MARSH v. STATE (2024)

MEMORANDUM DECISION

STATEMENT OF THE CASE

[1] Appellant-Defendant, Joshua D. Marsh (Marsh), appeals his conviction for two Counts of kidnapping, Level 5 felonies, Ind. Code § 35-42-3-2(a); domestic battery, a Level 6 felony, I.C. 35-42-2-1.3; and his adjudication as a habitual offender, I.C. § 35-50-2-8.

[2] We affirm.

ISSUES

[3] Marsh presents this court with two issues on appeal, which we restate as:

(1) Whether the kidnapping statute is unconstitutionally vague as applied to him; and

(2) Whether the State presented sufficient evidence beyond a reasonable doubt to sustain his conviction for domestic battery.

FACTS AND PROCEDURAL HISTORY

[4] R.S. is the mother to L.M., born in December 2017, and E.M., born in September 2019 (Children). Marsh established paternity to the Children, with R.S. having primary physical custody and sole legal custody pursuant to the paternity statute.¹ Marsh and R.S. never married. Although Marsh and R.S. were in a romantic relationship for approximately five years and had lived together during this time, on October 28, 2021, R.S. and the Children moved out of the basement they shared with Marsh in Marsh's father's residence and intended to travel to New York to live with family. R.S. had filed a legal “notice of intent to relocate” with the Children, but she had not informed Marsh of her plan because she “was afraid” as Marsh had threatened her that “if [she] took the kids, he would kill [her].” (Transcript p. 165).

[5] On the afternoon of November 1, 2021, Carol Smith (Smith) transported R.S. and the Children to the bus depot in downtown Lafayette. At some point, Marsh learned of R.S.’s plan. Marsh discussed the situation with his then-girlfriend, Breanna Coble ² (Coble), and his sister, Jessica Marsh (Jessica). Jessica suggested Marsh could just take the Children from R.S. “because she had just went [sic] through this in a custody battle with her own children.” (Tr. p. 89). Marsh was “gung-ho” about the idea of taking the Children from R.S. and decided that “that's what [he was] going to do.” (Tr. p. 89). The three travelled to the bus station in Marsh's car, where they were joined by Marsh's mother, Melissa Whitaker (Whitaker).

[6] At the bus station, Marsh, Coble, and Jessica approached R.S. who had just exited Smith's vehicle. Marsh informed R.S. that he wanted to say goodbye to the Children. Once Marsh was holding one child and Jessica the other, Marsh instructed Jessica to “walk away.” (Tr. p. 95). R.S. yelled and attempted to retrieve E.M. from Marsh, but Marsh pushed her away. R.S. then rushed at Jessica to retrieve L.M. However, Jessica was near the open door of Whitaker's vehicle and a struggle ensued between R.S., Jessica, and Whitaker. Jessica attempted to hold onto L.M. in her arms. While the struggle continued, Marsh had placed E.M. in the backseat of Whitaker's car. R.S. eventually wrestled L.M. away from Jessica but Marsh approached and wrapped his arms around L.M., tugging on her several times. When Marsh “was trying to yank the child out of [R.S.’s] hand,” R.S. “hit her head off the concrete two or three times before the child was let go of.” (Tr. pp. 103-04). Eventually, Marsh ripped L.M. away from R.S., placed her in the car with E.M., and instructed Whitaker to drive away. R.S. sustained several marks and bruises during the struggle. Law enforcement officers later located Marsh, Coble, Jessica, and the Children at Marsh's apartment in Lafayette. The Children were returned to R.S.

[7] On November 8, 2021, the State filed an Information, charging Marsh with conspiracy to commit kidnapping, a Level 5 felony, two Counts of kidnapping, Level 6 felonies, and domestic battery, a Level 6 felony. The State also alleged that Marsh was an habitual offender. On June 20, 2023, the trial court conducted a two-day bench trial. On August 2, 2023, the trial court issued an Order, finding Marsh guilty as charged and, after Marsh admitted to being an habitual offender, adjudicated Marsh as such. On September 8, 2023, the trial court vacated Marsh's conviction for conspiracy to commit kidnapping and imposed an aggregate sentence of eight years, with five years executed in the Department of Correction and three years suspended to probation.

[8] Marsh now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Unconstitutionally Vague

[9] Focusing on the constitutionality of the kidnapping statute, Marsh contends that the statute is unconstitutionally vague as applied to him because an ordinarily intelligent father, whose paternity to his children was established by affidavit, would not understand the kidnapping statute to subject him to felony criminal liability for forcibly removing his children from one location and transporting the children to another.

[10] “Generally, a challenge to the constitutionality of a criminal statute must be raised by a motion to dismiss prior to trial, and the failure to do so waives the issue on appeal.” Rowe v. State, 867 N.E.2d 262, 267 (Ind. Ct. App. 2007). Marsh acknowledged that he did not file a motion to dismiss on those grounds before the trial court nor raised the issue in any other way before trial. Accordingly, he waived his claim for our review. See id. It is certainly the case that “appellate courts are not prohibited from considering the constitutionality of a statute even though the issue otherwise has been waived.” Plank v. Cmty. Hosps. of Indiana, Inc., 981 N.E.2d 49, 53–54 (Ind. 2013). Indeed “a reviewing court may exercise its discretion to review a constitutional claim on its own accord.” Id. at 54. However, our supreme court has cautioned that “judicial intervention to address constitutional claims for the first time at the appellate level is not appropriate[.]” Id. In a similar vein, we have previously advised that while a court may address the merits of a claim, having done so is not an invitation to future litigants to neglect to file a motion to dismiss and then develop a constitutional argument for the first time on appeal. See Price v. State, 911 N.E.2d 716, 719 n.2 (Ind. Ct. App. 2009), trans. denied. Because the waiver rule is founded on important policy considerations, including “the preservation of judicial resources, opportunity for full development of the record, utilization of trial court fact-finding expertise, and assurance of a claim being tested by the adversary process,” we decline to exercise our discretion and conclude that Marsh has waived his constitutional challenge. Hoose v. Doody, 886 N.E.2d 83, 93 (Ind. Ct. App. 2008), trans. denied.

II. Sufficiency of the Evidence

[11] Next, Marsh contends that the State failed to present sufficient evidence beyond a reasonable doubt to establish that he committed domestic battery in the presence of a child. Our standard of review of a challenge to the sufficiency of the evidence supporting a criminal conviction is well-established: we do not reweigh the evidence or judge the credibility of the witnesses, and we affirm if there is “substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Lehman v. State, 203 N.E.3d 1097, 1104 (Ind. Ct. App. 2023), trans. denied.

[12] To convict Marsh of domestic battery in the presence of a child, the State was required to prove that Marsh, who was at least eighteen years old, knowingly or intentionally touched R.S., who was a family or household member, in a rude, insolent, or angry manner and he committed this offense in the physical presence of a child less than sixteen years of age, knowing that the child was present and might be able to see or hear the offense. See I.C. § 35-42-2-1.3(a)(1). Only contesting the element of knowingly or intentionally touching R.S., Marsh argues that because he and R.S. “only had direct contact with L.M.,” with “Marsh's touching [ ] focused on L.M.,” there is insufficient evidence to sustain his conviction. (Appellant's Br. p. 19).

[13] 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. I.C. § 35-41-2-2(b). We also note that any touching, however slight, may constitute battery. Impson v. State, 721 N.E.2d 1275, 1285 (Ind. Ct. App. 2000) (citing Scruggs v. State, 161 317 N.E.2d 807, 809 (Ind. Ct. App. 1974)); Mishler v. State, 660 N.E.2d 343, 348 (Ind. Ct. App. 1996). Indeed, a defendant may commit the requisite “touching” by touching another person's apparel because a person's apparel is so intimately connected with the person that it is regarded as part of the person for purposes of the battery statute. Impson, 721 N.E.2d at 1285 (citing Stokes v. State, 115 N.E.2d 442, 443 (Ind. 1953)). The Impson court held that even though defendant did not directly touch the victim's face, his act of knocking the glasses from his victim's face supported defendant's battery conviction because the glasses were so intimately connected with the victim as part of his apparel. Id.

[14] R.S. testified that she had retrieved L.M. from Jessica when Marsh approached the scuffle. At that point, R.S. “was on the ground,” holding L.M. in her arms. (Tr. p. 143). Coble testified that Marsh was “going to wrap one arm around his daughter and then yank on her as hard as he can until [R.S.] let[ ] go.” (Tr. pp. 96-97). With R.S. still on the ground, “[Marsh] [ ] leaned over and like a crouched position almost on his knees over top of [R.S.] with one arm around [L.M.].” (Tr. p. 97). He tried “to rip his daughter out of the mother's [ ] arms.” (Tr. p. 97). Although Marsh “succeed[ed] in ripping that child away from [R.S.],” R.S. “hit her head off the concrete two or three times before the child was let go of.” (Tr. pp. 97, 103).

[15] With Marsh and R.S. fighting over L.M., and Marsh trying to yank the child out of R.S.’s arms, it is reasonable to conclude that during this physical altercation Marsh rudely touched R.S. to the point where her head bounced off the concrete. Just like we have previously found that touching another person's apparel can amount to a touching for purposes of the battery statute, we similarly conclude that yanking a child out of the wrapped arms of a parent suffices as the requisite statutory touching. Although Marsh disputes that he knowingly touched R.S. because he had focused his attention on retrieving L.M., we are not persuaded. He intentionally entered the fray between R.S. and Jessica after R.S. had taken L.M. back. Because there would have been no need to “yank” L.M. out of R.S.’s arms if R.S. had not retrieved L.M., Marsh knew he was ripping L.M. out of R.S.’s arms. (Tr. p. 97). Because the State presented sufficient evidence to support the finding that Marsh knowingly touched R.S., we do not disturb his conviction.

CONCLUSION

[16] Based on the foregoing, we hold that Marsh waived his claim that the kidnapping statute is unconstitutionally vague as applied to him, and we find that the State presented sufficient evidence beyond a reasonable doubt to sustain Marsh's conviction for domestic battery.

[17] Affirmed.

FOOTNOTES

1.   See Indiana Code section 16-37-2-2.1(j).

2.   Marsh later married Coble but they were in the process of getting divorced during the trial proceedings in the current Cause.

Riley, Senior Judge.

Kenworthy, J. and Felix, J. concur.