                                                                        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.

       denied.


[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
