Vagueness issue divides COA in sex offender vehicle registry case

A divided Indiana Court of Appeals has affirmed the denial of a sex offender’s motion to dismiss a charge brought against him for driving without registering his vehicle, despite a dissenting judge’s argument that the statute he was charged under was too vague.

In James C McClernon v. State of Indiana,19A-CR-01305, registered sex offender James McClernon was charged with Level 5 felony failing to register vehicle information for a vehicle that he allegedly “operates on a regular basis,” as is required under Indiana Code Section 11-8-8-8(a)(1) of Indiana’s Sex Offender Registration Act. McClernon had been driving a vehicle for five consecutive days for various purposes before he was arrested.

McClernon alleged the vehicle information registration requirement was void for vagueness as applied to him, but the Vanderburgh Circuit Court denied his motion to dismiss the charge.

A majority of an Indiana Court of Appeals panel affirmed the trial court in McClernon’s interlocutory appeal, acknowledging that while his argument that reasonable people may disagree as to what constitutes a “regular” use, the statutory language at issue is not constitutionally deficient when interpreted under a reasonable person standard.

“Like the statutory language at issue in (Morgan v. State, 22 N.E.3d 570, 574 (Ind. 2014)), the failure-to-register statutory language here is not void for vagueness. The reasonable person standard provides sufficiently clear guidance to registrants and law enforcement of potentially proscribed conduct and, as such, passes constitutional scrutiny. And, at the end of the day, whether particular conduct violates the statute must be determined by the fact-finder on a case-by-case basis,” Judge Edward Najam wrote for the majority joined by Judge L. Mark Bailey.

Dissenting in a separate opinion, Judge John Baker argued that the statute under which McClernon was charged was vague enough to violate his due process rights and that the trial court’s decision should be reversed.

“What exactly does ‘on a regular basis’ mean for purposes of statutory interpretation?” the dissenting judge wrote. “The majority holds that any reasonable person in McClernon’s position would have known that their conduct could be at risk for criminal prosecution under the registration statute. But the answer, in my opinion, is not so clear-cut.”

Baker argued that according to the rule of lenity, McClernon should not be penalized as a result of the ambiguity of the statute’s language and that based on textualism, the “textual ambiguities beget greater constitutional protections for criminal defendants.”

“Finally, there is the statutory language itself,” Baker wrote. “The majority cannot define what ‘on a regular basis’ means for purposes of the registration statute as a whole because the ambiguity of that phrase could result in many divergent interpretations, definitions, and examples. While the majority does provide a common dictionary definition of the word ‘regular,’ it concedes that such a definition alone cannot resolve this vagueness challenge.”

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