Davis v. State

476 N.E.2d 127, 1985 Ind. App. LEXIS 2266
CourtIndiana Court of Appeals
DecidedMarch 28, 1985
Docket2-1083A356
StatusPublished
Cited by53 cases

This text of 476 N.E.2d 127 (Davis v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. State, 476 N.E.2d 127, 1985 Ind. App. LEXIS 2266 (Ind. Ct. App. 1985).

Opinions

SHIELDS, Judge.

Defendants Reed Davis and Mary Davis (Davises) appeal their convictions for neglect of a dependent, Ind.Code Ann. § 35-46-1-4 (Burns 1979),1 a class D felony. They raise the following issues:

1) whether Ind.Code § 35-46-1-4 is unconstitutionally vague;
2) whether the indictments were sufficient;
3) whether the trial court properly admitted evidence of parentage probabilities; and
4) whether the evidence was sufficient to support the convictions.

Judgment affirmed as to Mary and reversed as to Reed.

On August 3, 1982, at approximately 12:30 p.m., a full-term male infant (Baby Lucky),2 estimated to be a few hours old, was found at the side of a gravel road near Warren, Indiana. An anonymous telephone call to the police implicated the Da-vises as the parents. After an investigation and blood tests to determine the probabilities of parentage, the Davises were indicted by the Huntington County grand jury for neglect of a dependent. After a jury trial, both were found guilty and sentenced to an executed term of two years.

I. CONSTITUTIONALITY

The Davises argue Ind.Code § 35-46-1-4(a)(1) is unconstitutionally vague. Specifically, they allege the prohibition of conduct which “places the dependent in a situation that may endanger his life or health,” Ind.Code § 35-46-1-4(a) fails to inform the public and law enforcement officers of the specific conduct prohibited. Ind.Code § 35-46-1-4(a) (emphasis added). In their brief, the Davises focus on the use of the permissive word “may”. For example, they argue parental permission to engage in interscholastic and contact sports “may endanger” a child’s life or health. Consequently, they allege the statute proscribes even reasonable conduct where life or health is not actually endangered.3

Thus, the Davises attempt to present a facial challenge to the constitutionality of the neglect statute. However, “it is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand.” United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). The Davises are not at liberty to devise a hypothetical situation which would demonstrate vagueness;4 the statute is [131]*131void for vagueness only if it is vague as applied to the precise circumstances of their case. Id.; accord United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975); e.g., Terrel v. State, 170 Ind.App. 422, 353 N.E.2d 553 (1976) (statute omitting “knowledge” from offense of visiting a common nuisance not vague where evidence demonstrated defendant’s knowledge); Connell v. City of Logansport, 397 N.E.2d 1058 (Ind.App.1979) (“conduct unbecoming an officer” not vague where defendant addressed his superior in obscene, abusive and threatening language). In making this determination we are not concerned with the ability of our Legislature to have chosen clearer and more precise language. United States v. Powell, 423 U.S. at 94, 96 S.Ct. at 320. Rather, we must determine whether an individual of ordinary intelligence would reasonably understand that his contemplated conduct is proscribed. United States v. Mazurie, 419 U.S. at 553, 95 S.Ct. at 715.

Although the Davises argue the statute proscribes even reasonable conduct which may not actually endanger the dependent, such conduct was not involved in the case at bar. The evidence indicates that within a few hours of birth and with the umbilical cord still attached, Baby Lucky was wrapped in a brown paper sack and left by the side of a deserted road in a wooded area outside the view of passersby. A jogger found the baby in a dehydrated condition, sunburned and bruised with superficial cuts and scratches and a puncture wound on the back of his head. No reasonable person of ordinary intelligence would have difficulty determining that such activity was proscribed by the statute at issue. Given the nature of the Davises conduct, the statute was sufficient to advise the Davises that their treatment of Baby Lucky was proscribed.

II. INDICTMENTS

The Davises were individually indicted for neglect of a dependent. The indictments were identical except for the named defendant:

“On or after the 3rd day of August, 1982, in Huntington County, State of Indiana, [Reed/Mary] Davis, then having the care, custody or control of an infant male child, a dependent, did knowingly place such dependent in a situation that did endanger his health and/or did abandon said dependent child.”

Record at 14, 16. The indictments cited Ind.Code § 35-46-1-4 as the statutory provision allegedly violated. The Davises allege 1) the indictments fail to state any facts comprising the basis of the offense charged and 2) a violation of due process in the charging of both endangerment and abandonment in the same indictment.5

The Davises unsuccessfully sought dismissal of the indictments in the trial court because “the indictment does not set out that situation and circumstances which allegedly endangered the life or health of Baby Lucky.” In support of their argument, at trial and on appeal, the Davises cite Ind.Code § 35-34-l-2(a) (Burns Supp. 1984) (formerly 35-3.1-l-2(a)) which requires the indictment to contain “the essential facts constituting the offense charged.” However, the Davises waived the sufficiency of the indictments by failing to include the issue in their motion to correct errors.

Nonetheless, we find the indictments were sufficient. Omitting the formal parts, both indictments specified the time and place of the alleged offense, identified the defendants by name, and identified them as yet unnamed victim as “an infant male child, a dependent,” all in language paralleling the statute proscribing neglect of a dependent. The indictments then followed the statutory language in specifying the particular acts which consti[132]*132tute the alleged neglect. When the statutory language enumerates the specific acts which constitute the crime, an indictment paralleling the words of the statute is sufficient. Allison v. State, 240 Ind. 556, 166 N.E.2d 171 (1960), cert. denied, 365 U.S. 608, 81 S.Ct.

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Bluebook (online)
476 N.E.2d 127, 1985 Ind. App. LEXIS 2266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-state-indctapp-1985.