ATTORNEY FOR APPELLANT

Kristin A. Mulholland 

LeBlanc & Mulholland LLC 

Crown Point, Indiana 

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller 

Attorney General of Indiana 

J.T. Whitehead 

Kyle Hunter 

Deputy Attorneys General

In the 

Indiana Supreme Court 

No. 45S03-1509-CR-528 

SIDNEY LAMOUR TYSON, 

Appellant (Defendant below), 

v. 

STATE OF INDIANA, 

Appellee (Plaintiff below). 

Appeal from the Lake County Superior Court, No. 45G01-1301-FD-11 

The Honorable Salvador Vasquez, Judge 

On Petition to Transfer from the Indiana Court of Appeals, No. 45A03-1405-CR-143 

February 25, 2016 

Massa, Justice.

Sidney Lamour Tyson is charged with failing to register as a sex offender in Indiana, the 

basis of that requirement being his obligation to register in Texas because of a delinquency 

adjudication. Tyson has moved to dismiss that charge, arguing he does not fit our statutory 

definition of a sex offender under Indiana Code section 11-8-8-5(b), and alternatively, his duty to 
2

register upon moving to Indiana violates our Ex Post Facto Clause as applied to him since the 

definition was amended after he committed the underlying offense. Because Tyson is required to 

register in another state, we find he satisfies our statutory definition, and he must do so here. And, 

holding today that maintaining a registry requirement across state lines does not amount to a 

punitive burden, we see no ex post facto violation. We affirm. 

Facts and Procedural History 

In Texas in 2002, then-thirteen-year-old Sidney Tyson was adjudicated delinquent for 

aggravated sexual assault and indecency with a child, and he was required to register there as a sex 

offender until 2014. Although at the time of his offense, he would not have had to register in 

Indiana if he moved here, in 2006 our law changed: the legislature amended the Sex Offender 

Registry Act’s definition of sex offender to include “a person who is required to register as a sex 

offender in any jurisdiction.” 2006 Ind. Acts 2318. In 2009, Tyson moved to Indiana; a few years 

later a police officer pulled him over for driving with an expired plate and discovered Tyson was 

required to (and did) register as a sex offender in Texas but had not registered here. 

The State charged Tyson with Class D felony failure to register as a sex offender. He 

moved to dismiss that charge, arguing that enforcing the registry requirement constituted an ex 

post facto violation since his offense occurred before the change to the definition of sex offender 

took effect. After a hearing, the trial court denied his motion. 

Tyson filed an interlocutory appeal, and in a unanimous opinion, our Court of Appeals 

affirmed the trial court. Tyson v. State, 28 N.E.3d 1074, 1075 (Ind. Ct. App. 2015). The panel 

reasoned that the underlying purpose of our Ex Post Facto Clause is to ensure fair warning of what 

conduct will result in criminal procedures, and here, Tyson had sufficient warning: when he 

moved to Indiana, the amendment requiring his registration had been on the books for three years. 

Id. at 1076–77. Moreover, because he was already required to register in Texas until 2014, the 
3

panel found he merely remained a sex offender upon relocation; he did not become one by 

operation of the amendment. Id. at 1077. Tyson sought transfer, arguing the relevant date for the 

ex post facto analysis is the commission of the offense, not relocation. 

We granted Tyson’s petition, thereby vacating the opinion below. Tyson v. State, 37 

N.E.3d 493 (Ind. 2015) (table); Ind. Appellate Rule 58(A). 

Standard of Review 

Tyson’s appeal arises from the denial of his motion to dismiss the criminal charge against 

him, which we generally review for an abuse of discretion. Tiplick v. State, 43 N.E.3d 1259, 1262 

(Ind. 2015). But where, as here, the arguments presented are questions of law, we consider them 

de novo. Study v. State, 24 N.E.3d 947, 950 (Ind.), cert. denied, 136 S. Ct. 412 (2015). First, 

Tyson contends the plain meaning of the statutory definition of “sex or violent offender” does not 

include him; we review such matters of statutory interpretation without deferring to the resolution 

below. Id. Second, if Tyson does fit the statutory definition, he claims the registry requirement is 

an ex post facto violation as applied to him; likewise, we review questions of constitutionality 

afresh. Zoeller v. Sweeney, 19 N.E.3d 749, 751 (Ind. 2014). As the party challenging the statute, 

Tyson bears the burden of proof and all doubts are resolved against him. Jensen v. State, 905 

N.E.2d 384, 390 (Ind. 2009). Unlike a facial challenge, however, he need only show the statute is 

unconstitutional “on the facts of [the] particular case.” Meredith v. Pence, 984 N.E.2d 1213, 1218 

n.6 (Ind. 2013). 
4

Tyson Is a “Sex or Violent Offender” Pursuant to Our Statutory Definition. 

Indiana Code section 11-8-8-5 (Supp. 2015) defines “sex or violent offender” in two parts. 

Subsection (a) lists twenty sex crimes in our Indiana Code that, if convicted of any one of them, 

result in such a classification; subsection (b) adds, “the term includes”: 

(1) a person who is required to register as a sex or violent offender 

in any jurisdiction; and 

(2) a child who has committed a delinquent act and who: 

(A) is at least fourteen (14) years of age; 

(B) is on probation, is on parole, is discharged from a facility 

 by the department of correction, is discharged from a secure 

 private facility (as defined in IC 31-9-2-115), or is 

 discharged from a juvenile detention facility as a result of an 

 adjudication as a delinquent child for an act that would be an 

 offense described in subsection (a) if committed by an adult; 

 and 

(C) is found by a court by clear and convincing evidence to 

 be likely to repeat an act that would be an offense described 

 in subsection (a) if committed by an adult. 

Tyson argues he does not fit within this framework because subsection (b)(2) restricts the 

definition. More specifically, Tyson contends the statute requires a sex offender be someone 

(1) who is required to register elsewhere and (2) who is a child that committed a delinquent act 

and (3) who is at least fourteen years old; “by simple statutory construction . . . with that 

conjunction ‘and,’ he has to be a child who is over the age of fourteen years.” Oral Arg. Video at 

2:20–54, 4:35–59. We disagree. 

In construing a statute, we give unambiguous words their plain and ordinary meaning. 

State v. Am. Family Voices, Inc., 898 N.E.2d 293, 297 (Ind. 2008). We also examine the structure 

of the statute as a whole. City of Indianapolis v. Ingram, 176 Ind. App. 645, 657, 377 N.E.2d 877, 
5

884 (1978); see also City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007); Russell v. Russell, 

682 N.E.2d 513, 517 (Ind. 1997). Utilizing those canons, we find subsection (b) expands the 

definition of sex offender by adding that “the term includes” two classes of individuals, the first 

being persons required to register in another state under (b)(1) and the second being children 

adjudicated delinquent under (b)(2). The word “and” connecting (b)(1) and (b)(2) does not mean 

both conditions are required, but merely means both classes are “include[d].” With (b)(1) and 

(b)(2) as two independent bases for meeting the definition, we find the heightened protections laid 

out in (b)(2)(A), (b)(2)(B), and (b)(2)(C)—including the minimum age Tyson urges should protect 

him—apply only to the subsection in which they appear, (b)(2). 

Moreover, we agree with the State that reading subsections (b)(1) and (b)(2)(A)–(C) 

together as one list of requirements would lead to an absurd result. Doing so would exclude all 

adult offenders who are required to register in another state because they fail Tyson’s second 

element—being a child. And a child at least fourteen years old adjudicated delinquent for a sex 

offense with all of Indiana’s statutory protections afforded to him or her would similarly be 

excluded for not meeting Tyson’s first element—being required to register elsewhere. We decline 

to interpret the statute in a way that undermines its clear purpose “to protect the public.” Wallace 

v. State, 905 N.E.2d 371, 383 (Ind. 2009); see also Cooper Indus., LLC v. City of S. Bend, 899 

N.E.2d 1274, 1283 (Ind. 2009) (“We presume the legislature intended the language used in the 

statute to be applied logically, consistent with the statute’s underlying policy and goals, and not in 

a manner that would bring about an unjust or absurd result.”). Thus, an individual may be a “sex 

or violent offender” by satisfying either (b)(1) or (b)(2). 

It is undisputed that, when Tyson was stopped by police in 2012, he was required to register 

as a sex offender in Texas. Tex. Code Crim. Proc. Ann. arts. 62.002(a) (West 2005); 62.101(c)(1) 

(West 2010). He was therefore a “sex or violent offender” pursuant to our statutory definition set 

forth in Indiana Code section 11-8-8-5(b)(1). 
6

The Statute Poses No Ex Post Facto Violation as Applied to Tyson. 

As a sex offender living in Indiana, our Sex Offender Registration Act mandated that Tyson 

register here for the duration of his Texas requirement. Ind. Code § 11-8-8-7(a), -19(f). Tyson 

asserts that, as applied to him, this obligation violates Indiana’s prohibition against ex post facto 

laws because at the time he committed the underlying offense, our statutory definition had not yet 

been amended to include him. 

Both the United States and Indiana Constitutions prohibit laws that impose punishment 

beyond what was prescribed at the time the act was committed. Wallace, 905 N.E.2d at 377 (citing 

Weaver v. Graham, 450 U.S. 24, 28 (1981)). The principle fundamental to this prohibition is that 

people have a right to fair warning of the criminal penalties that may result from their conduct. Id. 

Specifically, our Constitution provides, “No ex post facto law . . . shall ever be passed.” Ind. 

Const. art. 1, § 24. And its federal counterpart similarly states, “No state shall . . . pass any . . . ex 

post facto law[.]” U.S. Const. art. I, § 10. Despite parallel language, we have recognized our State 

Constitution possesses a “unique vitality.” State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002). 

Thus, although federal authority may assist in our analysis, we may find our Indiana provision 

dictates a different outcome. Wallace, 905 N.E.2d at 378. 

Indeed, such has been the case in the sex offender registry context: six years after the 

Supreme Court of the United States found Alaska’s Sex Offender Registration Act was regulatory 

and therefore could be applied retroactively without offending the Federal Ex Post Facto Clause, 

Smith v. Doe, 538 U.S. 84, 105–06 (2003), we found our own Act1 violated Indiana’s Ex Post 

Facto Clause because it imposed a punitive burden as applied to an offender who committed his 

 

1

 We did acknowledge that our Act and Alaska’s were “very similar.” Wallace, 905 N.E.2d at 378. 
7

crime—and even served his sentence—before any registration requirement existed. Wallace, 905 

N.E.2d at 384.2 But that same day, we found an amendment to that Act, which lengthened the 

mandatory registration period for sexually violent predators from ten years to life,3 presented no 

ex post facto violation as applied to an offender who was already under a requirement to register. 

Jensen, 905 N.E.2d at 394. Two years later, we upheld a similar amendment enhancing an 

offender’s present registration requirement. Lemmon v. Harris, 949 N.E.2d 803, 813 (Ind. 2011) 

(“Harris’s claim fails for the same reasons Jensen’s claim failed.”). 

In deciding all three cases, we adopted the Supreme Court’s intent-effects test as the proper 

vehicle for analyzing whether the statute imposes a punishment—which cannot be done 

retroactively pursuant to our Ex Post Facto Clause—or whether the statute is merely part of a 

non-punitive, regulatory scheme. Wallace, 905 N.E.2d at 378 (citing Smith, 538 U.S. at 92); see 

 

2

 Both before and after Smith v. Doe, state courts of last resort have overwhelmingly upheld their sex 

offender registry acts as regulatory regimes in the face of ex post facto challenges. E.g., State v. Noble, 

829 P.2d 1217, 1224 (Ariz. 1992) (en banc); People v. Castellanos, 982 P.2d 211, 217–18 (Cal. 1999); 

People v. Adams, 581 N.E.2d 637, 641 (Ill. 1991); Hyatt v. Commonwealth, 72 S.W.3d 566, 572 (Ky. 

2002); R.W. v. Sanders, 168 S.W.3d 65, 70 (Mo. 2005); State v. Mount, 2003 MT 275, ¶ 90, 317 Mont. 

481, 497, 78 P.3d 829, 841; State v. Worm, 680 N.W.2d 151, 163 (Neb. 2004); Doe v. Poritz, 662 A.2d 

367, 406 (N.J. 1995); State v. Burr, 598 N.W.2d 147, 158–59 (N.D. 1999); State v. Ward, 869 P.2d 1062, 

1068–69 (Wash. 1994) (en banc). But see Doe v. State, 189 P.3d 999, 1019 (Alaska 2008); Doe v. Dep’t 

of Pub. Safety & Corr. Servs., 62 A.3d 123, 143 (Md. 2013). 

3

 Although the 2006 amendment at issue in Jensen did require sexually violent predators to register for life, 

it also provided an avenue for offenders to, after ten years, petition the court to “consider whether the person 

should no longer be considered a sexually violent predator.” 905 N.E.2d at 394 (quoting Ind. Code § 35-

38-1-7.5(g) (2014)). We found this opportunity for review to be significant in assessing whether the 

lengthened registration requirement constituted retroactive punishment. See Gonzalez v. State, 980 N.E.2d 

312, 321 (Ind. 2013) (finding an ex post facto violation where offender’s registration requirement was 

retroactively increased to life because of the victim’s age and he could not request relief based on his 

rehabilitation). 
8

also Jensen, 905 N.E.2d at 390; Harris, 949 N.E.2d at 810. We find that same test drives our 

analysis today. 

The first prong directs us to discern the legislature’s intent. Wallace, 905 N.E.2d at 379. 

Although we cannot turn to legislative history or an express purpose statement, we can examine 

where the legislature placed the challenged statute within the Code as probative evidence of its 

intent. Jensen, 905 N.E.2d at 390; see also Smith, 538 U.S. at 94. Both the amended statutory 

definition, Ind. Code § 11-8-8-5, and the corresponding mandate to register, Ind. Code § 11-8-8-7, 

appear in Title 11, concerning Corrections, not in Title 35, where we find our laws on criminal 

offenses, procedure, and sentencing. Perhaps more importantly, we are aided by the principle that 

our statutes are presumed to be constitutional unless clearly overcome by a contrary showing. 

Jensen, 905 N.E.2d at 390. Tyson has pointed to no evidence of punitive legislative intent behind 

the amended definition, and we see none. We thus presume the legislature intended it to operate 

as part of a civil, and not criminal, regime. 

The second prong of the intent-effects test asks us to assess the statute’s practical effects. 

Wallace, 905 N.E.2d at 379. For guidance, the Supreme Court of the United States and this Court 

have turned to the seven factors outlined in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 

(1963): 

[1] Whether the sanction involves an affirmative disability or 

restraint, [2] whether it has historically been regarded as a 

punishment, [3] whether it comes into play only on a finding of 

scienter, [4] whether its operation will promote the traditional aims 

of punishment—retribution and deterrence, [5] whether the behavior 

to which it applies is already a crime, [6] whether an alternative 

purpose to which it may rationally be connected is assignable for it, 

and [7] whether it appears excessive in relation to the alternative 

purpose assigned. 
9

Wallace, 905 N.E.2d at 379. These factors, however, are neither exhaustive nor dispositive; they 

only provide a framework for the analysis. Smith, 538 U.S. at 97. Our task is to thoughtfully 

consider and weigh the factors, which we endeavor to do below. 

First, we evaluate any affirmative disability or restraint imposed upon Tyson by operation 

of the amended statutory definition. As we’ve said before, the Act presents “significant affirmative 

obligations”—including registering with Corrections, disclosing personal information, allowing 

law enforcement visitation, and alerting authorities as to certain travel plans—as well as “a severe 

stigma” for every person to whom it applies. Wallace, 905 N.E.2d at 379–80. Here, however, 

Tyson was already under similar obligations in Texas and was subject to the same resulting 

stigma.4 Nevertheless, we cannot overlook the fact that our Act does require he take an additional 

step, namely, that he notify Indiana’s Department of Corrections of his presence so that he can 

perform those obligations here. And the resulting stigma could burden his move: while many 

Americans relocate to a new state to give themselves a fresh start, our Act makes that nearly 

impossible for sex offenders with an out-of-state registration requirement. Although the 2006 

amendment largely maintained many of the restraints already imposed on Tyson, because he has 

to affirmatively alert another state’s government and comply with its specific procedures for 

reporting, we find this factor leans toward finding its effects to be slightly punitive as applied to 

him. 

Second, we determine whether the sanction has historically been considered punishment. 

In Wallace, we found the dissemination of the registrant’s face accompanied with the “Sex 

Offender” label on a website resembled the historic punishment of shaming, and some of the Act’s 

 

4

 Although the specific duties under our Act and Texas’s version may not be precisely the same, Tyson has 

presented no evidence—and we have no reason to conclude—that ours are any more burdensome. 
10

reporting requirements were comparable to probation or parole, although we acknowledged other 

courts have disagreed. Id. at 380. Even in Jensen, where the offender was already included on the 

public registry, changing his label from “Sex Offender” to “Sex Predator” amounted to additional 

shaming that tipped this factor toward being punitive in effect. 905 N.E.2d at 392. Here, Tyson 

was subject to registry reporting requirements well before our definition of sex offender changed. 

And unlike Jensen, there is no evidence Tyson would be presented on Indiana’s registry as 

anything more stigmatizing than what he would have endured in Texas. Still, the amendment does 

result in some increased shaming to which Tyson was not previously exposed: his face and 

offender label would appear on an additional website, accessed mostly by Indiana residents. Thus, 

a separate community—likely including Tyson’s new neighbors and potential employers—would 

be put on notice of his past behavior.5 While certainly not as egregious as Wallace or Jensen, this 

factor slightly favors finding a punitive burden as to Tyson. 

Third, we consider scienter, which is customarily included in criminal statutes. Generally, 

if the sanction can result without showing mens rea, it is less likely to be considered punitive. Id. 

at 381. In both Wallace and Jensen, although acknowledging the Act lists a few strict liability 

crimes, we observed its application to the two offenders there was triggered by their convictions 

for crimes with the mens rea element. Wallace, 905 N.E.2d at 381, Jensen, 905 N.E.2d at 392. 

Here, however, the only prerequisite for registration is that Tyson “is required to register as a sex 

or violent offender in any jurisdiction.” Ind. Code § 11-8-8-5(b)(1). Without a link to mens rea, 

 

5

 Of course, Hoosiers—or anyone with Internet access for that matter—could already search for and find 

Tyson on Texas’s website. See Texas Public Sex Offender Registry, Tex. Dep’t of Pub. Safety, 

https://records.txdps.state.tx.us/SexOffender/ (last visited Feb. 24, 2016). In all practicality, however, we 

suspect very few people outside of Texas would utilize this feature and therefore afford this fact little 

weight. 
11

this factor weighs in favor of finding regulatory effect, in that Indiana is choosing to defer to 

offender status determinations made by other states. 

Fourth, we ask whether the resulting sanction promotes the traditional aims of punishment. 

In Indiana, those aims are to deter people from engaging in criminal acts and rehabilitate those that 

do. Ind. Const. art. 1, § 18 (“The penal code shall be founded on the principles of reformation, 

and not of vindictive justice.”); Abercrombie v. State, 441 N.E.2d 442, 444 (Ind. 1982). Although 

the Act’s mandate to register as a sex offender has a substantial deterrent effect, we have found 

“this is so whether applied to an offender who is required to register for ten years or an offender 

required to register for life. Essentially, as to this factor Jensen is in no different position now than 

he was before the Act was amended in 2006.” Jensen, 905 N.E.2d at 393. The same is true here: 

requiring Tyson to register upon moving to Indiana, when he already had an existing obligation to 

register in Texas, has little deterrent or rehabilitative effect. Indeed, those aims were met upon 

Tyson’s adjudication and initial registration, not upon Tyson’s having to maintain that requirement 

across states. See Harris, 949 N.E.2d at 812 (“Here, the Act deters criminal conduct and promotes 

community condemnation of offenders—both of which are traditional aims of punishment—but it 

promoted these aims even when Harris committed his offense and pled guilty.”). Therefore, this 

factor supports treating the effects of the amended definition as non-punitive. 

Fifth, we consider whether the statute at issue applies only to criminal behavior. This factor 

favored treating the effects of the Act as punitive in Wallace, where we found “it is the 

determination of guilt of a sex offense, not merely the fact of the conduct and the potential for 

recidivism, that triggers obligations under the Act.” 905 N.E.2d at 382. But we reached the 

opposite conclusion in Jensen and Harris, finding the challenged amendments did not apply to any 

criminal activity beyond that already giving rise to the offenders’ initial registry requirement. 

Jensen, 905 N.E.2d at 393; Harris, 949 N.E.2d at 812 (“Like Jensen, Harris was required to register 

because his behavior was criminal even before the 2007 Amendment.”). We find Tyson’s 

circumstances are the same as those in Jensen and Harris because of his preexisting duty to register. 

Moreover, under the plain language of the amended definition Tyson challenges, his obligation to 
12

register in the State of Indiana was not triggered by a guilty conviction; instead, it was triggered 

by the requirement he register in Texas. See Ind. Code § 11-8-8-5(b)(1) (defining a sex offender 

as “a person who is required to register as a sex or violent offender in any jurisdiction”). In other 

words, our statute defers to Texas’s determination that its citizens should be aware of Tyson’s 

status as a sex offender without looking at the underlying conduct, affording our own citizens that 

same protection. This factor thus weighs in favor of treating the amended definition’s effects as 

non-punitive. 

Sixth, we ask if the statutory scheme advances a legitimate and regulatory non-punitive 

interest. As we said in Wallace, “The answer is undoubtedly yes.” Id. at 383. Given the 

frighteningly high risk of recidivism among sex offenders, the registration system is a measure to 

alert and protect the community. Id. And by requiring registration from individuals who are 

required to register elsewhere, Indiana avoids becoming a safe haven for offenders attempting to 

evade their obligation. We thus conclude this factor weighs heavily in favor of finding the effects 

of the amended statutory definition to be regulatory. 

Finally, we turn to the seventh and most important factor: whether the resulting sanction 

is excessive in relation to its purpose. See Jensen, 905 N.E.2d at 394 (noting the final MendozaMartinez factor is afforded “considerable weight” in determining whether the statute is punitive in 

effect). As we have already observed, the 2006 amendment to the statutory definition of sex 

offender had little impact on Tyson. After his 2002 adjudication, he had to register as a sex 

offender in Texas until 2014; and after his 2009 move, he had to register as a sex offender in 

Indiana until 2014. Maintaining that obligation across state lines is far from excessive, especially 

relative to the significant public safety purpose our sex offender registry serves. 

Taken as a whole, we find the effects of the amended definition of sex offender in Indiana 

Code section 11-8-8-5(b)(1), as applied to Tyson, are regulatory and non-punitive. This outcome 

makes sense in light of other as-applied ex post facto challenges to the Sex Offender Registration 

Act we’ve previously considered: unlike Wallace, where the offender had no obligation to register 
13

anywhere before the Act was passed, Tyson was required to register in Texas years before our 

statutory definition was amended to include him. His circumstances are much more similar to 

those in Jensen and Harris, where both offenders already had to register; the challenged 

amendments merely lengthened that requirement. We simply cannot say that transferring the 

obligation upon moving is any more punitive than lengthening it to potentially last a lifetime. 

Finding Tyson merely maintained his sex offender status across state lines, we conclude 

he has failed to show the amended definition retroactively punishes him in violation of our 

Constitution’s prohibition against ex post facto laws. 

Conclusion 

Tyson was statutorily obligated to register in Indiana until 2014. Seeing no statutory or 

constitutional impediment to enforcing that obligation as applied to him, we affirm the denial of 

Tyson’s motion to dismiss the charge of failure to register as a sex offender. 

Rush, C.J., and Dickson, Rucker, and David, JJ., concur.