Helton v. State, 55A01-9305-CR-178
| Decision Date | 01 December 1993 |
| Docket Number | No. 55A01-9305-CR-178,55A01-9305-CR-178 |
| Citation | 624 N.E.2d 499 |
| Parties | James W. HELTON, II, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
William Van Der Pol, Jr., McNutt, Hurt & Blue, Martinsville, for appellant-defendant.
Pamela Carter, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.
Today we decide whether Indiana's Criminal Gang Activity Statute is constitutional under the United States and Indiana Constitutions.
Appellant-defendant James W. Helton, II, appeals his conviction for Participating in Criminal Gang Activity, a Class D felony. 1
Helton raises several issues for our review:
I. Whether Indiana's Criminal Gang Activity Statute (Gang Statute) is unconstitutional because:
A. It is void for vagueness under the First and Fourteenth Amendments to the U.S. Constitution and article 1, Sec. 9 and Sec. 31 of the Indiana Constitution.
B. It is unconstitutionally overbroad and impermissibly infringed upon Helton's right of association guaranteed under the First and Fourteenth Amendments to the U.S. Constitution and article 1, Sec. 9 and Sec. 31 of the Indiana Constitution.
C. It deprived Helton of equal protection of the laws as guaranteed under the Fourteenth Amendment to the U.S. Constitution, and article 1, Sec. 23 of the Indiana Constitution.
II. Whether the trial court erred in allowing a police officer to testify as to the history of the Imperial Gangster Disciples under the pedigree exception to the rule against hearsay.
III. Whether the Gang Statute applies to Helton's conduct.
The undisputed facts 2 are that James Helton, a sixteen-year-old white male also know as G-Dog, is a member of the Imperial Gangster Disciples (IGD), a twelve member youth group. 3 In October 1991, while Helton was second in command or the number two G, he and other members initiated Scott Bullington into IGD. IGD members perform the initiation ritual, called "a 46," by striking the initiate forty times in the head and six times in the chest while standing in a circle around an ironing board with a blue bandanna, a candle, and a handgun placed on top.
In February 1992, twelve to fourteen IGD members met to initiate Travis Hammons. Helton and two other IGD members initiated Hammons after number one G Charlie Moran recited the traditional initiation "prayer." 4 While four IGD members restrained Hammons, Helton delivered 20 bare-fisted, hard blows directly to Hammons' head while pronouncing "he was going to beat [Hammons'] ass into the ground." 5 Record at 218. Both Bullington and Hammons knew of the initiation rite and consented to "a 46" by Helton and other members in order to become IGD members themselves.
At Hammons' initiation, IGD members also discussed the need to travel in pairs, to be aggressive with others, to never back away from anyone or a fight, determined that anyone who missed an IGD meeting would "get violated" (receive six blows to the chest), and decided that anyone leaving IGD would be "eight-balled" (surrounded by eight members and then beaten by them).
On April 23, 1992, the Morgan County court waived juvenile jurisdiction over then fifteen-year-old Helton, to the Morgan Superior Court. On April 24, 1992, the State charged Helton by information with participating in a criminal gang. The State later amended the information to charge Helton with participating in criminal gang activity on or about February 12, 1992, for committing a battery on Hammons. Helton was released on bond. While on release, Helton threatened a witness for the State and was suspended from high school for fighting Helton waived his right to a jury trial, and on January 21, 1993, the trial court determined the Gang Statute was constitutional and found Helton guilty of criminal gang activity. The trial court sentenced Helton to three years imprisonment, suspended so long as he complied with the terms of his probation. Helton now appeals.
with two persons. The court then placed special conditions on Helton's bond, including the condition that Helton not contact any of the fourteen persons concerned directly or indirectly until the matter was concluded.
In considering constitutional challenges, we accord the statute with every reasonable presumption supporting its validity and place the burden upon the party challenging it to show unconstitutionality. Brady v. State (1991), Ind., 575 N.E.2d 981, 984. To be constitutional, a statute must be carefully drafted or be authoritatively construed to punish only constitutionally unprotected conduct. Waldron v. McAtee, 723 F.2d 1348, 1354 (7th Cir.1983). We will assign a constitutional meaning to a statute if we can do so while remaining faithful to the legislative purpose. Price v. State, (1993), Ind., 622 N.E.2d 954. The language of a judicial opinion is as good as the language of the statute construed in the opinion. Waldron, at 1354.
Helton first contends the Gang Statute is void under the First 6 and Fourteenth 7 Amendments to the U.S. Constitution and article 1, Sec. 9 of the Indiana Constitution 8 because it is unconstitutionally vague. We will address Helton's contentions under each constitution together since state and federal vagueness analysis is the same.
As a preliminary matter, we note that the First Amendment's command that Congress shall make no law abridging the freedom of speech or the right of the people to peaceably assemble has been incorporated into the Fourteenth Amendment and as such applies to all States. Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Secondly, the right to peaceably assemble is found in article 1, Sec. 31 of the Indiana Constitution. 9
Under basic principles of due process, a law is void for vagueness if its prohibitions are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972). 10 A statute is not void for vagueness Specifically, Helton claims the statutory language is ambiguous and leaves persons of average intelligence without any indication as to what conduct is prohibited. Helton does not articulate what is unclear, vague, or ambiguous in the Gang Statute, and we find no such shortcomings.
if individuals of ordinary intelligence would comprehend it to fairly inform them of the generally proscribed conduct. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); State v. Downey (1985), Ind., 476 N.E.2d 121, 122; Mallory v. State (1990), Ind.App., 563 N.E.2d 640, 644-45, trans. denied. Statutes which threaten to inhibit the exercise of constitutional rights or which impose criminal penalties are subjected to greater scrutiny and less vagueness is tolerated in them than in other types of laws. Government Suppliers Consolidating Services v. Bayh, 734 F.Supp. 853, 868 (S.D.Ind.1990). However, the act of associating with compatriots in crime is not a protected associational right. United States v. Choate, 576 F.2d 165, 181 (9th Cir.1978), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978); Indiana Bell Telephone Co. v. Indiana (1980), Ind., 402 N.E.2d 962, 965
The Gang Statute provides: "A person who knowingly or intentionally actively participates in a criminal gang commits criminal gang activity, a Class D felony." A "criminal gang" is defined in I.C. 35-45-9-1 as:
... a group with at least five (5) members that specifically:
(1) either:
(A) promotes, sponsors, or assists in; or
(B) participates in; and
(2) requires as a condition of membership or continued membership;
the commission of a felony or an act that would be a felony if committed by an adult or the offense of battery (IC 35-42-2-1).
When reviewing a statute, we examine it in its entirety, interpreting words based upon their ordinary and plain meaning and not overemphasizing particular words. Spaulding v. International Bakers Services, Inc. (1990), Ind., 550 N.E.2d 307, 309. When interpreting statutes, we reconcile them with each other whenever possible. Matter of Public Law No. 154-1990 (1990), Ind., 561 N.E.2d 791, 792; Benham v. State, (1993), Ind., 622 N.E.2d 982.
The Gang Statute clearly forbids a person from knowingly and actively participating in a group with five or more members which participates in and requires as a condition of membership the commission of a battery. When Helton beat Hammons, he actively participated in the IGD gang with knowledge that the IGD gang participates in and requires as a condition of membership the commission of a battery. Helton's conduct is clearly proscribed by the Gang Statute.
Helton also argues the Gang Statute is vague because it did not warn him that his conduct of striking a consenting victim constituted a battery under the Gang Statute. We disagree.
A battery is committed when "[a] person ... knowingly or intentionally touches another person in a rude, insolent, or angry manner ..." IND.CODE 35-42-2-1(a). Lack of consent is not a statutory element of the offense of battery in Indiana. Moreover, our supreme court has expressly held that the victim's consent is not a defense to the charge of battery in certain circumstances. Jaske v. State (1989), Ind., 539 N.E.2d 14, 17-18. Therefore, Helton had fair warning that the Gang Statute prohibited gang members from committing batteries on any person, whether they are consenting or nonconsenting participants.
Additionally, Helton claims the Gang Statute is void for vagueness because it vests unfettered discretion in the prosecutor allowing him to enforce it in an arbitrary and discriminatory manner to punish groups he alone deems undesirable.
A statute is also void for vagueness if its terms invite arbitrary or discriminatory enforcement. Kolender v. Lawson Obviously, the decision to prosecute for any type of criminal activity must reside somewhere. ...
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...as a consequence have insisted upon the existence of a specific intent requirement in their anti-gang statutes. In Helton v. State, 624 N.E.2d 499, 506 (Ind.Ct.App.1993), a state statute made it a felony to commit criminal gang activity by "knowingly or intentionally actively participat[ing......
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...We find support for our position from out-of-state courts that have analyzed similar statutes.2 The defendant in Helton v. Indiana, 624 N.E.2d 499 (Ind.Ct.App.1993), appealed his conviction for participating in criminal gang activity, a violation of Indiana Code section 35–45–9–3 (1993), wh......
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...and as a consequence have insisted upon the existence of a specific intent requirement in their anti-gang statutes. In Helton v. State, 624 N.E.2d 499, 506 (Ind.Ct.App.1993), a state statute made it a felony to commit criminal gang activity by “knowingly or intentionally actively participat......