Guadalupe Pava v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: March 25, 2020
• Docket: 19A-CR-716
• Status: Published

Opinion

FILED Mar 25 2020, 7:21 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Suzy St. John Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Guadalupe Pava, March 25, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-716 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Amy J. Barbar, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G01-1807-F5-23560

Darden, Senior Judge.

Court of Appeals of Indiana | Opinion 19A-CR-716 | March 25, 2020 Page 1 of 13 Statement of the Case [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 1 years of age, a Level 5 felony. We affirm.

Issues [2] Pava raises two issues, which we restate as:

I. Whether the battery statute, Indiana Code section 35-42-2- 1, is unconstitutionally vague as applied to Pava’s case.

II. Whether there is sufficient evidence to sustain Pava’s conviction.

Facts and Procedural History [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

1 Ind. Code § 35-42-2-1 (2016).

Court of Appeals of Indiana | Opinion 19A-CR-716 | March 25, 2020 Page 2 of 13 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.

Court of Appeals of Indiana | Opinion 19A-CR-716 | March 25, 2020 Page 3 of 13 [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.

Court of Appeals of Indiana | Opinion 19A-CR-716 | March 25, 2020 Page 4 of 13 Discussion and Decision I. Constitutional Claim - Vagueness [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) (vagueness claim waived on appeal due to failure to raise

claim during trial court proceedings), 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) (addressing

merits of vagueness claim despite being raised for first time on appeal), 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

Court of Appeals of Indiana | Opinion 19A-CR-716 | March 25, 2020 Page 5 of 13 party challenging the constitutionality of a statute bears the burden of proving

otherwise. Morgan v. State, 22 N.E.3d 570, 573 (Ind. 2014).

2 [16] Under federal constitutional principles of due process, 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).

2 A line of cases by this Court holds that appellate analysis of a vagueness claim is the same under both the federal and state constitutions. Bemis v. State, 652 N.E.2d 89, 92 (Ind. Ct. App. 1995); Johnson v. State, 648 N.E.2d 666, 670 (Ind. Ct. App. 1995); Jackson v. State, 634 N.E.2d 532, 535 (Ind. Ct. App. 1994); Helton v. State, 624 N.E.2d 499, 505 (Ind. Ct. App. 1993), trans. denied. The Indiana Supreme Court has not addressed this issue. See Tiplick v. State, 43 N.E.3d 1259, 1262 n.2 (Ind. 2015) (deferring for another day the question of whether the Indiana Constitution provides a different analysis on vagueness claims). In any event, Pava has not presented a separate analysis under the Indiana Constitution’s due course of law clause, so we will apply only a federal constitutional analysis to her vagueness claim.

Court of Appeals of Indiana | Opinion 19A-CR-716 | March 25, 2020 Page 6 of 13 [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:

(c) Except as provided in subsections (d) through (k), a person who knowingly or intentionally:

(1) touches another person in a rude, insolent, or angry manner; or

(2) in a rude, insolent or angry manner places any bodily fluid or waste on another person;

commits battery, a Class B misdemeanor.

(g) The offense described in subsection (c)(1) or (c)(2) is a Level 5 felony if one (1) or more of the following apply:

*****

(5) The offense results in bodily injury to one or more of the following:

(B) A person less than fourteen (14) years of age if the offense is committed by a person of at least eighteen (18) years of age.

[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 Court of Appeals of Indiana | Opinion 19A-CR-716 | March 25, 2020 Page 7 of 13 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. 2d 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 3 battery.” Willis, 888 N.E.2d at 181. 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

3 In the context of civil proceedings involving children in need of services, Indiana Code section 31-34-1-15 (1997) provides that a parent, guardian, or custodian has the right “to use reasonable corporal punishment when disciplining the child.” However, Indiana has not codified a parental discipline privilege in the context of criminal charges. Willis, 888 N.E.2d at 181.

Court of Appeals of Indiana | Opinion 19A-CR-716 | March 25, 2020 Page 8 of 13 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 prove a defendant acted knowingly or

intentionally. An intent to touch another person in a rude, insolent, or angry

manner, or knowledge that one is touching another person in a rude, insolent,

or angry manner, is a different state of mind than an intent to implement

corrective discipline. The scienter requirement ensures that a person has fair

notice as to what kind of conduct is punishable as battery. See Shuger v. State,

859 N.E.2d 1226, 1235 (Ind. Ct. App. 2007) (rejecting vagueness challenge to

statute that outlawed interference with hunting; the statute’s scienter

requirement clarified what type of conduct would violate the statute), trans.

[23] Second, the Indiana Supreme Court has implemented a reasonableness

standard to assess the parental discipline privilege. In Willis, the Court adopted

the Restatement of the Law (Second) on Torts, which provides, in relevant part,

that a “‘parent is privileged to apply such reasonable force or to impose such

reasonable confinement upon his child as he reasonably believes to be necessary

for its proper control, training, or education.’” Willis, 888 N.E.2d at 182

(quoting Restatement of the Law (Second) Torts, § 147(1) (1965)).

Court of Appeals of Indiana | Opinion 19A-CR-716 | March 25, 2020 Page 9 of 13 [24] The reasonable person standard, as adopted by the Indiana Supreme Court in

Willis, is objective rather than subjective. As the Court noted in a different case,

“a reasonable person standard provides enough notice of prohibited conduct

and limitations upon discretionary enforcement to satisfy constitutional

concerns.” Morgan, 22 N.E.3d at 576.

[25] Following the holding in Morgan, we conclude the objective reasonableness

standard adopted in Willis would provide sufficient notice of what conduct

crosses the line from mere discipline of a child to battery. Pava has failed to

carry her burden of demonstrating that the battery statute is unconstitutionally

vague as applied to her specific act of repeatedly striking P.P. with an electrical

cord. See Helton, 624 N.E.2d at 507 (statute outlawing criminal gang activity

was not unconstitutionally vague; statute included scienter requirements

establishing a required state of mind for a defendant to be held criminally

liable); Johnson, 648 N.E.2d at 670 (stalking statute not unconstitutionally

vague; statute included both a scienter requirement and a reasonableness

requirement).

II. Sufficiency of the Evidence [26] As an alternative argument to her constitutional claim, Pava argues the State

failed to present sufficient evidence to rebut her claim of parental discipline

Court of Appeals of Indiana | Opinion 19A-CR-716 | March 25, 2020 Page 10 of 13 4 privilege. We apply the same standard of review as for any sufficiency of the

evidence claim. Willis, 888 N.E.2d at 182-83. We neither reweigh the evidence

nor judge the credibility of the witnesses. Smith v. State, 34 N.E.3d 252, 255

(Ind. Ct. App. 2015). We consider only the evidence most favorable to the

judgment and the reasonable inferences to be drawn therefrom. Id. Where

there is substantial evidence of probative value to support the judgment, it will

not be set aside. Id.

[27] The defense of parental privilege, like self-defense, is a complete defense.

Willis, 888 N.E.2d at 182. In order to negate a claim of parental privilege, the

State must disprove at least one element of the defense beyond a reasonable

doubt. Id. “Thus, to sustain a conviction for battery where a claim of parental

privilege has been asserted, the State must prove that either: (1) the force the

parent used was unreasonable or (2) the parent’s belief that such force was

necessary to control her child and prevent misconduct was unreasonable.” Id.

The State may refute a claim of the defense of parental privilege by direct

rebuttal or by relying upon the sufficiency of the evidence in its case-in-chief.

Id.

[28] In Willis, the Indiana Supreme Court directed that courts should review certain

non-exclusive factors when considering the reasonableness of a use of force:

4 Pava does not dispute that the State presented sufficient evidence to establish the statutory elements of battery by a person at least eighteen years of age resulting in bodily injury to a person less than fourteen years of age.

Court of Appeals of Indiana | Opinion 19A-CR-716 | March 25, 2020 Page 11 of 13 (a) whether the actor is a parent;

(b) the age, sex, and physical and mental condition of the child;

(c) the nature of his offense and his apparent motive;

(d) the influence of his example upon other children of the same family or group;

(e) whether the force or confinement is reasonably necessary and appropriate to compel obedience to a proper command;

(f) whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm.

Id. (quoting Restatement, § 150).

[29] In Pava’s case, she is P.P.’s mother. P.P. was nine years old at the time of the

incident, and he was smaller than Pava.

[30] At trial, Pava testified that P.P. had disobeyed her by pinching his two-year-old

sister’s leg. She stated she had previously admonished P.P. to stop harassing

his sister, to no effect. Pava further testified that on the day in question, she had

told P.P. to inform her when his sister’s diaper needed to be changed, but P.P.

had disobeyed her by removing his sister’s diaper himself.

[31] In response to P.P.’s acts of disobedience, Pava used disproportionate and

degrading force against him. She struck him at least ten times with an electrical

cord, leaving a multitude of painful welts all over his body. P.P. was still in

Court of Appeals of Indiana | Opinion 19A-CR-716 | March 25, 2020 Page 12 of 13 pain the following day. Pava did not stop striking P.P. until Martinez

intervened. In addition, she did not try lesser forms of punishment, such as

grounding P.P. or taking away privileges, let alone less severe forms of corporal

punishment.

[32] Pava indicated an awareness that her use of force was unreasonable. She cried

after Martinez stopped her and stated she did not know why she struck P.P.

Pava also claimed at trial that she struck P.P. only four times, but that

statement was contradicted by P.P.’s testimony and by the photographs

Carvahal took the day after the battery.

[33] In summary, the State submitted ample evidence to demonstrate beyond a

reasonable doubt that Pava used an unreasonable amount of force, thus

disproving her defense of parental privilege. See Ceaser v. State, 964 N.E.2d 911,

920 (Ind. Ct. App. 2012) (State presented sufficient evidence to disprove

Ceaser’s defense of parental privilege; parent beat child with a game controller

cord for failing to perform chores and homework, resulting in welts on child’s

body), trans. denied.

Conclusion [34] For the reasons stated above, we affirm the judgment of the trial court.

[35] Affirmed.

Robb, J., and Vaidik, J., concur.

Court of Appeals of Indiana | Opinion 19A-CR-716 | March 25, 2020 Page 13 of 13