Mallory v. State

• Decision Date: 10 December 1990
• Docket Number: No. 22A01-9003-CR-00104,22A01-9003-CR-00104
• Citation: 563 N.E.2d 640
• Parties: Susan MALLORY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Appellate Court

Page 640

563 N.E.2d 640

Susan MALLORY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 22A01-9003-CR-00104.

Court of Appeals of Indiana First District.

Dec. 10, 1990.

Steven A. Gustafson, Lorch & Naville, New Albany, for appellant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

Susan Mallory appeals from a jury verdict of guilty on a charge by indictment of neglect of a dependent as a class B felony, based upon the death of her six-year-old daughter. We affirm.

The evidence reveals that Mallory's daughter showed signs of paralysis on her left side after she received a hit to the forehead when Joseph Atkisson, Mallory's boyfriend, was supposed to be caring for her. Many witnesses, who came in contact with the child over the next three weeks, agreed she was injured or in need of medical care. Mallory was told she should take her daughter to a doctor, but Mallory did not want to take her child to the doctor because the bruises she had caused on the body of the daughter could still be seen. Nevertheless, Mallory stated she had taken the child to the doctor when she had not done so. Over the three weeks between the hit to the head and her death, the daughter experienced paralysis, vomiting, headaches, lethargy, seizures, and moodiness, all of which would come and go but would never disappear entirely. After one particular seizure, Atkisson called Mallory at work and they took the daughter to the hospital, where she died. A doctor testified that the child's injury was treatable and, had it been promptly treated, she could have recovered.

I.

Is the evidence sufficient to support the conviction?

We first note our standard of review for this question. On appellate review of claims of insufficient evidence, this court does not reweigh evidence or judge witness credibility. We consider only the evidence most favorable to the verdict together with all of its reasonable and logical inferences. If there is substantial evidence of probative value to support the conclusion of the trier of fact, the verdict will stand. Alfaro v. State (1985), Ind., 478 N.E.2d 670.

The indictment by which the grand jury charged Mallory stated that she:

did commit the crime of Neglect of a Dependent, a class B felony, I.C. 35-46- 1-4 in that on or about the 14th of November, 1988, in the State of Indiana, Joseph Atkisson and Susan Mallory did have the care of a dependent, Casey Mallory, a child under the age of eighteen (18) years, and did knowingly deprive the dependent of receiving support which resulted in serious bodily injury, to wit; death....

The language of the indictment closely tracks the language of Indiana Code Section 35-46-1-4, which states:

(a) A person having the care of a dependent, whether assumed or voluntary or because of a legal obligation, who knowingly or intentionally:

* * * * * *

(3) deprives the dependent of necessary support;

* * * * * *

commits neglect of a dependent, a Class D felony. However, ... the offense is a Class B felony if it results in serious bodily injury.

Mallory does not allege she did not have the care of her dependent daughter when the events which lead to the death occurred.

Mallory first claims she should not have been convicted of neglect of a dependent due to an absence of any evidence that an injury to her dependent was proximately caused by an act of neglect attributable to her. She asserts the phrase "results in" requires an element of proximate cause from an act committed by her. Our supreme court has considered this phrase in the context of the offense of robbery:

The term is a causative one of considerable generality, but in denoting natural consequences and human responses to express human conduct within the ambit of elements of the offense of robbery, that quality does not result in legal uncertainty. We are, therefore, under a duty to enforce the statute according to its plain meaning. If an injury to any other person arises as a consequence of the conduct of the accused in committing a robbery, the offense is properly regarded as a class A felony. If the injury does not so arise[,] attribution of a class A felony is improper.

Bailey v. State (1980), 274 Ind. 318, 322, 412 N.E.2d 56, 59 (citations omitted).

The evidence is sufficient to support the conclusion that Mallory deprived her dependent daughter of support and that the deprivation of support resulted in the death of the dependent. The word "deprive" is a transitive verb which denotes action toward an object. In the context of this case, it means Mallory must have actively denied her dependent daughter of medical support and been aware of a high probability she was doing so. If the death of the dependent arose as a consequence of this deprivation, Mallory was properly convicted of neglect of a dependent as a class B felony. As previously stated, we find the above recited evidence sufficient in this regard. The child could have survived had Mallory sought treatment for her.

Mallory next claims that the evidence is insufficient to support her conviction because death does not constitute serious bodily injury under the neglect statute. She asserts that she may have been guilty of reckless homicide as a class C felony but not of neglect of a dependent where serious bodily injury resulted. We note that "serious bodily injury" means bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement, unconsciousness, extreme pain, or permanent or protracted loss or impairment of the function of a bodily member or organ. IND.CODE 35-41-1-25. We also note that Mallory's act of deprivation of medical support resulted in a substantial risk of death, so substantial that death in fact occurred. Death is not an element of the offense charged but was a consequence of the neglect committed by Mallory over the period of time she deprived her daughter of medical support. Lamphier v. State (1989), Ind., 534 N.E.2d 699 (Dickson, J, concurring in result with separate opinion; Shepard, C.J., concurring and dissenting with separate opinion in which DeBruler, J., concurred). Obviously, serious bodily injury due to neglect may precede death in circumstances such as this. The legislature although it omitted injury resulting in death from the statutory definition of serious bodily injury in order to invite such cases to be charged under the homicide provisions, did not prohibit the charging of neglect when death occurs. Hill v. State (1989), Ind.App., 535 N.E.2d 153, 156. Consequently, we conclude that the evidence sufficiently supports the element of serious bodily injury in this case.

Mallory next claims the evidence is insufficient to support the determination she knew that her dependent daughter was endangered by lack of medical care. The indictment charged that Mallory knowingly deprived her daughter of support. A person engages in conduct knowingly if, when she engages in the conduct, she is aware of a high probability that she is doing so. I.C. 35-41-2-2. The evidence shows that many witnesses agreed the child was injured and in need of medical care. Mallory was told she should take her daughter to a doctor, but Mallory did not want to take her child to the doctor until the bruises she had caused on the body of the daughter faded. Nevertheless, Mallory stated she had taken the child to the doctor when she had not done so. Over the three weeks between the hit to the head and her death, the daughter experienced paralysis, vomiting, headaches, lethargy, seizures, and moodiness, all of which would come and go but would never disappear entirely. After one particular seizure, Atkisson called Mallory at work; and they took the daughter to the hospital, where she died.

A parent is charged with an affirmative duty to care for her child. Smith v. State (1980), Ind.App., 408 N.E.2d 614, 621. The standard of care is what a reasonable parent would do or not do under the circumstances. Id. Mallory had a duty not to deprive her dependent daughter of necessary support, and she further had a duty to provide that support when needed. The jury was entitled to infer from the circumstances presented that Mallory had awareness of the child's needed support. The jury was further entitled to conclude Mallory's conduct amounted to a knowing neglect as defined by I.C. 35-46-1-4. We do not find the evidence insufficient in this regard.

In a related allegation, Mallory claims the trial court improperly instructed the jury that a person engages in conduct knowingly if, when he engages in the conduct, he is aware of the high probability that he is doing so. This instruction is an almost verbatim statement of I.C. 35-41-2-2(b). Mallory insists she must have been subjectively aware of a high probability that she deprived her daughter of necessary support and cites Armour v. State (1985), Ind., 479 N.E.2d 1294. However, a plain and fair reading of the instruction shows that, for Mallory to have acted knowingly, she must have been aware of a high probability she was engaging in the conduct when she did so. In addition, we find no objection to the instruction from Mallory when it was given to the jury. Nichols v. State (1989), Ind.App., 542 N.E.2d 572, 576. We find no reversible error here.

II.

Is the neglect of a dependent statute impermissibly vague as applied to the facts of this case?

A statute will not be found unconstitutionally vague if individuals of ordinary intelligence would comprehend it to adequately inform them of the conduct to be proscribed. The statute need only inform the individual of the generally proscribed conduct; a statute need not list, with itemized exactitude, each item of conduct prohibited. State v. Downey (1985), Ind., 476 N.E.2d 121, 122.

Mallory asserts the statute is too vague to pass constitutional muster because it is impossible to discern when the offense of neglect was completed,...