Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                         Dec 23 2014, 9:52 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

JEREMY K. NIX                                       GREGORY F. ZOELLER
Matheny, Hahn, Denman & Nix, LLP                    Attorney General of Indiana
Huntington, Indiana
                                                    BRIAN REITZ
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

FABIAN SUAREZ GUADARRAMA,                           )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 90A04-1406-CR-264
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                       APPEAL FROM THE WELLS CIRCUIT COURT
                          The Honorable Kenton W. Kiracofe, Judge
                               Cause No. 90C01-1307-FC-15



                                        December 23, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                     Case Summary

       Fabian Suarez Guadarrama appeals his conviction for class D felony performing

sexual conduct in the presence of a minor, arguing that the statute defining that offense,

Indiana Code Section 35-42-4-5(c)(3), is unconstitutionally vague as applied to him because

in his case the minor was asleep and was unaware that he was masturbating. We conclude

that Guadarrama waived his argument because he failed to raise it in a motion to dismiss.

Waiver notwithstanding, we also conclude that the statute is not unconstitutionally vague as

applied to Guadarrama because a person of ordinary intelligence would understand that

Guadarrama’s conduct was prohibited. Therefore, we affirm.

                             Facts and Procedural History

       On July 10, 2013, twenty-three-year-old Guadarrama lived with his fiancée Jessica

Gonzalez, their baby son, and Gonzalez’s twelve-year-old sister T.A. That evening, they

watched a movie together in the living room. T.A. fell asleep on a futon, and Guadarrama

and Gonzalez fell asleep on a mattress in the living room. Gonzalez awoke when she felt the

bed shaking and realized that Guadarrama was masturbating. She also heard his cell phone

making a noise.

       A couple days later while T.A. was cleaning, she found the memory card to

Guadarrama’s cell phone and gave it to her sister. Gonzalez viewed a video recording on the

memory card showing Guadarrama masturbating. She took the memory card to the police.

       Bluffton Police Department Officer Greg Steele viewed the contents of the memory

card, which included seven videos and fifty-five pictures from the morning of July 11, 2013.


                                             2
The videos showed close-up shots of T.A.’s buttocks, Guadarrama touching her shorts,

Guadarrama’s face near her buttocks pretending to lick her, and more close-ups of T.A.’s

buttocks. The photographs were close-ups of T.A.’s legs and buttocks and of Guadarrama

smiling and sticking his tongue out by her buttocks. T.A. appeared to be sleeping during the

videos and photographs.

       The State charged Guadarrama with Count 1, class C felony child molesting, and

Count 2, class D felony performing sexual conduct in the presence of a minor. At trial,

Guadarrama admitted to recording himself masturbating. The videos and photographs from

the memory card were shown to the jury. The jury deadlocked as to Count 1, and the trial

court declared a mistrial on that count. The jury found Guadarrama guilty of Count 2.

Guadarrama appeals.

                                Discussion and Decision

       Guadarrama contends that Indiana Code Section 35-42-4-5(c)(3) is unconstitutionally

vague as applied to him. As an initial matter, the State asserts that Guadarrama waived this

argument because he did not move to dismiss the information twenty days prior to the

omnibus date. See Ind. Code § 35-34-1-4(b)(1) (requiring that motion to dismiss defective

information be filed no later than twenty days prior to the omnibus date if defendant is

charged with a felony) and § 35-34-1-6(a)(3) (stating that information is defective when the

statute defining the offense charged is unconstitutional). “Generally, the failure to file a

proper motion to dismiss raising the Constitutional challenge waives the issue on appeal.”

Payne v. State, 484 N.E.2d 16, 18 (Ind. 1985); see also Rhinehardt v. State, 477 N.E.2d 89,


                                             3
93 (Ind. 1985) (concluding that defendant waived constitutional vagueness challenge by

failing to raise it prior to trial by timely and proper motion to dismiss); but cf. Morse v. State,

593 N.E.2d 194, 197 (Ind. 1992) (concluding that “the constitutionality of a statute may be

raised at any stage of the proceeding including raising the issue sua sponte by this Court”).

We agree with the State that Guadarrama waived his constitutional vagueness argument.

       Waiver notwithstanding, Guadarrama’s argument fails.              Statutes are presumed

constitutional. Shepler v. State, 758 N.E.2d 966, 969 (Ind. Ct. App. 2001), trans. denied

(2002). The party challenging the statute bears the burden of rebutting this presumption. Id.

              Due process principles advise that a penal statute is void for vagueness
       if it does not clearly define its prohibitions. 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. A related consideration is the requirement that a
       penal statute give a person of ordinary intelligence fair notice that his
       contemplated conduct is forbidden so that no [person] shall be held criminally
       responsible for conduct which he [or she] could not reasonably understand to
       be proscribed. ….

               But a statute is not void for vagueness if individuals of ordinary
       intelligence could comprehend it to the extent that it would fairly inform them
       of the generally proscribed conduct.

Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007) (citations and quotation marks omitted).

       Indiana Code Section 35-42-4-5(c)(3) provides in relevant part,

       [A] person eighteen (18) years of age or older who knowingly or intentionally
       … touches or fondles the person’s own body in the presence of a child less
       than fourteen (14) years of age with the intent to arouse or satisfy the sexual
       desires of … the older person commits performing sexual conduct in the
       presence of a minor.



                                                4
(Emphasis added.) Guadarrama argues that “presence” requires awareness on the part of the

child and that in his case T.A. was asleep and unaware that he was masturbating.

       We addressed a similar challenge to the constitutionality of Section 35-42-4-5(c)(3) in

Baumgartner v. State, 891 N.E.2d 1131 (Ind. Ct. App. 2008). There, Baumgartner

masturbated as he stood in the doorway of his bedroom looking into a bedroom across the

hall where two children, ages two and three, were in bed. The children may have been

awake, but there was no evidence that they were aware of what Baumgartner was doing. The

Baumgartner court rejected his constitutional vagueness challenge, concluding that a person

of ordinary intelligence would have no difficulty in determining that his behavior was

prohibited by statute. Id. at 1137.

       Guadarrama contends that in Baumgartner the children were awake, whereas in his

case, T.A. was asleep and there is no dispute that she was unaware of his sexual conduct. We

do not find this distinction significant. The Baumgartner court concluded that Section 35-42-

4-5(c)(3) was not unconstitutional as applied to Baumgartner’s conduct despite its knowledge

that there was no evidence that the children were aware of his sexual conduct. In fact,

Baumgartner also challenged the sufficiency of the evidence, arguing that he did not touch or

fondle himself “in the presence” of a child because there was no evidence that the children

were aware of his conduct. The Baumgartner court rejected that argument, observing that

“‘presence’ is defined as ‘the fact or condition of being present.’” Id. at 1138 (quoting

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1793 (1976)). The Baumgartner court

concluded that “the statute here does not require that the defendant’s conduct be witnessed by


                                              5
the child or that the child be aware of the defendant’s conduct. Instead, it simply requires

that a child under the age of fourteen be at the place where the defendant’s conduct occurs.”1

Id.

        Section 35-42-4-5(c)(3) proscribes a person from fondling or touching his or her own

body in the presence of a child with the intent to arouse or satisfy his or her sexual desire.

We have no difficulty concluding that a person of ordinary intelligence would understand

that the statute prohibits a person from masturbating in the same room as a child under the

circumstances present in this case. We therefore conclude that Section 35-42-4-5(c)(3) is not

unconstitutionally vague as applied to Guadarrama. Accordingly, we affirm his conviction.

        Affirmed.

FRIEDLANDER, J., and KIRSCH, J., concur.




        1
           Guadarrama argues that “presence” requires awareness for purposes of the execution of wills and
direct contempt of court and that “presence” should have the same meaning for sexual conduct in the presence
of a minor. Those situations are substantially different from this one, and the reasons for requiring awareness
in those situations are not present here. Therefore, we are unpersuaded by his argument. Also, in light of our
decision in Baumgartner, we are unpersuaded by Guadarrama’s reliance on out-of-state case regarding
“presence” and “awareness.”

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