Pava v. State
| Decision Date | 25 March 2020 |
| Docket Number | Court of Appeals Case No. 19A-CR-716 |
| Parties | Guadalupe PAVA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Attorney for Appellant: Suzy St. John, Marion County Public Defender Agency, Indianapolis, Indiana
Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General, Indianapolis, Indiana
[1] Guadalupe Pava appeals her conviction by jury of battery by a person at least
eighteen years of age resulting in bodily injury to a person less than fourteen years of age, a Level 5 felony.1 We affirm.
[2] Pava raises two issues, which we restate as:
[3] During the period of time relevant to this case, Irma Martinez and her children lived with Pava and Pava's children, including nine-year-old P.P., in Indianapolis. On June 6, 2018, Martinez was in an upstairs room when she heard P.P. crying downstairs. She also heard him say he "wasn't going to do it again." Amended Tr. Vol. II, p. 77.
[4] Martinez went downstairs and saw Pava and P.P. standing in the dining room. Pava was striking P.P. on the back with an electrical cord. P.P. held his hands behind him, in an attempt to block the strikes. Martinez saw Pava strike P.P. four times before she was able to take the electrical cord from Pava and had P.P. stand behind her. P.P. later testified that Pava was angry at him and had hit him a total of ten times.
[5] Martinez told Pava she was surprised by Pava's behavior. Pava cried and told Martinez "she didn't know why she had reacted that way." Id. at 78. Next, Pava went to work. Martinez noticed some marks on P.P.'s neck but she did not thoroughly examine him at the time.
[6] The next day, June 7, 2018, Martinez went to P.P.'s school and spoke with a social worker. A school employee spoke with P.P., and P.P. showed that person marks on his body. The Indiana Department of Child Services ("DCS") were contacted.
[7] DCS Case Manager Christi Carvahal inspected Pava's home the next day. She tried to speak with P.P., who was "very scared, timid and would not–was very withdrawn." Id. at 95. He would not speak with Carvahal. P.P. was wearing a t-shirt and shorts, but she could see "linear marking" on areas not covered by clothing. Id. Carvahal asked P.P. to remove his shirt and saw "extensive bruising and linear marks all over his body." Id. at 96. She took photographs, which show red linear welts on P.P.'s back, arms, legs, and chest. The photographs were later introduced into evidence at trial.
[8] Pava was in the room with Carvahal and P.P. as Carvahal took the photographs. Pava admitted to striking P.P. with a cord.
[9] Carvahal removed P.P. from the house. That same day, P.P. was taken to a doctor. The doctor noted "[n]umerous, too many to count, red and bruise-like striped areas" on P.P.'s body, all "less than 24 hours old." Tr. Ex. Vol., State's Ex. 15, p. 33. The stripes were on P.P.'s back, right upper arm, chest, the left side of his face, his left ankle, and the right side of his neck. P.P. claimed he sustained the injuries from falling off his bike, but the doctor noted none of his injuries were "consistent with falling off a bike." Id.
[10] Sergeant Kevin Kinder of the Indianapolis Metropolitan Police Department investigated P.P.'s case. He interviewed Pava, who admitted to striking P.P.
[11] On July 20, 2018, the State charged Pava with battery by a person at least eighteen years of age resulting in bodily injury to a person less than fourteen years of age, a Level 5 felony; and domestic battery resulting in bodily injury to a person less than fourteen years of age, also a Level 5 felony. The case was tried to a jury. During trial, Pava did not deny striking P.P. with the cord. She instead claimed she had exercised her right to discipline P.P. for wrongdoing. The jury determined Pava was guilty as charged.
[12] The trial court vacated the guilty verdict for domestic battery, determining that it merged into the other battery offense. The trial court entered a judgment of conviction as to the offense of battery by a person at least eighteen years of age resulting in bodily injury to a person less than fourteen years of age. Next, the trial court imposed a sentence, and this appeal followed.
[13] Pava argues that the battery statute, as applied to her case, is unconstitutionally vague and violates both her right to due process of law under the Fifth Amendment and her right to due course of law under article one, section twelve of the Indiana Constitution. She concedes that she "did not challenge the constitutionality of applying the battery statute to her case below ...." Appellant's Br. p. 9. The State argues that Pava has waived her constitutional claim.
[14] In general, a constitutional claim is waived on appeal if not first presented to the trial court in a motion to dismiss. See Reed v. State , 720 N.E.2d 431, 433 (Ind. Ct. App. 1999) (), trans. denied. However, as Pava correctly notes, a constitutional claim may be raised at any stage of a proceeding, including on appeal. Morse v. State , 593 N.E.2d 194, 197 (Ind. 1992). We recognize that Pava did not file a motion to dismiss raising her constitutional claim in the trial court, but nevertheless we choose to address the merits of her claim. See Boyd v. State , 889 N.E.2d 321, 323 (Ind. Ct. App. 2008) (), trans. denied.
[15] A challenge to the validity of a statute must overcome a presumption that the statute is constitutional. Brown v. State , 868 N.E.2d 464, 467 (Ind. 2007). The party challenging the constitutionality of a statute bears the burden of proving otherwise. Morgan v. State , 22 N.E.3d 570, 573 (Ind. 2014).
[16] Under federal constitutional principles of due process,2 a statute is void for vagueness if its prohibitions are not clearly defined. Bemis , 652 N.E.2d at 92. A criminal statute may be invalidated for vagueness for either of two independent reasons: (1) for failing to provide notice enabling ordinary people to understand the conduct that it prohibits; and (2) for the possibility that it authorizes or encourages arbitrary or discriminatory enforcement. Brown , 868 N.E.2d at 467. "Accordingly, the statutory language must ‘convey sufficiently definite warning as to the proscribed conduct when measured by common understanding.’ " Id. (quoting Rhinehardt v. State , 477 N.E.2d 89, 93 (Ind. 1985) ).
[17] The examination of a vagueness challenge is performed in light of the facts and circumstances of each individual case. Brown , 868 N.E.2d at 467. A defendant is not at liberty to devise hypothetical situations which might demonstrate vagueness. Baumgartner v. State , 891 N.E.2d 1131, 1136 (Ind. Ct. App. 2008).
[18] At the time Pava committed the offense of battery, the statute at issue, Indiana Code section 35-42-2-1, provided in relevant part:
[19] The State "has a powerful interest in preventing and deterring the mistreatment of children." Willis v. State , 888 N.E.2d 177, 180 (Ind. 2008). "[T]he potential for child abuse cannot be taken lightly." Id. At the same time, a parent has a fundamental liberty interest in maintaining a familial relationship with his or her child, including the right " ‘to direct the upbringing and education of children.’ " Id. (quoting Pierce v. Soc'y of Sisters , 268 U.S. 510, 534-35, 45 S. Ct. 571, 573, 69 L. Ed. 1070 (1925) ). The right to direct an upbringing includes "the use of reasonable or moderate physical force to control behavior." Id.
[20] The Indiana Supreme Court has recognized a common law parental privilege to use moderate or reasonable physical force to discipline children "without criminal liability." Id. Further, Indiana Code section 35-41-3-1 (1977) provides, "A person is justified in engaging in conduct otherwise prohibited if he has the legal authority to do so." Indiana's courts have construed this statute "as including reasonable parental discipline that would otherwise constitute battery." Willis , 888 N.E.2d at 181.3 Thus, the reviewing court is left with the task of balancing the protection society affords to its most vulnerable individuals, its children, against the parental rights and privileges that society recognizes belong to parents in the rearing of their children.
[21] Pava argues that under the facts of her case, and in conjunction with the parental privilege to discipline one's child, "the decision of what is or isn't reasonable corporal punishment" under Indiana Code section 35-42-2-1 is too subjective, and she had no constitutionally acceptable guidance as to whether striking P.P. crossed the line into illegal battery. Appellant's Br. p. 12. After reviewing the totality of the facts, circumstances, and evidence, we disagree for two reasons.
[22] First, Indiana Code section 35-42-2-1 sets forth a scienter, or state of mind, requirement: the State must...
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