Worthington v. State

• Decision Date: 25 September 1980
• Docket Number: No. 3-479A100,3-479A100
• Citation: 409 N.E.2d 1261
• Parties: John D. WORTHINGTON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1261

409 N.E.2d 1261

John D. WORTHINGTON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-479A100.

Court of Appeals of Indiana, Third District.

Sept. 25, 1980.

James A. Greco, Greco, Gouveia, Miller, Pera & Bishop, Merrillville, for appellant.

Theodore L. Sendak, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

HOFFMAN, Judge.

Defendant-appellant John D. Worthington appeals his conviction of neglect of a child, IC 1971, 35-14-1-4 (Burns Code Ed.) ¹ for which he was sentenced to a period of not less than one year nor more than five years. The issues raised by his appeal include:

(1) Is IC 1971, 35-14-1-4 unconstitutional?

(2) Did the trial court err in denying Worthington's motion to dismiss due to prosecutorial vindictiveness?

(3) Did the trial court err in sustaining the State's motion in limine?

(4) Was Worthington's fourth statement to the police involuntary?

(5) Were certain instructions erroneously refused?

(6) Was an instruction tendered by the State erroneously given?

(7) Should certain photographs of the victim have been excluded at trial?

(8) Was it error to admit evidence concerning prior bad acts on the part of Worthington's wife?

(9) Should the court have excluded expert testimony regarding the non-accidental nature of the victim's demise? and

(10) Was the evidence sufficient to sustain the conviction?

Viewing the evidence in a light most favorable to the verdict discloses the following sequence of events: Worthington arrived home from work at 8:00 A.M. on August 11, 1977. Upon entering the house he heard splashing in the bathroom so he proceeded in that direction. What he then observed is best explained by portions of his fourth statement to the police:

"My daughter and wife was (sic) in the bathtub. My wife was straddling over my daughter with her hands over Susan's buttocks. My wife was pushing down on Susan to get her to soak in the water for her bruises. I seen (sic) my daughter's head pop up with her head cocked back and noticed her lips was (sic) purple and her feet was (sic) splashing water. I walked out of the bathroom, went to the kitchen, got a bottle of pop out of the refrigerator, a glass of ice out of the freezer, went in the living room, set (sic) down, raised my feet up and was watching cartoons. I set (sic) there for a few minutes, my wife came in and set (sic) down and started watching television. She set (sic) there for a few minutes, got up and left the room and a few minutes later I heard water running in the bathroom. Ten or fifteen minutes later, I heard my wife scream, John. By the time I got up, she was coming down the hall carrying my daughter over her shoulder. I noticed water running out of her mouth and I got up and followed her, I assumed something had happened in the bathroom."

The Worthingtons attempted mouth-to-mouth resuscitation and an ambulance was summoned. Despite efforts by paramedics to revive her, Susan was pronounced dead soon after her admission to Porter Memorial Hospital. The cause of death was determined to be suffocation or asphyxiation.

Worthington launches an attack on the constitutionality of IC 1971, 35-14-1-4. The first prong of his challenge is that the statute is void for vagueness. 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. Hunter v. State (1977), Ind.App., 360 N.E.2d 588.

IC 1971, 35-14-1-4 provides as follows:

"Any parent, guardian or person having the care, custody or control of any child who shall abuse, abandon, be cruel to or neglectful of such child, or any person who shall be deemed to be guilty of 'cruelty and neglect of children' shall, upon conviction thereof, be fined not less than two hundred dollars ($200) nor more than one thousand dollars ($1,000) or imprisoned for a term not more than one year, or such person may be imprisoned in the state prison for not less than one (1) year nor more than five (5) years, and may be disenfranchised and rendered incapable of holding any office of profit or trust."

This statute must be read in conjunction with IC 1971, 35-14-1-2 which defines the pertinent offense.

"Neglect of a child shall consist in any of the following acts, by anyone having the custody or control of the child; (a) wilfully failing to provide proper and sufficient food, clothing, maintenance, regular school education as required by law, medical attendance or surgical treatment, and a clean and proper home, or (b) failure to do or permit to be done any act necessary for the child's physical or moral well-being: Provided, however, That no provision of this act (35-14-1-1-13-14-1-7 (sic)) shall be construed to mean that a child is neglected or lacks proper parental care whose parent, guardian or custodian in good faith selects and depends upon spiritual means or prayer for the treatment or cure of disease or remedial care of such child."

Considered together these statutes clearly set forth and segregate the type of behavior proscribed by law. Certainly a fact question will be presented as to whether or not any particular conduct is in violation of the statute. Reasonable adults of common intelligence are capable of judging if the defendant's lack of action while he watched his child being dunked in a tub of water until her lips turned purple involves the "failure to do or permit to be done any act necessary for the child's physical or moral well-being." The statute is not so broad that it would lead to arbitrary and erratic arrests and convictions nor would a reasonable person interpret the statute to apply to normal punishment of a child. It is not infirm for lack of specificity. Hunter v. State, supra.

Another constitutional assault mounted by Worthington is that he was denied equal protection of the laws inasmuch as the prosecution had the unbridled discretion to charge either a felony or a misdemeanor on the same set of facts. This onslaught is based on a comparison of the wording of IC 1971, 35-14-1-4 and IC 1971, 35-14-3-1 (Burns Code Ed.). ²

"Any parent, guardian or person having the care, custody or control of any child who shall abuse, abandon, be cruel to or neglectful of such child, or any person who shall be deemed to be guilty of 'cruelty and neglect of children' shall, upon conviction thereof, be fined not less than two hundred dollars ($200) nor more than one thousand dollars ($1,000) or imprisoned for a term not more than one year, or such person may be imprisoned in the state prison for not less than one (1) year nor more than five (5) years, and may be disenfranchised and rendered incapable of holding any office of profit or trust."

IC 1971, 35-14-1-4.

"Any person who shall cruelly ill-treat, abuse, overwork or inflict unnecessary cruel punishment upon any person under the age of eighteen (18) years, and any person having the care, custody or control of any person under the age of eighteen (18) years who shall wilfully abandon or neglect the same, shall be guilty of a misdemeanor, and upon conviction thereof by any justice of the peace, mayor, police judge or criminal court, shall be fined not less than five dollars ($5.00) nor more than fifty dollars ($50.00) for each offense, to which may be added imprisonment not exceeding thirty (30) days."

IC 1971, 35-14-3-1.

It has been held that a statute which prescribes different punishments or different degrees of punishment for the same act committed under the same circumstances by persons in like situations is violative of the equal protection clause of the Fourteenth Amendment. See, Olsen v. Delmore (1956) 48 Wash.2d 545, 295 P.2d 324. Consequently, the focus of the inquiry for constitutional purposes is whether the elements of the statutes involved are the same or essentially the same. Roush v. White (N.D.Ohio 1975) 389 F.Supp. 396; People v. Eineder (1969) 16 Mich.App. 270, 167 N.W.2d 893. If not then no equal protection question is presented.

In the case at bar, it can be seen that the elements of the felony and misdemeanor statutes differ since the latter requires proof of wilfulness. While the fact that the proof necessary to establish commission of the misdemeanor was greater than that required to prove the felony may appear incongruous, it does not eradicate the distinction between the two offenses. State v. Reid (1965) 66 Wash.2d 243, 401 P.2d 988. A defendant's constitutional right to equal protection of the laws is not violated by the prosecutor exercising discretion in deciding to prosecute or not to prosecute a violation of a criminal statute. The fact that this discretion extends to two crimes instead of one does not convert this discretion into an unconstitutional delegation of legislative authority or constitute a denial of the equal protection of the laws even though the facts to be proven are very similar. Cf., People v. McCollough (1974) 57 Ill.2d 440, 313 N.E.2d 462 where the Illinois Supreme Court reiterated its view that if the conduct for which a defendant is prosecuted constitutes a misdemeanor under one statute and a felony under another there is no equal protection violation in convicting him of the felony.

As a corollary Worthington posits that it is unconstitutional for the felony statute to require less proof yet provide for greater penalties than its misdemeanor counterpart. It is unclear from Worthington's brief exactly what constitutional provision was allegedly impinged. Nowhere has he included a statement of the legal test to be applied in assessing the validity of the statute nor has he cited any relevant authority in support thereof. Upon challenge in court all statutes are presumptively rational and constitutional and the party opposing the statute has the burden of overcoming this presumption and making the constitutional defects clearly apparent. Bd. Comm'rs v. Kokomo City Plan Comm. (1975), 263...