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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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