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).
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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.
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[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.
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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
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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.
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[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
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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.
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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)).
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[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
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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.
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(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
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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.
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