Wiggins v. State

• Decision Date: 10 April 2000
• Docket Number: No. 84A01-9905-CR-169.,84A01-9905-CR-169.
• Citation: 727 N.E.2d 1
• Parties: Charles N. WIGGINS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

727 N.E.2d 1

Charles N. WIGGINS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 84A01-9905-CR-169.

Court of Appeals of Indiana.

April 10, 2000.

Transfer Denied June 8, 2000.

Matthew R. Effner, Terre Haute, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

Charles N. Wiggins appeals his conviction of Nonsupport of a Dependent,¹ a class C felony. Wiggins presents the following restated issues for review:

1. Is IC § 35-46-1-5(a) unconstitutionally vague and ambiguous in that it does not adequately define the terms "dependent child" and "support"?

2. Did Wiggins's conviction violate the constitutional ex post facto prohibition?

3. Was the evidence sufficient to sustain Wiggins's conviction?

4. Did the trial court err in admitting evidence of Wiggins's earnings over a period including the previous twenty-four years?

5. Did the trial court commit reversible error in denying Wiggins's motion for mistrial, which was based upon allegedly improper comments made by the prosecutor during closing arguments?

6. Did the trial court err in sentencing Wiggins?

We affirm in part and remand in part.

The facts favorable to the judgment are that on June 7, 1992, Wiggins's marriage to Peggy Wiggins ended by entry of a decree of dissolution. There were two children born to the marriage, who were then eight and seven years of age. Wiggins was ordered to pay child support in the amount of $130.00 per week.

Wiggins was employed as a boilermaker. In the ten years prior to the divorce, Wiggins's average annual income was $25,920.25. Wiggins earned $27, 250.10 in 1996, and he earned $33,165.62 in 1997. Between 1991 and 1998, Wiggins paid annual child support in the following amounts: 1992—$300; 1993 (after April 7)—$0; 1994—$775; 1995—$0; 1996— $405; 1997—$1,907.18; 1998 (through January 16)—$0. All of the payments reflected in the above amounts were received either through income withholding or by intercepting and withholding a portion of Wiggins's periodic unemployment payments. As of January 16, 1998, Wiggins's support arrearage totaled $33, 832.82.

On February 18, 1998, Wiggins was charged with nonsupport of a minor for nonpayment of support from July 1, 1996 through January 16, 1998. The charge was enhanced to a class C felony because he failed to pay support at a time when the arrearage was at least $10,000. He was convicted as set out above following a jury trial.

1.

Wiggins claims that the statute under which he was convicted, IC § 35-46-1-5(a), is unconstitutional in that it is fatally vague and ambiguous. He contends that this statute, which provides that it is a criminal offense if a person "fails to provide support to the person's dependent child ...," is vague and ambiguous in the following ways: (1) It is not clear that "support", as used in the statute, includes monetary support (as opposed to the provision of food, clothing, and shelter); (2) it is not clear that "dependent child", as used in the statute, includes children of a noncustodial (as opposed to custodial) parent.

A challenge to the constitutionality of a criminal statute must be raised by a motion to dismiss prior to trial. Ind.Code Ann. § 35-34-1-6 (West 1998); IC § 35-34-1-4 (West 1998); Rhinehardt v. State, 477 N.E.2d 89 (Ind.1985). The failure to timely raise the issue by a motion to dismiss waives the alleged error. Rhinehardt v. State, 477 N.E.2d 89.

Prior to trial, Wiggins submitted a motion challenging the constitutionality of IC § 35-46-1-5(a) on grounds that it violated the prohibition against ex post facto laws. IC § 35-34-1-4(c) requires that all constitutional grounds must be presented in a timely motion to dismiss. Those that are not raised in such a motion are waived, regardless of whether the statute's constitutionality was challenged on other grounds. Therefore, Wiggins waived the issue of whether IC § 35-34-1-5(a) is unconstitutionally vague and ambiguous as he alleges. Rhinehardt v. State, 477 N.E.2d 89.

2.

As indicated previously, Wiggins submitted a pretrial motion to dismiss based upon the contention that a conviction under IC § 35-46-1-5, in his particular case, would violate the constitutional prohibition against ex post facto laws. Wiggins claims upon appeal that the trial court erred in denying the motion and that his conviction runs afoul of this constitutional principle.

Article I, § 10 of the United States Constitution provides that "[n]o state shall ... pass any ... ex post facto Law." A similar provision in the Indiana Constitution provides that "[n]o ex post facto law ... shall ever be passed." Ind. Const. art. I, § 24. The ex post facto analysis is the same under both under Indiana law and the federal Constitution. Spencer v. O'Connor, 707 N.E.2d 1039 (Ind.Ct.App.1999), trans. denied. The aforementioned Constitutional provisions prohibit states from enacting any law that imposes a punishment for an act that was not punishable at the time it was committed, or that imposes additional punishment to that which was then prescribed. When considering a challenge on ex post facto grounds, our inquiry is not whether a legislative change produced a disadvantage for the defendant, but instead whether such change altered the definition of criminal conduct or increased the penalty by which a crime is punishable. Id.

IC § 35-46-1-5 states:

(a) A person who knowingly or intentionally fails to provide support to the person's dependent child commits nonsupport of a child, a Class D felony. However, the offense is a Class C felony if the amount of unpaid support that is due and owing is at least ten thousand dollars ($10,000).

(b) It is a defense that the child had abandoned the home of his family without the consent of his parent or on the order of a court, but it is not a defense that the child had abandoned the home of his family if the cause of the child's leaving was the fault of his parent.

(c) It is a defense that the accused person, in the legitimate practice of his religious belief, provided treatment by spiritual means through prayer, in lieu of medical care, to his dependent child.

(d) It is a defense that the accused person was unable to provide support.

Subsection (a), which provides that an arrearage of at least $10,000 is a class C felony, was added as a result of an amendment to the statute that became effective on July 1, 1996. Wiggins claims that, as applied to him, subsection (a) is an ex post facto law because (1) he accumulated at least $10,000 prior to the enactment of subsection (a), and (2) the arrearage that accrued after the enactment of subsection (a) did not equal $10,000.

In State v. Land, 688 N.E.2d 1307 (Ind. Ct.App.1997), trans. denied, this court confronted a constitutional challenge to IC § 35-46-1-5(a) on ex post facto grounds. We concluded that the offense set out in the statute is the failure to pay support, which is classified as a class D felony. We further concluded that the 1996 amendment enhances the offense when the amount of support due and owing is at least $10,000. Put another way, the C felony classification for cases involving an arrearage of at least $10,000 represents an enhancement and not the creation of a separate and distinct offense. Based upon this reasoning, we concluded that a person could properly be charged with the class C felony, so long as the underlying act (failure to pay support) is alleged to have occurred after the enactment of the statute. We specifically rejected the proposition underlying Wiggins's first ex post facto argument.

Implicit in the State v. Land analysis is the principle that a C felony conviction under IC § 35-46-1-5(a) does not run afoul of the constitutional ex post facto prohibition so long as the act of failing to pay support that is being prosecuted occurred after the enactment of the 1996 amendment, regardless of when the $10,000 arrearage accrued. In this regard, the court noted, "[o]ur statute criminalizes the present act of failing to provide child support and enhances it if the amount due and owing at the time of the underlying act is in excess of $10,000. Our statute does not criminalize the failure to pay past due support." State v. Land, 688 N.E.2d at 1311.

Applying the foregoing principles, we hold that conviction of a class C felony under IC § 35-46-1-5(a) does not violate the constitutional ex post facto prohibition in cases where (1) at least $10,000 in arrearage accrued before the enactment of the 1996 amendment, or (2) the amount accruing after the amendment is less than $10,000, so long as the total arrearage is at least $10,000.

3.

Wiggins contends that the evidence was insufficient to sustain the conviction. Specifically, he contends that he did provide support for his children and that he proved the defense of inability to pay support.

When considering challenges to the sufficiency of the evidence, we apply a well-settled standard of review. We consider the evidence and reasonable inferences favorable to the conviction. Kelly v. State, 719 N.E.2d 391 (Ind.1999). In so doing, we neither reweigh the evidence, nor judge witness credibility. "We will affirm the verdict if there is `substantial evidence of probative value from which the trier of fact might reasonably have found the defendant guilty beyond a reasonable doubt.'" Id. at 394 (quoting Kingery v. State, 659 N.E.2d 490, 493 (Ind.1995)). Wiggins first contends that "support," in the context of IC § 35-46-1-5(a), means food, clothing, and shelter, and does not include monetary support. Therefore, he argues, his failure to make child support payments is not punishable under IC § 35-46-1-5(a). The language employed in the statute belies Wiggins's argument. Because this is a penal statute, the meaning of the term in question is to be strictly construed against the State. State v....