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. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  2. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  3. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

  4. If justice is not found in a court room, it's time to clean house!!! Even judges are accountable to a higher Judge!!!

  5. The small claims system, based on my recent and current usage of it, is not exactly a shining example of justice prevailing. The system appears slow and clunky and people involved seem uninterested in actually serving justice within a reasonable time frame. Any improvement in accountability and performance would gain a vote from me. Speaking of voting, what do the people know about judges and justice from the bench perspective. I think they have a tendency to "vote" for judges based on party affiliation or name coolness factor (like Stoner, for example!). I don't know what to do in my current situation other than grin and bear it, but my case is an example of things working neither smoothly, effectively nor expeditiously. After this experience I'd pay more to have the higher courts hear the case -- if I had the money. Oh the conundrum.

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