Gross v. State

• Decision Date: 12 November 2004
• Docket Number: No. 33A01-0402-CR-79., No. 33A05-0402-CR-100
• Citation: 817 N.E.2d 306
• Parties: Gary C. GROSS, Angel Hartman, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

817 N.E.2d 306

Gary C. GROSS, Angel Hartman, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.

Nos. 33A05-0402-CR-100, 33A01-0402-CR-79.

Court of Appeals of Indiana.

November 12, 2004.

Amy K. Noe, Allen Wellman McNew, Richmond, IN, Attorney for Appellants.

Steve Carter, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BARNES, Judge.

Case Summary

Gary Gross and Angel Hartman appeal their two convictions each for Class D felony neglect of a dependent. We reverse.¹

Issue

The sole restated issue is whether there is sufficient evidence to support Gross' and Hartman's convictions.

Facts

There is no meaningful conflict in the evidence in this case. During the spring and summer of 2003, Gross and Hartman lived together as roommates. On a day at the end of April, Hartman had custody of her children, C.H., age five, and B.H., age three (and who turned four at the beginning of June 2003). Hartman shared custody of the children with their father. Also present that day were Gross' brother, Tom, and Gross' children, a boy age thirteen and two girls ages nine and six. Tom decided to play a game with the older children that Hartman referred to as "hostage," where their wrists and ankles were taped together with light construction tape² and the children competed to see who could break free first. The children had fun playing the game. B.H., who was sitting in a stroller on the porch, indicated that he too wanted to play. Gross taped B.H. into the stroller by wrapping the tape around his shoulders and waist. While Hartman was cutting the tape from behind the stroller with a pocketknife a few minutes later, B.H. reared back and sustained a superficial cut from the knife. After Gross treated the cut with ointment and a band-aid, B.H. returned to playing. However, Hartman indicated to the other children that the "hostage" game was over and disposed of the tape. After B.H.'s father noticed the cut and Hartman explained what had happened, the father expressed his disapproval of the "hostage" game.

Sometime in July, C.H. was again staying with Hartman and Gross. Gross' children were there also, as were Tom's two children, ages seven and twelve. The children again were taking turns having their wrists and ankles taped and were hopping about the house "like little rabbits." Tr. p. 127. C.H. asked to be taped, but was unable to free herself from the tape around her wrists, so Hartman cut her loose with a pair of scissors. When C.H.'s father picked her up, he noticed tape residue on her wrists, which was pointed out to a doctor and led to an official child abuse investigation.

The State charged Hartman and Gross with two counts each of Class D felony neglect of a dependent, one with respect to the April incident involving B.H. and one with respect to the July incident involving C.H. No charges were filed against Tom Gross, nor were any filed with respect to any other children with whom Hartman and Gross played the taping "game." On December 8-9, 2003, a jury trial was conducted and Hartman and Gross were convicted as charged. They now appeal.

Analysis

We employ a deferential standard of review when considering questions of the sufficiency of the evidence to support a conviction.

In reviewing a sufficiency claim, we neither reweigh the evidence nor assess the credibility of the witnesses. We look to the evidence most favorable to the verdict and reasonable inferences drawn therefrom. We will affirm the conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Nevertheless, evidence of guilt of substantial and probative value, as required to affirm a conviction, requires more than a mere scintilla of evidence. Evidence that only tends to support a conclusion of guilt is insufficient to sustain a conviction, as evidence must support the conclusion of guilt beyond a reasonable doubt.

Whitaker v. State, 778 N.E.2d 423, 425 (Ind.Ct.App.2002), (citations omitted) trans. denied.

The State charged Hartman and Gross under Indiana Code Section 35-46-1-4(a)(1), which provides: "A person having the care of a dependent, whether assumed voluntarily or because of a legal obligation, who knowingly or intentionally... places the dependent in a situation that endangers the dependent's life or health ... commits neglect of a dependent, a Class D felony." A "knowing" mens rea under this statute is met if the accused "must have been subjectively aware of a high probability that he placed the dependent in a dangerous situation." Armour v. State, 479 N.E.2d 1294, 1297 (Ind.1985). Under the neglect statute, "health is not limited to one's physical state, but includes an individual's psychological, mental and emotional status." Harrison v. State, 644 N.E.2d 888, 890 (Ind.Ct.App.1994), trans. denied.

Some years ago, our supreme court cautioned against reading the neglect statute too broadly in State v. Downey, 476 N.E.2d 121 (Ind.1985), a case that addressed whether the statute was unconstitutionally vague. The case analyzed a version of Indiana Code Section 35-46-1-4(a)(1) that criminalized intentionally or knowingly placing a dependent in a situation that "may" endanger his or her life or health. Id. at 123. The court noted that under a literal interpretation of the statute, "it would be a crime to raise a child in a high-rise apartment or to mop the kitchen floor with a bucket of water in the presence of a small child. This is the literal intendment of the provision, but that is not a rational intendment." Id. The court went on to state "that there must be something in a criminal statute to indicate where the line is to be drawn between trivial and substantial things so that erratic arrests and convictions for trivial acts and omissions will not occur." Id. (citing Stone v. State, 220 Ind. 165, 41 N.E.2d 609 (1942)). It concluded that construing the statute literally would render it unconstitutionally vague. Id.

To avoid striking down the neglect statute, however, the court read the word "may" out of the statute. Id. It also held that the statute must be read as applying only to situations that expose a dependent to an "actual and appreciable" danger to life or health. Id. The court found this construction to be consistent with the evident purpose of the neglect statute, which is "to authorize the intervention of the police power to prevent harmful consequences and injury to dependents" without having to wait for actual loss of life or limb. Id. In 1999, and in accordance with Downey, the General Assembly removed the word "may" from the neglect statute. It is plain, however, that Downey's concerns regarding the potential overbreadth of the statute and the requirement that a danger be "actual and appreciable" persist.

It seems clear that to be an "actual and appreciable" danger for purposes of the neglect statute when children are concerned, the child must be exposed to some risk of physical or mental harm that goes substantially beyond the normal risk of bumps, bruises, or even worse that accompany the activities of the average child. This is consistent with a "knowing" mens rea, which requires subjective awareness of a "high probability" that a dependent has been placed in a dangerous situation, not just any probability. See Armour, 479 N.E.2d at 1297

. We would note, for example, that allowing a child to ride a bicycle arguably could fall within the literal purview of the neglect statute, given that several hundred persons die and many thousands more are injured each year in cycling accidents. See National Highway Traffic Safety Administration, Traffic Safety Facts 2002 (stating that 662 cyclists were killed and 48,000 were injured in 2002 traffic accidents, with twenty-four percent of deaths and thirty-nine percent of injuries involving children under sixteen years of age), available at http://www-nrd. nhtsa.dot.gov/pdf/nrd-30/ NCSA/TSF2002/2002 pcyfacts.pdf. Riding a bicycle clearly endangers a child's life or health, according to the literal language of the neglect statute, but no rational person could read it as reaching so far as to criminalize allowing one's child to ride a bike. Additionally, The Wizard of Oz causes many a small child to have nightmares after watching it for the first time, but obviously this level of emotional trauma is not the concern of the neglect statute.

Of the numerous cases that have addressed the sufficiency of the evidence for a child neglect conviction, most have involved fact patterns relating to a failure to seek medical care for an injured or ill child. For example, in Smith v. State, 718 N.E.2d 794, 806-07 (Ind.Ct.App.1999),trans. denied, we held there was sufficient evidence to support a neglect conviction where a mother failed for forty-eight hours to seek medical attention for her nine-month old's skull fracture where the child had obvious, visual signs of injury and eventually died. By contrast, in Fout v. State, 619 N.E.2d 311, 313-14 (Ind.Ct.App. 1993), we held there was insufficient evidence to support a mother's neglect conviction where she failed for twenty-four hours to seek medical treatment for her infant, but the only symptoms of illness were refusal to...