UPDATE: State v. Thakar, 71 N.E.3d 27 (Ind.Ct.App. 2017) was vacated/reversed on Transfer on October 2, 2017. See Appellate Case Notes for an analysis.
The COA sent a Valentine to Hammond taxpayers with its February 14, 2017 reversal of a $550,000.00 jury award to a disgruntled former Gavit High Athletic Director in School City of Hammond v. Rueth. While that case presents a treasure trove of defamation and “blacklisting” law, the real gem of the day from the COA was the Opinion (3/0) in State v. Thakar¹, the subject of this Article.
It seems that Sameer Girrish Thakar (allegedly) “electronically transmitted” (“sexted?”) a photo of his erect penis to a 16-year-old girl in Oregon. The State (Indiana) charged Thakar with Class D felony dissemination of matter harmful to minors contrary to IC 35-49-3-3(a)(1) and pursuant to the definition of “harmful to minors” at IC 35-49-2-2.
Thakar’s lawyer filed a motion to dismiss. The motion to dismiss argued the void-for-vagueness doctrine even though the photo of an erect penis is clearly within the definition of what is “harmful to minors.” Rather, the argument in two parts alleged that (given Indiana’s age of consent of 16 years) persons 16 or 17 years of age are not “minors” for purposes of the “harmful to minors” prohibition and that reliance on Oregon’s statutory age of consent set at 18 years would deprive him of “clear notice” of what constitutes prohibited conduct.
IC 35-34-1-4 provides a “non-exclusive list” of grounds for a motion to dismiss. A void-for-vagueness challenge is not among the listed grounds. The COA approved Thakar’s use of a motion to dismiss to challenge the Information on vagueness grounds.
The trial court granted the motion to dismiss, and the State appealed. The COA panel had the benefit of remarkably similar precedent from the 2/1 decision in Salter v. State, 906 N.E.2d 212 (Ind.Ct.App. 2009) wherein the defendant had transmitted images of his genitals to a 16-year-old girl in Delaware where the age of consent was 18 years. The Salter majority reversed the trial court’s denial of the defendant’s motion to dismiss. Remarkably, the State (in the Thakar appeal) urged the COA to defy the 2/1 precedent of another panel. Remember this, lawyers, the next time you ask the COA to do likewise and the State protests. Here, the COA flatly declined the invitation to ignore precedent and affirmed the trial court’s dismissal.
There is much more to ponder than the result of Thakar. One topic that escaped the attention of the COA is extraterritoriality as applied to laws and to acts constituting less than a complete crime. In Salter and then in Thakar the State attempted to weaponize foreign state law to prosecute men for conduct that would not be a crime if it began and ended in Indiana. In each case, the COA embraced the (constitutional) void-for-vagueness argument, as though the law of another State could constitute an element of an Indiana criminal prohibition but for the consequent chaotic absence of fair notice (of what conduct is prohibited). In so doing, the COA ignored the fundamental point that there is no extraterritorial authority in state law. Here’s a citation for you skeptics:
“No state by legislation may project its powers and authority beyond its own borders.” Dept. of Financial Institutions v. General Finance Corp., 86 N.E.2d 444, 449 (Ind. 1949)
The point here is not that grafting the laws of other states onto Indiana criminal prohibitions would be chaotic, and thereby void for vagueness. Rather, the point is that grafting the laws of other states onto Indiana criminal prohibitions can’t be done! Accordingly, both Salter and Thakar are seriously flawed in the chosen pathway to an otherwise correct result.
Then what about the extraterritorial aspects of acts in one state having an impact in another? In Salter and Thakar the defendants transmitted their images (by hitting a “send” button or by some similar act) in Indiana. Those images were then received (and most likely viewed) at their respective destinations in Delaware and Oregon. The conduct of Mr. Thakar, for instance, commenced in Indiana and was completed in Oregon.
If conduct that is criminal in both states begins in one and ends in the other, where will the perp be charged? The answer is that he may be charged in either state or in both.² Indiana approaches the issue (oddly) by way of its criminal venue statute. IC 35-32-2-1(e) & (f) assign venue (in Indiana) for offenses “commenced” outside Indiana and “completed” within Indiana and (conversely) for offenses “commenced” within the state and “completed” outside the state. In assigning venue, the statute implies jurisdiction over such interstate offenses.
What about Mr. Thakar and the 16-year-old girl in Oregon? Sometimes the remedy is so very simple. I assume that Oregon claims criminal jurisdiction (as Indiana does) over acts commenced outside Oregon and completed within. It is Oregon that should prosecute Mr. Thakar for conduct commenced in Indiana and completed in Oregon.
I should probably list some of the boilerplate vagueness and ambiguity law recited in Thakar. Given the constitutional (due process) basis of a void-for-vagueness challenge, appellate consideration is de novo rather than review for abuse of discretion.
A criminal statute is void for vagueness if it fails to clearly define its prohibitions. The fatal defect may be that the statute: (1) fails to provide notice enabling people of ordinary intelligence to discern the prohibited conduct; or (2) possibly authorizes or encourages arbitrary or discriminatory enforcement. When a criminal statute is merely ambiguous, the remedy may come from rules of statutory construction (including the “rule of lenity”). A criminal statute is ambiguous if it allows for more than one reasonable interpretation. The rule of lenity requires the narrow construction of such a statute in favor of the defendant.
Here is one last “takeaway” from the Thakar case. While ignorance of the law is generally still no excuse, it may still be available to a Hoosier miscreant when the law in question is that of Delaware or Oregon.³
¹In the online Opinion the appearances of counsel are misplaced/mislabeled such that the Attorney General is listed as counsel for the Appellee instead of counsel for the Appellant State of Indiana. Someone at the COA could stand being reminded that the State occasionally loses in the trial court and becomes the Appellant on appeal.
²The “separate sovereign” exception to the double jeopardy ban would apply.
³I do not consider here whether Mr. Thakar violated any federal criminal law.