Supreme Court: Ex post facto laws don’t apply to 2 sex offenders

The Indiana Supreme Court affirmed two men had to register as sex offenders after moving from other states, saying the requirement did not violate the Indiana Constitution’s prohibition against ex post facto laws.

Sidney Lamour Tyson moved to Indiana in 2009, and in 2014 he was pulled over for driving with an expired license plate. The officer found Tyson had been adjudicated a delinquent at 13 for aggravated sexual assault and indecency with a child. Tyson had registered as a sex offender in Texas, but not Indiana. Tyson was charged with the Class D felony failure to register as a sex offender.

At trial, Tyson filed a motion to dismiss the charge. Before 2006, he would not have had to register as a sex offender in Indiana, but in 2006, Indiana law changed. Tyson said because his offense occurred before 2006, he did not have to register as a sex offender in Indiana, an ex post facto violation. The court denied his claim.

The Indiana Court of Appeals upheld the trial court, saying the ex post facto clause was to give fair warning of what conduct will result in criminal procedures, and Tyson had sufficient warning. The COA also said because he was required to register in Texas until 2014, he remained a sex offender upon relocation. Tyson sought a transfer to the Indiana Supreme Court, saying the relevant date for ex post facto analysis is the commission of the offense, not relocation. The Supreme Court granted his transfer and ruled Thursday in Sidney Lamour Tyson v State of Indiana, 45S03-1509-CR-528.

In State of Indiana v Scott Zerbe, 49S05-1509-MI-529, Scott Zerbe was convicted of criminal sexual conduct with a minor in 1992, before Indiana or Michigan had sex offender registry laws. Zerbe moved to Indiana in 2012, and petitioned the trial court to take him off the sex offender registry in Indiana. He said because he committed his crime before 2006, he should not have to register. The trial court granted his request.

The COA overturned the ruling in a split decision, and Zerbe asked for transfer to Indiana Supreme Court, which was granted. The Supreme Court reversed the trial court, finding no ex post facto violation because Zerbe was under an obligation to report and the Indiana statute did not impose any additional punishment.

Supreme Court Justice Mark Massa wrote the decisions in both cases and applied the ruling in Tyson to the Zerbe appeal. He wrote the state posed no ex post facto violation as applied to Tyson. Massa said Tyson was required to register in Texas years before Indiana’s statutory definition was amended to include him, and it was not an undue burden on him to register in Indiana like he did in Texas. He merely maintained his offender status across state lines.

Zerbe’s case was slightly different than Tyson’s, Massa said, because there was no sex offender registration law in Michigan when Zerbe committed his offense, but Massa said that did not make a difference. Massa said it’s not Zerbe’s crime that compels him to register, but the Michigan registry requirement. Michigan courts have determined its act can apply retroactively to offenders, and Indiana is in no place to dispute that.

Because Zerbe was required to register as a sex offender for 25 years, he will be registered in Indiana until 2017.

Also in the Tyson case, Tyson said he did not fit the definition of a sex offender under Indiana Code 11-8-8-5. He argued the statute meant a sex offender must be a person who is required to register as a sex or violent offender in any jurisdiction and should be a child who has committed a delinquent act. The court disagreed, saying the code meant a person who is required to register as a sex or violent offender, including a child who has committed a delinquent act. Massa said Tyson’s reading of the statue is far too narrow. “Reading subsections together as one list of requirements would lead to an absurd result,” Massa wrote.

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