Davis v. State

• Decision Date: 28 March 1985
• Docket Number: No. 2-1083A356,2-1083A356
• Citation: 476 N.E.2d 127
• Parties: Reed DAVIS and Mary Davis, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 127

476 N.E.2d 127

Reed DAVIS and Mary Davis, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-1083A356.

Court of Appeals of Indiana Second District.

March 28, 1985.

J.J. Paul, III, James H. Voyles, Indianapolis, for appellants.

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Defendants Reed Davis and Mary Davis (Davises) appeal their convictions for neglect of a dependent, Ind.Code Ann. Sec. 35-46-1-4 (Burns 1979), ¹ a class D felony. They raise the following issues:

1) whether Ind.Code Sec. 35-46-1-4 is unconstitutionally vague;

2) whether the indictments were sufficient;

3) whether the trial court properly admitted evidence of parentage probabilities; and

4) whether the evidence was sufficient to support the convictions.

Judgment affirmed as to Mary and reversed as to Reed.

On August 3, 1982, at approximately 12:30 p.m., a full-term male infant (Baby Lucky), ² estimated to be a few hours old, was found at the side of a gravel road near Warren, Indiana. An anonymous telephone call to the police implicated the Davises as the parents. After an investigation and blood tests to determine the probabilities of parentage, the Davises were indicted by the Huntington County grand jury for neglect of a dependent. After a jury trial, both were found guilty and sentenced to an executed term of two years.

I. CONSTITUTIONALITY

The Davises argue Ind.Code Sec. 35-46-1-4(a)(1) is unconstitutionally vague. Specifically, they allege the prohibition of conduct which "places the dependent in a situation that may endanger his life or health," Ind.Code Sec. 35-46-1-4(a) fails to inform the public and law enforcement officers of the specific conduct prohibited. Ind.Code Sec. 35-46-1-4(a) (emphasis added). In their brief, the Davises focus on the use of the permissive word "may". For example, they argue parental permission to engage in interscholastic and contact sports "may endanger" a child's life or health. Consequently, they allege the statute proscribes even reasonable conduct where life or health is not actually endangered. ³

Thus, the Davises attempt to present a facial challenge to the constitutionality of the neglect statute. However, "it is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand." United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). The Davises are not at liberty to devise a hypothetical situation which would demonstrate vagueness; ⁴ the statute is void for vagueness only if it is vague as applied to the precise circumstances of their case. Id.; accord United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); e.g., Terrel v. State, 170 Ind.App. 422, 353 N.E.2d 553 (1976) (statute omitting "knowledge" from offense of visiting a common nuisance not vague where evidence demonstrated defendant's knowledge); Connell v. City of Logansport, 397 N.E.2d 1058 (Ind.App.1979) ("conduct unbecoming an officer" not vague where defendant addressed his superior in obscene, abusive and threatening language). In making this determination we are not concerned with the ability of our Legislature to have chosen clearer and more precise language. United States v. Powell, 423 U.S. at 94, 96 S.Ct. at 320. Rather, we must determine whether an individual of ordinary intelligence would reasonably understand that his contemplated conduct is proscribed. United States v. Mazurie, 419 U.S. at 553, 95 S.Ct. at 715.

Although the Davises argue the statute proscribes even reasonable conduct which may not actually endanger the dependent, such conduct was not involved in the case at bar. The evidence indicates that within a few hours of birth and with the umbilical cord still attached, Baby Lucky was wrapped in a brown paper sack and left by the side of a deserted road in a wooded area outside the view of passersby. A jogger found the baby in a dehydrated condition, sunburned and bruised with superficial cuts and scratches and a puncture wound on the back of his head. No reasonable person of ordinary intelligence would have difficulty determining that such activity was proscribed by the statute at issue. Given the nature of the Davises conduct, the statute was sufficient to advise the Davises that their treatment of Baby Lucky was proscribed.

II. INDICTMENTS

The Davises were individually indicted for neglect of a dependent. The indictments were identical except for the named defendant:

"On or after the 3rd day of August, 1982, in Huntington County, State of Indiana, [Reed/Mary] Davis, then having the care, custody or control of an infant male child, a dependent, did knowingly place such dependent in a situation that did endanger his health and/or did abandon said dependent child."

Record at 14, 16. The indictments cited Ind.Code Sec. 35-46-1-4 as the statutory provision allegedly violated. The Davises allege 1) the indictments fail to state any facts comprising the basis of the offense charged and 2) a violation of due process in the charging of both endangerment and abandonment in the same indictment. ⁵

The Davises unsuccessfully sought dismissal of the indictments in the trial court because "the indictment does not set out that situation and circumstances which allegedly endangered the life or health of Baby Lucky." In support of their argument, at trial and on appeal, the Davises cite Ind.Code Sec. 35-34-1-2(a) (Burns Supp.1984) (formerly 35-3.1-1-2(a)) which requires the indictment to contain "the essential facts constituting the offense charged." However, the Davises waived the sufficiency of the indictments by failing to include the issue in their motion to correct errors.

Nonetheless, we find the indictments were sufficient. Omitting the formal parts, both indictments specified the time and place of the alleged offense, identified the defendants by name, and identified them as yet unnamed victim as "an infant male child, a dependent," all in language paralleling the statute proscribing neglect of a dependent. The indictments then followed the statutory language in specifying the particular acts which constitute the alleged neglect. When the statutory language enumerates the specific acts which constitute the crime, an indictment paralleling the words of the statute is sufficient. Allison v. State, 240 Ind. 556, 166 N.E.2d 171 (1960), cert. denied, 365 U.S. 608, 81 S.Ct. 822, 5 L.Ed.2d 821 (1961). There is no need for further description of the injury or methods employed in committing the crime. Moody v. State, 448 N.E.2d 660 (Ind.1983).

Nor did the charging of a violation of both subsections (a)(1) and (a)(2) render the information duplicitous. We first observe the charge of endangerment "and/or" abandonment in the indictment effectively charged the Davises with both acts; the use of "or" was superfluous. In State v. Pratt, 255 La. 919, 233 So.2d 883 (1970), the Supreme Court of Louisiana found a similar indictment sufficient. Pratt challenged a charge of aggravated rape where the victim's resistance was alleged to have been overcome by force "and/or" threats of great bodily harm; the aggravated rape statute listed force and intimidation in two disjunctive subsections, either of which constituted aggravated rape. Under the conjunctive rule, the prosecution was allowed to charge disjunctive acts in conjunctive language because the prosecution may have been unavoidably uncertain which form of "and/or" was equivalent to charging Pratt with both acts, in the conjunctive only, and did not prevent Pratt from understanding the charge. We similarly conclude the Davises were charged with both endangerment and abandonment; the inclusion of "and/or" did not hamper their ability to understand the nature of the charge or to prepare a defense.

Indiana also adheres to the conjunctive rule which allows the prosecution to charge disjunctive acts in conjunctive language. The neglect of a dependent statute is framed in disjunctive subsections. The crime of neglect of a dependent occurs by the commission of any one of the five distinct acts, including 1) endangerment, 2) abandonment, 3) confinement, 4) deprivation of support, or 5) deprivation of education. ⁶ Ind.Code Sec. 35-46-1-4. Here, the indictments enumerated two acts constituting neglect in conjunctive language, endangerment and abandonment. Accordingly, the indictments did not create a hybrid offense, nor were they duplicitous:

"[W]here the statute denounces several acts as a crime, they may be charged in one indictment or in a single count if they are connected in the conjunctive. An indictment drawn in that manner is not duplicitous, and it suffices to prove any one or more of the charges."

Shanholt v. State, 448 N.E.2d 308, 314 (Ind.App.1983) quoting United States v. Amick, 439 F.2d 351 (7th Cir.), cert. denied 403 U.S. 918, 91 S.Ct. 2227, 29 L.Ed.2d 694 (1971). The grand jury indicted the Davises for neglect of a dependent based upon two acts, either of which constitutes neglect. Under such an indictment, the State needed only to prove the Davises either endangered or abandoned Baby Lucky.

III. PARENTAGE

The Davises also allege the trial court erred in overruling their motion in limine and continuing objections which sought to exclude expert testimony concerning the mathematical probability of the Davises' parentage of Baby Lucky based on the results of blood tests. Specifically, the Davises argue 1) the potentially exaggerated impact of probability evidence, 2) the invalidity of "Bayes Theorem" to calculate the probabilities involved, 3) the misrepresentation of calculations as the probability of parentage rather than the probability of exclusion, and 4) the absence of any foundation for probability calculations when neither parent is known.

The target of the Davises objections was the expert testimony of ...