dissent that the probation conditions clearly defined what the word "contact" meant, that it didn't require "interaction," and the term "face-to-face" was not vague.

"There is no dispute but that Hunter was present on multiple occasions in the mobile home when the children came home from school," he wrote. "This was sufficient evidence for the trial court to conclude that Hunter had face-to-face contact with children under the age of 18. He did not report the contact to his probation officer within 24 hours of the contact. This was sufficient to support the revocation of his probation."
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  1. dsm 5 indicates that a lot of kids with gender dysphoria grow out of it. so is it really a good idea to encourage gender reassignment? Perhaps that should wait for the age of majority. I don't question the compassionate motives of many of the trans-advocates, but I do question their wisdom. Likewise, they should not question the compassion of those whose potty policies differ. too often, any opposition to the official GLBT agenda is instantly denounced as "homophobia" etc.

  2. @ President Snow, like they really read these comments or have the GUTS to show what is the right thing to do. They are just worrying about planning the next retirement party, the others JUST DO NOT CARE about what is right. Its the Good Ol'Boys - they do not care about the rights of the mother or child, they just care about their next vote, which, from what I gather, the mother left the state of Indiana because of the domestic violence that was going on through out the marriage, the father had three restraining orders on him from three different women, but yet, the COA judges sent a strong message, go ahead men put your women in place, do what you have to do, you have our backs... I just wish the REAL truth could be told about this situation... Please pray for this child and mother that God will some how make things right and send a miracle from above.

  3. I hear you.... Us Christians are the minority. The LGBTs groups have more rights than the Christians..... How come when we express our faith openly in public we are prosecuted? This justice system do not want to seem "bias" but yet forgets who have voted them into office.

  4. Perhaps the lady chief justice, or lady appellate court chief judge, or one of the many female federal court judges in Ind could lead this discussion of gender disparity? THINK WITH ME .... any real examples of race or gender bias reported on this ezine? But think about ADA cases ... hmmmm ... could it be that the ISC actually needs to tighten its ADA function instead? Let's ask me or Attorney Straw. And how about religion? Remember it, it used to be right up there with race, and actually more protected than gender. Used to be. Patrick J Buchanan observes: " After World War II, our judicial dictatorship began a purge of public manifestations of the “Christian nation” Harry Truman said we were. In 2009, Barack Obama retorted, “We do not consider ourselves to be a Christian nation.” Secularism had been enthroned as our established religion, with only the most feeble of protests." http://www.wnd.com/2017/02/is-secession-a-solution-to-cultural-war/#q3yVdhxDVMMxiCmy.99 I could link to any of my supreme court filings here, but have done that more than enough. My case is an exclamation mark on what PJB writes. BUT not in ISC, where the progressives obsess on race and gender .... despite a lack of predicate acts in the past decade. Interested in reading more on this subject? Search for "Florida" on this ezine.

  5. Great questions to six jurists. The legislature should open a probe to investigate possible government corruption. Cj rush has shown courage as has justice Steven David. Who stands with them?

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