Split COA: 1992 Michigan sex offender required to register in Indiana

May 29, 2015

A man who committed a sex crime in Michigan in 1992 and moved to Indiana in 2012 must put his name in the Indiana Sex Offender Registry created two years after his initial offense, a divided Court of Appeals panel ruled.

Judges Terry Crone and Elaine Brown reversed Marion Superior Judge Tim Oakes’ grant of Scott Zerbe’s petition to remove his name as a sex offender. “On appeal, the State argues that SORA is not an unconstitutional ex post facto law as applied to Zerbe,” Crone wrote in State of Indiana v. Scott Zerbe, 49A05-1410-MI-463.

“We agree: Zerbe had fair warning of SORA’s registration requirement before he moved to Indiana, and SORA imposed no additional punishment because he was already required to register in Michigan. Therefore, we reverse.”

Zerbe was convicted of criminal sexual conduct in the second degree in 1992 for sex acts with a 14-year-old, according to the record. He was released in 1999 and required to register as a sex offender in Michigan for 25 years.

The majority noted Indiana amended SORA in 2001 so that any person required to register as a sex offender elsewhere must register in Indiana. But dissenting Judge John Baker wrote that this change in law was of lesser consequence in the analysis and conflicted with precedent settled under Wallace v. State, 905 N.E.2d 371 (Ind. 2009), and similar cases.

“While I see the logic in the State’s position on this issue, as well as the majority’s decision, the case law could not be clearer,” Baker wrote. “Our Supreme Court, plus three panels of this Court, have plainly held that the date of primary importance is the date of the original conviction. … Therefore, I believe that requiring him to register as a sex offender would violate Indiana’s constitutional prohibition against ex post facto laws and would affirm the trial court’s judgment.”


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