Court of Appeals of Indiana | Memorandum Decision 73A01-1502-CR-46| July 20, 2015 Page 1 of 8

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Cara Schaefer Wieneke

Wieneke Law Office, LLC

Plainfield, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Paul Scott Campbell,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff,

July 20, 2015

Court of Appeals Case No.

73A01-1502-CR-46

Appeal from the Shelby Superior 

Court

The Honorable Jack A. Tandy, 

Judge

Cause No. 73D01-1108-FA-14

Robb, Judge.

Case Summary and Issue

[1] Paul Campbell entered a plea of guilty to two counts of child molesting and was 

sentenced to sixteen years of imprisonment followed by eight years of 
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probation, subject to the standard conditions of probation as well as terms of 

probation specific to sex offenders. In this belated appeal,1 Campbell contends 

the trial court erred in imposing certain sex offender conditions of probation. 

The State concedes, and we agree, that two of the challenged conditions of 

probation are impermissibly vague, and we remand to the trial court to clarify 

Campbell’s sex offender conditions of probation.

Facts and Procedural History

[2] In August 2011, the State charged Campbell with one count of Class A felony 

child molesting and one count of Class C felony child molesting. In February 

2012, the State and Campbell entered into a plea agreement pursuant to which 

Campbell entered a plea of guilty to Class B felony child molesting as a lesser 

included offense of the Class A felony charge and also entered a plea of guilty 

to Class C felony child molesting. The plea agreement provided that Campbell 

would be sentenced to sixteen years for the Class B felony, all executed, and 

eight years for the Class C felony, to be served consecutively to the Class B

felony sentence but all suspended to probation. The plea agreement contained 

several specific conditions of probation, as well as the additional term that “sex 

offender terms of probation shall apply.” Appellant’s Appendix at 27. 

 

1 Campbell was not informed at his sentencing hearing of his right to appeal his sentence. In February 2015, 

on Campbell’s motion, the trial court granted him permission to file a belated notice of appeal.
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[3] In April 2012, Campbell was sentenced pursuant to the plea agreement to 

sixteen years executed and eight years suspended to probation. Campbell 

signed off on the standard and special conditions of probation and also on 

twenty-nine “recommended special probation conditions for adult sex 

offenders.” Id. at 35-38. Included among those special sex offender probation 

conditions were the following:

11. . . . You shall not visit strip clubs, adult bookstores, motels 

specifically operated for sexual encounters, peep shows, bars where 

partially nude or exotic dancers perform, or businesses that sell sexual 

devices or aids.

* * *

16. You shall notify your probation officer of your establishment of an 

intimate and/or sexual relationship. . . .

* * *

19. You must never be alone with or have contact with any person 

under the age of 18. Contact includes face-to-face, telephonic, written, 

electronic or any indirect contact via third parties.

Id. at 35-37 (emphasis added). Campbell now appeals these three special sex 

offender conditions of probation, contending they are impermissibly vague or 

overbroad.

Discussion and Decision

I. Standard of Review

[4] “Probation is a criminal sanction wherein a convicted defendant specifically 

agrees to accept conditions upon his behavior in lieu of imprisonment.” 

Carswell v. State, 721 N.E.2d 1255, 1258 (Ind. Ct. App. 1999). A trial court has 
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broad discretion to determine appropriate conditions of a defendant’s 

probation, although the conditions must be “reasonably related to the treatment 

of the defendant and the protection of public safety.” Bratcher v. State, 999

N.E.2d 864, 873 (Ind. Ct. App. 2013) (quotation omitted), trans. denied. The 

conditions must also be sufficiently clear so that they “describe with clarity and 

particularity the misconduct that will result in penal consequences.” Id. at 874-

75 (quotation omitted).

II. Sex Offender Conditions of Probation

A. Condition 11

[5] Sex Offender Probation Condition 11 prohibits Campbell from, in part, visiting 

a business that sells sexual devices or aids. In Collins v. State, 911 N.E.2d 700 

(Ind. Ct. App. 2009), trans. denied, this court considered a challenge to a 

condition of probation that also included the prohibition against visiting 

“businesses that sell sexual devices or aids.” Id. at 714. Noting that as written, 

the term was vague and broad enough to extend to drug stores, we remanded 

for the trial court to clarify this condition of the defendant’s probation. Id.; see 

also Bleeke v. State, 982 N.E.2d 1040, 1051-52 (Ind. Ct. App. 2013), summarily 

aff’d on this ground, 6 N.E.3d 907 (Ind. 2014). Likewise, Campbell notes that a 

“sexual aid” could include, for instance, a condom, which is sold in businesses 

such as drug stores, groceries, and convenience stores. The State concedes that 

precedent from this court holds that Condition 11 of Campbell’s probation is 

impermissibly vague and should be remanded to the trial court for clarification. 

See Brief of Appellee at 3.
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B. Condition 16

[6] Sex Offender Probation Condition 16 requires Campbell to notify his probation 

officer of any intimate or sexual relationship into which he enters. In Bleeke, the 

defendant challenged a condition of probation prohibiting him from 

establishing an intimate or sexual relationship with any adult without prior 

approval from his parole officer. 982 N.E.2d at 1052. Noting the definitions of 

“intimate” as “marked by close acquaintance, association, or familiarity,” or “a 

close friend or confidant,” we held that the term “intimate” was impermissibly 

vague because it did not indicate how such a relationship would be measured or 

when a casual relationship would cross into an intimate relationship. Id. The 

supreme court summarily affirmed this decision, noting the condition was 

impermissible “[w]ithout further clarification or specificity as to what conduct 

would result in [defendant’s] return to prison for violating [the condition] in 

accordance with the Court of Appeals decision below . . . .” 6 N.E.3d at 921-

22. Again, the State concedes that precedent indicates Condition 16 is 

impermissibly vague and should be remanded to the trial court for clarification. 

See Brief of Appellee at 4.

C. Condition 19

[7] Finally, Sex Offender Probation Condition 19 prohibits Campbell from ever 

being alone with or having contact with any person under eighteen years old. 

Campbell contends this condition, too, is impermissibly vague and overbroad, 

citing Hunter v. State, 883 N.E.2d 1161 (Ind. 2008), and McVey v. State, 863 

N.E.2d 434 (Ind. Ct. App. 2007), trans. denied. The State disagrees, citing 
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Bratcher, 999 N.E.2d 864; Rexroat v. State, 966 N.E.2d 165 (Ind. Ct. App. 2012), 

trans. denied; and Smith v. State, 727 N.E.2d 763 (Ind. Ct. App. 2000), as 

authority for upholding this condition. 

[8] In general, when this type of probation condition specifically includes 

“incidental contact,” it has been held to be overbroad. See McVey, 863 N.E.2d 

at 449 (holding that although probation condition that defendant “never be 

alone with or have contact with any person under the age of 18,” defining 

contact to include “face-to-face, telephonic, written, electronic, or any indirect 

contact via third parties,” and requiring him to “report any incidental contact with 

persons under age 18 to your probation officer within 24 hours of the contact,” 

reduced the potential for access to children, it was overbroad in prohibiting 

incidental contact) (emphasis added); see also Hunter, 883 N.E.2d at 1164 

(holding defendant’s probation should not have been revoked for violation of 

probation condition nearly identical to that in McVey because the prohibition 

against “contact” did not reasonably communicate to the defendant that it 

included “mere presence”). 

[9] On the other hand, when the condition does not explicitly include incidental 

contact, we have held that it should be read so as not to prohibit incidental 

contact and is therefore not overbroad. See Bratcher, 999 N.E.2d at 875-76 

(condition that defendant “have no contact with any person under the age of 16 

unless you receive court approval or successfully complete a court-approved sex 

offender treatment program,” and defining contact to include “face-to-face, 

telephonic, written, electronic, or any indirect contact via third parties,” was 
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reasonably related to the treatment of the defendant and the protection of the 

public and because it contained no specific prohibition against incidental 

contact, was not vague or overbroad); Rexroat, 966 N.E.2d at 173 (citing the 

holding in Smith that the statute authorizing this condition of probation is not 

vague or overbroad because it is inherent in the statute that a probationer is not 

required to avoid inadvertent or unintentional contact with minors, 727 N.E.2d 

at 767-68 (construing Ind. Code § 35-38-2-2.4), and holding that a probation 

condition that defendant “have no contact with any person under the age of 18 

unless approved by probation” was not overbroad because it is likewise inherent 

in this condition of probation that incidental contact with minors is not 

prohibited).

[10] Condition 19 of Campbell’s probation does not include a specific prohibition 

against incidental contact, and thus is more like the condition addressed in 

Bratcher than that in McVey. However, the actual text of the condition could be 

read to prohibit such contact as it states Campbell “must never . . . have contact 

with” a minor. See App. at 37. We would hope that no trial court would find a 

violation over the kind of incidental contact that is inherent in everyday life 

even under the condition as written. However, because we are remanding to 

the trial court to clarify two other conditions, there is no harm in requiring the 

trial court to also clarify that incidental contact is not prohibited by this 

condition and will not subject Campbell to further court proceedings.
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Conclusion

[11] We conclude that two of the challenged conditions of probation are 

impermissibly vague and that the third could also be clearer on its face. We 

therefore remand this case to the trial court to clarify the scope of Conditions 

11, 16, and 19 so that Campbell is adequately apprised of the conduct that will 

result in penal consequences.

[12] Remanded. 

May, J., and Mathias, J., concur.