author: ROBB, Chief Judge.

text:
    Nelson Julian SANTIAGO, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 45A03-1207-CR-304.
    Court of Appeals of Indiana.
    March 5, 2013.

      Thomas W. Vanes, Office of the Public Defender, Crown Point, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issue

Nelson Julian Santiago appeals his conviction of neglect of a dependent, a Class A felony. Santiago raises one issue: whether the trial court abused its discretion in refusing to give his proposed jury instruction regarding the presumption of innocence. Concluding that the trial court did not abuse its discretion, we affirm the conviction.

Facts and Procedural History

On July 28, 2012, Santiago called emergency personnel after finding his four-month old daughter, Juliana, unresponsive while she was in his care. She was transported to the hospital, where doctors discovered that she had sustained subdural hematoma (bleeding in the brain). She died a few days later.

Santiago was charged with battery, aggravated battery, neglect of a dependent, and murder in connection to Juliana’s death. During the jury trial, both sides relied on expert testimony. The State’s witness testified that in her opinion, Juliana had died from “abusive head trauma” or “shaken baby syndrome.” Transcript at 438, 461. Santiago relied on expert testimony to argue that the hematoma could have been the result of a coagulation disorder similar to the one Juliana’s mother had or that it could have been caused by an automobile accident Juliana had been in a few months earlier.

Prior to jury deliberations, Santiago submitted a jury instruction regarding the presumption of innocence. The trial court refused to give it. The jury returned a mixed verdict, finding Santiago not guilty of murder but guilty of neglect of a dependent and not reaching a verdict on the battery counts. The trial court convicted Santiago of a single count of neglect of a dependent as a Class A felony and sentenced him to forty years imprisonment. Santiago now appeals. Additional facts will be provided when necessary.

Discussion and Decision

I. Standard of Review

The decision to give or deny a tendered jury instruction is largely left to the sound discretion of the trial court. St. Mary’s Med. Ctr. of Evansville, Inc. v. Loomis, 783 N.E.2d 274, 282 (Ind.Ct.App.2002). We review the trial court’s decision only for an abuse of that discretion. Johnson v. Wait, 947 N.E.2d 951, 957-58 (Ind.Ct.App.2011), trans. denied. On review of a trial court’s decision to refuse a proposed jury instruction, we consider whether the instruction (1) correctly states the law, (2) is supported by the evidence, and (3) is covered in substance by other instructions. Id. at 958. “We consider jury instructions as a whole and in reference to each other and do not reverse the trial court ... unless the instructions as a whole mislead the jury as to the law in the case.” Lyles v. State, 834 N.E.2d 1035, 1048 (Ind.Ct.App.2005), trans. denied (internal quotes and citations omitted).

II. Jury Instructions

Santiago contends that the trial court abused its discretion when it refused to give the jury the following instruction:

If the evidence in this ease is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the defendant, and the other to his innocence, it is your duty, under the law, to adopt the interpretation which will admit of the defendant’s innocence, and reject that which points to his guilt. You will notice that this rule applies only when- both of the two possible opposing conclusions appears to you to be reasonable. If, on the other hand, one of the possible conclusions should appear to you to be reasonable and the other to be unreasonable, it would be your duty to adhere to the reasonable deduction and to reject the unreasonable, bearing in mind, however, that even if the reasonable deduction points to the defendant’s guilt, the entire proof must carry the convincing force required by law to support a verdict of guilt.

Appellant’s Appendix at 211. Santiago notes that the denied instruction was taken from Robey v. State, 454 N.E.2d 1221, 1222 (Ind.1983). In that case, the trial court had denied an instruction proposed by the defendant and instead given its own instructions, which included, in part, the instruction proposed by Santiago and denied by the trial court iii this case. Id. In its opinion, our supreme court stated:

[a]n instruction of this character which advises the jury that the presumption of innocence prevails until the close of the trial, and that it is the duty of the jury to reconcile the evidence upon the theory of the defendant’s innocence if they could do so, must be given if requested.

Id. Yet, despite the trial court having denied the jury instruction at issue, the supreme court held that there was no error because the instructions given “adequately directed the jury to receive and evaluate the trial evidence while in the posture of presuming the defendant innocent and demanding of the State that it produce strong and persuasive evidence of guilt wholly at odds with innocence.” Id.

Like Robey, a consideration of the jury instructions in this case taken as a whole demonstrates that the jury was properly instructed to presume the defendant innocent and demand that the State produce strong and persuasive evidence of guilt wholly at odds with innocence. The relevant portions of the jury instructions given by the trial court follow:

... it is a fundamental concept in our law that the defendant comes into court presumed to be innocent of the charges; and this presumption remains throughout the trial of the case until and unless it is overcome by competent proof of guilt beyond a reasonable doubt.
Since a defendant is presumed to be innocent, he is not required to present any evidence to prove his innocence or to prove or to explain anything. If at the conclusion of the trial there remains in your mind a reasonable doubt concerning the defendant’s guilt, you should find him not guilty.
The burden is upon the State to prove beyond a reasonable doubt that the defendant is guilty of the crimes charged. It is a strict and heavy burden. The evidence must overcome any reasonable doubt concerning the defendant’s guilt, but it does not mean that a defendant’s guilt must be proved beyond all possible doubt.
A reasonable doubt is a fair, actual, and logical doubt based upon reason and common sense. Reasonable doubt exists when you are not firmly convinced of the defendant’s guilt, after you have weighed and considered all the evidence. A defendant must not be convicted on suspicion or speculation. It is not enough for the State to show that the defendant is probably guilty. On the other hand, there are very few things in this world that we know with absolute certainty. The State does not have to overcome every possible doubt.
The State must prove each element of the crimes charged by presenting evidence that firmly convinces each of you and leaves no reasonable doubt. The proof must be so convincing that you can rely and act upon it in this matter of the highest importance.
If you find that there is a reasonable doubt that the defendant is guilty of the crime, you must give the defendant the benefit of that doubt and find the defendant not guilty of the crime under consideration. Your verdict must be unanimous.

Appellant’s App. at 198-99.

A panel of this court has stated that Robey simply requires instructing the-jury that it should fit the evidence to the presumption that a defendant is innocent. Simpson v. State, 915 N.E.2d 511, 520 (Ind.Ct.App.2009), trans. denied. The instructions given by the trial court in this case — considered as a whole and in reference to each other — did that. The court informed the jury that a person charged with a crime is to be presumed innocent, that the presumption of innocence remains throughout the trial, and that to overcome this presumption of innocence, the State was required to prove guilt beyond a reasonable doubt. The trial court also in--structed the jury on the definition of reasonable doubt and informed the jury that if there was a reasonable doubt that Santiago was guilty, they should give him the benefit of that doubt and find him not guilty of the crime. Thus, the trial court did not err in instructing the jury.

Santiago also relies upon the case of Lee v. State, 964 N.E.2d 859 (Ind.Ct.App.2012), trans. denied. In Lee, a panel of this court reversed the defendant’s convictions because the jury instructions did not adequately inform the jury to reconcile the evidence upon the theory of the defendant’s innocence if possible. Id. at 865. In that case, however, as Santiago himself admits, the instructions were less detailed than the ones given by the court here. Further, in Lee, it does hot appear that the jury was instructed that the presumption of innocence prevails throughout the trial, as the jury was here. See id. at 864. Thus, while the court in Lee found that the distinction between the concepts of the presumption of innocence and the reasonable doubt burden warranted a reversal in that case, the more detailed instructions given in this case adequately explained both concepts.

Finally, we note that the jury instructions in this case appear to be based on the Indiana- Pattern Jury Instructions. See Tr. at 848-49. The preferred practice in Indiana is to use pattern jury instructions. Buckner v. State, 857 N.E.2d 1011, 1016 (Ind.Ct.App.2006). In sum, taken as a whole, the instructions given by the trial court regarding the presumption of innocence properly conveyed the law to the jury and, thus, the court did not abuse its discretion when it refused to give Santiago’s proposed instruction.

Conclusion

The trial court did not abuse its discretion when it refused to give Santiago’s proffered jury instruction regarding the presumption of innocence. We therefore affirm his conviction.

Affirmed.

MAY, J., and PYLE, J., concur.

      . Santiago also argues that because this case was based on a so-called "battle of experts,” the proposed instruction was even more relevant. Brief of Appellant at 9. However, in addition to adequately addressing the presumption of innocence, the trial court gave a detailed instruction regarding the evidence and witness testimony, which included, in part, the following: “If you find conflicting testimony, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said or only part of it or none of it." Appellant’s App. at 200. The court also told the jury “to consider the instructions as a whole.” Id. at 207. The court was not required to mention the presumption of innocence in the same instruction it addressed conflicting testimony.

      . While we find no error in this case, we reject the State’s argument that if there had been an error in the jury instructions it was cured by Santiago’s closing arguments. While any misstatements of law during closing arguments are presumed cured by final jury instructions, Hudgins v. State, 451 N.E.2d 1087, 1091 (Ind.1983), the opposite is not true, especially in light of the court’s instruction to the jury that ”[t]he Court's instructions are your best source in determining the law,” Appellant’s App. at 197.


source: Caselaw Access Project

license: Public Domain

text:
    STATE FARM INSURANCE COMPANY, Appellant-Third Party Plaintiff/Defendant, v. Thomas A. YOUNG and Mary E. Young, Appellees-Plaintiffs, Joel P. Genth and Philip K. Genth, Appellees-Defendants, Ingenix, Appellee-Third Party Defendant.
    No. 92A05-1205-CT-258.
    Court of Appeals of Indiana.
    March 15, 2013.

      Robert J. Palmer, May Oberfell Lorber, Mishawaka,. IN, Attorney for Appellant.
    Phillip R. Terrill, Mark A. Thoma, Leonard, Hammond, Thoma & Terrill, Fort Wayne, IN, Attorneys for Appellees Attorneys for Thomas A. and Mary E. Young.
   OPINION

State Farm Insurance Company (hereinafter, “Policy One”) appeals an order reducing the subrogation lien that Policy One held against Thomas and Mary Young. We affirm.

FACTS AND PROCEDURAL HISTORY

On December 4, 2007, Joel Genth was driving a car owned by his father, Philip Genth, and insured with State Farm Insurance Company (hereinafter “Policy Two”). Genth’s vehicle struck Thomas Young’s vehicle from behind. Thomas suffered physical injuries for which he sought treatment. Thomas’s medical insurance company, In-genix, and Policy One paid for those treatments.

On October 29, 2009, the Youngs sued Philip and Joel Genth. As part of their damages, the Youngs listed two subrogation liens — one to Ingenix for $ 19,276.61, and one to Policy One for $5,000. The parties entered mediation, and Policy Two offered to settle the Youngs’ claim for $17,432.00, which was less than the total of $24,276.61 the Youngs owed in subrogation liens.

As the settlement offer was less than the amount due in subrogation liens, the Youngs filed a motion to reduce the subro-gation liens pursuant to Ind.Code § 34-51-2-19, which provides:

If a subrogation claim or other lien or claim that arose out of the payment of medical expenses or other benefits exists in respect to a claim for personal injuries or death and the claimant’s recovery is diminished:
(1) by comparative fault; or
(2) by reason of the uncollectibility of the full value of the claim for personal injuries or death resulting from limited liability insurance or from any other cause;
the lien or claim shall be diminished in the same proportion as the claimant’s recovery is diminished. The party holding the lien or claim shall bear a pro rata share of the claimant’s attorney’s fees and litigation expenses.

In their motion, the Youngs asserted they should be responsible for only 17.43% of the value of each subrogation lien because they were receiving only Í7.43% of Genth’s $100,000 policy limit.

Prior to the hearing on the Youngs’ motion, Ingenix accepted a reduction of its subrogation lien from $19,276.61 to $2,410.84. That reduction represents a decrease to 17.43% of the lien, minus Inge-nix’s pro rata share of the attorney fees. See Ind.Code § 34-51-2-19 (“The party holding the lien or claim shall bear a pro rata share of the claimant’s attorney’s fees and litigation expenses.”).

Policy One agreed to reduce the amount of its lien against the Youngs from $5,000 to $3,250, which accounts for its pro rata share of the attorney fees plus $100. Policy One would not agree to reduce the lien to 17.43% of its value.

After a hearing, the court reduced the subrogation liens and ordered Policy One to accept $581, which represents 17.43% of the value of its original subrogation lien, minus Policy One’s pro rata share of attor-. ne/s fees and litigation expenses pursuant to Ind.Code § 34-51-2-19. Sixteen days after the court entered its order reducing the liens, the Youngs and Joel and Philip Genth stipulated to dismissal with prejudice of the Youngs’ personal injury action, indicating the inatter had been settled.

DISCUSSION AND DECISION

In reducing the subrogation liens, the trial court sua sponte made findings of fact and conclusions of law. In such a case, our standard of review is well-settled:

Where the trial court enters specific findings sua sponte, [ ] the specific findings control our review and the judgment only as to the issues those specific findings cover. Where there are no specific findings, a general judgment standard applies and we may affirm on any legal theory supported by the evidence adduced at trial.
We apply the following two-tier standard of review to sua sponte findings and conclusions: whether the evidence supports the findings, and whether the findings support the judgment. Findings and conclusions will be' set aside only if they are clearly erroneous, that is, when the record contains no facts or inferences supporting them. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made. •We consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom, and we will neither reweigh the evidence nor assess witness credibility. While we defer substantially to findings of fact, we do not do so to conclusions of law. We evaluate questions of law de novo and owe no deference to a trial court’s determination of such questions.

Trust No. 6011, Lake County Trust Co. v. Heil’s Haven Condominiums Homeowners Ass’n, 967 N.E.2d 6, 14 (Ind.Ct. App.2012) (citations omitted).

Policy One argues the trial court erred when it reduced the amount of its subrogation lien against the Youngs. Sub-rogation is a long-standing doctrine of equity in which a party, not acting as a volunteer, pays the debt of another that, “in good conscience, should have been paid by the one primarily liable.” Wirth v. Am. Family Mut. Ins. Co., 950 N.E.2d 1214, 1216 (Ind.Ct.App.2011). When a claim of subrogation is recognized, “a court substitutes another person in the place of a creditor, so that the person in whose favor it is exercised succeeds to the right of the creditor in relation to the debt.” Erie Ins. Co. v. George, 681 N.E.2d 183, 186 (Ind. 1997). Ultimately, the purpose of the doctrine is to prevent unjust enrichment. Id.

The trial court concluded “I.C. 34-51-2-[1]9 is applicable.” (Appellant’s App. at 7.) That statute provides, in relevant part, that a lien “shall be diminished” if “the claimant’s recovery is diminished” because “the full value of the claim for pérsonal injuries” is uncollectible. Ind.Code § 34-51-2-19. Here, the record leaves no doúbt the “claimant’s recovery” was diminished. Policy Two would not pay more than $17,432.00 to settle the Youngs’ suit against the Genths, while the Youngs owed $24,276.61 in subrogation liens and their suit also prayed for unspecified damages for pain and suffering, loss of earnings, and loss of consortium. Thus, the Youngs were not going to receive the full value of their claim.

In light of the unusual facts before us, ie., that State Farm issued both Policy One and Policy Two, we decline to adopt State Farm Policy One’s premise that its subrogation hen should not be reduced based oh State farm Policy Two’s refusal to pay the full amount of the Youngs’ claim. The purpose of subrogation is to avoid unjust enrichment. George, 681 N.E.2d at 186. State Farm paid under Policy One for some of the Youngs’ damages, and thus was entitled to a subrogation lien. But “the one primarily liable,” Wirth, 950 N.E.2d at 1216, and who “in good conscience should have been” paying, id., was State Farm under Policy Two. Therefore, to allow State Farm to recover the full value of its subrogation lien under Policy One, when State Farm did not pay the full value of Youngs’ claim under Poli-. cy Two, would unjustly enrich State Farm.

As we may “affirm on any legal theory supported by the evidence adduced at trial,” Trust No. 6011, 967 N.E.2d at 14, we affirm the decision of the trial' court.

Affirmed.

ROBB, C.J., and PYLE, J., concur.

      . State Farm insured both the Youngs and Genth. For clarity, we refer to the Youngs’ State Farm policy as “Policy One” and the Genth’s State Farm policy as “Policy Two.”

      . It is not clear from the record what the $100 represents. At the reduction in subrogation lien hearing, Policy One stated, “So it’s [Policy One’s] position that they’re entitled to the full amount of their lien minus the one-third statutory reduce [sic] in attorney fees. They have agreed to take another $100 off that and accept $3,250[.]” (Tr. at 6.)


author: RILEY, Judge. CRONE, Judge,

text:
    Michael L. HARRIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 20A04-1204-CR-225.
    Court of Appeals of Indiana.
    March 27, 2013.

      Michael L. Harris, New Castle, IN, Appellant Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Michael L. Harris (Harris), appeals his conviction and sentence for Count I, failure to register as a sex offender, a Class D felony, Ind.Code § 11-8-8-17; and Count II, sex offender internet offense, a Class A misdemeanor, I.C. § 35-42 — 4-12.

We affirm in part and reverse in part.

ISSUES

Harris raises three issues on appeal, which we restate as the following four issues:

(1) Whether Harris’s convictions under I.C. § 11-8-8-17 and I.C. § 35-42-4-12 violate the First Amendment of the United States Constitution;
(2) Whether Harris’s conviction under I.C. § 11-8-8-17 violates Harris’s right of free expression under the Indiana Constitution;
(3) Whether I.C. § 11-8-8-8 constitutes an ex post facto law under the Indiana Constitution as applied to Harris; and
(4) Whether the evidence was sufficient to convict Harris of failure to register as a sex offender under I.C. § 11-8-8-17.

FACTS AND PROCEDURAL HISTORY

In 1999, Harris was convicted of Class B felony child molestation and sentenced to ten years’ incarceration. Harris was released to parole and reincarcerated on multiple occasions until his sentence was completed in 2008. Initially, Harris was required to register as a sex offender for ten years commencing December 1, 2008; however, by operation of law, Harris’s status changed to that of a sexually violent predator. As a result, he is subject to lifetime registration and reporting requirements.

Following his release from incarceration, Harris filled out a sex and violent registration offender form provided by the Elkhart County Sheriffs Department. The registration form contained spaces for Harris to provide his “E-mail/Chat room/instant Messaging/Social Networking Site Names” but these were left blank. (State’s Exhibit No. 2 p. 1). The last page of the form contains a preprinted affirmation and series of acknowledgements. The affirmation provided that Harris had truthfully answered the form under penalties of perjury. The acknowledgements included a warning that persons convicted of certain crimes, including child molesting, “may be prohibited from communicating via chat rooms, instant messaging or social networking sites in which persons under the age of 18 are allowed to access or use. Violation is a Class A [mjisdemeanor for the first offense and [Class] D [fjelony for each and every one thereafter.” (State’s Exh. No. 2 p. 3). Harris’s signature appears on the last page of the form and alongside the date of December 2, 2008. On the same page, witness signatures dated December 2, 2008, March 2, 2009 and June 1, 2009 also appear.

Detective Brian Holloman of the Elk-hart County Sheriffs Department (Detective Holloman) began working with the county sex offender registry in May 2006 and has been “[s]olely running it since July of 2006” and oversees the county’s average of 400 sex offenders. (Transcript p. 79). In June 2009, Detective Holloman received information that Harris “had a MySpace profile” and began investigating. (Tr. p. 86). Detective Holloman went to the MySpace website and found Harris’s profile page with a user name of “filmmaker 54.” The profile page contained Harris’s photograph, biographical information, interests, and listed his marital status as single. In response to a subpoena, MySpace, Inc. provided Detective Holloman with account information: the account had been created on May 5, 2009 and was registered in Harris’ name along with an America Online, Inc., (AOL) email address of filmmaker54@aol.com.

A subpoena was thereafter sent to AOL, which provided Detective Holloman with account information for “filmmaker54.” The account information included a list of associated “screen names,” including “Mi-chaHarr5,” “Mlharrismedia,” “Rjharrish-ome,” as well as other screen names, which were apparently also used as email addresses. (State’s Exh. No. 5 p. 5). The account was registered under the name of Harris’s wife and paid for with her credit card. Her address and telephone number were the same as reported by Harris on his sex and violent offender registration form. The membership had been active since “03-01-15.” (State’s Exh. No. 5 p. 7).

On November 9, 2009, the State filed an Information charging Harris with failure to register as a sex offender, a Class D felony, I.C. § 11-8-8-17; and a sex offender internet offense, a Class A misdemean- or, I.C. § 35-42-4-12. On December 3, 2009, Harris provided an updated registration form, which listed the AOL email addresses but no social networking user names. Harris attached a note indicating that he had provided this information under protest and without admitting that he had used or intended to use these email addresses.

On May 26, 2010, Harris filed a petition for relief from retroactive application of I.C. §§ 11-8-8-8; -17; and § 35-42-4-12 alleging primarily as applied ex post facto violations under the Indiana Constitution. On September 7, 2010, Harris, by counsel, filed a motion to dismiss all charges based on ex post facto and free speech violations. On September 29, 2010, the trial court held a hearing on the motions and subsequently denied them on October 21, 2010.

On January 23, 2012, a jury trial was-' held. Harris was found guilty as charged on both Counts. On February 27, 2012, the trial court sentenced Harris to three years’ incarceration at the Department of Correction on Count I with a concurrent one year sentence on Count II.

Harris now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. First Amendment

Harris contends that his convictions under I.C. §§ 11-8-8-17 and 35-42-4-12 violate the First Amendment to the United States Constitution. The First Amendment provides in relevant part that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const., Arndt. 1. The First Amendment is applicable to the states via the- Fourteenth Amendment. Shuger v. State, 859 N.E.2d 1226 (Ind.Ct.App.2007), trans. denied.

Harris makes essentially two arguments that the statutes violate his First Amendment rights. Regarding I.C. § 11-8-8-8 and -17, he argues that anonymity is protected under the First Amendment and the disclosure requirements constitute an involuntary relinquishment of his anonymity thereby violating the First Amendment. His argument is more straightforward regarding I.C. § 35-42-4-12. Harris argues that by banning his use of social networking websites accessible by persons under the age of eighteen, the State has impermissibly restricted his First Amendment right to free expression, whether political, religious, commercial, or personal.

Both parties characterize the statutes at issue as content neutral. Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). “A law is content neutral if it regulates only the time, place, or manner of speech irrespective of content.” Shuger, 859 N.E.2d at 1232. The appropriate constitutional test for a content neutral regulation is “whether it is narrowly tailored to serve a significant governmental interest while leaving open ample alternative channels for communication of the information.” State v. Economic Freedom Fund, 959 N.E.2d 794, 802 (Ind.2011). The State has the burden of proof. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994).

A. I.C. § U-8-8-8(a)(7)

1. Statute at Issue

Indiana’s Sex Offender Registration Act (INSORA), codified at I.C. ch. 11-8-8, requires persons convicted of a sex or violent offense to register with and report to local law enforcement. I.C. §§ 11-8-8-4; -14; Sex offenders must fulfill a number of obligations, including providing personal information. See I.C. § 11-8-8-8. Harris is a sexually violent predator and therefore must register and provide information under I.C. § 11-8-8-8. See Lemmon v. Harris, 949 N.E.2d 803, 804-09 (Ind.2011). Subsection (a)(7) requires offenders to provide certain personal information pertaining to the Internet:

Any electronic mail address, instant messaging username, electronic chat room username, or social networking web site username that the sex or violent offender uses or intends to use.

I.C. § ll-8-8-8(a)(7). Failure to register is punishable as a Class C or D felony under I.C. § 11-8-8-17. Failure to. register includes not only a knowing or intentional “material misstatement” but also an omission of information when registering. I.C. § 11 — 8—8—17(a)(3).

Harris describes himself as a political activist who is vehemently opposed to sex offender registry and related laws. He cites newspapers, government websites, online forums and attorney websites as examples of websites requiring an email address as a prerequisite to communicate. He alleges that although, he has spoken out publicly about his concerns; however, “because of his business interests, personal safety concerns for he [sic] an[d] his family and to avoid retaliation, and his tenuous situation as a person required to.register as a sex offender, there are times when it is prudent for [him] to comment or speak anonymously.” (Appellant’s Br. p. 14). By requiring disclosure of his email addresses, Harris argues that I.C. § 11-8-8-8(a)(7) prohibits “true anonymity of speech since [Harris] is required to give the very persons or organizations he may be speaking out against the identifiers he would otherwise be able to use with anonymity (in the public forum[) ].” (Appellant’s Br. p. 14). Harris therefore contends that “it is impossible for [him] to respond anonymously to online newspaper articles and to participate , anonymously in online political forums,” and creates “a substantial burden on his right to speak.” (Reply Br. p. 3).

The State argues that I.C. § 11-8-8-8(a)(7) does not implicate the First Amendment. Specifically, the statute’s. registration requirement does not prohibit Harris from speaking and “places no limits' whatsoever on a registrant’s use of the internet.” (Appellee’s Br. .p. 12). In the State’s view, the registration requirement does not compel Harris to speak, nor does it restrict him from expressing his views. The State also argues that Harris can communicate anonymously by creating a blog to express his views.

2. Application

In Doe v. Shurtleff, 628 F.3d 1217 (10th Cir.2010), cert. denied, -U.S.-, 131 S.Ct. 1617, 179 L.Ed.2d 502 (2011), the Tenth Circuit considered a challenge to Utah’s sex offender registry laws requiring the disclosure of the registrant’s email address and internet identifiers. Similar to I.C. § ll-8-8-8(a)(7), the Utah statute at issue required disclosure of internet identifiers, which included “electronic mail, chat, instant messenger, social networking, or similar name used for Internet communication.” Id. at 1221 n. 1. Among other claims, Doe alleged that the Utah registration law violated his First Amendment right to engage in anonymous speech by chilling “any anonymous criticisms of oppressive laws or state practices he might otherwise make via the internet.” Id. at 1225. The Tenth Circuit, however, concluded that the law constituted a content neutral burden on speech because it “says nothing about the ideas of opinions that Mr. Doe may or may not express, anonymously or otherwise” and did not unnecessarily impede Doe’s First Amendment right of speech. Id. at 1223-225.

We first examine whether the statute serves a significant government interest. See Economic Freedom Fund 959 N.E.2d at 802. INSORA, of which I.C. § ll-8-8-8(a)(7) is a part, “undoubtedly advances a legitimate, regulatory purpose in that it promotes public safety” and protects “the public from repeat offenders.” Lemmon, 949 N.E.2d at 812. Though disputing sex offender recidivism rates, Harris concedes that as originally conceived, the registry is “a tool to assist law enforcement [to] quickly [identify] potential abductors should a child go missing.” (Appellant’s Br. p. 20). We therefore conclude that I.C. § ll-8-8-8(a)(7) serves a significant governmental interest.

The narrowly tailored requirement is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation. Ward, 491 U.S. at 799, 109 S.Ct. 2746. Here, the statute requires disclosure of email addresses as well as instant messaging and chat room user names that the registrant uses or intends to use. I.C. § ll-8-8-8(a)(7). Absent the requirement, the State undoubtedly has a lessened ability to investigate a registrant’s online whereabouts.

Regarding the chilling effect providing identifiers may have on his right to speak anonymously, we observe that disclosure of online identifiers does not “unnecessarily interfere with his First Amendment freedom to speak anonymously.” Shurtleff, 628 F.3d at 1225. This is so because “the First Amendment protects anonymity where it serves as a catalyst for speech.” Id. Harris does not argue that he is forced to reveal his identity as a prerequisite for expression. Although it is possible for the State to be aware of Harris’s identity at the time of his speech, “this possibility does not impose a constitutionally improper burden on speech.” Id. Consequently, we reject Harris’s claim that I.C. § ll-8-8-8(a)(7) chills his expression under the First Amendment.

B. Ind.Code § 35-⅛2-⅛-12

1. Statute at Issue

Sexually violent predators and certain sex or violent offenders are outright banned from using those social networking sites, instant messaging programs, or chat room programs that are accessible by persons under the age of eighteen. I.C. § 35-42-4-12. Harris, by virtue of his status as a sexually violent predator, is subject to the statute’s restrictions. See I.C. § 35-42 — 4—12(b)(1). Those restrictions include the following:

(e) A person described in subsection (b) who knowingly or intentionally uses:
(1) a social networking web site; or
(2) an instant messaging or chat room program;
that the offender knows allows a person who is less than eighteen (18) years of age to access or use the web site or program commits a sex offender Internet offense, a Class A misdemeanor.

I.C. § 35-42-4-12(e).

Subsections (c) and (d) define instant messaging or chat room programs and social networking web sites. An “instant messaging or chat room program” refers to a software program that “allows two (2) or more members or authorized users to communicate over the Internet in real time using typed text.” I.C. § 35-42-4-12(c). The software program must require registration or creation of “an account, user name or password to become a member or registered user.” I.C. § 35-42-4-12(c). A “social networking web site” is an Internet web site that “facilitates the social introduction between two (2) or more persons;” “allows a member to create a web page or personal profile;” and “provides a member with the opportunity to communicate with another person.” I.C. § 35-42-4-12(d)(( ),(3-4). The social networking web site “requires a person to register or create an account, user name, or a password” in order to “become a member of the web site and to communicate with other members.” I.C. § 35-42-4-12(d)(2). Electronic mail and message board programs do not constitute instant messaging, chat room programs, or social networking web sites. I.C. § 35-42-4-12(c)-(d).

Harris contends that his use of social networking web sites is protected under the First Amendment. By convicting him for using certain social networking web sites, Harris argues that he has been punished for engaging in constitutionally protected expressive activity. The State argues that the internet use restriction is narrowly tailored to serve the compelling interest in protecting minors from online solicitations and that ample alternatives exist for Harris to express his views. The State asserts that the sex offender internet offense statute is narrowly tailored to promote its compelling interest as it “removes predators from online sites where they have easy access to a large pool of potential victims.” (Appellee’s Br. p. 18). However, the State concedes that “the statute will potentially prohibit a considerable amount of speech that does not involve interactions with minors at all.” Nevertheless, the State contends that the statute is narrowly drawn because “there is no other workable effective measure to deter and prevent the online sexual solicitations of minors” and only certain types of sex offenders are restricted from using web sites or services that pose “the greatest risk of online exploitation.” (Appellee’s Br. p. 18).

2. Doe v. Manon County Prosecutor

After Harris filed his appeal, the Seventh Circuit issued its decision in Doe v. Marion County Prosecutor, 705 F.3d 694 (7th Cir.2013), which addresses the constitutionality of I.C. § 35-42-4-12 under the First Amendment. Doe involved a permanent injunction against the enforcement of I.C. § 35-42-4-12 brought by:

all Marion County[, Indiana] residents required to register as sex or violent offenders pursuant to Indiana law who are not subject to any form of supervised release and who have been found to be a sexually violent predator under Indiana law or who have been convicted of one or more of the offenses noted in [I.C] § 35 — 42^:—12(b)(2) and who are not within the statutory exceptions noted in [I.C] § 35^2-4-12(a).

Id. at 696. The lower court decision upheld the constitutionality of the statute, concluding that I.C. § 35-42^4-12 was a content neutral regulation, narrowly tailored to serve a significant governmental interest and left ample alternative channels for communication open.

The Seventh Circuit reversed and remanded with instructions to issue the injunction. Id. at 703. It concluded that I.C. § 35-42-4-12 was a content neutral restriction “because it restricts speech without reference to the expression’s content.” Id. at 698. As a result, it applied the Ward test to determine whether the statute is “narrowly tailored to serve a significant governmental interest” and “leave[s] open ample alternative channels for communication of the information.” Id. (quoting Ward,, 491 U.S. at 791, 109 S.Ct. 2746). Although the State had a justified interest in protecting minors from “improper sexual communication,” the Seventh Circuit concluded that I.C. § 35-42-4-12 was not naiTowly tailored to serve that interest. Id.

The Doe court first considered the constitutionality of complete bans on expressive activity. Complete bans can be deemed narrowly tailored “but only if each activity within the proscription’s scope is an appropriately targeted evil.” Id. (quoting Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988)). Further, complete bans may be narrowly tailored where the “substantive evil [... ] is not merely a possible by-product of the activity, but is created by the medium of expression itself.” Id. (quoting City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 810, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)). Thus, where each communication is an evil and the medium itself represents the evil, complete bans on expression have been upheld on First Amendment grounds.

In contrast, where the state has alternative means to combat the evil, the Doe court noted that such bans have been held invalid. It cited Schneider v. Town of Irvington, 308 U.S. 147, 162-64, 60 S.Ct. 146, 84 L.Ed. 155 (1939) and Martin v. City of Struthers, 319 U.S. 141, 147, 63 S.Ct. 862, 87 L.Ed. 1313 (1943) in support. In these cases, the Supreme Court struck down regulations against handbill distribution (Schneider) and door-to-door solicitations (Martin). The Doe court found that in Schneider “the expressive activity— handing paper to people in public — did not produce the evil. The recipients’ incidental decision to drop the paper did. As such, the [Supreme] Court required the cities to prevent littering by enforcing littering laws.” Id. at 699. Similarly, the Doe court reasoned that the solicitation ban in Martin failed because each householder could avail themselves of traditional legal methods to restrict the solicitations. See id.

The Doe court concluded that I.C. § 35-42-4-12 was not narrowly tailored in light of these precedents. Under the Frisby and City of Los Angeles rationale, the court noted the State’s concession that “there is nothing dangerous about Doe’s use of social media as long as he does not improperly communicate with minors” and there was “no disagreement that illicit communication comprises a minuscule subset of the universe of social network activity.” Id. Under the Schneider and. Martin rationale, the Doe court concluded that the State already criminalized illicit expression with minors. In particular, the court noted that I.C. § 35-42-4-6 punishes child solicitation and I.C. § 35-42-4-13 punishes inappropriate communication with a child. These statutes “have enhanced penalties for using a computer network.” Id. As a result, the Doe court concluded that these statutes “better advance Indiana’s interest in preventing harmful interaction with children” and are thus “neither over nor under-inclusive” as it found I.C. § 35-42-4-12 to be. Id. Concluding that I.C. § 35-42-4-12 was not narrowly tailored, the court did not consider whether ample alternative means of communication existed. Id. at 697-98.

3. Application to Harris

The parties here agree and the Doe court concluded that I.C. § 35-42-4-12 is content neutral. Guided by the Seventh Circuit’s decision in Doe, we therefore apply the Ward test to determine whether I.C. § 35-42-4-12 meets the intermediate level of scrutiny applicable to content neutral regulations. See id. Here, the State has argued that a) it has a substantial state interest in protecting minors from harmful communication; b) I.C. § 35-42-4-12 is narrowly tailored to serve that interest; and c) ample alternatives exist for Harris to express himself.

Aspects of this case illustrate the breadth of the applicable state interest. Although Harris cites to studies disputing the current rates of sex offender recidivism, we cannot say that the State’s assertion that existence of online predation and high sex offender recidivism has lost its force. Further, we cannot ignore that Harris is a sexually violent predator whose conduct in fact posed the very risk to minors that the State seeks to restrict from occurring through the Internet. As a parolee, Harris violated the terms of his parole by soliciting teenage male actors for his movies via the Internet. See.Harris v. State, 836 N.E.2d 267, 271-72 (Ind.Ct.App.2005), trans. denied. As we noted in that case:

[T]he limitation on Harris’s access to the Internet is reasonably related to his successful reintegration into the community. By imposing the restriction on Harris’s use of the Internet, the [parole board] was legitimately concerned that a released child molester’s unfettered access to a computer might result in additional criminal conduct. This is so because the Internet, or Cyberspace, defies boundaries and offers unlimited access to people, including children. See, e.g., U.S. v. Zinn, 321 F.3d 1084, 1093 (11th Cir.2003) (noting that some child molesters reach their victims through the Internet), cert. denied, 540 U.S. 839, 124 S.Ct. 97, 157 L.Ed.2d 71 [ (2003) ]. This access is often subtle to children — as it comes in the form of friendship or, in Harris’s case, prospective employment — and undetected by parents. Restricting a child molester’s access to this communication medium, therefore, serves to protect the public and to prevent future criminal activity.

Id. at 275. We conclude that under these circumstances the State has sufficiently demonstrated that it has significant interests associated with the regulation of sex offender internet usage.

However, the State’s argument on narrow tailoring, an issue under which it has the burden, fails under Doe. See Turner, 512 U.S. at 664, 114 S.Ct. 2445. Indeed, each component of its narrow tailoring argument fails. First, the State concedes that I.C. § 35-42-4-12 prohibits “a considerable amount of speech that does not involve [harmful] interactions with minors at all.” (Appellee’s Br. p. 18). This fails under Frisby and Schneider because each communication is concededly not an evil. Second, the State argues that certain types of social networking web sites (ie., those accessible to minors) provide easy access to a large pool of victims. Yet, this is an insufficient argument to show that the medium rather than the potential communication causes harm. Third, by arguing that registrants are excluded, this assumes that all registered sex offenders will potentially engage in illicit communication. This argument fails under Schneider and Martin because the State has already criminalized such communication. Fourth, the State posits that use of the same socializing sites used by minors inevitably leads to online solicitation. This argument fails under Turner because the State has not shown how the ban alleviates such harm in a direct and material way. The sole remaining justification for the statute is based on the administrability exception in Hill. Here, the State’s efforts are insufficient; it argues that there is no other workable effective measure to deter and prevent the online sexual solicitation of minors. Lacking a detailed argument sufficient to pass muster under Hill, we conclude that the State has not successfully invoked the ad-ministrability exception under these circumstances.

Nevertheless, an argument can be made under City of Los Angeles and Hill that the media of social networking sites or instant messaging programs constitute an evil and also present difficulties in carving a rule that covers precisely the evil contemplated by the General Assembly. The Doe opinion acknowledges this as a possible argument:

Despite the infirmity of the statute in this case, we do not foreclose the possibility that keeping certain sex offenders off social networks advances the state’s interest in ways distinct from the existing justifications. For example, perpetrators may take time to seek out minors they will later solicit. This initial step requires time spent on social networking websites before the solicitation occurs. [_Further,] a law could apply to certain persons that present an acute risk — those individuals whose presence on social media impels them to solicit children. Currently, the state presents no evidence that covered individuals present this sort of risk.

Id. at 701-02.

It is conceivable that the social networking medium possesses qualities allowing us to conclude that the substantive evil is generated by the medium itself. See A.B. v. State, 885 N.E.2d 1223, 1224-225 (Ind.2008)(describing features of MySpace). Social networking websites use endorsements from trusted sources to facilitate social introductions thereby overcoming a bias against unknown persons, products, or services. It is possible that prohibiting those certain sex offenders from using such online utilities reduces the risk that unsupervised communication with an unsuspecting minor may, through development of bonds of trust and friendship with a predator — a bond that may ultimately lead to the minor being lured and groomed. Moreover, the nature of social networking web sites may present obstacles justifying the administrability exception under Hill. Yet, without detailed explanations on how social networking web sites operate, the State’s argument is not only insufficient to establish justification under City of Los Angeles and Hill, but also does not fall within the hypothetical, narrowly drawn statute described in Doe.

A lower federal court’s interpretation of Indiana law is not binding on an Indiana state court. See League of Women Voters of Indiana, Inc. v. Rokita, 929 N.E.2d 758, 763 (Ind.2010). We note that the parties in this case and remedy afforded differ from Doe. The Doe court permanently enjoined Marion County prosecutors from enforcing I.C. § 35-42-4-12 against sex offenders not on supervised release. Although Harris was last released from parole in December 2008, he was tried and convicted in Elkhart County. Nevertheless, we conclude that the State’s proffered narrow tailoring justification for I.C. § 35-42-4-12 is unsustainable in light of the Doe opinion.

In reaching our determination, we emphasize the distinction between First Amendment overbreadth and ‘as-applied’ challenges. The First Amendment overbreadth doctrine allows an individual to attack the constitutionality of a statute that applies to protected speech, even if the conduct by the challenging party is clearly unprotected. Logan v. State, 836 N.E.2d 467, 472 (Ind.Ct.App.2005). The remedy applicable to an overbreadth challenge is a declaration that the statute is null and void. See U.S. v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). However, overbreadth challenges in criminal cases are discouraged. Sabri v. U.S., 541 U.S. 600, 609-10, 124 5.Ct. 1941, 158 L.Ed.2d 891 (2004). More importantly, Harris is accused of committing the acts he claims constitute protected speech. Thus, overbreadth analysis is inapplicable and Harris’s challenge is properly viewed as an as-applied challenge. See LaRose v. State, 820 N.E.2d 727, 731 n. 4 (Ind.Ct.App.2005), trans. denied. We therefore conclude that I.C. § 35-42-4-12 is unconstitutional as applied to Harris and reverse his conviction under the statute. Compare Grody v. State, 257 Ind. 651, 278 N.E.2d 280, 285 (1972) with Smith v. State, 413 N.E.2d 652, 653 (Ind.Ct.App.1980).

II. Free Expression under the Indiana Constitution

We next review Harris’s claim that I.C. § 11-8-8-8 violates the Free Expression clause of the Indiana Constitution. Article 1, Section 9 states in relevant part that “[n]o law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever [...] but for the abuse of that right, every person shall be responsible.”

A. Standard of Review

We apply a two-step inquiry when reviewing the application of a statute under the Indiana Constitution. See Shoultz v. State, 735 N.E.2d 818, 826 (Ind.Ct.App.2000), trans. denied. A claimant must first demonstrate that the State’s action has, in the concrete circumstances of the case, restricted his or her opportunity to engage in expressive activity. Whittington v. State, 669 N.E.2d 1363, 1367 (Ind.1996). While “speaking, writing, or printing, freely on any subject whatever” are protected, the defendant must show that the State has imposed “a direct and significant burden on a person’s opportunity to speak his or her mind, in whatever manner the speaker deems most appropriate.” Id. at 1368. Second, the defendant has the burden to show that the State’s regulation of the expression is not rational. Logan, 836 N.E.2d at 473. In other words, the defendant retains the burden to prove “that the State could not reasonably conclude that the restricted expression was an abuse.” Whittington, 669 N.E.2d at 1369.

If the expressive activity is political in nature, the State must demonstrate that it did not materially burden the claimant’s opportunity to engage in political expression. Id. “Expressive activity is political ... if its point is to comment on government action, whether applauding an old policy or proposing a new one, or opposing a candidate for office or criticizing the conduct of an official acting under the color of law.” Whittington v. State, 669 N.E.2d 1363, 1370 (Ind.1996). In contrast, where an individual’s expression focuses on the conduct of a private party — including the speaker himself or herself — it is not political. Id. If the expression, viewed in context, is ambiguous, a reviewing court should find that the claimant has not established that it was political and should evaluate the constitutionality of any state-imposed restriction of the expression under a rationality review. Id.

B. Ind.Code § ll-8-8-8(a)(7)

Harris argues that registration of his email address “curtails any anonymity that he may wish to use [... ] thereby imposing a material burden upon his free speech and exchange of ideas.” (Appellant’s Br. p. 15). The State responds that I.C. § ll-8-8-8(a)(7) does not restrict expressive activity and even if it is a restriction, the registration requirement is a response to an abuse of the right to speak.

Although Harris contends that the statute has restricted his political expression, he must show that the “actual operation of the statute at issue” restricted his expression. Price v. State, 622 N.E.2d 954, 958 (Ind.1993). He has not met this burden. Harris was charged with failing to provide those email addresses he used or intended to use. The registration requirement in I.C. § ll-8-8-8(a)(7) does not restrict his ability to use email, nor does it limit his use of social networking websites or instant messaging and chat room platforms.

Even assuming that Harris has shown the statute to be a restriction on his expressive activity, Harris has not met his burden regarding the second prong, ie., that the State could not reasonably conclude that the restricted expression was an abuse. First, to the extent that Harris argues that the registration requirement restricts his anonymous expression, we have previously noted that the right of anonymity expression applies when anonymity is a catalyst for speech. See Shurtleff, 628 F.3d at 1225. Providing registration information therefore does not curtail his ability to express anonymously in the first instance. Although Harris argues that “no abuse was alleged” by the State as a result of Harris’s failure to register the email addresses and user names, we find this argument insufficient to meet his burden. (Appellant’s Br. p. 22). The only speech involved here is identification information; Harris was not convicted for any expression extending beyond that. To the extent that Harris’s activity was expressive, the State contends that it was an abuse of his right to expression, insofar as it constitutes a “threat to public safety and the general welfare” falling “within the police power of the State.” (Appellee’s Br. p. 23). As the supreme court has noted, INSORA promotes public safety and “registration systems are a legitimate way to protect the public from repeat offenders.” Wallace v. State, 905 N.E.2d 371, 383 (Ind.2009). Accordingly, under these facts, Harris’s conviction under I.C. § 11 — 8^8—8(a)(7) does not contravene his right to free expression as guaranteed by Article I, Section 9 of the Indiana Constitution.

III. Ex Post Facto Provision of the Indiana Constitution

Harris’s final constitutional challenge is that I.C. § 11-8-8-8 is unconstitutional as applied to him in that the statute is an ex post facto law and therefore violates the Ex Post Facto Clause of the Indiana Constitution. The Indiana Constitution states that “No ex post facto law [... ] shall ever be passed.” Ind. Const, art. 1, § 24. This provision forbids, in pertinent part, the passage of any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Healey v. State, 969 N.E.2d 607, 611 (Ind.Ct.App.2012), trans. denied (quoting from Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)). The underlying purpose of the Ex Post Facto Clause is to give effect to the fundamental principle that persons have a right to fair warning of that conduct which will give rise to criminal penalties. State v. Pollard, 908 N.E.2d 1145, 1149 (Ind.2009).

In Wallace, ' the supreme court concluded that ex post facto claims under the Indiana Constitution are evaluated by application of the “intent-effects” test. Pollard, 908 N.E.2d at 1149. Under the first prong of this test, we determine what type of scheme the legislature intended the statute to establish. Id. If the legislature’s intention was to impose punishment, the inquiry ends and an ex post facto violation is found. Id. If, however, the legislature’s intention was regulatory or civil in nature, then the court must move to the second prong of the inquiry to determine whether the effects of the statute are so punitive as to transform the regulatory scheme into a criminal penalty. Id.

Harris’s ex post facto challenge fails. Although Harris alleges that I.C. § 11-8-8-8 constitutes an ex post facto violation in the heading of his brief and the last sentence of his argument, he makes no attempt to analyze the statute under the intents-effects test. As a result, we find that Harris has-failed to make a cogent argument and has therefore waived this .particular claim. See Wingate v. State, 900 N.E.2d 468, 475 (Ind.Ct.App.2009).

IV. Sufficiency of the Evidence

Harris also argues that because he personally did not use or intend to use certain unregistered email addresses, he complied with the I.C. § ll-8-8-8(a)(7) requirement that a sex or violent offender register those email addresses the offender uses or intends to use. We characterize this argument as a sufficiency of the evidence claim.

In order to convict Harris of failing to register under I.C. § 11-8-8-17; as a. Class D felony, the State was required to prove beyond a reasonable doubt that Harris, a sex offender, acting with the culpability required for commission of the crime:

(1) fail[ed] to register when required to register under this chapter; '
(2) fail[ed] to register in every location where the sex or violent offender is required to register under this chapter;
(3) ma[de] a material misstatement or omission while registering as a sex or violent offender under this chapter[.]

I.C. § ll-8-8-17(a). The statute requires that the sex or violent offender knowingly or intentionally commit the violation for culpability. I.C. § 11-8-8-17.

When reviewing the sufficiency of the evidence to support a conviction, we will consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.2007). We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id. Because knowledge is the mental state of the actor, it may be provided by circumstantial evidence and inferred from the circumstances of each case. Taylor v. State, 975 N.E.2d 392, 394 (Ind.Ct.App.2012), trans. denied.

Harris does not dispute that he did not list the email addresses when he updated his registration on June 1, 2009. However, Harris argues that he was aware of the requirement to register and as a result he never personally used or intended to use the unregistered email addresses or social networking website user names. Instead, he claims that the unregistered email addresses and social networking us-ernames were registered under his wife’s name, used in connection with the promotion of his services as an actor and filmmaker, and part of the “brand name” of his business carried out through his corporation. According to Harris, in such case, the law does not require him to register the email addresses or social networking user names.

At trial, the State offered screen shots of Harris’s MySpace profile page and his IndianaActors.com profile page. The MySpace profile page contained Harris’s photograph, a narrative of his likes and dislikes, listed his marital status as single, and a user name of ‘filmmaker 54.’ Further, the State provided records from MySpace showing that the profile page was created on May 5, 2009, and an associated email address of ‘filmmakerl954@aol.com.’ The Indiana Actors.com profile page contained photographs of Harris, listed an email address of ‘michaharr5@aol.com,’ and stated “[cjontact Michael L. Harris directly if you are interested in his talents.” (State’s Exh. No. 6). Harris did not register either email address until December 3, 2009.

Based on the foregoing, we deem fHarris’s arguments merely a request to reweigh the evidence. We decline to do so. There is sufficient evidence from which the jury could infer that Harris used or intended to use such email addresses and failed to register these email addresses on June 1, 2009. We therefore reject Harris’s sufficiency of the evidence claim.

CONCLUSION

Based upon the foregoing, we conclude that Harris’s conviction under Ind.Code § 35-42-4-12 violates the First Amendment to the United States Constitution and reverse his conviction under that statute. However, Harris’s constitutional challenges to I.C. § ll-8-8-8(a)(7) under the First Amendment as well as Article 1, Sections 9 and 24 of the Indiana Constitution fail. We also conclude that the State produced sufficient evidence to support Harris’s conviction under I.C. § 11-8-8-17.

Affirmed in part, reversed in part.

BAILEY, J. concurs.

CRONE, J. concurs in part and concurs in result in part with separate opinion.

CRONE, Judge,

concurring in part and concurring in result in part.

I agree with the majority that the State produced sufficient evidence to support Harris’s conviction under Indiana Code Section 11-8-8-17; that he waived his ex post facto claim as to Indiana Code Section 11-8-8-8; that he waived his claim that his convictions violate the Resolution from the United Nations Human Rights Council; and that he waived his claims regarding the trial court’s denial of his motion in limine and the prosecutor’s alleged misconduct. I also agree that Indiana Code Section 11-8-8-8 is not unconstitutional as applied to Harris under the First Amendment. As to the remaining issues, I respectfully concur in result.

Harris first contends that Indiana Code Sections 11-8-8-7, 11-8-8-17, and 35-42-4-12 are unconstitutional as applied to him under the First Amendment to the U.S. Constitution and Article 1, Section 9 of the Indiana Constitution. Like the majority, I agree with the State that Indiana Code Section 11-8-8-17 “merely makes it a crime to failure to register as required by law, which does not implicate” any constitutional free-speech provision, and thus his “constitutional arguments are properly directed toward the substance of the registration requirement, which is found in Section 11-8-8-8.” Appellee’s Br. at 9 n. 5. As mentioned above, I agree with the majority that Indiana Code Section 11-8-8-8 is not unconstitutional as applied to Harris under the First Amendment. As for Harris’s state constitutional argument, however, I would simply hold that he has failed to establish that the statute has actually restricted his expression and say nothing more on the subject.

As for Indiana Code Section 35-42-4-12, the majority acknowledges that the Seventh Circuit Court of Appeals recently addressed its constitutionality under the First Amendment in Doe v. Marion County Prosecutor, 705 F.3d 694 (7th Cir.2013), but never quite gets around to saying that the court found the statute unconstitutional on its face. See id. at 695 (“We ... hold that the law as drafted is unconstitutional. Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state’s interest.”). I acknowledge that we are not bound by the Seventh Circuit’s holding and that Doe is both factually and procedurally distinguishable, but I see no reason to reinvent the wheel here and would reverse Harris’s conviction under Indiana Code Section 35-42-4-12 based on Judge Flaum’s persuasive analysis in that case. We need not address Harris’s state constitutional argument here, but I would simply note that the protections of Article 1, Section 9 of the Indiana Constitution are at least equal to if not greater than those of the First Amendment.

      . As a threshold matter, we ascertain the nature of these challenges. As the State points out, Harris's brief contains lengthy argument citing language applicable to both facial and as applied challenges to the constitutionality of the statutes. A facial challenge to the constitutionality of a statute requires the challenging party to demonstrate that there are no set of circumstances under which the statute can be constitutionally applied. See Doe v. Town of Plainfield, 893 N.E.2d 1124, 1129 (Ind.Ct.App.2008), trans. denied. An ‘as-applied’ challenge asks only that the reviewing court declare the challenged statute or regulation unconstitutional on the facts of the particular case. Dowdell v. City of Jeffersonville, 907 N.E.2d 559, 564 (Ind.Ct.App.2009), trans. denied. While Harris’s arguments often move back and forth between different concepts and standards of review, they, more often than not, recite that both statutes are unconstitutional as applied to him.

      . Although Harris asserts that both I.C. §11-8-8-8 and -17 are the source of the alleged violation, as the State points out, I.C. § 11 — 8— 8-17 merely criminalizes the failure to provide required information; the requirement to provide email addresses and internet identifiers is contained in I.C. § 11 — 8—8—8(a)(7). Thus, the inquiry into the constitutionality of Harris's anonymity claim is better understood as a challenge to I.C. § 1 l-8-8-8(a)(7) only.

      . Each of the foregoing terms' is further defined by statute. User names, whether for an electronic chat room, instant messaging, or social networking web site, refer to identifiers enabling either communication over the internet in real time using typed text or the creation, use, or modification of a social networking website. See I.C. §§ 11-8-8-1.2; - 1.6; -1.8. A social networking web site is defined in I.C. § 35-42-4-12. An email address refers to “a destination, commonly expressed as a string of characters, to which electronic mail may be sent or delivered.” I.C. § 11-8-8-1.4.

      . The Shurtleff court employed a narrowing construction of the Utah statute to conclude that it precluded "unrestricted dissemination information to the general public.” Shurtleff, 628 F.3d at 1224-225. In Indiana, sex offender registry information appears on an internet website. See I.C. § 36-2-13-5.5. This includes sex offender email addresses and user names. See I.C. § 36-2-13-5.5(b)(3). However, Harris does not allege that any chilling effect on his First Amendment rights arises from this public dissemination requirement.

      . For the purposes of foregoing analysis, we have assumed that email permits anonymity. Cf. Howell v. State, 921 N.E.2d 503, 505 n. 2 (Ind.Ct.App.2009) ("Each computer attached to the internet has an Internet protocol address [...] which identifies its location to the Internet network.”).

      . By concluding that I.C. § 35-42-4-12, as applied, violates the First Amendment, we do not reach Harris’s challenges to the statute under the Article 1, Sections 9 and 23 of the Indiana Constitution. Further, our holding obviates the need to review Harris’s argument regarding the statutory defense provided by I.C. § 35-42-4-12(f).

      . Harris’s ex post facto challenge is based exclusively on the Indiana Constitution and not the United States Constitution.

      . Harris also contends that his convictions violate Resolution from the United Nations Human Rights Council regarding free speech on the Internet. See H.R.C. Res. 20/L.13, U.N. Doc. A/HRC/20/L.13 (June 29, 2012). However, Harris cites to no authority to demonstrate that this resolution has binding authority and further fails to make an argument how the statutes violate the resolution. Accordingly, we deem this argument waived for failure to make a cogent argument. See Wingate, 900 N.E.2d at 475

      . Harris makes two additional arguments that we do not consider. First, Harris alleges that the trial court abused its discretion by denying his motion in limine regarding criminal history evidence. It is well settled that the denial of a motion in limine does not preserve error and that the failure to make a timely objection to the evidence at trial waives the error on appellate review. See Warren v. State, 757 N.E.2d 995, 998 (Ind.2001). Here, Harris did not object when the State introduced evidence of his child molesting conviction. Second, Harris argues that the State committed prosecutorial misconduct during its closing argument. Specifically, he contends that the State improperly referred to his prior child molesting conviction, expressed personal opinions that Harris sought to be portrayed as a victim, and called Harris a liar. However, Harris did not object to these remarks, request an admonishment, or make a motion for a mistrial. His argument is therefore waived. See Cooper v. State, 854 N.E.2d 831, 835 (Ind.2006). Further, where a claim of prosecutorial misconduct has not been properly preserved, the defendant must establish the grounds for the misconduct and the additional grounds for fundamental error. Id. Fundamental error is an extremely narrow exception that allows a defendant to avoid waiver of an issue. Id. However, Harris makes no attempt to argue that fundamental error occurred.


text:
    In the Matter of Involuntary Termination of the Parent-Child Relationship of G.P. (Minor Child), and his Mother, J.A., (Mother), Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner.
    No. 49A02-1208-JT-643.
    Court of Appeals of Indiana.
    March 28, 2013.
    Rehearing Denied May 16, 2013.

      Amy Karozos, Greenwood, IN, Attorney for Appellant.
    Robert J. Henke, DCS Central Administration, Patrick M. Rhodes, Indiana Department of Child Services, Indianapolis, IN, Attorney for Appellee.
   OPINION

ROBB, Chief Judge.

Case Summary and Issues

J.A. (“Mother”) appeals the termination of her parental rights. She presents two restated issues on appeal: 1) whether she was. denied due process when the trial court failed to appoint her an attorney for the underlying Child in Need of- Services (“CHINS”) proceeding; and 2) whether sufficient evidence supported the termination of her parental rights. Concluding that her due process rights were not violated, and that there was sufficient evidence to support the termination, we affirm.

Facts and Procedural History

G.P. was born in 2009. In October 2010, the Department of Child Services (“DCS”) removed G.P. from Mother’s home and filed a petition alleging that G.P. was a CHINS. That same month, an initial hearing was held at which Mother waived counsel and admitted to the CHINS allegations, and G.P. was found to be a CHINS. In November 2010, there was a dispositional hearing at which G.P. was formally removed from Mother’s care, although he had been in the care of DCS in the intervening month. G.P. was placed with his paternal grandparents. Mother was allowed supervised visitation, and was ordered to complete certain services. Ordered services included weekly contact with the DCS Family Case Manager (“FCM”), notifying the FCM of changes in contact information, keeping all appointments with DCS, maintaining suitable housing and a stable source of income, discontinuing drug use, participating in home-based counseling, completing a parenting assessment and all recommendations developed as a result of the assessment, and participating in random drug screens.

In December 2010, Mother’s visitation was suspended for failure to adequately engage in services. In February 2011, a review hearing was held. At that point, Mother was one missed session away from being discharged from an intensive outpatient drug treatment program due to missing appointments. Mother requested counsel at this hearing, and the court found that she was indigent and determined that she was entitled to appointment of counsel. It appears, however, that the court failed to actually appoint counsel. In May 2011, Mother appeared pro se at a review hearing, and did not mention the lack of representation. By that hearing, Mother had been discharged from all services. She had failed to complete her intensive outpatient program and had failed to reschedule it. Mother indicated that she wanted to re-engage with services. The plan for permanency at the end of this hearing was reunification, and a permanency hearing was scheduled for August 16, 2011.

In August 2011, Mother moved to her mother’s house in Virginia without notifying DCS. On August 16, 2011, Mother failed to appear for the permanency hearing. DCS requested that the plan be changed to adoption, and G.P.’s guardian ad litem (“GAL”) agreed. The plan for permanency at the end of the hearing was set for adoption. Two days later, DCS filed a petition for involuntary termination of Mother’s parental rights. In September 2011, an initial hearing was held on the termination; Mother failed to appear and the hearing was continued. At the continued hearing later that month, Mother failed to appear and DCS requested a default hearing. The court continued for an initial hearing in December with a default hearing scheduled for January 2012. In October 2011, Mother was served with summons by publication regarding the scheduled hearings. Sometime after that, Mother returned the certified mail card for a summons that had been sent to her mother’s house in Virginia.

In December 2011, Mother failed to appear at the continued initial hearing. On January 9, 2012, the scheduled default hearing was re-scheduled for February. On January 29, 2012, Mother filed a letter with the court requesting counsel, and the court appointed counsel on February 9 and converted the default hearing to a pre-trial hearing. In February 2012, Mother began an addiction program in Virginia. Later that month, Mother failed to personally appear at the pre-trial hearing, but was represented by counsel and the matter was set for trial. On April 1, 2012, counsel filed a motion to dismiss or continue the case, arguing that Mother had been deprived of her due process rights when counsel was not appointed for the CHINS case. Following a hearing, the court denied the motion but bifurcated the trial to allow counsel time for discovery. The termination trial was held over three days: April 9, June 11, and June 14, 2012. On July 10, 2012, the court entered an order terminating Mother’s parental rights. This appeal followed.

Discussion and Decision

I. Due Process

A. Standard of Review

CHINS proceedings are separate and distinct from termination proceedings. Hite v. Vanderburgh Cnty. Office of Family & Children, 845 N.E.2d 175, 182 (Ind.Ct.App.2006). Parents are entitled to representation in termination proceedings, Indiana Code section 31-32-4-1, and counsel may be appointed in other proceedings, Indiana Code section 31-32-4-3 (emphasis added). Indiana Code section 31-34-4-6 lists the legal rights of which parents in CHINS cases must be informed, including the right to be represented by an attorney upon the request of the parent, if the court finds that the parent is indigent. We have noted that there is a presumption against court-appointed counsel in CHINS cases and we have stated that under Indiana Code section 31-3241-3, whether the trial court abused its discretion in appointing counsel in CHINS proceedings depends on the unique facts and circumstances of each case. In re M.M., 733 N.E.2d 6, 10-11 (Ind.Ct.App.2000). “If lack of counsel is likely to lead to particularly damaging uncontested allegations and if such allegations be deemed established and not subject to subsequent challenge, those allegations might virtually assure a subsequent termination decision.” Id. at 11 (quoting E.P. v. Marion Cnty. Office of Family & Children, 653 N.E.2d 1026, 1033 (Ind.Ct.App.1995)). In that case, the court may well abuse its discretion by failing to appoint counsel. Id. at 11.

The Due Process clause of the U.S. Constitution prohibits state action that deprives a person of life, liberty, or property without a fair proceeding. When the State terminates a parent-child relationship, it must do so in a manner that meets the requirements of due process. C.T. v. Marion Cnty. Dep’t of Child Servs., 896 N.E.2d 571, 586 (Ind.Ct.App.2008), trans. denied. Due process within the context of termination of a parent-child relationship requires a balancing of three factors: (1) the private interests affected by the proceeding, (2) the risk of error created by the State’s chosen procedure, and (3) the countervailing governmental interest supporting use of the challenged procedure. Id. It is well established that both the private interests and the State interests are substantial in termination cases. See id.; In re A.L.H., 774 N.E.2d 896, 900 (Ind.Ct.App.2002). The factor at issue then is the risk of error. The question here then is whether the court abused its discretion in failing to appoint counsel to Mother at the CHINS proceeding, and if so whether that failure created an unacceptable risk of error in the termination proceedings.

B. Failure to Appoint Counsel for Mother

In order for Mother’s parental rights to be terminated, DCS needed to prove by clear and convincing evidence:

(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court’s finding, the date of the finding, and the manner in which the finding was made.
(iii) The child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;
(B) that one (1) of the following is true:
(i)There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.

Ind.Code § 31-35-2-4(b)(2), We recognize that some of the evidence presented at the May 2011 hearing, where Mother was not represented, supports sub-sections B and C. However, Mother does not appear to contest that she was discharged from services or that she failed to complete services, as presented at that hearing. More importantly, the evidence from that hearing alone did not assure a subsequent termination. We note that at the end of the hearing, the permanency plan for G.P. was still reunification. It was the sum total of Mother’s actions (or inaction) by the time of the termination hearing, nearly a year later, that ultimately led to termination. This included her continuing failure to complete services in that time period, her lack of communication with DCS, and the questionable appropriateness of the home that she could provide at that time. Evaluating Mother at the time of the termination hearing, evidence of her status in May 2011 was but one factor. The overarching issue seems, to have been her continuing failure to meaningfully engage with services and attempts to remedy the conditions that lead to removal.

As for hearings following the May 2011 hearing, Mother argues that having counsel would have allowed her to inform the court of things such as her reasons for moving, the steps she was taking toward sobriety, and her current living arrangement with her mother. It is not clear why counsel was needed to inform the court, when Mother could have informed the court herself if she had appeared for the hearings. The benefit to having counsel is generally having help in navigating the system, and at hearings in objecting to evidence and examining witnesses. Here, Mother showed no interest in navigating the system, and no error in evidence that was presented at the hearings. Mother’s main argument seems to be that counsel could have informed the court of Mother’s situation, even if Mother was not there. However, all of the things that Mother claims could have been brought to the court’s attention at the hearings were eventually brought to the court’s attention at the termination trial. Despite Mother’s presented evidence, the court still determined that termination was the appropriate outcome. Mother makes no argument for how the outcome would have been any different had the court been presented with the evidence earlier. While we are disappointed that the trial court did not follow through with appointment after determining that appointment was appropriate, any error in that failure appears to be harmless and we cannot say that it changed the balance of risk of error in the termination proceedings.

II. Sufficiency of the Evidence

A. Standard of Review

In determining whether the evidence is sufficient to support a judgment terminating parental rights, we neither reweigh the evidence nor judge the credibility of the witnesses. In re D.J., 755 N.E.2d 679, 683 (Ind.Ct.App.2001), trans. denied. We consider only the evidence favorable to the judgment and the reasonable inferences to be drawn therefrom. Id. When reviewing the findings of fact and conclusions of law upon which a termination of parental rights is premised, we engage in a two-tiered standard of review: we first determine whether the evidence supports the findings, and second, whether the findings support the judgment. Id. We will reverse only upon a showing of clear error. Id. A finding is clearly erroneous when there are no facts or inferences drawn therefrom that support it. In re A.J., 877 N.E.2d 805, 815 (Ind.Ct.App.2007), trans. denied. A judgment is clearly erroneous only if the findings of fact do not support the trial court’s conclusions thereon, or the conclusions thereon do not support the judgment. Id.

In evaluating the circumstances surrounding the termination, the court must subordinate the interests of the parents to those of the child. R.G. v. Marion Cnty. Office, Dep’t of Family & Children, 647 N.E.2d 326, 328 (Ind.Ct.App.1995), trans. denied. Termination of parental rights is proper where the child’s emotional and physical development is threatened. Id. The trial court need not wait until the child is irreversibly harmed such that his physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Id.

To determine whether a reasonable probability exists that the conditions justifying a child’s continued placement outside the home will not be remedied, the trial court must judge a parent’s fitness to care for her children at the time of the termination hearing and take into consideration evidence of changed conditions. In re D.D., 804 N.E.2d 258, 266 (Ind.Ct.App.2004), trans. denied. However, the trial court must also evaluate the parent’s habitual patterns of conduct to determine the probability of future neglect or deprivation of the child. Id.

B. Evidence Supporting Termination of Mother’s Parental Rights

Mother contests a handful of the specific findings and conclusions of the trial court. We believe that these findings and conclusions would be supported by the record, but moreover we agree with the State that, even if these findings are omitted, the remaining findings are sufficient to support the conclusion of the court that termination was appropriate. The record indicates that Mother did not consistently participate in services when she was in Indiana, and that she was discharged from all services and did not re-engage. She moved out of state without informing DCS, and did not keep in contact with DCS. At some point after the termination hearing was scheduled, she began a treatment program in Virginia, and successfully completed it just prior to the trial. However, that was long after the CHINS case started, and also months after the termination petition was filed. She has a history of entering rehab programs and then relapsing regardless of whether she completed the program or not, and so we agree with the trial court that it would take time after this last program to be convinced that she is truly sober. Both DCS and the GAL agreed that G.P. was in a safe and appropriate home with his grandparents, who were ready to adopt him, and that termination was in his best interest. We conclude that the evidence supports the court’s findings, and that those findings support the conclusions in favor of termination.

Conclusion

Concluding that Mother was not denied her due process rights when the trial court failed to appoint her counsel in the CHINS case, and that sufficient evidence supports the termination of her parental rights, we affirm.

Affirmed.

MAY, J., and PYLE, J., concur.

      . G.P.’s father was incarcerated at the time of the dispositional hearing. Father ultimately consented to adoption, was dismissed from the termination proceedings before trial, and does not participate in this appeal.

      . We note that the case law does not clearly define how sections 31-32-4-3 and 31-34-4-6 are to be read in conjunction with each other. Is it mandatory to appoint counsel for indigent parents when requested, but only for indigent parents, and only when requested? Is that right waivable, if, after the request, there is no appointment but, as here, the parent does not raise the lack of appointment with the court? Is it fundamental error if the court denies or overlooks the appointment for an indigent parent who has requested counsel? Based on our reading of the current case law, the lack of appointment will be reviewed for an abuse of discretion, but this is an area that would benefit from clarification by the legislature or our supreme court.