Kerlin v. State, No. 32A01-9009-CR-370

Docket NºNo. 32A01-9009-CR-370
Citation573 N.E.2d 445
Case DateJune 12, 1991
CourtCourt of Appeals of Indiana

Page 445

573 N.E.2d 445
Joseph KERLIN, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 32A01-9009-CR-370.
Court of Appeals of Indiana,
First District.
June 12, 1991.
Rehearing Denied July 23, 1991.

Page 446

J.J. Paul, III, James H. Voyles, Jr., Dennis E. Zahn, Ober, Symmes, Cardwell, Voyles & Zahn, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee-plaintiff.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Joseph Kerlin brings this interlocutory appeal from the denial of his motion to dismiss two indictments for Neglect of a Dependent 1, Class D felonies. We affirm.

ISSUES

We restate the issues on appeal as:

1. Whether the neglect of a dependent statute is unconstitutionally vague and overbroad as applied to Kerlin.

2. Whether the indictments are sufficient.

FACTS

Kerlin is a physician engaged in family practice. Kerlin also serves as the medical director for Cardinal Health Care ("Cardinal") in Danville. He serves as a medical consultant to Cardinal and provides medical care to each of the patients at least once a month.

Virginia Meredith, the victim named in one of the indictments, was admitted to Cardinal in July 1988 after a hip operation. She was 86 years old and suffered from Alzheimer's Disease. Kerlin was consulted by the staff who were concerned that discoloration of Meredith's foot indicated the possibility of gangrene. Kerlin saw Meredith on several occasions. Meredith was transferred to the hospital due to the gangrene in August 1988, and her family chose not to amputate the leg. Meredith died a month later.

Willard Flory, the victim named in the other indictment, was also a patient at Cardinal.

Page 447

Flory was incontinent and used a wheel chair. Two weeks before Flory was transferred to the hospital, Kerlin visited Flory and cut his toenails which were infected. Flory also was afflicted with a chronic eye infection. Kerlin treated Flory's eye infection with antibiotics and ordered occasional cultures to monitor it. At the hospital, a maggot was discovered under one of Flory's toenails, and his eyes were matted shut.

On March 14, 1990, a grand jury indicted Kerlin, separately charging neglect of a dependent regarding Flory and Meredith. Kerlin filed a motion to dismiss the indictments and a notice of attack of the constitutionality of the statute. After a hearing, the court denied the motion to dismiss on August 24, 1990. Kerlin petitioned for interlocutory appeal, which this court accepted on January 4, 1991. Meanwhile, the State filed a motion to dismiss the indictment involving Meredith on December 21, 1990. On January 14, 1991, the trial court granted the State's motion to dismiss the Meredith indictment. In his appellate brief, Kerlin questions the jurisdiction of the trial court to dismiss the Meredith indictment. However, this question is not properly before us in this interlocutory appeal, and we do not address it. We consider the issues certified for interlocutory appeal regarding both indictments.

DISCUSSION AND DECISION

Issue One

Kerlin alleges the neglect of a dependent statute is unconstitutionally vague and overbroad as applied to him. Kerlin contends the statute is vague because it may be applied to proscribe alleged negligent medical care. 2 I.C. Sec. 35-46-1-4 reads:

"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."

A statute is not unconstitutionally vague if persons of ordinary intelligence would comprehend it to adequately inform them of the proscribed conduct. Mallory v. State (1990), Ind.App., 563 N.E.2d 640, 644, trans. denied. An itemized list presenting each item of prohibited conduct in the statute is unnecessary. Id.

Kerlin acknowledges that the statute was narrowed by judicial interpretation, construing that the statute only applied to situations that actually endanger the life or health of a dependent. See State v. Downey (1985), Ind., 476 N.E.2d 121, 123. In Downey, our supreme court held the statute met minimal due process notice requirements and was constitutional. Id. The pertinent proscribed conduct in I.C. Sec. 35-46-1-4 is the knowing or intentional placing of a dependent in a situation that subjects the dependent to danger which is actual and appreciable. Wilson v. State (1988), Ind.App., 525 N.E.2d 619, 625. No reasonable person of ordinary intelligence would have difficulty determining that failure to give necessary or proper medical care is proscribed by the statute. Therefore, we do not find the neglect statute is vague.

Kerlin also contends the statute is overbroad as applied to him. Although a statute may not be vague, it may be overbroad. VanSant v. State (1988), Ind.App., 523 N.E.2d 229, 233. "An overbreadth challenge asserts that the statute is not drawn in sufficiently narrow terms and foreseeably prohibits legitimate conduct." Id. (citations omitted). Kerlin argues generally that the statute is overbroad. Kerlin presents arguments that application of the statute to health and medical care professionals would result in reluctance by the medical profession to provide care to nursing home residents. Such arguments are better addressed to the legislature and do not constitute sufficient argument to overcome

Page 448

the presumption that the statute is constitutional.

Kerlin fails to establish that the statute "forbids conduct in terms so vague that persons of ordinary intelligence must necessarily guess at the statute's meaning and differ as to its application" or that the statute is overbroad. See VanSant, 523 N.E.2d at 233.

Issue Two

Kerlin argues the indictments fail to advise him of the particular crime. Usually, if an information tracks the language of the statute defining the offense, the information is sufficient. Malone v. State (1989), Ind.App., 547 N.E.2d 1101, 1103, trans. denied. Absence of detail in an information is fatal only if the phraseology misleads the defendant or fails to give him notice of the charges against him. Cash v. State (1990), Ind., 557 N.E.2d 1023, 1025.

The indictments by which the grand jury charged Kerlin stated that he,:

"having the care of a dependent, whether assumed voluntarily or because of a legal obligation, knowingly or intentionally placed the dependent, to-wit; Willard Flory in a situation that endangered his life or health, thereby committing Neglect of a Dependent...."

Record at 6. The Meredith indictment contained the same language. The language of the indictments closely track the language of the statute. Kerlin complains, though, that the indictments do not state the facts and circumstances which endangered the victims and require speculation as to what facts constitute the proscribed conduct by Kerlin. This same argument regarding the neglect statute failed in Davis v. State (1985), Ind.App., 476 N.E.2d 127, 132, trans. denied, (citations omitted). As in Davis, both indictments specified the date and place of the alleged offense and identified Kerlin and the victims by name in language paralleling the statute. The indictments contained the statutory language specifying the particular act of "placing the dependent in a situation endangering his life or health". When the statutory language enumerates the specific acts which constitute the crime, an indictment paralleling the words of the statute is sufficient. Davis, 476 N.E.2d at 132. Further description of the injury or methods employed in committing the crime are unnecessary. Id. We find both indictments are sufficient to inform Kerlin of the charges against him. 3

Although Kerlin argues Flory and Meredith were not his "dependents" and that he did not "place" them in dangerous situations, such issues are questions of fact which we may not decide.

Affirmed.

ROBERTSON, J., concurs.

BAKER, J., dissents with separate opinion.

BAKER, Judge, dissenting.

I respectfully dissent.

The indictments are constitutionally deficient and cannot stand. Moreover, a criminal prosecution for neglect of a dependent cannot proceed on these facts. Before discussing those issues, however, I must first express my disagreement with the majority's procedural disposition of the Meredith indictment.

THE MEREDITH INDICTMENT

This court accepted this interlocutory appeal on January 4, 1991, assuming jurisdiction as of that date. Normally, however, the appellate tribunal does not acquire jurisdiction until the record of proceedings has been filed with the Clerk of the Supreme and Appellate Courts pursuant to Ind. Appellate Rule 3(A). Upon filing of the record, the trial court has no further jurisdiction. Taylor v. State (1979), 181 Ind.App. 392, 391 N.E.2d 1182. It may well be that, as a constitutionally empowered body, this court can acquire jurisdiction prior to

Page 449

the time stated by App.R. 3(A), see Constanzi v. Ryan (1977), 174 Ind.App. 454, 368 N.E.2d 12 (Court of Appeals has inherent power to grant time in excess of that allowed by...

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6 practice notes
  • Wine v. State, No. 85A04-9311-PC-415
    • United States
    • Indiana Court of Appeals of Indiana
    • July 28, 1994
    ...v. State (1986), Ind., 501 N.E.2d 447; Green v. State (1991), Ind.App., 575 N.E.2d 296, trans. denied; Kerlin v. State (1991), Ind.App., 573 N.E.2d 445, trans. denied. Wine seeks to overcome the procedural default of waiver by asserting fundamental In support of his argument Wine cites Bick......
  • Marshall v. State, No. 49A05-9203-CR-89
    • United States
    • Indiana Court of Appeals of Indiana
    • October 27, 1992
    ...applicable today. See Little, supra; Green v. State (1991), Ind.App., 575 N.E.2d 296, trans. denied; Kerlin v. State (1991), Ind.App., 573 N.E.2d 445, trans. The Information in this case is bad for duplicity and could not have withstood attack by a timely motion to dismiss. See Watt v. Stat......
  • McIntosh v. State, No. 36A04-9303-CR-81
    • United States
    • Indiana Court of Appeals of Indiana
    • August 15, 1994
    ...criminal confinement statute is overbroad. Although a statute may not be vague, it may be overbroad. Kerlin v. State (1991), Ind.App., 573 N.E.2d 445, 447, reh'g denied, trans. denied (citing VanSant v. State (1988), Ind.App., 523 N.E.2d 229, 233). "An overbreadth challenge asserts that the......
  • Williams v. State, No. 87A04-9606-CR-215
    • United States
    • Indiana Court of Appeals of Indiana
    • March 18, 1997
    ...Absence of detail in an information is fatal only if the accused is misled or deprived of notice of the charges. Kerlin v. State, 573 N.E.2d 445, 448 (Ind.Ct.App.1991), reh'g. denied, trans. In the present case, both counts alleged the commission of the offense of Intimidation as a Class D ......
  • Request a trial to view additional results
6 cases
  • Wine v. State, No. 85A04-9311-PC-415
    • United States
    • Indiana Court of Appeals of Indiana
    • July 28, 1994
    ...v. State (1986), Ind., 501 N.E.2d 447; Green v. State (1991), Ind.App., 575 N.E.2d 296, trans. denied; Kerlin v. State (1991), Ind.App., 573 N.E.2d 445, trans. denied. Wine seeks to overcome the procedural default of waiver by asserting fundamental In support of his argument Wine cites Bick......
  • Marshall v. State, No. 49A05-9203-CR-89
    • United States
    • Indiana Court of Appeals of Indiana
    • October 27, 1992
    ...applicable today. See Little, supra; Green v. State (1991), Ind.App., 575 N.E.2d 296, trans. denied; Kerlin v. State (1991), Ind.App., 573 N.E.2d 445, trans. The Information in this case is bad for duplicity and could not have withstood attack by a timely motion to dismiss. See Watt v. Stat......
  • McIntosh v. State, No. 36A04-9303-CR-81
    • United States
    • Indiana Court of Appeals of Indiana
    • August 15, 1994
    ...criminal confinement statute is overbroad. Although a statute may not be vague, it may be overbroad. Kerlin v. State (1991), Ind.App., 573 N.E.2d 445, 447, reh'g denied, trans. denied (citing VanSant v. State (1988), Ind.App., 523 N.E.2d 229, 233). "An overbreadth challenge asserts that the......
  • Williams v. State, No. 87A04-9606-CR-215
    • United States
    • Indiana Court of Appeals of Indiana
    • March 18, 1997
    ...Absence of detail in an information is fatal only if the accused is misled or deprived of notice of the charges. Kerlin v. State, 573 N.E.2d 445, 448 (Ind.Ct.App.1991), reh'g. denied, trans. In the present case, both counts alleged the commission of the offense of Intimidation as a Class D ......
  • Request a trial to view additional results

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