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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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