MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 27 2016, 8:08 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Suzy St. John Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Starlon Lewis, May 27, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1509-CR-1393
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Christina R.
Appellee-Plaintiff. Klineman, Judge
Trial Court Cause No.
49G17-1412-F6-56662
Mathias, Judge.
[1] Starlon Lewis (“Lewis”) was convicted in Marion Superior Court of Level 6
felony neglect of a dependent. Lewis appeals and presents two issues, which we
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restate as: (1) whether the neglect of a dependent statute is unconstitutionally
vague; and (2) whether the State presented sufficient evidence to support
Lewis’s conviction.
[2] We affirm.
Facts and Procedural History
[3] Lewis and Acacia Richardson (“Richardson”) married in 2011 and had one son
together, S.L., who was born in 2012. Shortly after S.L.’s birth, Lewis and
Richardson separated, and Lewis had sole custody of S.L. from the time he was
four months old. Lewis moved to Mississippi, but in November 2014, Lewis
moved back to Indianapolis.
[4] On the night of December 19, 2014, Richardson and Lewis got into a heated
argument after another woman left a comment on one of Lewis’s Facebook
posts. As Richardson was calling someone on her mobile phone, Lewis grabbed
the phone from Richardson’s face. Richardson claimed1 that, in so doing,
Lewis’s thumb hit her in the eye, but Lewis claimed that he merely touched her
face. Regardless, Richardson responded by punching Lewis in the face. Lewis
then threw Richardson’s phone against the wall, breaking it. Richardson
claimed that Lewis then grabbed her by the neck and threw her against the wall.
Lewis claimed that he simply pushed Richardson, who “may” have then fallen.
1
As explained infra, although the State charged Lewis with battery, the jury acquitted him of these charges.
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[5] Lewis then went to get S.L. and began to pack the child’s things and dress him
for the cold weather. Although there was conflicting evidence regarding why,
the child was wearing only a t-shirt and a sock and shoe on one foot.2 Lewis
went to the family car to leave with S.L., but when Richardson attempted to
stop Lewis, he put the child in the front passenger seat, unrestrained.
Richardson jumped into the back seat as Lewis drove away. Lewis then began
to drive on the snowy, icy streets at approximately 40-45 miles per hour even
though the posted speed limit was 30 miles per hour.3
[6] While she was in the back seat, Richardson used another mobile phone to call
911 and reported that Lewis had “kidnapped” her and stolen her car. During
the 911 call, Richardson yelled at Lewis to “get the f**k away from me.” Ex.
Vol., State’s Ex. 1. Lewis attempted to hit Richardson while he was driving.
When Richardson was still on the phone with the 911 operator, Lewis stopped
the car, threw the keys into the street, and fled on foot with S.L, who was still
clothed only in a shirt and one shoe and sock, into the icy cold winter night.
Indeed, it was snowing and the temperature was approximately 15° Fahrenheit
at the time. The 911 call recorded Richardson yelling at Lewis “my baby will
freeze, he’s only two.” Id. Richardson attempted to chase Lewis but ultimately
2
Lewis claims that Richardson took some of S.L.’s clothes off after he had dressed him.
3
Lewis claims that he drove “pretty much” the speed limit, but this directly conflicts with Richardson’s
testimony that Lewis drove in excess of the speed limit. On appeal, we consider only the evidence favorable
to the jury’s verdict.
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returned to her car where she awaited the police. Lewis and S.L. ended up
spending the night at a hotel.
[7] On January 5, 2015, the State charged Lewis with seven counts: Count I, Level
6 felony strangulation; Count II, Level 6 felony neglect of a dependent; Count
III, Level 6 felony criminal recklessness; Count IV, Level 6 felony domestic
battery; Count V, Level 6 felony battery in the presence of a child; Count VI,
Class A misdemeanor domestic battery; and Count VII, Class A misdemeanor
battery resulting in bodily injury. A jury trial was held on August 20, 2015, and
immediately before trial, the State dismissed Counts I and III. The jury found
Lewis guilty of Level 6 felony neglect of a dependent and acquitted him of all
other charges. The trial court then imposed an alternative misdemeanor
sentence of 180 days, with 168 days suspended, and 12 days of credit for time
served. Lewis now appeals.
I. The Neglect of a Dependent Statute is Not Unconstitutionally Vague
[8] Lewis first argues that the neglect of a dependent statute is unconstitutionally
vague as applied to him. However, Lewis made no challenge to the
constitutionality of the neglect of a dependent statute before the trial court. We
therefore agree with the State that Lewis has not properly preserved this issue
for appeal.
[9] As this court has explained previously:
Indiana Code section 35-34-1-6(a) [] provides that “[a]n
indictment or information is defective when . . . the statute
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defining the offense charged is unconstitutional or otherwise
invalid.” Further, Indiana Code section 35-34-1-4(a)[] provides
that the trial court “may, upon motion of the defendant, dismiss
the indictment or information upon any of the following
grounds: . . . (1) The indictment or information, or any count
thereof, is defective under section 6 of this chapter.” This statute
further requires that such a motion “be made no later than . . .
twenty (20) days if the defendant is charged with a felony . . .
prior to the omnibus date.” I.C. § 35-34-1-4(b)(1). A motion
made after this time “may be summarily denied if based upon a
ground specified in subdivision (a)(1)[.]” I.C. § 35-34-1-4(b). In
Payne v. State, 484 N.E.2d 16, 18 (Ind. 1985), our supreme court
noted these statutory provisions and held, “Generally, the failure
to file a proper motion to dismiss raising the Constitutional
challenge waives the issue on appeal.” See also Rhinehardt v. State,
477 N.E.2d 89, 93 (Ind. 1985) (holding that defendant failed to
preserve claim that statute was unconstitutionally vague where
he failed to raise the issue prior to trial by a timely and proper
motion to dismiss).
Baumgartner v. State, 891 N.E.2d 1131, 1135-36 (Ind. Ct. App. 2008).
[10] Lewis does not deny this but notes that Indiana courts have still considered the
merits of constitutional claims even though a defendant did not properly
preserve the issue by filing a motion to dismiss at trial. See, e.g., Morse v. State,
593 N.E.2d 194, 197 (Ind. 1992) (addressing defendant’s pro se motion attacking
constitutionality of statute even though it was raised for the first time in the
motion and defendant was represented by counsel on appeal); see also Johnson v.
State, 38 N.E.3d 686, 689 (Ind. Ct. App. 2015) (citing Boyd v. State, 889 N.E.2d
321, 323-24 (Ind. Ct. App. 2008); Vaughn v. State, 782 N.E.2d 417 (Ind. Ct.
App. 2003), superseded by statute on other grounds) (all considering merits of
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constitutional challenge to statute even though the issue was not raised before
the trial court).
[11] However, the fact remains that the holdings in Payne and Rhinehardt have not
been overruled, and unless our supreme court clarifies this area of the law, we
will continue to hold that the failure to file a motion to dismiss results in waiver
of the issue on appeal. See Baumgartner, 891 N.E.2d at 1135 (acknowledging
Morse, Boyd, and Vaughn, but concluding that defendant failed to preserve claim
regarding the constitutionality of a statute by failing to file a motion to dismiss
raising the constitutional challenge).
[12] Even if we were to consider the merits of Lewis’s claim, he would not prevail.
A defendant who claims a statute is unconstitutional faces a difficult burden:
When a statute is challenged as unconstitutional, we presume the
statute is constitutional. It is the defendant’s burden to rebut this
presumption, and we must resolve all reasonable doubts in favor
of the statute’s constitutionality. A statute will not be held to be
unconstitutionally vague if individuals of ordinary intelligence
would comprehend it adequately to inform them of the
proscribed conduct. The statute need only inform the individual
of the generally proscribed conduct; it need not list with
exactitude each item of prohibited conduct. A statute may also be
impermissibly vague if its terms invite arbitrary or discriminatory
enforcement. There must be something in the criminal statute in
question to indicate where the line is to be drawn between trivial
and substantial things, so that erratic arrests and convictions for
trivial acts and omissions will not occur. However, a statute is
void for vagueness only if it is vague as applied to the precise
circumstances of the present case. The defendant is not at liberty
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to devise hypothetical situations which might demonstrate
vagueness.
Baumgartner, 891 N.E.2d at 1136 (citations omitted).
[13] Here, Lewis challenges the constitutionality of the statute defining the offense
of neglect of a dependent, which provides in relevant part:
A person having the care of a dependent, whether assumed
voluntarily or because of a legal obligation, who knowingly or
intentionally:
(1) places the dependent in a situation that endangers the dependent’s
life or health;
***
commits neglect of a dependent, a Level 6 felony.
Ind. Code § 35-46-1-4(a) (emphasis added).
[14] The charging information alleging that Lewis committed neglect of a dependent
generally tracks this statute, providing:
On or about December 19, 2014, STARLON LEWIS having the
care of S.L., a dependent, did knowingly place said dependent in
a situation that endangered the dependent’s life or health, to-wit:
drive with child in the front seat of the car without safety
restraints.
Appellant’s App. p. 17.
[15] Lewis claims that his behavior was also covered by Indiana Code section 9-19-
11-2(a), which provides in relevant part:
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A person who operates a motor vehicle in which there is a child
less than eight (8) years of age who is not properly fastened and
restrained according to the child restraint system manufacturer’s
instructions by a child restraint system commits a Class D
infraction.
[16] Lewis contends that the charging information alleging that he committed Level
6 felony neglect of a dependent actually “alleges nothing beyond what is an
infraction under Indiana Code § 9-19-11-2.” Appellant’s Br. p. 14. He further
argues that the General Assembly has made a policy decision that the failure to
restrain a child in a vehicle should be an infraction punishable by a fine, not a
felony as alleged by the State. According to Lewis, the neglect of a dependent
statute “leaves ordinary people to guess the point at which the risk posed by
failing to restrain a child in a moving vehicle becomes felony child neglect.” Id.
We disagree.
[17] The failure to restrain statute applies to anyone who operates a motor vehicle in
which there is any unrestrained child, not just a dependent in the care of the
defendant, under the age of eight years. Moreover, there is no mens rea
requirement in the failure to restrain statute. See Hevenor v. State, 784 N.E.2d
937, 941 (Ind. Ct. App. 2003) (noting that infractions are civil in nature and that
there need be no showing of mens rea before judgment may be entered and that
a mere showing that the statute was violated by the defendant is sufficient);
Pridemore v. State, 577 N.E.2d 237, 239 (Ind. Ct. App. 1991) (“There need be no
showing of mens rea before judgment may be entered in an infraction case
because it is not a criminal matter.”). Thus, the driver of a car in which there is
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an unrestrained or simply improperly-restrained child commits an infraction.
This is true regardless of whether the operator, or someone else, simply forgot
to restrain the child or accidentally restrained the child improperly. The failure
to restrain statute thus imposes strict liability on any driver of a vehicle in which
there is an improperly restrained child.
[18] In contrast, the neglect of a dependent statute requires that the defendant
knowingly or intentionally place a dependent in the defendant’s care in a
situation that endangers the dependent’s life or health. I.C. § 35-46-1-4(a)(1).
Thus, in addition to a mens rea requirement, an additional element requires the
endangered person be a dependent in the care of the defendant, not merely any
child.4
[19] Accordingly, if a driver unintentionally forgets to fasten, or merely improperly
fastens, any child in a restraint, he or she commits an infraction. However, if—
as alleged in the charging information here—a driver knowingly fails to fasten a
dependent child in the driver’s care and drives with said child wholly
unrestrained in the front seat such that this places the dependent in a situation
that endangers the dependent’s life or health, he or she commits Level 6 felony
neglect of a dependent.
[20] We believe that individuals of ordinary intelligence would comprehend the
neglect of a dependent statute sufficiently to adequately inform them of the
4
We reject Lewis’s claim that any child in a vehicle would ipso facto be a dependent in the care of the driver.
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proscribed conduct, which here is knowingly driving a vehicle with a dependent
child in the driver’s care in the front seat of a car completely unrestrained,
endangering the dependent child’s life or health. This is separate and distinct
from the failure to restrain statute, which applies when a vehicle is operated
with any child in any circumstance who is improperly fastened or unrestrained.
We therefore decline to hold that the neglect of a dependent statute is, as
applied to Lewis under the facts and circumstances of the present case—
unconstitutionally vague.
[21] We think Lewis’s reliance on Johnson v. United States, ___ U.S. ___, 135 S. Ct.
2551 (2015), is misplaced. In Johnson, the Court held that the “residual clause”
of the Armed Career Criminal Act (“ACCA”) was impermissibly vague. The
ACCA defines a “violent felony” as “any crime punishable by imprisonment
for a term exceeding one year . . . that—(i) has as an element the use, attempted
use, or threatened use of physical force against the person of another; or (ii) is
burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. §
924(e)(2)(B) (emphasis added). The emphasized portion of this definition is
referred to as the “residual clause,” and deciding whether a particular crime fell
within the residual clause “requires a court to picture the kind of conduct that
the crime involves in ‘the ordinary case,’ and to judge whether that abstraction
presents a serious potential risk of physical injury.” Johnson, 135 S. Ct. at 2557.
[22] The Court in Johnson held that this “ordinary case” analysis rendered the
residual clause unconstitutionally vague for two reasons. First, the residual
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clause left “grave uncertainty” about how to estimate the risk posed by a crime,
as it tied the judicial assessment of risk to a judicially-imagined “ordinary case”
of a crime, not to real-world facts or statutory elements. Id. Second, the residual
clause left uncertainty about how much risk was required to qualify a crime as a
violent felony. Id. at 2558. As explained by the Court, “It is one thing to apply
an imprecise ‘serious potential risk’ standard to real-world facts; it is quite
another to apply it to a judge-imagined abstraction.” Id.
[23] The Court also rejected the Government’s claim that its holding put the
“dozens of federal and state criminal statutes [that] use terms like ‘substantial
risk,’ ‘grave risk,’ and ‘unreasonable risk,’” in constitutional doubt. Id. at 2561.
To the contrary, such statutes generally “require gauging the riskiness of the
conduct in the which the defendant engages on a particular occasion,” not a
judicially-imagined “ordinary case.” Id. Accordingly, the Court wrote, “[a]s a
general matter, we do not doubt the constitutionality of laws that call for the
application of a qualitative standard such as ‘substantial risk’ to real-world
conduct; ‘the law is full of instances where a man’s fate depends on his
estimating rightly . . . some matter of degree.’” Id. (quoting Nash v. United
States, 229 U.S. 373, 377 (1913)).
[24] In the present case, the neglect of a dependent statute does not require a court
or jury to imagine some abstract “ordinary case.” It instead simply requires the
jury to determine if the defendant knowingly placed a dependent in a situation
that endangers the dependent’s life or health. We therefore conclude that
Johnson is inapposite to the facts and circumstances currently before us.
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[25] The Johnson Court also acknowledged that the failure of “persistent efforts . . .
to establish a standard” for the residual clause provided further evidence of
vagueness. Id. Lewis claims that Indiana courts have faced several problems in
construing the neglect of a dependent statute, thus offering evidence of the
statute’s vagueness. Lewis first refers to a split of authority in this court over
whether to apply an objective or subjective standard when determining a
defendant’s culpability. However, this question was settled over thirty years ago
when our supreme court held that the level of culpability required by the neglect
statute was subjective. See Armour v. State, 479 N.E.2d 1294 (Ind. 1985).
[26] Lewis also claims that case law demonstrates that the statute has produced
inconsistent results in application. Compare Ricketts v. State, 598 N.E.2d 597, 601
(Ind. Ct. App. 1991) (holding that malnutrition, in and of itself, does not
support a conclusion that a dependent’s health or life is at risk or in danger),
with Rinker v. State, 565 N.E.2d 344 (Ind. Ct. App. 1991) (upholding neglect
conviction of parent who continually failed to provide adequate nutrition and
reasonably clean living conditions for a child). However, even these holdings
are not necessarily inconsistent, as the holding in Rinker referred not only to
simply malnutrition but to continually failing to provide adequate nutrition and
also the failure to provide reasonably clean living conditions.5
5
The same is true for the other allegedly-inconsistent cases cited by Lewis. Compare Scruggs v. State, 883
N.E.2d 189, 190 (Ind. Ct. App. 2008) (reversing neglect conviction of mother who left “responsible” seven-
year-old child home alone for three hours and child was later found to be with child’s uncle), with Thames v.
State, 653 N.E.2d 517 (Ind. Ct. App. 1995) (upholding neglect conviction of babysitter who left five-year-old
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[27] Lewis also notes that the neglect of a dependent statute has been attacked in the
past as impermissibly vague but acknowledges that only one of these challenges
was successful—an attack on a now-repealed version of the statute that
included culpability for neglect that “may” endanger a dependent. See State v.
Downey, 476 N.E.2d 121, 123 (Ind. 1985). None of this “evidence” persuades us
that the section of the statute under which Lewis was charged was
constitutionally vague as applied to the facts of the present case.
[28] In sum, we conclude that the neglect of a dependent statute, as applied to the
facts and circumstances of the present case, is not unconstitutionally vague.
II. There Was Sufficient Evidence of Lewis’s Mens Rea
[29] Lewis also claims that the State failed to provide sufficient evidence to establish
the “knowing” mens rea requirement of the neglect of a dependent statute. Of
course, when reviewing a claim of insufficient evidence, we apply our well-
settled standard of review: we will neither reweigh the evidence nor judge the
credibility of the witnesses; instead, we respect the exclusive province of the
jury to weigh any conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126
child home alone and child was later found wandering the streets and defendant did not return home until
two and one-half hours after child was found wandering); compare also Dexter v. State, 945 N.E.2d 220, 224
(Ind. Ct. App. 2011) (affirming neglect conviction of defendant who, despite being warned not to do so by
defendant’s mother and child’s mother, threw a wet three-year-old child into the air above a bathtub, failed to
catch the child, and child sustained fatal head trauma after hitting the tub), trans. granted, summarily aff’d in
relevant part, 959 N.E.2d 235 (Ind. 2012), with Gross v. State, 817 N.E.2d 306, 310 (Ind. Ct. App. 2004)
(reversing neglect conviction based on defendant and children playing a “hostage game,” which the children
enjoyed, consisting of taping the children’s wrists and ankles together and the children attempting to escape).
The holdings in these cases are not inconsistent but are merely application of the law to different facts and
circumstances.
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(Ind. 2005). We will consider only the probative evidence and reasonable
inferences supporting the jury’s verdict, and we will affirm if the probative
evidence, and the reasonable inferences drawn from this evidence, could have
allowed a reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt. Id.
[30] As set forth above, to convict Lewis of Level 6 felony neglect of a dependent,
the State was required to prove that he had care of S.L. and knowingly placed
S.L. in a situation that endangered S.L.’s life or health. I.C. § 35-46-1-4(a). A
person engages in conduct knowingly if, “when he engages in the conduct, he is
aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b).
Under the neglect of a dependent statute, this “knowing” mens rea requires “a
subjective awareness of a ‘high probability’ that a dependent has been placed in
a dangerous situation.” Villagrana v. State, 954 N.E.2d 466, 468 (Ind. Ct. App.
2011) (citing Scruggs v. State, 883 N.E.2d 189, 191 (Ind. Ct. App. 2008); see also
Gross v. State, 817 N.E.2d 306, 308 (Ind. Ct. App. 2004) (citing Armour v. State,
479 N.E.2d 1294, 1297 (Ind. 1985)).
[31] Absent a confession, the trier of fact must generally infer the defendant’s mental
state from the surrounding circumstances. Hightower v. State, 866 N.E.2d 356,
368 (Ind. Ct. App. 2007), trans. denied. Indeed, “[b]oth intentional and knowing
actions may be inferred from the circumstances.” Ritchie v. State, 809 N.E.2d
258, 270 (Ind. 2004). Accordingly, on appeal, we must look to the facts and
circumstances of the case to determine if there is sufficient evidence to support a
finding that the defendant acted knowingly. Villagrana, 954 N.E.2d at 468.
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[32] Lewis argues that the evidence was insufficient to prove this subjective,
knowing mens rea. He instead argues that the evidence established only that this
was an “isolated incident” with no evidence that he was subjectively aware that
there was a high probability that he placed S.L. in a situation that endangered
S.L.’s health or life. We disagree.
[33] The facts most favorable to the jury’s verdict reveal that Lewis got into an
argument with Richardson that turned physical. He then hurriedly dressed S.L.
and attempted to leave in the car. When he could not put S.L. in the back seat,
he placed the child in the front seat of the car wholly unrestrained. He also
drove in excess of the speed limit in icy and snowy conditions as he continued
to argue and attempt to strike Richardson, who was in the back seat. From
these facts, the jury could reasonably infer that Lewis was subjectively aware of
a high probability that he placed J.L. in a situation that endangered J.L.’s life or
health. Lewis’s arguments to the contrary are little more than a request that we
credit his testimony, reweigh the evidence, and come to a conclusion other than
that reached by the jury. However, this is not our role as an appellate court. See
McHenry, 820 N.E.2d at 126.
Conclusion
[34] The neglect of a dependent statute is not unconstitutionally vague as applied to
the facts and circumstances of the present case, and the evidence before the jury
was sufficient from which it could infer that Lewis knowingly placed his son in
a situation that endangered J.L.’s life or health.
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[35] Affirmed.
Vaidik, C.J., and Barnes, J., concur.
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