STATE OF INDIANA

COUNTY OF MARION
JEFF HOWELL
vs.
STATE OF INDIANA
)
)
)
IN THE MARION COUNTY SUPERIOR COURT
CRIMINAL DIVISION 3
) 49003-0807-PC-158636 )

, Ell)R n llrfi \

) AUG 2 5 2011
PETITIONER'S AMENDED I 'i vvif:J{J v'7\
FINDINGS OF FACT AND CONCLUSIONS OF THIMAAIONQIIYUifOOYM(P
Comes now the Petitioner, Jeff Howell, prose, and files his Amended Findings of Fact
and Conclusions of Law in the above cause, which replace those filed previously.
FINDINGS OF FACT
1. On July 1, 2008, the State of Indiana, by information, charged Petitioner with one
count of child solicitation and two counts of attempted dissemination of matter harmful to
mmors.
2. On July 2, 2008, Master Commissioner Stanley Kroh presided over an initial
hearing where Petitioner was advised of his rights pursuant to Ind. Code 35-33-7-5 and 6 and
of the charges filed. A preliminary plea of not guilty was entered.
3. On July 25, 2008, Public Defender Jane Ruemmele was appointed by the Court to
represent Petitioner.
4. On January 6, 2009, Trial Counsel moved to dismiss the attempted dissemination
charges and on January 7, 2009, Judge Sheila Carlisle granted the motion. The final amended
information was filed on February 9, 2009, dismissing the attempted dissemination charges.
5. On February 9, 2009, this matter came before this Court for a jury trial before
Judge Sheila Carlisle. A jury was selected and sworn. Both parties presented evidence and the
jury found Petitioner guilty. The Court entered a judgment of conviction.
!
6. On February 27, 2009, Petitioner appeared before Judge Carlisle for sentencing.
Petitioner was sentenced to four years; two years executed and two years suspended with two
years of probation. Petitioner was advised of his rights to appeal and appointed pauper counsel
for that purpose.
7. Petitioner filed a timely Notice of Appeal on March 26, 2009.
8. The clerk filed its Notice of Completion ofTranscript on June 4, 2009, thus
completing the record.
9. On or about July 2, 2009, Kimmerly A. Klee was appointed as Appellate Counsel.
10. On July 24, 2009, the Brief of Appellant was filed by Appellate Counsel. Ex. 1.
11. On August 19, 2009, the State filed its Brief of Appellee. Ex. 2.
12. On October 20, 2009, the Indiana Court of Appeals issued its Memorandum
Decision affirming Petitioner's conviction. Ex. 3.
13. On November 19, 2009, Appellate Counsel filed a Petition to Transfer with the
Indiana Supreme Court on Petitioner's behalf. Ex. 4.
14. On November 20, 2009, Petitioner filed a Verified Petition for Post Conviction
Relief with this Court, which is incorporated by reference.
15. On January 7, 2010, the Indiana Supreme Court issued its decision to deny
transfer. Ex. 5.
16. On June 7, 2010, Petitioner filed his uncontested Affidavit in Support of Petition
for Post Conviction Relief, in which he outlines the actions that led up to his arrest and
prosecution in this cause. Ex. 41.
17. On April15, 2011, Petitioner filed the uncontested Affidavit of Malcolm
McMakin, in which McMakin outlines the testimony he would have provided if he had been
allowed to testify at trial. Ex. 42.
18. On or about May 1, 2008, Petitioner entered the Yahoo chat area and selected one
of the Indiana chat rooms. All of the Yahoo chat rooms are, and were known to Petitioner to be,
restricted to Yahoo users who are at least 18 years of age. Ex. 13-17, 19, 43, 44.
19. While in the Yahoo Indiana chat room, Petitioner observed the screen name
"indydiamondgirl08" which was not engaging in conversation. Petitioner noted that, as usual,
there was a large number of"chat bots
1
" in the chat room as well. The Yahoo chat rooms are
proliferated, sometimes to capacity, by these chat hots. Ex. 38, 45.
20. Odier and the State claim, on several occasions, to have "[ ... ]set up a Yahoo
account using the screen name 'indydiamondgirl08' and creating a profile indicating that he was
a fourteen-year old girl named Ashley." Ex. 2, p. 31. The State provided no evidence of such a
profile. While Odier presumably did create a profile, it was clearly an adult's profile, otherwise
he would not have had access to Yahoo's chat rooms. Furthermore, the profile did not "indicate"
that it represented a person of any specific age. Ex. 10. Each presentation by Odier and the
State that such a profile had been created- application for search warrant, probable cause
affidavit, charging information, court testimony, eta/- constitutes distinct and separate
instances of perjury, prosecutorial misconduct, or both. Trial Counsel was ineffective and
committed fundamental error when she failed to press the State to present a copy of the profile
(Ex. 7, p. 80, n. 21-24), for not obtaining and presenting the profile herself, and for not
challenging Odier's and the State's false claims that such a profile existed in the manner in
1
A chat bot is a computer program that is able to emulate human-like conversations. It is often impossible to tell the
difference. Exhibit 45 is an example of such a conversation. In early 2011, a bot called "Watson" appeared as a
contestant on the popular TV game show Jeopardy.
which the State claimed. Appellate Counsel was ineffective and committed fundamental error
for failing to raise this as a claim in the direct appeal, and for not challenging the State's claim in
the Appellee's Briefby filing an Appellant's Response.
21. Prior to engaging Odier in conversation, Petitioner viewed the Yahoo profile
associated with the "indydiamondgirl08" screen name, where he found a photo of a female, with
the purported name of"Ash" or "Ashley" and a location of"Indianapolis." There was no age
listed, nor was there any other information that would definitively identify the age of
"indydiamondgirl08." Ex. 10
22. For clarification, while it is not possible to create an account/profile without
entering the user's date of birth, the user has the option of displaying or hiding the resulting age.
Regardless as to whether or not the age is displayed, if the user is under 18, (s)he will not have
access to Yahoo's chat rooms. Obviously, Odier chose to hide his age because in having his age
displayed, it would be obvious to other users that he was an adult. Since the State's case seems
to revolve around the profile, it should have been presented to the Court. Of course, the State
chose not to present the profile to the Court, because doing so would have exposed their false
claim of having created a profile for a minor. Again, Trial Counsel was ineffective and
committed fundamental error when she failed to press the State to present a copy of the profile.
Appellate Counsel was ineffective and committed fundamental error for failing to present this as
a claim in the direct appeal.
23. On direct, when asked at trial what information he provided when setting up his
fictitious profile on Yahoo, Odier states "You put on very basic limited information, what your
ZIP code is." Odier continues, "And you can put as much or as little information on there as you
want. If you don't put anything on there, the only thing your profile would show would be your
screen name, to show your screen name at the top, and all the other fields, which are optional,
would be blank. We chose to fill in those fields." Emphasis added. Ex. 7, p. 71, n. 15-22; Ex.
10. Trial Counsel was ineffective and committed fundamental error when she failed to challenge
Odier's false testimony. Further, the State committed prosecutorial misconduct by suborning
Odier's false testimony. Appellate Counsel was ineffective and committed fundamental error for
failing to raise this as a claim in the direct appeal.
24. Also on direct, Odier was asked if there was any point during the setup process at
which he was required to verify how old he was, to which he responded "no." Ex. 7, p. 72, n. 2-
6. All Yahoo users are required to verify their age by entering their date ofbirth at the time their
account/profile is created. Ex. 13, 44. Trial Counsel was ineffective and committed fundamental
error by not challenging Odier's false testimony. Further, the State committed prosecutorial
misconduct by suborning Odier' s false testimony.
25. Yahoo' s Terms of Service, Ex. 13, 44, clearly state that all of its chat rooms are
restricted to adults
2
Also, when a user enters Yahoo's chat room area, they are presented with a
screen on which it is clearly posted that their chat rooms are available only to users who are at
least 18 years of age. Ex. 19. This fact has also been published in the media
3
after Yahoo came
to an agreement with the New York and Nebraska Attorneys General to voluntarily restrict their
chat rooms to adults in an effort to help protect minors. Ex. 14-17. Neither Odier nor the State
could have been mistaken about this fact; when Odier signed into the chat rooms, he would be
required to complete the same steps as any other chat room user. Though not required by law,
Yahoo has been pro-active by voluntarily using gateway technology to screen their chat room
2
For clarification, anyone of any age may create a Yahoo account/profile; however, children under 13 years of age
may not create an account/profile without parental oversight. Simply having an account/profile on Yahoo does not
provide access to all areas of Yahoo, including their chat rooms, which are restricted to users 18 and older.
Including articles carried by major media sources, such as The Associated Press, CNN, Reuters, and USA Today.
Ex. 14-17.
visitors' ages in an effort to help protect minors. Trial Counsel was ineffective and committed
fundamental error by not challenging Odier's false testimony. Appellate Counsel was ineffective
and committed fundamental error by not raising this claim in Petitioner's direct appeal. Further,
the State committed prosecutorial misconduct by suborning Odier's false testimony. See Cone.
Of Law 93-95.
26. Odier testified on direct that Yahoo was not aware of his decoy activities in the
Yahoo chat rooms, thus indicating he had no special authority, no special access, and no special
privileges in accessing Yahoo' s chat rooms. Ex. 7, p. 71 , n. 23-25. As far as Yahoo was
concerned, Odier was just another chat room user.
27. Yahoo makes no distinction and has no rules as to what types of conversations
may take place in their various chat rooms. Because all of Yahoo' s chat rooms are restricted to
adults, conversations of an adult nature can and do take place without regard to the category into
which a particular chat room falls. Thus, it matters not that Petitioner's conversation with Odier
took place in an "Indiana" chat room. Yahoo' s Terms of Service (TOS) specify that "[ ... ]
Yahoo has created certain areas on the Service that contain adult or mature content. You must be
at least 18 years of age to access and view such areas." Yahoo's chat room area is one such area.
Ex. 43, p. 230, ~ 2.
28. Yahoo "spokeswoman Mary Osako said Yahoo will also enhance online users'
safety by restricting Yahoo chat to users 18 and older and removing the teen category."
"Because of this agreement, Yahoo chat rooms are a safer place today," said Jon Bruning,
Nebraska's Attorney General. Ex. 15. Bruning said the agreement means "our children are safer
online and predators have fewer opportunities to prey on them." Ex. 14. "Yahoo will bar chat
rooms that promote sex between minors and adults and restrict all chat rooms to users 18 and
older." Ex. 16. "This is about protecting kids," Bruning said .... !d. "The company [Yahoo] is
also eliminating the teen chat category and limiting usage of all chat rooms to adults .... " !d.
29. When creating an account/profile on Yahoo, "Yahoo! Requires users to fill out an
online registration form, which asks users to select a unique Yahoo! ID and to enter personal
information such as their first and last names, birth date, zip code and email address." Emphasis
added. Swiger v. Allegheny Energy, Inc., 2006 U.S. Dist. Lexis 32059, Civil Action No. 05-CV-
5725 (Opinion by Joyner, J.). If any of the required information is omitted, the individual is
presented with a screen that clearly shows that "your full birthday is required." Ex. 18. A
Yahoo account/profile cannot be created without entering the required information.
30. During closing arguments, the State says "There was no evidence of an adult chat
room. The detective explained there is [sic] adult chat rooms. There's a role-playing chat room.
There was no evidence that this chat happened in there." "Where did this chat happen? The
only evidence was an Indiana chat room, a basic chat room. So yeah, there are. We're saying
that there weren't. We're saying it didn't happen. If that's what he wanted to do, go to that chat
room." Ex. 7, p. 88, n. 11-21. Trial Counsel was ineffective and committed fundamental error
when she failed to object to and challenge these arguments and Appellate Counsel was
ineffective and committed fundamental error for failing to raise this as a claim in the direct
appeal.
31. The State's arguments with regard to "Ifthat's what he wanted to do, go to that
chat room," implying that if the Petitioner had wanted to engage in an adult-oriented
conversation, he should have gone to a different chat room, violates Petitioner's First
Amendment rights, as "One is not to have the exercise of his liberty of expression in appropriate
places abridged on the plea that it may be exercised in some other place." Schneider v. State,
308 U.S. 147, 163. See also Interstate Circuit v. Dallas, 390 U.S. 676; Bantam Books, Inc. v.
Sullivan, 372 U.S. 58. "Whether petitioner might have used some other [forum] .. .is of no
consequence .... Even if [another] forum had been available, that fact alone would not justify an
otherwise impermissible prior restraint." Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
546, 556, 43 LEd 2d 448, 95 S Ct 1239 (1975). Trial Counsel was ineffective and committed
fundamental error when she failed to object to this argument, and Appellate Counsel was
ineffective and committed fundamental error by failing to raise this as a claim in Petitioner's
direct appeal.
32. On direct, Odier states "And there are typical terms of service. When you're
online doing just about anything, you have to click on the boxes that say 'I accept the terms of
service"'. Ex. 7, p. 71 , n. 10-13. On cross, Odier was asked "And do you have a copy of the
service agreement with Yahoo?" to which he responds, "I don't think we entered one, no
ma' am." Ex. 7, p. 80, n. 25; Ex. 7, p. 81, n. 1-2. Trial Counsel was ineffective and committed
fundamental error when she failed to challenge Odier about this conflicting and false testimony.
Appellate Counsel was ineffective and committed fundamental error for failing to raise this as a
claim in the direct appeal. The State, once again, committed prosecutorial misconduct for
suborning Odier's false testimony.
33. Odier's false testimony and the State's subornation ofOdier's false testimony was
intended as subterfuge in an effort to prejudice Petitioner and thus to deny his rights to a fair and
impartial trial. Odier' s false statements while under oath are indicative of a willingness to
subvert the lawful judicial process.
34. Many chat hots have a profile in order to project the impression that the bot is a
real human. Some chat hots have legitimate purposes: some companies use them to answer
customers' questions; there are several chat bots that allow children to chat with Santa Claus;
others are used for similar purposes. Other chat bots are simply used to create havoc in chat
rooms, for example, to simply occupy the chat room to capacity so that legitimate users cannot
enter. While not "chat" bots,per se, other bots are used to automatically vacuum our homes,
mow our grass, even parallel-park our cars.
35. Petitioner did a "Google" search of the screen name, using "indydiamondgirl08"
as the search term, to see what, if any, additional information he might be able to obtain.
Petitioner received a "hit" from a website that appeared to identify "indydiamondgirl08" as a
decoy screen name used by "Darin Odier" that listed "Indianapolis, Ind. " In the column labeled
"Department." The last column included the notation "Confirmed." At this point, Petitioner
concluded that "indydiamondgirl08" was in fact a decoy screen name used by "Darin Odier,"
presumably a police officer with the "Indianapolis, Ind.," police department, and that the
information had been confirmed in some way. Petitioner noted that similar information was
listed for other screen names. Ex. 32. This appears to have been a web site similar to
www.whosarat.com ("who' s a rat"), in which the public can submit reports of individuals
believed to be police informants ("rats").
36. Petitioner also located a profile on MySpace that was associated with the
"indydiamondgir108" screen name, which displayed the same retouched photo as that found on
the Yahoo profile. At that time, an age of "99" was displayed, along with the location of
"Indianapolis." Again, there was no information listed on the MySpace profile that would
definitively identify the age of "indydiamondgirl08" or that "she" was a minor. Ex. 11 . Exhibit
12 includes random profiles from Yahoo and MySpace that are representative of what
information is typically displayed.
37. The Google search that Petitioner performed for "indydiamondgirl08" was
confirmed during cross-examination of State's witness David Kimm, Ex. 7, p. 85, n. 21, who, at
the request ofiMPD, performed the forensics examination on Petitioner's computer, Ex. 21, pp.
144-145. Trial Counsel was ineffective and committed fundamental error when she failed to
pursue this issue to show the significance of that information. Likewise, Appellate Counsel was
ineffective and committed fundamental error when she failed to raise this as a claim in the direct
appeal.
38. Petitioner also did a Google search using the search term "Darin Odier" and
received information pertaining to other cases that Odier had investigated, such as news media
articles. Petitioner also received information regarding personal activities of Odier, such as
athletic events and sorority membership. Ex. 33-35.
39. Among the information retrieved on Odier was a web site listing "Darin Odier" as
an alumnus of Indiana State University in Evansville. This is what led Petitioner to use the
location of Grayville, Illinois, for "Kristi Russell's" location, as Grayville is a short distance
from Evansville and Petitioner thought that would add some familiarity. Petitioner also located a
newspaper article pertaining to Odier' s marriage. This information could not be saved.
40. Petitioner realized this decoy activity was being conducted in a chat room that is
restricted to adults, thus wondering why a reputable law enforcement agency and/or officer
would be wasting resources conducting such an activity in an environment where there would be
no minors subject to predation.
41. Petitioner was aware that the use of such decoy operations in adult chat rooms
wastes resources and was a First Amendment violation as it causes the adults engaging in adult
oriented conversations in the chat rooms to self-censor rather than subject themselves to potential
prosecution due to arbitrary and discriminatory enforcement.
42. When an individual enters a venue that is, and is known to be, restricted to adults,
and that is known to be using gateway technology to screen those individuals who wish to enter,
is it not reasonable to believe that other individuals who might be present would also be adults?
It is prominently posted in several areas of the Yahoo site, including the chat sign-in screen, that
chat users must be at least 18. Ex. 19, 43, 44.
43. Because of Yahoo's use of gateway technology to screen its chat room users, it is
impossible for a minor to, even accidentally, find him/herself in one of its chat rooms.
44. Petitioner chose to engage "indydiamondgirl08," knowing it to be Odier, in a
conversation, essentially to challenge Odier' s activity as it related to the adult chat rooms.
45. Petitioner initially contacted Odier using "john_doe8238" and engaged in an
otherwise innocuous conversation where Petitioner provided Odier with his real name, location,
where he worked, and a link to his MySpace profile which contained photos and other
information about Petitioner. Petitioner had no intention of concealing his identity from Odier,
but could have easily done so by using a proxy server or web anonymizer
4
Petitioner knew that
the information provided to Odier would make it easy to identify and/or locate him. Odier
testified in this regard. Ex. 7, p. 74, n. 17-25; Ex. 7, p. 75, n. 1-7.
46. During the online chats, knowing Odier was a police officer, Petitioner asked
Odier various questions in an attempt to elicit a response or acknowledgment from Odier that he
4
See, e.g. , Tagged, Inc., v. XXXB/ackbookcom, eta/, No. C 09-01713 WHA (N.D. Cal. 2010) (A proxy server
"hides" a computer's IP address serving as an intermediary computer-- a "middle man"-- between the website and
the user); Internet users who want to keep their identity secret can use anonymous proxy servers or anonymizers.
Center for Democracy & Technology, eta/, v. Gerald J. Pappert, 337 F. Supp. 2d 606, 644 Civil Action No. 03-
5051 (E.D. Pa. 2004) (opinion by Jan E. Dubois); see also American Library Association, eta/, v. United States, et
a/, 201 F. Supp. 2d 435, Civil Action No. 01-1303,01-1322 (E.D. Pa. 2002) (opinion by Edwin R. Becker) (Users
may access Web sites indirectly via an anonymizer when they do not want the Web site they are visiting to be able
to determine the IP address from which they are accessing the site).
was indeed a police officer and/or that would give Odier the impression that Petitioner knew he
was a police officer. These questions were of the nature, "Are you a cop looking for pervs?" and
"what PD are you with?" and other questions that only someone involved in law enforcement
would understand. Odier testified that Petitioner had in deed asked these questions. Ex. 7, p. 81 ,
n. 21-25; Ex. 7, p. 83, n. 8-25.
47. After a few minutes of conversation using the ' 'john_doe8238" screen name,
Petitioner switched to another screen name, "kristi_russell_90210." Petitioner then contacted
Odier from the second screen name and, as Odier was doing, took on the persona of an 18-year-
old female from Grayville, Illinois.
48. The conversation between "Kristi" and Odier became explicit, as Petitioner was
well aware that "indydiamondgirl08" was an adult and that their conversation was taking place,
or was initiated in, a chat room that was restricted to adults.
49. During "Kristi ' s" conversation with Odier's fictitious persona, Petitioner, again
knowing that he was communicating with an adult, offered two photos depicting nudity, but that
were not obscene, as nudity alone is not obscene. An individual who is offered photos through
Yahoo' s photo-sharing process must take affirmative action to receive those photos, which Odier
accepted. An individual cannot be "forced" to receive photos that are offered through Yahoo's
photo sharing feature.
50. Odier testified that if"Kristi" and "Ashley" had both been the persons they were
role-playing as, this activity would not have been a violation of the child solicitation statute. Ex.
7, p. 84, n. 16-25.
51. Petitioner's conversations with Odier were designed to make Odier "believe" that
Petitioner "believed" that he was communicating with a minor, even though Petitioner had
already determined the real identity of"indydiamondgirl08," knowing that there would be no one
under the age of 18 in the Yahoo chat rooms. Ex. 13-17, 19, 43, 44.
52. Petitioner asked Trial Counsel why she failed to challenge Odier' s false
testimony, to which Trial Counsel responded, "It doesn't matter," in a condescending tone of
voice. Petitioner had provided Trial Counsel with documentation proving that Odier's testimony
was false and she chose to ignore it. Thus, Trial Counsel was ineffective and committed
fundamental error. Appellate Counsel was ineffective and committed fundamental error when
she failed to raise this claim in Petitioner's direct appeal.
53. Petitioner documented his May 1, 2008, chat room activity involved in this case,
by way of a personal journal, which he created at or about the time
5
that he began
communicating with Odier. Ex. 36. Petitioner saved this and other exculpatory information to a
thumb drive with a backup to CD-ROM. The CD-ROM backup was hidden and not seized by
Odier. The information was also uploaded to a hidden location on Petitioner' s web site;
however, while incarcerated, Petitioner's debit card expired and his web site was deleted due to
the fact that the web hosting company could not receive automatic payments from Petitioner' s
bank.
54. The thumb drive, to which Petitioner saved his personal journal and other
exculpatory evidence, was seized by Odier on June 30, 2008. Petitioner believes the thumb drive
is still in Odier' s custody, as when Petitioner picked up his property from the Grand Jury
Division in July 2010, that particular thumb drive was missing; the inventory of items seized
from Petitioner' s residence on June 30, 2008, reflects that this thumb drive was seized, yet the
documentation provided to Petitioner at the time he retrieved his property does not list this
thumb drive as being returned to Petitioner.
55. When Appellate Counsel prepared the Appellant's Brief, she indicated that Odier
had testified that Yahoo's chat rooms were restricted to users who are 18 or older, Ex. 1, p. 19-
20, however, this conflicts with his actual testimony. Ex. 7, p. 71-73; Ex. 7, p. 80, n. 13-15.
Thus Appellate Counsel was ineffective and committed fundamental error by misrepresenting
Odier's testimony in the direct appeal.
56. In the Appellee's Brief, Ex. 2, pp. 41-42, the State makes the following
observation: "If the person believes that he is speaking to an adult (regardless of what 'role' is
being played) or if he is at most only reckless with regard to whether he is speaking to an adult,
his conduct will not fall within the purview of the [child solicitation] statute." Emphasis added.
Here, the State is implying that an individual is reckless by limiting his conduct to a venue
known to be restricted to adults, where no minors would be found. This goes to the State's
arbitrary and discriminatory enforcement of the statute and is untenable.
57. The State continues, "The child solicitation statute only criminalizes solicitations
made to children or to people who are believed to be children by the solicitor. Nothing in the
statute prevents an adult from going onto the Internet, finding another adult, and engaging in
sexual solicitations." Ex. 2, p. 42. The State's line of thinking is misplaced here, where
individuals who are exercising one of their fundamental rights of free speech in adult venues -
chat rooms known to be restricted to adults - are being arrested and prosecuted for their actions.
This arbitrary and discriminatory enforcement clearly violates a number of Constitutional rights.
58. Trial Counsel was ineffective and committed fundamental error when she failed
to introduce the deposition of Clarissa Charfauros at Petitioner's trial, and did not ask those
questions of Charfauros at trial. In fact, Trial Counsel failed to question Charfauros at all at trial.
Petitioner was not aware that Charfauros had been deposed until after his trial. Trial Counsel
did, however, ask these questions during cross of Charfauros during Petitioner's Obstruction of
Justice trial on February 11,2009. Ex. 9, p. 100, n. 18-23; Ex. 9, p. 101, n. 8-19.
59. IfTrial Counsel had cross-examined Charfauros, with the appropriate
questioning, the Court would have learned that, not only was Petitioner's and Charfauros's
relationship never inappropriate, but that, on a number of occasions, Charfauros had asked
Petitioner to "come get" her. On several other occasions, Charfauros told Petitioner that she
wanted to run away, quit school, and so forth. Proper questioning of Charfauros would have
revealed that, when Charfauros posed these questions to Petitioner, he always responded
appropriately by telling her that he could not "come get" her, that she should stay in school, etc.,
thus providing appropriate guidance when required. On at least one occasion, Charfauros tried to
convince Petitioner to move to Montana. In each of these situations, Petitioner responded that it
would not be appropriate, and that he had a career and reputation to protect. Unfortunately, the
State has refused to allow Petitioner to obtain this testimony on these subjects, by way of
affidavit, even though Petitioner has attempted to have his questions submitted through the Court
in order to avoid violation of the no-contact order. Petitioner believes that State is aware that
Charfauros' s testimony would be favorable to his case. This denies Petitioner of his rights to
Due Process. Petitioner also suspects that Charfauros is not aware and did not consent to a no-
contact order.
60. Prior to Petitioner's trial, during voir dire, one female jury candidate expressed
her opinion that "I think he's guilty." Of course, this candidate was eliminated and admonished;
however, Petitioner believes that, due to the nature of the allegations, most, if not all, of the jury
candidates, including those selected for jury duty, had the same opinion. This is in large part due
to the "pretrial publicity" caused by the media hype regarding Internet solicitation.
61. Trial Counsel was ineffective and committed fundamental error when she failed
to object when the State mentioned the popular television program, "To Catch a Predator." This
simply planted a picture of guilt in the minds ofthe jurors and denied Petitioner the right to a fair
trial. Appellate Counsel was ineffective and committed fundamental error for not raising this
claim in the direct appeal.
62. Trial Counsel had obviously failed to familiarize herself with Indiana's child
solicitation statute, as well as relevant case law pertaining to the statute, as evidenced by the fact
that she insisted upon arguing a "mistake of fact" when the Indiana Court of Appeals explicitly
states there is no mistake of fact defense. Appellate Counsel was ineffective and committed
fundamental error for not raising this claim in the direct appeal. See Conclusions of L a w ~ 83.
63. Trial Counsel was ineffective and committed fundamental error by failing to
allow Petitioner to testify at his trial. Trial Counsel told Petitioner she was afraid he would "say
the wrong thing," to which Petitioner responded, "Well, I would have to tell the truth."
Petitioner wanted the opportunity to bring all facts of his case to light but was not afforded that
opportunity. Appellate Counsel was ineffective and committed fundamental error for not raising
this claim in the direct appeal. Petitioner's Affidavit in Support of Petition for Post Conviction
Relief outlines the testimony he would have provided if he had been permitted to testify. Ex. 41.
64. During jury deliberations, Jury asked to see certain exhibits, but Trial Counsel
objected. Ex. 7, p. 89-92. Trial Counsel was ineffective and committed fundamental error as the
Jury had a legitimate request to see the exhibits, even if it meant bringing them back into the
courtroom. Appellate Counsel was ineffective and committed fundamental error for failing to
raise this claim in the direct appeal.
65. The Jury was told to expect a two-day trial, to which they agreed. However, later
in the day, the Jury asked if they could finish the trial early so they could go home, to which the
Judge agreed. Ex. 7, p. 79. Thus, the Jury rushed to judgment. Trial Counsel was ineffective
and committed fundamental error when she failed to object. Appellate Counsel was ineffective
and committed fundamental error by failing to raise this claim in the direct appeal.
66. During trial, the State implied that Petitioner had "gained the trust" of Charfauros
by using his position of authority in law enforcement. Trial Counsel was ineffective and
committed fundamental error when she failed to question Charfauros about the many other
friends she had met via the Internet with regard to how many of those individuals had "gained
her trust." Cell phone records reflect that Charfauros used, on average, several thousand minutes
each month, and was in contact with a great number of individuals all over the country. Ex. 40.
6
67. During trial, Odier repeatedly referred to his fictitious screen name as
"indydiamondgirl08" (oh eight).
7
Trial Counsel was ineffective and committed fundamental
error when she failed to object since Petitioner had never had a conversation with that screen
name. During Petitioner's Obstruction of Justice trial, the Judge made it clear that the proper
screen name was critical by insisting that Charfauros enunciate Petitioner's ')ohn_doe8238"
screen name. "Indydiamondgirl08" ( oh eight) is not the same as "indydiamondgirl08" (zero
eight).
68. Trial Counsel was ineffective and committed fundamental error when she failed
to object to the examination of the contents of Petitioner's laptop computer on November 24,
6
To keep the size of his Exhibit Record to a minimum, Petitioner has included only information from the month in
which Charfauros used the most minutes of call time. The statement for this particular month is over 50 pages, and
is representative of the other months' usage. Exhibit 40 is a summary of cell phone minutes used during the period
of time that Charfauros had the phone in question.
7
Obviously, the enunciation of the screen name cannot be reflected in this written document. It is, however,
reflected in the audio transcript of Petitioner's trial.
2008, and to the removal of Petitioner's U.S. Government identification card from Petitioner's
wallet on June 30, 2008, both of which were not allowed by the express terms of the search
warrants obtained by Odier. The identification card was not relevant to the investigation and was
inside his wallet, thus not in plain view. See Conclusion of L a w ~ 98. Appellate Counsel was
ineffective and committed fundamental error by not raising this claim in the direct appeal.
69. During trial, the State had placed their video projection screen in such a manner
that Petitioner could not see the presentation. Trial Counsel was ineffective when she failed to
object. Ex. 7, pp. 76-77. Appellate Counsel was ineffective for not raising this claim in the
direct appeal.
70. Prior to trial, Trial Counsel had told Petitioner that she was going to depose Odier
for the purposes of impeachment, however, she failed to do so, and thus she was ineffective and
committed fundamental error. Appellate Counsel was ineffective and committed fundamental
error for not raising this claim in the direct appeal.
71. The numerous errors encountered during Petitioner's trial constitute cumulative
error. Appellate Counsel was ineffective and committed fundamental error by failing to raise
cumulative error as a claim in Petitioner's direct appeal.
72. Trial Counsel's failure to grasp the basics of the charges resulted in manifest
injustice to Petitioner.
73. Trial Counsel committed ineffective assistance of counsel and fundamental error
when she failed to arrange for certain individuals to testify at Petitioner's trial, after Petitioner
had made a list of potential witnesses available to counsel. Of particular importance would have
been the testimony of Malcolm McMakin, whose testimony supports many of Petitioner's claims
that he knew he was communicating with a police officer and not a minor. McMakin signed an
affidavit to this effect, which was admitted uncontested. Ex. 42. Affidavits are sworn testimony
and constitute competent evidence in post-conviction proceedings.
74. Petitioner is actually innocent. If Trial and Appellate Counsel has not committed
the numerous errors enumerated herein, and had the State not prejudiced Petitioner's right to a
fair trial, the outcome of the trial would have no doubt been different. "Our Post-Conviction Rule
1 (a)( 4) acknowledges the need for relief on a showing of ' evidence of material facts, not
previously presented and heard, that requires vacation of the conviction or sentence in the
interest of justice. ' The interest of justice surely requires overturning a conviction of an innocent
person." Norris v. State, 896 N.E.2d 1155 (2008).
75. If guilt here is clear, the dignity of the law would be best enhanced by establishing
that guilt wholly through the processes of law unaided by the infusion of extraneous passion.
The moral health of the community is strengthened by according even the most miserable and
pathetic criminal those rights which the Constitution has designed for us all. Stroble v.
California, 343 U.S. 181,201 (1951).
76. Jurors are of course human beings and even with the best of intentions in the
world they are, in the well-known phrase ofHoms and Hughes, JJ. , "extremely likely to be
impregnated by the environing atmosphere." Frank v. Mangum, 237 U.S. 309, 345, 349.
77. Science with all its advances has not given us instruments for determining when
the impact of such newspaper exploitation has spent itself or whether the powerful impression
bound to e made by such inflaming articles as here preceded the trial can be dissipated in the
mind of the average juror by the tame and often pedestrian proceedings in court. Moreover, the
Supreme Court of California found that at the time of the petitioner's trial ''there was notorious
widespread public excitement, sensationally exploited by newspaper, radio and television,
concerning crimes against children and defendant's crime in particular." Stroble v. California,
supra (Justice Frankfurter, dissenting).
78. "It seems that the traditional concept ofthe 'American way ofthe conduct of a
trial,' particularly a trial for a sordid criminal offense such as that of defendant, includes both the
aspects mentioned so understandingly by Mr. Hill: on the one hand overstimulation, by mass
media of communication, of the usual public interest in that which is gruesome; on the other
hand a trial by ajudge and jury immune from the public passion." People v. Stroble, 36 Cal. 2d
615, 620-621, 226 P.2d 330, 333-334.
79. The U.S. Supreme Court has grappled with the issue ofpretria1 publicity since the
1960s. In Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961), the defendant,
Leslie Irvin, was convicted of committing six murders in a rural area of Indiana. The crimes
generated extensive media coverage. Irvin argued that the pretrial publicity prevented him from
receiving a fair trial by an impartial jury. The Court agreed, noting that eight of the twelve jurors
who heard the case had decided that Irvin was guilty before the trial began. Despite these
admissions, the trial judge accepted as conclusive the jurors' statements that they would be able
to render an impartial verdict. The Court held that the substantial publicity surrounding the case
made the trial judge's determination of juror impartiality erroneous. It set out a basic rule that
when pretrial publicity has been substantial, a trial court should not necessarily accept a juror's
assertion of impartiality. In these cases a presumption s raised that the jurors are biased.
80. In Sheppardv. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966),
local officials allowed Dr. Samuel H. Sheppard's 1954 murder trial to degenerate into a media
circus. The Cleveland media heavily publicized the case before trial and disrupted the control of
the court during the trial. The jurors were exposed to intense media coverage of the case until
the time they began their deliberations. Following deliberations, Sheppard was convicted of
murder. Sheppard spent ten years in prison before the Supreme Court ruled that the publicity
had deprived him of a fair trial. Sheppard was acquitted at his second trial.
81. The concept of a fair trial is hinged not necessarily upon law enforcement but
more on the protection of the innocent. Gilbert Helwig wrote, "The underlying premise of our
concept of justice is that it is better for a crime to go unpunished than for an innocent man to be
convicted ( 1967, p. 149). This is in accordance to the conception of the inhumanity of a situation
wherein the accused is placed in a position wherein he is forced to wage a war against society.
In this sense, the right to fair trial of the accused is in accordance to his right of reputation and
the right to confidentiality."
82. A defendant's right to an impartial jury includes the right to an adequate voir dire
to identify unqualified jurors. Morgan v. Illinois, 504 U.S. 719, 729-30, 112 S.Ct. 2222, 2230,
119 L.Ed.2d 492,503 (1992). In United States v. Davis, 583 F.2d 190 (5th Cir. 1978), we
examined the elements of an adequate voir dire when the jury venire has been exposed to
potentially prejudicial pretrial publicity. Because jurors exposed to pretrial publicity are in a
poor position to determine their own impartiality, we held that district courts must make
independent determinations of the partiality of each juror. !d. at 198.
83. Petitioner is a well-decorated public servant who has worked in law enforcement
for well over a decade. He has received commendations from governors, members of the
legislature, as well as from civic organizations; he is a legally ordained minister, and is a
Kentucky Colonel, Kentucky's equivalent oflndiana's Sagamore of the Wabash. When he
began his career in public service, he took an oath to uphold the laws of this State and to defend
the U.S. and Indiana Constitutions' when he began service with the U.S. Government, he also
took an oath to defend the U.S. Constitution as required under 5 USC 3331. He maintains his
allegiance to and obligations under those oaths, as well as to the U.S. and Indiana Constitutions.
In 2005, he was requested by the FBI to provide assistance with the search for a missing 1 0-year
old Southern Indiana girl, due to his experience in searching for lost or missing persons. He was
an ex officio member of his agency's Violent and Sex Offender Registry Task Force.
84. Petitioner is not a pedophile, hebephile, ephebephile, and Internet, nor any other
kind of, predator. He is, however, a victim of a state statute that is unconstitutional, vague, and
overly broad, and violates the First Amendment rights of adults who choose to engage in adult-
related conversations in a venue known to be restricted to adults.
85. Any Finding ofFact may be construed as a Conclusion of Law ifthe context so
warrants.
CONCLUSIONS OF LAW
1. This Court has jurisdiction in this action.
2. The purpose of a petition for post-conviction relief is to raise issues unknown or
unavailable to a defendant at the time of the original trial and appeal. Taylor v. State, 840
N.E.2d 324, 3320 (Ind. 2006); Grey v. State, 553 N.E.2d 1196, 1197 (Ind. 1990). A post-
conviction petition is not a substitute for an appeal. Davidson v. State, 763 N.E.2d 441, 441 (Ind.
2002). Further, post-conviction proceedings do not offer a petitioner a "super-appeal." Benefiel
v. State, 716 N.E.2d 906. 911 (Ind. 1999), cert. denied, 531 U.S. 830, 121 S. Ct. 83, 148 L. Ed.
2d 45 (2000). Our post-conviction rules contemplate a narrow remedy for subsequent collateral
challenges to convictions. Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999), cert. denied, 529
U.S. 1113, 120 S. Ct. 1970, 146 L. Ed. 2d 800 (2000).
3. If an issue was known and available but not raised on appeal, it is considered to
be waived. Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999). However, fundamental error
may provide an extremely narrow exception that allows a defendant to avoid waiver of an issue.
It is error that makes "a fair trial impossible or constitute[s] clearly blatant violations of basic and
elementary principles of due process ... present[ing] an undeniable and substantial potential for
harm." Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002). Fundamental error is defined as an
error so prejudicial to the rights of a defendant that a fair trial is rendered impossible. Id To be
considered fundamental error, an error "must constitute a blatant violation of basic principles, the
harm, or potential for harm must be substantial, and the resulting error must deny the defendant
fundamental due process." Spears v. State, 811 N.E.2d 485, 488 (Ind. Ct. App. 2004).
4. A criminal defendant claiming ineffective assistance of trial counsel is at
liberty to elect whether to raise this claim on direct appeal or in post-conviction proceedings.
Woods v. State, 701 N.E.2d 1208, 1216 (Ind. 1998), cert. denied, Woods v. Indiana, 528 U.S.
861, 120 S.Ct. 150, 145 L.Ed.2d 128 (1999). But if raised on direct appeal, the appellate
resolution of the issue acts as res judicata and precludes its relitigation in subsequent post-
conviction relief proceedings. Thomas v. State, 797 N.E.2d 752, 754 (Ind. 2003); McCary v.
State, 761 N.E.2d 389, 392 (Ind. 2002); Allen v. State, 749 N.E.2d 1158, 1166 (Ind. 2001);
Woods, 701 N.E.2d at 1216.
5. In contrast to a direct appeal, which addresses claims of error established in the
record of proceedings through trial and judgment, a post-conviction relief proceeding may
receive new evidence not previously presented at trial. Ind. Post-Conviction Rules 1(1)(a)(4) and
1(5); Gouldv. State, 578 N.E.2d 382,384 (Ind. Ct. App. 1991); see generally State v.
Cleland, 477 N.E.2d 537 (Ind. 1985).
6. To establish a violation of the Sixth Amendment right to effective assistance of
counsel requires a defendant to prove two components: (1) counsel's performance fell below an
objective standard of reasonableness based on prevailing professional norms; and (2) the
deficient performance prejudiced the defendant to the extent that, but for counsel's errors, the
result of the proceeding would have been different. Perez v. State, 748 N.E.2d 853, 854 (Ind.
2001); Woods, 701 N.E.2d at 1224. To support such a claim of ineffective assistance of counsel,
it is often necessary to develop {887 N.E.2d 942} facts beyond those contained in the trial
record. Mcintire v. State, 717 N.E.2d 96, 101 (Ind. 1999); Woods, 701 N.E.2d at 1216-19. Unless
foreclosed by raising the issue on direct appeal, a defendant should be permitted to present the
issue of ineffective assistance of counsel utilizing the broader evidentiary opportunities afforded
in post-conviction proceedings. Jewell v. State, 887 N.E.2d 929, 940 n.1 (Ind. 2008).
7. The customary procedure for challenging effectiveness of counsel under the Sixth
Amendment is a post-conviction ... motion. United States v. Houtchens, 926 F.2d 824, 828 (9th
Cir. 1991). Prejudice is not strictly construed because strict definition "would impose a heavy
burden on defendant[s] who are often proceeding prose in an initial ... motion." Puguero v.
United States, 526 U.S. 23, 24, 143 L.Ed.2d 18, 119 S.Ct. 961 (1999)(0'Connor, J. concurring).
8. A new trial based on the discovery of new evidence is warranted only if defendant
can show: (1) that the evidence has been discovered since the trial; (2) that it is material and
relevant; (3) that it is not cumulative; (4) that it is not merely impeaching; (5) that it is not
privileged or incompetent; (6) that due diligence was used to discover it in time for trial; (7) that
the evidence is worthy of credit; (8) that it can be produced upon a retrial of the case; and (9) that
it will probably produce a different result. Fox v. State, 568 N.E.2d 1006, 1007 (Ind. 1991). See
also Loft v. State, 690 N.E.2d 204, 211 (Ind. 1997). Regarding the final and critical ninth factor,
the defendant must raise a strong presumption that the result at any subsequent trial in all
probability would be different. See Nunn v. State, 601 N.E.2d 334, 337 (Ind. 1992); O'Connor v.
State, 529 N.E.2d 331, 333 (Ind. 1988). In ruling on whether a piece of evidence would produce
a different result, the trial court "may properly consider the weight that a reasonable trier of fact
would give it and, while so doing, may also evaluate its probable impact on a new trial in light of
all the facts and circumstance shown at the original trial ofthe case." Fox, 568 N.E.2d at 1007.
9. The issue of the sufficiency of evidence is present at every post-conviction
hearing, and is thus appropriate for comment and argument by either party. Remsen v. State, 495
N.E.2d 184 (Ind. 1986).
10. In order for new evidence to warrant the vacation of a conviction it should be
sufficiently material and decisive as to give rise to a strong likelihood that its presentation in a
new trial would cause a different result to be reached. Johnson v. State, 262 Ind. 183, 313 N.E.2d
542, 42 Ind. Dec. 651 (1974), questioned Mickens v. State, 596 N.E.2d 1379 (Ind. 1992); Berry
v. State, 163 Ind. App. 17, 321 N.E.2d 571, 45 Ind. Dec. 361 (1975); Tomlin v. State, 163 Ind.
App. 559, 325 N.E.2d 516,46 Ind. Dec. 367 (1975); Adams v. State, 430 N.E.2d 771 (Ind. 1982).
11 . In its 2008 decision in United States v. Williams, the Court reiterated the
significance of an actual child's involvement. See United States v. Williams, 128 S.Ct. 1830,
1847 (2008)(upholding the PROTECT Act).
12. On a charge of subornation of perjury, it must be proved, by the same quantum of
evidence necessary to sustain a charge of perjury, that false testimony was in fact given under
oath before a competent tribunal. Hammer v United States, 271 US 620, 70 Led 1118, 46 S Ct
603.
13. When a conviction is obtained by the presentation of testimony known to the
prosecuting authorities to have been peijured, due process is violated. The clause "cannot be
deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through
the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty
through a deliberate deception of court and jury by the presentation of testimony known to be
peijured. Such a contrivance .. .is as inconsistent with the rudimentary demands of justice as is
the obtaining of a like result by intimidation." Mooney v. Holahan, 294 U.S. 103, 112 (1935).
14. If the prosecutor knew or should have known that testimony given to the trial was
peijured, the conviction must be set aside if there is any reasonable likelihood that the false
testimony could have affected the judgment of the jury. United States v. Agurs, 427 U.S. at 103-
04.
15. Prosecutors ... are not simply advocates for the government. They are also
ministers of justice whose aim is not to "win a case, but that justice shall be done." Berger v.
United States, 295 U.S. 78, 88 (1935). As such, "[i]t is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as it is to use every legitimate
means to bring about a just one." !d.; see generally Bennett L. Gershman, The Prosecutor's
Duty to Truth, 14 Geo. J. Legal Ethics 309 (2001).
16. Prosecutorial misconduct stems from a "win at all cost" mentality underlying the
desire to further a career, or a firm belief in the defendant's guilt notwithstanding admissible
evidence. See Joseph F. Lawless, Prosecutorial Misconduct 1:06, at 1-15 (3d ed. 2003).
17. A prosecutor's knowing use of false testimony violates the due process clause.
Shasteen v. Saver, 252 F.3d 929, 933 (7th Cir. 2001); Anderson v. United States, 403 F.2d 451,
454 (7th Cir. 1968)(citing Mooney v. Holohan, 294 U.S. 103, 112,79 L. Ed. 791,55 S. Ct. 340
(1935)).
18. The Supreme Court has defined perjury in this context to be "false testimony
concerning a material matter with the willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory." United States v. Dunnigan, 507 U.S. 87, 94, 113
S. Ct. 1111, 1116, 122 L. Ed. 2d 445 (1993). "Material" means evidence, fact, statement, or
information that, if believed, would tend to influence or affect the issue under determination.
U.S. Sentencing Guidelines Manual3C1.1, cmt., application n. 6.
19. In reviewing a claim of fundamental error premised upon an allegation of
prosecutorial misconduct, the reviewing court considers first whether there was misconduct and
then whether the misconduct, under all of the circumstances, placed the defendant in a position
of grave peril to which he should not have been subjected. Stowers v. State, 657 N.E.2d 194 (Ind.
App. 1995).
20. Waiver of an issue may be avoided in a post-conviction proceeding if the failure
to present the issue resulted from ineffective assistance of counsel. Collier v. State, 572 N.E.2d
1299 (Ind. App. 1991).
21. Affidavits are sworn testimony and constitute competent evidence in post-
conviction proceedings. Gouldv. State, 578 N.E.2d 382,384 (Ind. Ct. App. 1991).
22. In order for new evidence to warrant the vacation of a conviction it should be
sufficiently material and decisive as to give rise to a strong likelihood that its presentation in a
new trial would cause a different result to be reached. Johnson v. State, 262 Ind. 183, 313 N.E.2d
542,42 Ind. Dec. 651 (1974), questioned Mickens v. State, 596 N.E.2d 1379 (Ind. 1992); Berry
v. State, 163 Ind. App. 17,321 N.E.2d 571,45 Ind. Dec. 361 (1975); Tomlin v. State, 163 Ind.
App. 559, 325 N.E.2d 516,46 Ind. Dec. 367 (1975); Adams v. State, 430 N.E.2d 771 (Ind. 1982).
23. The issue of the sufficiency of evidence is present at every post-conviction
hearing, and is thus appropriate for comment and argument by either party. Remsen v. State, 495
N.E.2d 184 (Ind. 1986).
24. Evidence is relevant if it has "any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it would
be without the evidence." Ind. Evidence Rule 401 .
25. Ineffective appellate assistance claims generally fall into three categories: (1)
denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well. Id. We
employ a two-part test to evaluate "waiver of issue" claims: (1) whether the unraised issues are
significant and obvious from the face of the record, and (2) whether the unraised issues are
"clearly stronger" than the issues raised. Fisher v. State, 810 N.E.2d 674,676-77 (Ind. 2004).
26. While this Court is not empowered to declare a statute unconstitutional or
overbroad, this Court is empowered to overturn a conviction for any just reason that might have
caused the Petitioner to receive anything less than fair trial.
27. "The ... [Internet] ... receives full First Amendment protection." See Reno v.
American Civil Liberties Union, 521 U.S. 844, 864-68 (1997); Ashcroft v. American Civil
Liberties Union, 542 U.S. 656 (2004) (Justice Stevens, speaking for the majority).
28. The First Amendment commands, "Congress shall make no law ... abridging the
freedom of speech." The government may violate this mandate in many ways, e.g., Rosenberger
v. Record and Visitors ofUniv. ofVa., 515 US 819, 132 LEd 2d 700, 115 S Ct 2510 (1995);
Keller v. State Bar of Cal., 496 US 1, 110 L Ed 2d 1, 110 S Ct 2228 (1990), but a law imposing
criminal penalties on protected speech is a stark example of speech suppression. I d.
29. Even minor punishments can chill protected speech. See, e.g., Wooley v.
Maynard, 430 US 705,51 LEd 2d 752,97 S Ct 1428 (1977).
30. Various states have passed laws seeking to limit the Internet dissemination of
material "harmful to minors." Many of these state dissemination statutes have been invalidated
by federal courts on the basis that the statutes were overbroad and not narrowly tailored, in
violation of the First Amendment or on the basis that such statutes burdened interstate commerce
in violation of the Commerce Clause. See, e.g., Am. Library Ass 'n v. Pataki, 969 F. Supp. 160
(S.D.N.Y. 1997)(New York); ACLU v. Johnson, 194 F.3d 1149 (lOth Cir. 1999)(New Mexico);
Cyberspace Commc 'ns. , Inc. v. Engler, 142 F.Supp. 2d 827 (E.D. Mich. 2001)(Michigan);
Bookfriends, Inc. v. Taft, 223 F.Supp. 2d 932 (S.D. Ohio 2002)(0hio); Am. Booksellers Found v.
Dean, 342 F.3d 96 (2nd Cir. 2003)(Vermont); PSINet, Inc. v. Chapman, 362 F.3d 227 (4th Cir.
2004)(Virginia); Southeast Booksellers Ass 'n v. McMaster, 371 F.Supp. 2d 773 (D.S.C.
2005)(South Carolina).
31. The State of Indiana claims that its child solicitation statute, as it pertains to the
Internet, is constitutional even though its arbitrary and discriminatory enforcement in adult
venues has a chilling effect on protected speech. By knowing that the State is conducting
enforcement activities in these adult venues against individuals who are not violating the statute,
others who would otherwise conduct their constitutionally protected activities are remaining
silent in order to avoid punishment. "Extraordinary harm and a serious chill upon protected
speech may result where, as here, a prosecution is a likely possibility but only an affirmative
defense is available, so that speakers may self-censor rather than risk the perils of trial." Cf
Playboy Entertainment Group, 556 F2d 9 at 817, 146 LEd 2d 865, 120 S Ct 1878. This forced
silence impinges on the First Amendment right of adults to make and obtain this speech, and, for
all intents and purposes, "reduce[s] the adult population [on the Internet] to reading only what is
fit for children." Butler v. Michigan, 352 US, at 383, 1 LEd 2d 412, 77 S Ct 524. The First
Amendment does not tolerate such interference. See ibid
32. It is well established that a credible threat of present or future criminal
prosecution will confer standing. See, e.g., Virginia v. Am. Booksellers Ass 'n, Inc. , 484 U.S.
383, 392-93 (1988)(holding that the injury-in-fact requirement was met, in part, because
"plaintiffs have alleged an actual and well-founded fear that the law will be enforced against
them"). A speaker who fears prosecution may engage in self-censorship, which is itself another
injury, see Am. Booksellers, 484 U.S. at 392 ("[T]he alleged danger of [the challenged] statute is,
in large measure, one of self-censorship.); see also Ashcroft v. ACLU, 542 U.S. 656, 670-71
(2004)("Where a prosecution is a likely possibility ... speakers may self-censor rather than risk
the perils of trial. There is a potential for extraordinary harm and a serious chill upon protected
speech."). "[W]hen dealing with ... statutes that facially restrict expressive activity by the class to
which the plaintiffbelongs, courts will assume a credible threat of prosecution in the absence of
compelling contrary evidence." Gardner, 99 F.3d at 15 (citing Babbitt, 442 U.S. at 301-02;
Bolton, 410 U.S. at 188; Am. Booksellers, 484 U.S. at 392-93; Chamber of Commerce of US. v.
FEC, 69 F.3d 600, 603-04 (D.C. Cir. 1995); Wilson v. Stocker, 819 F.2d 943, 946 (lOth Cir.
1987)).
33. Regardless of the strength of the government's interest in protecting children,
"[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be
suitable for a sandbox." Bolger v. Youngs Drug Products Corp., 463 US 60,74-75,77 LEd 2d
469, 103 S Ct 2875 (1983).
34. In 2002, the U.S. Supreme Court struck down portions of the Child Pornography
Prevention Act of 1996, Section 2251, Title 18, U.S. Code, et seq. which extended the federal
prohibition against the possession of child pornography to sexually explicit images that were
created without depicting any real children. Ashcroft v. Free Speech Coalition, 122 S.Ct. 1389,
1396 (2002). The Act defined child pornography to include "any visual depiction" that is or
appears to be of a minor engaging in sexually explicit conduct. This definition included "virtual
child pornography," which need not include, let alone harm, real children. Id at 1397. The
Court struck down this portion of the definition, finding that, I contrast to the material in Ferber,
child pornography involving fictional children "records no crime and creates no victims by its
production." ld at 1402. The Ashcroft court held that the Act's prohibition of the possession of
child pornography that does not depict real children was unconstitutional.
35. A criminal law may violate due process if it fails to give a potential offender fair
notice that his contemplated conduct is forbidden or if it encourages arbitrary enforcement and
gives the police too much discretion in determining whether it is applicable to a particular
individual. When the law fails these tests, it is "void for vagueness." Papachristou v. City of
Jacksonville, 405 U.S. 156, 162 (1972). Because of its imprecision, a vague statute may also
invite arbitrary or discriminatory enforcement. See Southeastern Fisheries, 453 So. 2d at 1353.
A statute is not void for vagueness if the language conveys a "sufficiently definite warning as to
the proscribed conduct when measured by common understanding and practices." Hitchcock v.
State, 413 So. 2d 741, 747 (Fla. 1982). The manner in which Indiana's child solicitation statute,
as it pertains to the Internet, is being enforced, violates the due process of individuals who may
be subjected to arrest and prosecution for adult activities that are being conducted within venues
that are known to be using gateway technology to restrict access to adults. The message that the
State of Indiana is giving is that adults are not permitted to engage in adult activities, even when
in adult venues. Again, this has a chilling effect in that these adults may remain silent rather than
risk prosecution.
36. The need for definiteness is even greater when the ordinance imposes criminal
penalties on individual behavior or when it implicates constitutionally protected rights. States v.
Petrillo, 332 U.S. 1, 8 (1947). However the Supreme Court has indicated that a statute that lends
itself to arbitrary enforcement can be void for vagueness even if it gives fair notice of what
conduct it prohibits. See Kolender v. Lawson, 461 U.S. 352 (1983).
3 7. Statutes that are designed to protect children from inappropriate contact "[do] not
prohibit all communications with a minor, nor [do they] prohibit all communications that relate
to illegal sexual activity." United States v. Tykarsky, 446 F.3d 458, 482 (3d Cir. 2006).
38. Under exacting scrutiny, "the government may 'regulate the content of
constitutionally protected speech in order to promote a compelling interest if it chooses the least
restrictive means to further the articulated interest."' ACLU v. Johnson, 194 F.3d at 1156
(quoting Sable Communications ofCalifornia, Inc. v. FCC, 492 U.S. 115, 126, 109 S. Ct. 2829,
106 L. Ed. 2d 93 (1989)).
39. "No man shall be held criminally responsible for conduct which he could not
reasonably understand to be proscribed." Healthscript, Inc., v. State, 770 N.E.2d at 816 (quoting
United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 812, 98 L.Ed. 989, 946 (1954)). In
State v. Downey, 476 N.E.2d 121, 123 (Ind. 1985), [the] Court emphasized that "there must be
something in a criminal statute to indicate where the line is to be drawn between trivial and
substantial things so that erratic arrests and convictions for trivial acts and omissions will not
occur. It cannot be left to juries, judges, and prosecutors to draw such lines." !d. "The statutory
language must "convey sufficiently definite warning as to the proscribed conduct when measured
by common understanding." Rhinehardt v. State, 477 N.E.2d 89, 98 (Ind. 1985). The State of
Indiana seems to imply that an individual's activities that take place, or are initiated in, a venue
that is known to that individual to employ, in the case at bar, gateway technology to restrict
access only to adults, "crosses the line" into conduct that is proscribed.
40. When construing a penal statute, ambiguous language must be construed strictly
against the State and in favor of the accused. Merritt v. State, 829 N.E.2d 472, 475 (Ind. 2005).
Indiana's child solicitation statute, as it applies to the Internet, is ambiguous "because it
authorizes or encourages arbitrary or discriminatory enforcement." Healthscript at 815-16.
Individuals who confine their conduct to venues known to be restricted to adults may be and are
being targeted for "arbitrary or discriminatory enforcement."
41. The State of Indiana indicates that adult-oriented conversations should be
conducted in Yahoo chat rooms that are tailored for adult-oriented speech. Ex. 7, p. 73, n. 16-25;
Ex. 7, p. 88. The government may not condition protected speech in such a manner. It is a fact
that all of Yahoo's chat rooms are adult chat rooms, as being restricted to users who are adults,
that is, at least 18 years of age. "One is not to have the exercise of his liberty of expression in
appropriate places abridged on the plea that it may be exercised in some other place." Schneider
v. State, 308 U.S. 147, 163. See also Interstate Circuit v. Dallas, 390 U.S. 676; Bantam Books,
Inc. v. Sullivan, 372 U.S. 58. "Whether petitioner might have used some other [forum] .. .is of no
consequence. . .. Even if [another] forum had been available, that fact alone would not justify an
otherwise impermissible prior restraint." Southeastern Promotions, Ltd., v. Conrad, 420 US 546,
556,43 LEd 2d 448, 95 S Ct 1239 (1975). Additionally, Trial Counsel was ineffective and
committed fundamental error when she failed to object to the State's suggestion that other
forums were available.
42. The CDA provided a defense when some form of age verification was used to
limit access to adults. Yahoo has been doing just that, by using gateway technology, since 2005,
to limit access to all of their chat rooms only to adults, " ... by inserting screens that verify age
using ... similar technology. Cf Reno, 521 U.S., at 890, 138 L. Ed 2d 874, 117 S. Ct. 2329
(O'Connor, 1., concurring in judgment in part and dissenting in part) (calling the age-verification
requirement similar to a "bouncer [who] checks a person's driver's license before admitting him
to a nightclub")."
43. Individuals who are offered communications on the Internet have no obligation,
nor can they be forced to, read them. All computers have options which may be taken to avoid
offensive content, and most computers have features that allow the user to block other
individuals with whom the user does not wish to communicate. "Written messages are not
communicated unless they are read, and reading requires an affirmative act." Banzhaf v. F C. C.,
132 U.S.App.D.C. 14, 405 F.2d at 1100-1102, cert. denied.
44. The defendant has a right to expect that his attorney will use every skill, expend
every energy, and tap every legitimate resource in exercise of independent professional judgment
on behalf of defendant and in undertaking representation. Frazer v. United States, 18 F.3d 778,
779 (9th Cir. 1994); U.S.C.A. Const. Amend. 6. Counsel owes defendant duty ofloyalty,
unhindered by state or by counsel's constitutionally deficient performance.
45. The Supreme Court has held that part of the right to counsel is a right to effective
assistance of counsel. Proving that their lawyer was ineffective at trial is a way for convicts to
get their convictions overturned, and therefore ineffective assistance is a common habeas corpus
claim. To prove ineffective assistance, a defendant must show (1) that their trial lawyer's
performance fell below an "objective standard of reasonableness" and (2) "a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different." Stricklandv. Washington, 466 US 668, 104 S Ct 252, 80 L.Ed. 2d 674 (1984).
46. The "defendant need not show that counsel ' s deficient conduct more likely than
not altered the outcome of the case," Strickland at 693, but rather "must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings
would have been different." Strickland at 695-96.
4 7. Prejudice requirement does not require petitioner to prove that he would not have
been found guilty. Prejudice in prose motions is not strictly construed. In cases which "counsel
entirely fails to subject the prosecution' s case to meaningful adversarial testing," ineffectiveness
will be presumed under United States v. Cronic, 466 U.S. 648, 80 L.Ed.2d 657, 140 S.Ct. 2039
(1984).
48. "Counsel has a constitutional duty to make reasonable investigations or to make
reasonable decisions that make particular investigation unnecessary." Strickland v. Washington,
466 U.S. 688, 691, 80 L.ed.2d 674, 104 S.Ct. 2052 (1984). The Sixth Amendment requires
investigation and preparation, not only to exonerate, but also to secure and protect the rights of
the accused. Such constitutional rights are granted to the innocent and guilty alike, and failure to
investigate and file appropriate motions is ineffectiveness. Kimmelman v. Morrison, 477 U.S.
365, 91 L.Ed.2d 305, 106 S.Ct. 2574 (1986)
49. "A lawyer's duty to investigate is virtually absolute, regardless of a client's
expressed wishes." Silva v. Woodford, 279 F.3d 825 (9th Cir. 2002).
50. Counsel has the constitutional and professional obligation to conduct an
investigation into potential mitigating evidence. If counsel conducts an inadequate investigation
"that fact would have no effect on the deficient conduct prong of Strickland because counsel had
already demonstrated ineffectiveness by failing to thoroughly investigate the existence of
mitigating factors." Summerlin v. Schriro, 427 F.3d 623 (9th Cir. 2005).
51. Judicial scrutiny of counsel's performance must be highly deferential. Chandler
v. United States, 218 F.3d 1305 (11th Cir. 2000), cert. denied, 531 U.S. 1204, 149 L.Ed.2d 129,
121 S.Ct. 1217 (2001).
52. The customary procedure for challenging effectiveness of counsel under the Sixth
Amendment is a post-conviction ... motion. United States v. Houtchens, 926 F.2d 824, 828 (9
1
h
Cir. 1991 ). Prejudice is not strictly construed because strict definition "would impose a heavy
burden on defendants who are often proceeding prose in an initial. .. motion." Peguero v. United
States, 526 U.S. 23, 24, 143 L.Ed.2d 18, 119 S.Ct. 961 (1999)(0'Connor, J. concurring).
53. Claims should be raised for the first time in [post-conviction] proceedings and not
on direct appeal for ineffective assistance. Chappell v. United States, 494 U.S. 1075, 108
L.Ed.2d 931, 110 S.Ct. 1800 (1990). The Ninth Circuit declined to address ineffective assistance
claims on direct appeal because a "more appropriate way to pursue this ... claim is by way of
a ... proceeding" in which "a record may be developed to show what counsel did and resulting
prejudice." United States v. Simas, 937 F.2d 459, 463 (9th Cir. 1991); United States v. Hanoum,
33 F.3d 1128 (9th Cir. 1994).
54. Issues that rely on evidence outside the record cannot be raised on direct appeal.
United States v. Quintero-Barraza, 78 F.3d 1344, 1347 (9th Cir. 1995). Claims of ineffective
assistance of counsel usually cannot be raised on direct appeal, because such claims require
evidence not already in the record. Hanoum at 1347.
55. It is obvious that ineffective assistance of counsel is not likely to be raised at
trial .... Lambright v. Stewart, 220 F.3d 1022, 1028 n.6 (9th Cir. 2000).
56. In essence, the right to a jury trial guarantees to the criminally accused a fair trial
b a panel of"indifferent" jurors. Irvin v. Dowd, 366 U.S. 717,722, 81 S. Ct. 1639, 1642 (1961).
A failure to accord an accused a fair hearing violates even minimal standards of due process. In
re Oliver, 333 U.S. 257, 68 S. Ct. 499 (1948).
57. It is the right of a defendant accused of crime to have nothing reach the mind of
the jury concerning the case except strict legal evidence admitted according to law, and if facts
prejudicial to him reach the jury otherwise, it is the duty of the trial judge to withdraw a juror and
grant a mistrial. To hold otherwise would defeat the rules of evidence and rules of procedure
that are carefully designed to give a fair trial. Griffin v. US., 295 F. 437, 439 (3rd Cir. 1924).
58. Emphatic jury instructions to disregard prejudicial publicity is [sic] an
unsatisfactory solution. It is difficult, if not impossible, to "unring a bell." When one is told
"don't think about elephants," the immediate imagen the mind is an elephant. So goes the
effectiveness of instructions to disregard. US. v. Davis, 904 F.Supp. 564, 569 (E.D. La. 1995).
59. The right to a fair and impartial jury is fundamental. The denial of that right is a
structural error that is never harmless. See Arizona v. Fulminante, 499 U.S. 279, 290 (1991).
60. "When a State ops to act in a field where its action has significant discretionary
elements, it must nonetheless act in accord with the dictates of the Constitution - and, in
particular, in accord with the Due Process Clause." Evitts v. Lucey, 469 U.S. 387, 401 (1985).
61. It has been suggested that the limiting instruction actually compounds the jury's
difficulty in disregarding the inadmissible hearsay. See Broeder, the University of Chicago Jury
Project, 38 Neb.L.Rev. 744, 753-55 (1959). Bruton v. US., 391 U.S. 123, 129 (1968).
62. Some judges have expressed doubts about the effectiveness of .. .limiting
instructions or instructions to ignore inadmissible evidence. "The nai've assumption that
prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States,
332 U.S. 539, 559, 68 S. Ct. 248, 257, all practicing lawyers know to be unmitigated fiction. "
See Skidmore v. Baltimore & Ohio R. Co. , 2 Cir. , 167 F.2d 54, Krulewich v. US. , 336 U.S. 440,
453 (1949)(Jackson, J., concurring).
63. "Journalistic codes of ethics are all moonshine." 63 Harvard Law Review at 843-
44, n. 28; Pennekamp v. State ofF/a., 328 U.S. 331, 366, n. 13 (1946)(Frankfurter, J.,
concurring)(quoting H.L. Mencken).
64. Petitioner was, in large part, "tried by newspaper." That is, the jurors were, no
doubt, influenced by the undue publicity about so-called Internet predators. The phrase "trial by
newspaper" can be traced back to Com v. House, 3 Pa.Super. 304, 1897 WL 3994 at *4
(Pa.Super., 1897), and an English case, Rex v. Clarke, 27 T.L.R. 32 (KB 1910), which was
summarized in State of Maryland v. Baltimore Radio Show, 338 U.S. 912,922-23
(1950)(Frankfurter, J., dissenting to denial of certiorari). The phrase was also the title of an
anonymous Note at 28 Harvard Law Review 605 (April1915).
65. The Constitutional standard that a juror is impartial only ifhe can lay aside his
opinion and render a verdict based on the evidence presented in court is a question of federal
law, ... [citations omitted]. Patton v. Yount, 467 U.S. 1025, 1037, n. 12 (1984).
66. The question is, is he [the juror] impartial or is he not? He will be unfitted to do
justice to the parties, whether the derive his impressions from reading the newspapers, from
common report, from casual conversations with his neighbors, or from hearing witnesses testify
in a court of justice. State v. Webster, 13 N.H. 491,492-3, 1843 WL 2092 (N.H. 1843).
67. The Court must therefore determine whether the pretrial publicity was "so
extensive and corrupting" that it must presume "unfairness of constitutional magnitude." United
States v. Nelson, 347 F.3d 701, 707-08 (8
1
h Cir. 2003) cert. denied, 543 U.S. 978 (2004); accord
United States v. Gamboa, 439 F.3d 796, 815 (8
1
h Cir.), cert. denied, 127 S.Ct. 605 (2006).
68. It is important to note that the jury ... will be seated through individual voir dire.
The court, therefore, will have provided "a method of juror qualification that will promote,
through the exercise of challenges to the venire-preemptory and for cause-the exclusion of
prospective jurors infected with prejudice[.]" Groppi v. Wisconsin, 400 U.S. 505, 510 (1971).
69. The State's case against Petitioner was founded on its "belief' that the Petitioner
had "believed" that he had been communicating with an actual minor, although Petitioner know
that he was actually communicating with Odier. Thus, the State's case was based on speculation
ofwhat the Petitioner "believed." " ... A conviction based on speculation and surmise alone
cannot stand .... " United States v. Santos, 541 F.3d 63,70 (2d Cir. 2008). " ... [and] the
government must do more than introduce evidence at least as consistent with innocence as with
guilt." US. v. Mulheren, 938 F.2d 364, 372 (2d Cir. 1991).
70. It is well settled that ''the First Amendment forbids the government to regulate
speech in ways that favor some viewpoints or ideas at the expense of others." Members of City
Council v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S. Ct. 2118,2128, 80 L.Ed. 2d 772
(1984).
71. A person's inclinations and "fantasies ... are his own and beyond the reach of the
government .... " Paris Adult Theatre I v. Slaton, 413 US 49, 67, 37 LEd 2d 446, 93 S Ct 2628
(1973); Stanley v. Georgia, 394 US 557, 565-566, 22 LEd 2d 542, 89 S Ct 1243 (1969).
72. "First Amendment freedoms are most in danger when the government seeks to
control thought or to justify its laws for that impermissible end. The right to think is the
beginning of freedom, and speech must be protected from the government because speech is the
beginning ofthought." Ashcroft v. Free Speech Coalition, 535 U.S., at 253, 122 S. Ct. 1389, 152
L. Ed. 2d 403. See also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
Inc., 515 U.S. 557, 579, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995). ("The very idea that a
noncommercial speech restriction be used to produce thoughts and statements acceptable to some
groups or, indeed, all people, grates on the First Amendment, for it amounts to nothing less than
a proposal to limit speech in the service of orthodox expression. The Speech Clause has no more
certain antithesis").
73. The Government raises serious constitutional difficulties by seeking to impose on
the defendant the burden of proving his speech is not unlawful. An affirmative defense applies
only after prosecution has begun, and the speaker must himself prove, on pain of a felony
conviction, that his conduct falls within the affirmative defense. Ashcroft, 535 U.S. at 256.
74. The government cannot constitutionally premise legislation on the desirability of
controlling a person's private thoughts. Constitutional Law 930- speech regulation; Stanley v.
Georgia, 394 US 557, 566, 22 LEd 2d 542, 89 S Ct 1243 (1969).
75. The mere tendency of speech to encourage unlawful acts is not a sufficient reason
for banning it. Free Speech Coalition, 535 U.S. at 253. Because "the Government has shown
more than a remote connection between speech that might encourage thoughts or impulses and
any resulting child abuse," it "may not prohibit speech on the ground that it may encourage
pedophiles to engage in illegal conduct." !d. at 253-54.
76. General references to speech repugnant to public mores cannot serve as a
compelling government interest sufficient to override constitutional protections of speech. See,
e.g. , United States v. Eichman, 469 U.S. 310, 319 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990) ("If
there is a bedrock principle underlying the First Amendment, it is that the Government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable.") (citing Texas v. Johnson, 491 U.S. 397, 414, 109 S. Ct. 2533, 105 L. Ed. 2d 242
(1980)); United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 826, 120 S. Ct. 1878, 146 L.
Ed. 2d 865 (2000)).
77. Any examination of thought or expression in order to prevent publication of
objectionable material is censorship. Anti-Defamation League of B 'Nai B 'Rith v. F C. C., 131
U.S.App. D.C. 146, 403 F.2d 169.
78. "Nudity alone is not enough to make material legally obscene." Smith v. State,
413 N.E.2d 652; Jenkins v. Georgia, 418 U.S. 153 (1974).
79. The U.S. Supreme Court has ruled that procedural rules should be relaxed for pro
se litigants. Haines v. Kerner, 404 U.S. 519 (1972).
80. "I do not believe, for example, that any sort of sexual activity portrayed or
enacted over the phone lines would fall outside of the obscenity portion of the statute that we
uphold, and within the indecency portion that we strike down, so long as it appeals only to
'normal, healthy sexual desires' as opposed to 'shameful or morbid' ones." Brockett v. Spokane
Arcades, Inc. , 472 US 491, 498, 86 LEd 2d 394, 105 S Ct 2794 (1985); Sable v. FCC, 106 LEd
2d 93, 492 US 115, 133, 109 S Ct 2829 (1989).
81. The State is responsible for ensuring that the testimony of its witnesses is truthful.
By allowing Odier to provide false testimony regarding Yahoo's age restrictions, the information
required when creating a Yahoo account, and his acceptance of Yahoo's Terms of Service, the
State committed Prosecutorial Misconduct. Odier' s false testimony was intended to cast the
Petitioner in the most suspicious and negative light possible in order to secure a conviction.
"There is no crueler tyranny than that which is exercised under cover of law, and with the colors
of justice." US. v. Jannotti, 673 F.2d 578, 614 (3rd Cir. 1982).
82. As the United States Supreme Court has noted, the prosecutor represents "a
sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at
all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that
justice shall be done." Berger v. United States (1935) 295 U.S. 78, 88 [55 S.Ct. 629, 633; 79
L.Ed. 1314, 1321].
83. In Indiana, a defendant may avoid conviction on the basis of a mistake of fact
only if the mistake is (1) reasonable and (2) negates the culpability required for the offense. I.C.
35-41-3-7 (1998). However, "When the General Assembly amended I.C. 35-42-4-6, it was
in all likelihood responding to State v. Kemp, 753 N.E.2d 47 (Ind. Ct. App. 2001), trans. Denied.
Under the amended version of I. C. 35-42-4-6, rather than leaving it to litigants or interpretive
courts to find and invoke I.C. 35-41-3-7's 'mistake of fact' provision when a defendant claims
he or she was mistaken as to the solicitee's identity or age, the General Assembly asserted its
compelling state interest in protecting children by proactively removing a mistake of fact defense
by the express terms of the statute itself." Larose v. State, 820 N.E.2d 727; 2005 Ind App Lexis
25. However, because it is not possible to know the age of a particular Internet use, removing
the mistake of fact provision of the statute leaves it overbroad, to the point that innocent adults
are, or could be, prosecuted, even when the accused has taken reasonable efforts to ensure his
activities are confined to a venue where on would reasonably believe that only adults would be
present. Thus, I.C. 35-42-4-6 is unconstitutional as it pertains to the Internet.
84. Until gateway technology is available throughout cyberspace ... a speaker cannot
be reasonably assured that the speech he displays will reach only adults because it is impossible
to confine speech to an "adult zone." Thus, the only way for a speaker to avoid liability under
[I. C. 35-42-4-6] is to refrain completely from using indecent speech. But this forced silence
impinges on the First Amendment right of adults to make and obtain this speech and, or all
intents and purposes, "reduce[s] the adult population [on the Internet] to reading only what is fit
for children." Reno v. ACLU, 521 US 821 , 844, 138 LEd 2d 874, 117 S Ct 2329 (1997); Butler
v. Michigan, 352 US, at 383, 1 LEd 2d 412, 77 S Ct 524. [I. C. 35-42-4-6] ... arbitrarily curtails
one of those liberties of the individual, now enshrined in the Due Process Clause of the
Fourteenth Amendment, that history has attested as the indispensable conditions for the
maintenance and progress of a free society. Butler, at 384.
85. Trial Counsel did not grasp the basics of the charges against Petitioner. "[I}f an
attorney does not grasp the basics of the charges and the potential defenses to them, the accused
may well be stripped of the very means that are essential to subject the prosecution' s case to
adversarial testing. " Scarpa v. Dubois (C.A.l, 1994), 38 F.3d 1, 10; cf. Rinehart v. Brewer
(C.A.8, 1977), 561 F.2d 126, 131-132.
86. Petitioner asserts that the cumulative effect of the constitutional violations set
forth [herein], plus other factors, amount to constitutional error. In some cases, although no
single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several
such errors may prejudice a defendant to the extent the conviction must be overturned. United
States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996).
87. "A plain error must be clear and obvious, highly prejudicial and must affect
substantial rights." United States v. Siu Kuen Ma, 290 F .3d 1002, 1005 (9th Cir. 2002) (citations
and internal quotations omitted). Under the plain error standard, "we may reverse [the]
conviction only if the prosecutor's improper conduct so affected the jury's ability to consider the
totality of the evidence fairly that it tainted the verdict and deprived [the defendant] of a fair
trial." United States v. Smith, 962 F.2d 923, 935 (9th Cir. 1992) (citations and internal quotations
omitted).
88. "The right to a fair trial, guaranteed by the Sixth and Fourteenth Amendments,
includes the presumption of innocence." Morgan v. Aispuro, 946 F.2d 1462, 1464 (9th Cir.
1991). "To implement the presumption, courts must be alert to factors that may undermine the
fairness of the fact-finding process." Norris v. Risley, 918 F.2d 828, 831 (9th Cir. 1990)
(quotations omitted).
89. There were numerous errors encountered with Petitioner's trial and appeal, as
enumerated herein. " ... [T]he errors considered together amount to a cumulative error requiring
reversal..."; see Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558, 169 L. Ed. 2d
481 (2007), and Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007).
90. [T]o demonstrate cumulative error, petitioner must establish that at least two
errors were committed in the course of the trial and that when considered together along with the
entire record, these errors so severely infected the jury's deliberations that denied petitioner a
fundamentally fair trial. Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir. 2000).
91. "Waiver is different from forfeiture. Whereas forfeiture is the failure to make the
timely assertion of a right, waiver is the 'intentional relinquishment or abandonment of a known
right."' United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d
508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458,464,58 S. Ct. 1019, 1023,82 L. Ed.
1461 (1938)). Petitioner has never intentionally relinquished or abandoned his rights.
92. [A]n appellant who seeks to prevail on plain error review must show that: (1) an
error occurred; (2) the error was plain; (3) the error affected his substantial rights; and (4) the
error is one seriously affecting the fairness, integrity or public reputation of judicial proceedings,
such that the Court should exercise its discretion to correct the error, Johnson v. United States,
520 U.S. 461,466-467, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997)
93. A person who: (1) Makes a false, material statement under oath or affirmation,
knowing the statement to be false or not believing it to be true; or (2) Has knowingly made
two (2) or more material statements, in a proceeding before a court or grand jury, which are
inconsistent to the degree that one (1) of them is necessarily false; commits perjury, a Class D
felony. (b) In a prosecution under subsection (a)(2) of this section: (1) The indictment or
information need not specify which statement is actually false; and (2) The falsity of a
statement may be established sufficient for conviction, by proof that the defendant made
irreconcilably contradictory statements which are material to the point in question. I. C. 35-44-
2-1(a) and (b).
94. If a witness so testified as to create a false impression as to the existence of
material facts, he could be guilty of perjury. State v. Wilson, 156 Ind. 343, 59 N.E. 932, 1901
Ind. LEXIS 50 (1901).
95. Peijury occurs when a witness, testifying under oath or affirmation, "gives false
testimony concerning a material matter with the willful intent to provide false testimony, rather
than as a result of confusion, mistake, or faulty memory." United States v. Dunnigan, 507 U.S.
87, 122 L. Ed. 2d 445, 113 S. Ct. 1111 (1992).
96. Nothing can destroy a government more quickly than its failure to observe its own
laws, or worse, its disregard ofthe character of its own existence." Mapp v. Ohio, 367 U.S. 643,
659, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961).
97. Society has important and substantial interests which require the admission of all
relevant and reliable evidence in a criminal prosecution. See, e.g., Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388, 411, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971) (Burger, C.J.,
dissenting); United States v. Janis, 428 U.S. 433, 447, 96 S. Ct. 3021, 3029, 49 L. Ed. 2d
1046 (1976); Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 1250, 51 L. Ed. 2d 424 (1977)
(Burger, C.J., dissenting). The most notable social interest which favors admission of evidence
is the concept that the trier of fact performs a truth-seeking function for both society and the
accused. The truth seeker can perform its essential social function of issuing accurate
adjudications of factual guilt or innocence only if the law insures the presentation of the fullest
range of relevant evidence to the trier of the facts. See, Brewer v. Williams, 430 U.S. 387, 422,
97 S. Ct. 1232, 1251, 51 L. Ed. 2d 424 (1977) (Burger, C.J., dissenting).
98. "In a government oflaws, existence ofthe government will be imperilled [sic] if it
fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher.
For good or for ill, it teaches the whole people by its example. Crime is contagious. If the
Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a
law unto himself; it invites anarchy. To declare that in the administration of the criminal law the
end justifies the means-to declare that the Government may commit crimes in order to secure the
conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine
this Court should resolutely set its face." Olmstead v United States, 277 US 438, 485, 72 LEd
944,48 S Ct 564, 66 ALR 376 (1928) (dissenting opinion).
99. "Miscarriage of justice" refers to a narrow exception delineated in Murray that
permits [ ... ] courts to excuse procedural default upon a showing that a constitutional violation
"has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at
496. To establish a claim of actual innocence, a petitioner must show "a fair probability that in
light of all the evidence ... the trier of facts would have entertained a reasonable doubt of his
guilt." Kuhlmann v. Wilson, 477 U.S. 436, 455 n.l7, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1985).
This includes not only evidence that was arguably wrongly excluded but also evidence that was
illegally admitted. See id
100. Police officers do not have "unbridled discretion" to rummage through people's
belongings. Warren v. State, 760 N.E.2d 608, 610 (Ind. 2002). In Warren, we concluded that
language from a warrant authorizing officers to seize "any other indicia of criminal activity
including but not limited to books, records, documents, or any other such items" violated the
Fourth Amendment. "[a] warrant may contain a catchall phrase as long as it sufficiently limits
the discretion of the officers in executing the warrant." United States v. Brown, 832 F.2d 991 ,
996 (7th Cir. 1987) (citing Andresen v. Maryland, 427 U.S. 463,479-82, 96 S. Ct. 2737, 49 L.
Ed. 2d 627 (1976)).
101. Any Conclusion of Law may be construed as a Finding of Fact if the context so
warrants.
WHEREFORE, Petitioner prays this Honorable Court will accept his Amended
Findings of Fact and Conclusions of Law, to grant his Petition for Post Conviction Relief, and
for all other relief just and proper.
CERTIFICATE OF SERVICE
I, Jeff Howell, do herby certify that a true and correct copy of the foregoing was served
upon Julie Kirchoff, Marion County Deputy Prosecutor, 251 E. Ohio Street, Room 160,
Indianapolis IN 46204, this 19th day of August, 2011, by depositing in the prison mail system
for delivery by U.S. Mail, First Class, postage pre-paid.
JeffHowell #194392
New Castle Correctional Facility
P.O. Box A
New Castle IN 47362