John Norris v. State of Indiana (mem. dec.) ( 2015 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be
    regarded as precedent or cited before any                                    Dec 15 2015, 6:45 am
    court except for the purpose of establishing
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    
    
    
    ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
    Derick W. Steele                                        Gregory F. Zoeller
    Kokomo, Indiana                                         Attorney General of Indiana
                                                            Tyler G. Banks
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana
    
    
    
                                              IN THE
        COURT OF APPEALS OF INDIANA
    
    John Norris,                                            December 15, 2015
    Appellant-Defendant,                                    Court of Appeals Case No.
                                                            34A05-1507-CR-797
            v.                                              Appeal from the Howard Superior
                                                            Court
    State of Indiana,                                       The Honorable William C.
    Appellee-Plaintiff.                                     Menges, Jr., Judge
                                                            Trial Court Cause No.
                                                            34D01-1404-FB-218
    
    
    
    Riley, Judge.
    
    
    
    
    Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-797 | December 15, 2015      Page 1 of 7
                                       STATEMENT OF THE CASE
    
    [1]   Appellant-Defendant, John Norris (Norris), appeals a condition of his
    
          probation.
    
    
    [2]   We affirm.
    
    
                                                        ISSUE
    
    [3]   Norris raises one issue on appeal, which we restate as: Whether the trial court
    
          abused its discretion by imposing a sex offender probation condition that
    
          restricts Norris from having contact with children under sixteen years of age.
    
    
                                 FACTS AND PROCEDURAL HISTORY
    
    
    [4]   In the summer of 2012, sixteen-year-old S.M. was visiting with Norris at his
    
          house, located at 1323 East Murden Street, Kokomo, Indiana. While S.M. was
    
          asleep, Norris used his cell phone to record himself unzipping S.M.’s top,
    
          revealing her nipple, and using his finger to rub her exposed nipple. In that
    
          same video, Norris fondled S.M.’s buttocks and back.
    
    
    [5]   In December 2012, fifteen-year-old A.H. was babysitting Norris’ minor
    
          children. On December 3, 2012, Norris set up a hidden camera and recorded
    
          A.H. taking a shower. Later that day, Norris set up a camera and recorded
    
          A.H. sitting on a chair only wearing a top with her legs spread open. Norris
    
          also video-recorded as he inserted two vibrators in A.H.’s vagina. Again on
    
          December 16, 2012, Norris recorded A.H. sitting on a chair with her legs spread
    
          open toward the camera. Also, Norris recorded himself inserting a vibrator
    
    
          Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-797 | December 15, 2015   Page 2 of 7
          inside A.H.’s vagina, and he made a close-up video of her genitals. In addition,
    
          Norris recorded himself having sexual intercourse with A.H. On February 22,
    
          2014, S.M.’s mother found a micro SD card in her apartment. S.M.’s mother
    
          put the card into her cell phone to view the contents, and she saw videos of her
    
          daughter being molested by Norris. S.M.’s mother later turned the micro SD
    
          card over to the police. The micro SD card also contained the video recordings
    
          of Norris molesting A.H.
    
    
    [6]   On April 14, 2014, the State charged Norris with Count I, sexual misconduct
    
          with a minor, a Class C felony; Count II, child exploitation, a Class C felony;
    
          Counts III-IV, sexual misconduct with a minor, Class B felonies; and Count V,
    
          child exploitation, a Class C felony. On January 20, 2015, the State added
    
          Count VI, child exploitation, a Class C felony. On May 8, 2015, Norris agreed
    
          to plead guilty to Counts I, II, III, and VI, in exchange for the State dismissing
    
          the other charges. On June 3, 2015, pursuant to the plea agreement, the trial
    
          court sentenced Norris to eight years in the Department of Correction (DOC)
    
          with two years suspended to probation on Counts I and II. On Count III,
    
          Norris was ordered to serve an executed consecutive sentence of fourteen years
    
          in the DOC. Lastly, on Count VI, Norris was ordered to serve a six-year
    
          sentence concurrent with Count III. Norris’ aggregate sentence is twenty years.
    
          Additionally, Norris agreed to be subjected to the “special rules of probation for
    
          sex offenders.” (Appellant’s App. p. 53). As one of his conditions for
    
          probation, Norris was ordered to have no contact with any person under the
    
    
    
    
          Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-797 | December 15, 2015   Page 3 of 7
          age of sixteen unless he received court approval or successfully completed a
    
          court-approved sex offender treatment program.
    
    
    [7]   Norris now appeals. Additional facts will be provided as necessary.
    
    
                                     DISCUSSION AND DECISION
    
    [8]   Norris contends that Condition 20 of his sex offender probation conditions is
    
          unconstitutional as applied to him. Specifically, Norris argues that one of his
    
          daughters was nine months old at the time of the sentencing, and Condition 20
    
          prohibits him from having contact with his child. He further argues that he
    
          “cannot even ask a relative to wish his children a Merry Christmas . . . or even
    
          Happy Birthday.” (Appellant’s Br. p. 4).
    
    
    [9]   “Probation is a criminal sanction wherein a convicted defendant specifically
    
          agrees to accept conditions upon his behavior in lieu of imprisonment.” Carswell
    
          v. State, 
    721 N.E.2d 1255
    , 1258 (Ind. Ct. App. 1999). Trial courts have broad
    
          discretion in determining the appropriate conditions of a defendant’s probation.
    
          Hevner v. State, 
    919 N.E.2d 109
    , 113 (Ind. 2010). “This discretion is limited
    
          only by the principle that the conditions imposed must be reasonably related to
    
          the treatment of the defendant and the protection of public safety.” Stott v.
    
          State, 
    822 N.E.2d 176
    , 179-80 (Ind. Ct. App. 2005), trans. denied. Thus, “our
    
          review is essentially limited to determine whether the conditions placed on the
    
          defendant are reasonably related to attaining these goals.” Carswell, 721 N.E.2d
    
          at 1258. We will not set aside a trial court’s probation terms unless it has
    
    
    
    
          Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-797 | December 15, 2015   Page 4 of 7
           abused its discretion. Collins v. State, 
    911 N.E.2d 700
    , 707 (Ind. Ct. App. 2009),
    
           trans. denied.
    
    
    [10]   “‘Convicted individuals do not enjoy the same constitutional protections as
    
           law-abiding citizens[,]’” and “probation conditions that intrude upon
    
           constitutionally protected rights are not necessarily invalid.” Taylor v. State, 
    820 N.E.2d 756
    , 761 (Ind. Ct. App. 2005) (quoting Johnson v. State, 
    659 N.E.2d 194
    ,
    
           200 (Ind. Ct. App. 1995), reh’g denied), trans. denied. See also Gaither v. Ind. Dep’t
    
           of Correction, 
    971 N.E.2d 690
    , 695 (Ind. Ct. App. 2012) (explaining that
    
           “probation conditions may impinge upon a probationer’s right to exercise an
    
           otherwise constitutionally protected right”). Where, as here, a defendant
    
           contends that a probation condition is unduly intrusive upon a constitutional
    
           right, the following three factors must be balanced: (1) the purpose sought to be
    
           served by probation; (2) the extent to which constitutional rights enjoyed by
    
           law-abiding citizens should be afforded to probationers; and (3) the legitimate
    
           needs of law enforcement. Smith v. State, 
    779 N.E.2d 111
    , 117 (Ind. Ct. App.
    
           2002), trans. denied.
    
    
    [11]   Special Condition 20 reads:
    
                   You shall have no contact with any person under the age of 16
                   unless you receive court approval or successfully complete a
                   court-approved sex offender treatment program, pursuant to
                   [Indiana Code section] 35-38-2-2.4. Contact includes face-to-
                   face, telephonic, written, electronic, or any indirect contact via
                   third parties.
    
           (Appellant’s App. p. 87).
    
           Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-797 | December 15, 2015   Page 5 of 7
    [12]   Norris posits that the imposition of Condition 20 improperly infringes upon his
    
           fundamental right to family integrity because he has a child under the age of
    
           sixteen. As noted above, convicted individuals do not enjoy the same
    
           constitutional protections as law-abiding citizens. See Taylor, 820 N.E.2d at
    
           761. Moreover, this court has previously observed that “child molesters molest
    
           children to whom they have access.” Smith, 779 N.E.2d at 117 (citing Carswell,
    
           721 N.E.2d at 1259). As a result, “probation conditions that reduce the
    
           potential for access to children are reasonable.” Id.
    
    
    [13]   Norris molested both S.M. and A.H. in his home where he lived with his minor
    
           children. Having no contact with minors helps prevent further children from
    
           the harm that Norris perpetrated against S.M. and A.H. Moreover, we note
    
           that Norris is not entirely prohibited from establishing and maintaining a
    
           relationship with his daughter. Rather, he is required to receive court approval
    
           or successfully complete a court-approved sex offender treatment program
    
           pursuant to Indiana Code section 35-38-2-2.4 before having any contact. In
    
           light of the foregoing, we agree with the trial court and conclude that no contact
    
           with anyone under sixteen is a reasonable probation condition related to the
    
           goal of protecting the community while rehabilitating Norris.
    
    
                                                  CONCLUSION
    
    [14]   Based on the foregoing, we conclude that the challenged probation condition is
    
           reasonably related to the goals of rehabilitation and public safety and
    
           accordingly, the trial court did not abuse its discretion.
    
    
           Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-797 | December 15, 2015   Page 6 of 7
    [15]   Affirmed.
    
    
    [16]   Brown, J. and Altice, J. concur
    
    
    
    
           Court of Appeals of Indiana | Memorandum Decision 34A05-1507-CR-797 | December 15, 2015   Page 7 of 7