FOR PUBLICATION
ATTORNEYS FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
BRUCE E. ANDIS STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
ANN M. SUTTON MONIKA PREKOPA TALBOT
Marion County Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
LYNDON K. VAUGHN, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-0204-CR-158
)
STATE OF INDIANA, )
)
Appellee. )
OPINION - FOR PUBLICATION
According to Vaughn, “[t]he statute is unconstitutionally vague because it does not define
what constitutes ‘living as if a spouse’ of another, thus, no one can
know with any reasonable degree of confidence whether they are, or were in
the past, living with another as a spouse in terms of the Domestic
Battery Statute.” Appellant’s Brief at 5.
The State argues that this claim has been waived by Vaughn for failing
to file a motion to dismiss prior to trial, as required by Indiana
Code § 35-34-1-6 (Burns Code Ed. Repl. 1998) and Indiana Code § 35-34-1-4
(Burns Code Ed. Repl. 1998). For support, the State directs this court
to Wiggins v. State, 727 N.E.2d 1 (Ind. Ct. App. 2000), trans. denied.
In Wiggins, this court, in relying upon the above cited statutes, held
that as a general proposition, a challenge to the constitutionality of a criminal
statute must be raised by a motion to dismiss prior to trial or
the claim is waived. Id. at 5.
The doctrine of waiver has been applied many times by both this court
and our Supreme Court when an appellant challenges the constitutionality of a statute.
See, e.g., Rhinehardt v. State, 477 N.E.2d 89 (Ind. 1985), criticized on
other grounds by Stout v. State, 528 N.E.2d 476 (Ind. 1988); Reed v.
State, 720 N.E.2d 431 (Ind. Ct. App. 1999), trans. denied. Nonetheless, in
many of these cases, the court then determined upon the merits that the
constitutional challenge must fail even though the argument was waived. See, e.g.,
Rhinehardt, 477 N.E.2d at 93; Reed, 720 N.E.2d at 433-34; Vaillancourt v. State,
695 N.E.2d 606, 610 (Ind. Ct. App. 1998), trans. denied. Just as
significantly, our Supreme Court has chosen on occasion to address the merits of
the constitutional challenges to criminal statutes by acknowledging that while the argument would
normally be waived, it may still be proper to address the argument.
In Payne v. State, 484 N.E.2d 16, 18 (Ind. 1985), our Supreme Court
noted that there is a statutory requirement that a defendant file a motion
to dismiss prior to trial challenging a statute as unconstitutional or else the
challenge is generally deemed waived. While no motion to dismiss was filed
in that case, the Supreme Court addressed the merits of the challenge by
stating, “Nevertheless, particularly in view of the fact that the State has not
raised the waiver issue, we have decided to consider the merits of the
contention in this case.” Id. More importantly, in Morse v. State,
593 N.E.2d 194, 197 (Ind. 1992), our Supreme Court addressed a pro se
motion challenging the constitutionality of a statute even though the appellant was represented
by counsel who had filed a brief, albeit without presenting the issue challenging
the constitutionality of the statute. In so doing, our Supreme Court stated,
“Although we do not entertain pro se pleadings when counsel is involved in
a case, the constitutionality of a statute may be raised at any stage
of the proceeding including raising the issue sua sponte by this Court.
We therefore examine the statute and find no merit to appellant’s claim.”
Id.
We recognize that no motion to dismiss was filed in this case, and
further, that the State has argued that the doctrine of waiver precludes review
of this issue. However, in line with the above mentioned cases, we
have chosen to address the merits of Vaughn’s claim. This is so
because the facts of this case reveal just how far the words “living
as if a spouse” can arguably be stretched in order to convict an
individual under the domestic battery statute.
When the validity of a statute is challenged, we begin with the presumption
of constitutionality. Wright v. State, 772 N.E.2d 449, 457 (Ind. Ct. App.
2002). The challenger bears the burden of rebutting this presumption and all
reasonable doubts must be resolved in favor of the statute’s constitutionality. Id.
A statute is not unconstitutionally vague if individuals of ordinary intelligence would
comprehend it adequately to inform them of the proscribed conduct. State v.
Lombardo, 738 N.E.2d 653, 656 (Ind. 2000). “The statute ‘need only inform
the individual of the generally proscribed conduct, [and] need not list with itemized
exactitude each item of conduct prohibited.’” Id. Vagueness challenges which do
not involve First Amendment freedoms must be examined in light of the facts
of the case at hand. Id.
The operative facts which were used to establish that Vaughn and Currier had
previously been “living as if a spouse” of the other were that they
had lived together and that that they had an intimate sexual relationship.
See footnote
To establish that Vaughn and Currier had a previous relationship, the question was
asked of Currier as to whether she and Vaughn had a previous intimate
relationship. To clarify what was meant by intimate relationship for Currier, the
Deputy Prosecuting Attorney asked her whether she had a sexual relationship with Vaughn.
To that question, Currier responded that she had a sexual relationship with
Vaughn and that they had lived together.
Following the close of the State’s case-in-chief, Vaughn moved for an involuntary dismissal,
claiming that the State had failed to meet its burden of proof on
the charges. Following the response by the Deputy Prosecuting Attorney, the trial
court questioned her as to how the State had proved the domestic relationship
as required by the statute. The Deputy Prosecuting Attorney directed the trial
court to the evidence which established that Vaughn and Currier had previously lived
together and had an intimate relationship. The trial court denied Vaughn’s motion
based upon that evidence. A thorough review of the transcript reveals no
other evidence upon which the trial court could have relied in determining that
Currier and Vaughn had “lived as if a spouse” of the other.
Applying those facts to the challenged portion of I.C. § 35-42-2-1.3, we hold
that the domestic battery statute is unconstitutionally vague as applied to Vaughn.
The State asserts that it is enough that two individuals had lived together
and those individuals had a sexual relationship during that time. The State
notes that Vaughn had cited no authority, nor was it aware of any,
which “requires a trial court to consider whether the parties filed joint income
tax returns, whether their names appeared jointly on utility bills, whether they jointly
purchased real estate, how long they have lived together, whether they jointly owned
any bank accounts, and whether they jointly executed any contracts.” Appellee’s Brief
at 6. We agree that there is no authority which has required
such a showing by the State, but there can be little doubt that
something more than living together and having a sexual relationship is required.See footnote
Otherwise, many individuals who have no intent to “live as a spouse” of
another would be subject to the punishments of the domestic battery statute by
virtue of the fact that they live under the same roof as a
domestic partner.See footnote
In passing the domestic battery statute, the General Assembly did not choose to
include as a category that two people “lived or were living together and
were having a sexual relationship at that time.” Rather, the General Assembly
chose to provide protection to a group of prospective victims who live or
lived as if they were spouses of the prospective batterer. “Living as
if a spouse” of another person may be based upon many things, depending
upon the individual interpreting the facts. It is because different people may
interpret those words so differently that the General Assembly must clarify what categories
of individuals should receive the protection of the statute and conversely what persons
should be subject to punishment for violation of the statute.
It may have been that the General Assembly was attempting to protect a
class of individuals who acted as if spouses by sharing their finances, introducing
each other as their spouse, and even by wearing rings, but who chose
to never have their relationship solemnized in a civil or religious ceremony.See footnote
Also, because Indiana does not recognize same gender marriages, one must wonder if
the protection of the statute does not fall upon two individuals who cannot
be “spouses” according to the law but wholly intend to live as spouses
and hold themselves out as such to their family and friends. It
is possible that the General Assembly intended to provide protection to boyfriends and
girlfriends who live together, but individuals of ordinary intelligence could easily disagree on
whether they were “living as if a spouse” of the other if they
kept separate bedrooms and chose to refrain from sexual relations until marriage, but
shared some or all of the expenses of their home and maintained joint
banking accounts. There is also the question of how to apply the
statute to a situation in which two individuals live in separate homes but
maintain joint banking accounts and equally share the responsibilities of life. None
of these scenarios are “far-fetched” and indeed, are rather commonplace in today’s society.
While the General Assembly may very well have intended to provide the
protections of the domestic battery statute to individuals who were involved in relationships
such as these mentioned, that protection cannot be provided under the condition of
“living as if a spouse” of another.See footnote Regardless of one’s view of
whether these relationships would qualify one as “living as if a spouse” of
another, there can be little dispute that only living in the same home
and having a sexual relationship does not equate one to being a spouse.
In vacating the conviction for domestic battery, we do not intend to jeopardize
the validity of a conviction for batterySee footnote which was merged into the conviction
for domestic battery in order to prevent a double jeopardy violation.See footnote Because
we have vacated the domestic battery conviction, double jeopardy is no longer a
problem, and therefore, a conviction for battery would be valid. We recognize
that the trial court indicated in the sentencing statement that a finding
of “not guilty” was being entered on the battery conviction. However, that
choice of words was inadvertent because the trial court was clearly not acquitting
Vaughn of battery, but rather, did not enter judgment on the charge of
battery because the double jeopardy problem would have arisen. The trial court
is not precluded from entering conviction and judgment against Vaughn on the charge
of battery.
See Carter v. State, 750 N.E.2d 778, 781 n.9 (Ind.
2001) (indicating that a conviction for a lesser offense may still be valid
if a conviction for the greater offense is reversed, and further, that even
if the conviction for the lesser offense had been vacated by the trial
court, a challenge to the validity of the vacated verdict may not succeed);
Taflinger v. State, 698 N.E.2d 325,
327 (Ind. Ct. App. 1998) (holding that following this court’s reversal of a
conviction for attempted murder, the trial court could reinstate a jury verdict of
guilty for neglect of a dependent child which had been dismissed by the
State in order to prevent a double jeopardy violation).
The judgment is reversed. We remand to the trial court for proceedings
not inconsistent with this decision.
BAILEY, J., and MATHIAS, J., concur.