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."