Harrison v. State, 48A02-9402-CR-101
| Decision Date | 22 December 1994 |
| Docket Number | No. 48A02-9402-CR-101,48A02-9402-CR-101 |
| Citation | 644 N.E.2d 888 |
| Parties | Debra Jo HARRISON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Debra Jo Harrison appeals her convictions for two counts of Neglect of a Dependent, 1 both class D felonies. Harrison argues that the verdicts are not supported by the evidence, that the three-year sentence imposed was manifestly unreasonable and that the trial judge failed to identify any aggravating circumstances to support the sentence.
We affirm.
The facts favorable to the jury's verdict are that sometime during the summer of 1989, Harrison had the care of T.W., a twelve year old female, D.L., an eleven year old female, and Holly, an infant in a stroller. None of the girls were her children or related to her. Harrison took the three girls to the Gobel Nursing Home to visit Jeff Kerns, who had suffered a severe head injury in an automobile accident. Kerns had a reputation of exposing and touching himself in public and touching and rubbing against women.
Upon arriving at the nursing home, Harrison and the three girls entered Kerns's room, which contained two twin beds. T.W. testified at trial that after entering the room, she and D.L. sat on one twin bed, while Harrison and Kerns lay on the other. Harrison and Kerns kissed, and Kerns asked Harrison to engage in fellatio. Harrison replied that she did not want to, but that the two older girls would. When T.W. stated that she neither wanted nor knew how to perform oral sex, Harrison answered that she would demonstrate. Harrison helped Kerns lower his pants to expose his penis. Harrison next showed the girls how to perform oral sex by using her finger as a model. Harrison laughed while the girls engaged in fellatio with Kerns, and told them afterward not to tell anyone. Harrison, however, testified that she never directed the girls to engage in oral sex. According to Harrison's testimony, Kerns asked Harrison to buy him a pop soon after they arrived. Harrison testified that she walked down the hall to the pop machine and stopped to talk with some patients on her way back to Kerns's room. When Harrison returned to the room, she witnessed D.L. kneeling alongside Kerns's bed licking Kerns's penis while T.W. was kneeling on the opposite side of the bed. Harrison testified that she was shocked and ordered the girls to stop. When D.L. answered that she had engaged in oral sex before, Harrison declared that she did not care and that D.L. was not going to engage in it while with her. Harrison then grabbed Holly's stroller and the girls and immediately left the nursing home.
The State charged Harrison with two counts of vicarious sexual gratification, class B felonies, and two counts of neglect of a dependent, class D felonies. A jury trial was held and the jury returned its verdicts, acquitting Harrison on the two counts of vicarious sexual gratification and finding her guilty on the two counts of neglect of a dependent. At the sentencing hearing, the trial judge sentenced Harrison to three years' imprisonment on each count of neglect of a dependent, to be served concurrently. Harrison appeals the convictions and the sentencing order and presents four issues, which we consolidate into three:
1. Did sufficient evidence exist for the jury to convict Harrison of neglect of a dependent?
2. Did the sentencing court improperly find aggravating circumstances?
3. Did the sentencing court impose a manifestly unreasonable sentence?
1.
Harrison claims that her conviction of neglect of a dependent is not supported by sufficient evidence. When reviewing for sufficiency of the evidence, this court will neither reweigh the evidence nor judge the credibility of the witnesses. We will consider the evidence most favorable to the judgment together with all reasonable inferences to be drawn therefrom. We will affirm a conviction if it is supported by substantial evidence of probative value. Fisher v. State (1990), Ind.App., 548 N.E.2d 1177.
The first part of Harrison's argument is that the State failed to present sufficient evidence that her conduct threatened either the girls' health or life. IC 35-46-1-4 provides in relevant part:
"(a) A person having the care of a dependent, whether assumed voluntarily or because of a legal obligation, who knowingly or intentionally:
(1) places the dependent in a situation that may endanger his life or health;
. . . . .
commits neglect of a dependent, a Class D felony."
Harrison claims that although the children's moral well-being might have been harmed, such impairments do not constitute injuries to life or health. Harrison refers to a precursor child neglect statute, discussed in Ware v. State (1982), Ind.App., 441 N.E.2d 20, which stated that child neglect occurs upon one's Id. at 22 (emphasis supplied). Harrison contends that the omission of the phrase "moral well-being" in the present statute "strongly indicates a legislative intent that conduct affecting the moral welfare of children no longer constitutes neglect." Appellant's Brief at 10, 11. Harrison further argues that the term "health" as utilized in the present statute does not encompass moral well-being.
When construing a statute, we must give words and phrases their plain, ordinary and usual meaning, unless a contrary purpose is clearly shown by the statute itself. Jacobs v. State (1994), Ind.App., 640 N.E.2d 61. Although penal statutes must be strictly construed against the State, a statute should not be overly narrowed so as to exclude cases fairly covered by it and should be interpreted so as to give efficient operation to the legislature's expressed intent. Baird v. State (1992), Ind., 604 N.E.2d 1170, cert. denied (1993), 510 U.S. 893, 114 S.Ct. 255, 126 L.Ed.2d 208. Black's Law Dictionary, sixth edition, defines health as the Webster's Ninth New Collegiate Dictionary defines health as "the condition of being sound in body, mind, or spirit". The definitions' references to "body" and "mind" lead us to the conclusion that the ordinary meaning of health is not limited to one's physical state, but includes an individual's psychological, mental and emotional status. Additionally, the purpose of the neglect statute is to protect a dependent from the failure of those entrusted with his or her care to take the action necessary to ensure the dependent is safe. If the neglect statute is narrowly read to protect dependents only from physical harm, a caregiver may have no duty to protect a child from sexual abuse that does not result in bruises, scrapes or other physical injuries. We therefore conclude the neglect statute applies to the psychological, mental and emotional injuries which are inflicted upon children by deviate conduct.
In the second part of Harrison's sufficiency argument, she contends that insufficient evidence exists to prove that she knowingly placed the children in a situation endangering their life or health. She specifically argues that she lacked knowledge of Kerns's deviate tendencies.
The jury convicted Harrison of neglect of a dependent and acquitted Harrison on two counts of vicarious sexual gratification. The jury was instructed that in order to convict Harrison of vicarious sexual gratification as a C felony:
"THE ACCUSED MUST:
1. Be eighteen (18) years of age or older, and
2. knowingly or intentionally,
3. directs, aids, induces or causes, [sic]
4. a child under the age of sixteen (16), to
5. engage in deviate sexual conduct,
6. with another person."
Record at 49. Harrison contends that she was acquitted because the jury could not find that she directed or caused the girls to engage in deviate conduct with Kerns. Thus, Harrison argues, the jury believed her testimony and not that of T.W. or D.L.. Harrison urges that we also look only to Harrison's testimony in determining whether sufficient evidence was presented.
Upon review for sufficiency of the evidence, we will consider the evidence most favorable to the judgment together with all reasonable inferences to be drawn therefrom. Fisher, supra. We conclude that sufficient evidence was presented to convict Harrison of neglect of a dependent regardless of whom the jury believed. Even if the jury had disregarded T.W. and D.L.'s testimony, the jury could have reasonably found that Harrison knowingly placed the girls in a situation that threatened their life or health.
The definition of knowledge in neglect cases incorporates a subjective standard. The relevant question is whether Harrison was subjectively aware of a high probability that she placed T.W. and D.L. in a situation...
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