FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN C. BOHDAN STEVE CARTER
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
CYNTHIA L. PLOUGHE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JEREMY MICHAEL FOSTER, )
)
Appellant-Defendant, )
)
vs. ) No. 02A04-0312-CR-644
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Robert J. Schmoll, Magistrate
Cause No. 02D04-0201-FC-1
August 27, 2004
OPINION - FOR PUBLICATION
SHARPNACK, Judge
Jeremy M. Foster appeals the trial court’s revocation of his probation. Foster
raises one issue, which we restate as whether the condition of his probation
prohibiting him from possessing sexually explicit materials is unreasonably vague. We reverse.
The relevant facts follow. In 2002, Foster pleaded guilty to sexual misconduct
with a minor as a class C felony. The trial court sentenced
Foster to four years in the Indiana Department of Correction with two years
suspended and two years of probation. The trial court later modified his
sentence to three years suspended instead of two years. The conditions of
Foster’s probation included the following: “You will not possess or view any
pornographic or sexually explicit material (including: books, magazines, computer images, internet files, photographs,
VCR cassettes, film or other materials).” Appellant’s Appendix at 21.
On June 20, 2003, the State filed a petition for revocation of Foster’s
probation, and, on July 21, 2003, the trial court ordered Foster “returned to
probation, subject to the same conditions ordered by this Court on May 29,
2002. Additional conditions of probation to include: zero tolerance and release
to community correction agent.” Id. at 8. On September 11, 2003,
Jerry Britson, a home detention officer for Allen County Community Corrections, visited Foster’s
home. Britson found three Stuff for Men magazines and two Maxim magazines
on the nightstand beside Foster’s bed. The State filed a second petition
for revocation of probation, alleging that Foster “was found to be in possession
of pornographic/sexually explicit material . . . .”
See footnote
Id. at 14.
At the revocation hearing, Foster argued that the term “sexually explicit” was unclear.
The trial court found that Foster had violated his probation by possessing
sexually explicit materials and ordered him to serve four years in the Indiana
Department of Correction with credit for 303 days of time served in jail
and 24 days of home detention.
The sole issue is whether the condition of Foster’s probation prohibiting his possession
of sexually explicit materials is unreasonably vague. A trial court enjoys broad
discretion when determining the appropriate conditions of probation. Smith v. State, 779
N.E.2d 111, 117 (Ind. Ct. App. 2002), trans. denied. However, this discretion
is limited by the principle that the conditions imposed must be reasonably related
to the treatment of the defendant and the protection of public safety.
Id. Where the defendant challenges a probationary condition on the basis that
it is unduly intrusive on a constitutional right, we evaluate that claim by
balancing the following factors: (1) the purpose to be served by probation, (2)
the extent to which constitutional rights enjoyed by law-abiding citizens should be enjoyed
by probationers, and (3) the legitimate needs of law enforcement. Id.
Foster argues “the condition of probation that [he] was found to have violated
was impermissibly vague [and] the finding that he violated a term and condition
of his probation is unsupported by the evidence.” Appellant’s Brief at 5.
Foster relies upon our holding in Smith, 779 N.E.2d at 117-118.
There, a condition of Smith’s probation was that he could “not possess any
pornographic or sexually explicit materials.” Id. at 117. We held that
“restricting exposure to a potential source of temptation [i.e., pornographic or sexually explicit
materials,] would, in all probability, aid in [the defendant’s] rehabilitation.” Id. at
118. However, we concluded that “this particular condition of probation [was] unreasonably
vague” for the following reasons:
A probationer has a due process right to conditions of supervised release that
are sufficiently clear to inform him of what conduct will result in his
being returned to prison. U.S. v. Guagliardo, 278 F.3d 868, 872 (9th
Cir. 2002) (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92
S. Ct. 2294, 33 L.Ed.2d 222 (1972)). And the Third Circuit Court
of Appeals has held that a blanket prohibition on “pornography” is unclear and
unconstitutionally vague. U.S. v. Loy, 237 F.3d 251, 267 (3rd Cir. 2001).
But the court in Loy stated that the lower court “could, perfectly
consonant with the Constitution, restrict Loy’s access to sexually oriented materials, so long
as that restriction was set forth with sufficient clarity and with a nexus
to the goals of supervised release.” Id. The Third Circuit suggested
that the restriction might clarify “whether it extended to non-visual materials, or [might
borrow] applicable language from the federal statutory definition of child pornography located at
18 U.S.C. § 2256(8).” Id.
Likewise, here, we remand to the trial court with instructions to set out
any prohibition against “pornographic or sexually explicit materials” with more specificity. The
definition of “child pornography” found in the federal statute might be a useful
tool in this endeavor. See 18 U.S.C. § 2256(8). And the
trial court might prohibit Smith from possessing any materials that fall under the
definition of “obscene matter.” See Ind. Code § 35-49-2-1. But whatever
the court decides, the condition should be narrowly tailored to the goals of
protecting the public and promoting Smith’s rehabilitation. See Loy, 237 F.3d at
264.
Id.
Additionally, after Foster filed his appellant’s brief, this court decided Fitzgerald v. State,
805 N.E.2d 857 (Ind. Ct. App. 2004). There, the trial court imposed
the following condition of probation:
You shall not possess or view any pornographic or sexually explicit materials, including
but not limited to: videos, television programs, DVD’s, CD’s, magazines, books, Internet web
sites, games, sexual devices or aids, or any material which depicts partial or
complete nudity or sexually explicit language or any other materials related to illegal
or deviant interests or behaviors . . . .
Id. at 866. On appeal, Fitzgerald argued, in part, that the terms
“pornographic or sexually explicit materials” and “deviant interests or behaviors” were unconstitutionally vague.
See footnote
Id. The State argued that the condition of probation was more
restrictive than the condition in Smith. Id. Relying upon Smith, we
disagreed and held that the “purported specificity in this case, if less inclusive
at all than the blanket prohibition against ‘pornographic or sexually explicit materials,’ is
only slightly so.” Id. at 867. Thus, we concluded that the
“attempt at specificity [did] not save the probation condition from the attack as
overbroad.” Id.
Similarly, here, the trial court imposed a condition of probation that Foster could
“not possess or view any pornographic or sexually explicit material (including: books, magazines,
computer images, internet files, photographs, VCR cassettes, film or other materials).” Appellant’s
Appendix at 21. The State argues that this condition is not vague
because, unlike Smith, Foster was specifically advised that the forbidden materials included books,
magazines, computer images, internet files, photographs, VCR cassettes, film or other materials.
However, as in Smith and Fitzgerald, the condition of probation does not define
sexually explicit or pornographic. As in Fitzgerald, the “purported specificity in this
case, if less inclusive at all than the blanket prohibition against ‘pornographic or
sexually explicit materials,’ is only slightly so.” Fitzgerald, 805 N.E.2d at 867.
The condition is not sufficiently clear to inform Foster of what conduct
would result in his being returned to prison. Consequently, this condition of
probation suffers from the same vagueness problem as the conditions in Smith and
Fitzgerald. As a result, we conclude that the condition is void for
vagueness and that the trial court abused its discretion by revoking Foster’s probation.
See, e.g., Smith, 779 N.E.2d at 117-118; Fitzgerald, 805 N.E.2d at 866-867.
For the foregoing reasons, we reverse the trial court’s revocation of Foster’s probation.
Reversed.
DARDEN, J. and ROBB, J. concur
Footnote:
The State also alleged that Foster “[d]id not successfully complete Community
Control supervision” and “[d]id not attend/complete counseling.” Appellant’s Appendix at 14.
However, Nicki Caldwell of Allen County Community Corrections testified that Foster did not
successfully complete the Community Control supervision and did not complete counseling because he
was terminated from Allen County Community Corrections for possessing the magazines.
Footnote:
Fitzgerald argued that a violation of the condition did not occur unless
the possession or viewing of pornographic or sexually explicit materials or any material
depicting partial or complete nudity or sexually explicit language was related to illegal
or deviant interests or behaviors. Fitzgerald, 805 N.E.2d at 866. Thus,
we addressed the issue based upon that argument. Id. However, we
also noted that “[a]n alternative reading of the probation condition could result in
conduct prohibitions even more sweeping than the prohibition contemplated by Fitzgerald.” Id.
at 866, n.7. Specifically, the words “related to illegal or deviant interests
or behaviors” could reasonably be read to refer only to possession of material
that “depicts partial or complete nudity or sexually explicit language” and not to
possession of “pornographic or sexually explicit materials.” Id.