Davis v. State

by Although abandonment defense the trial court has the clearly impose warranted by evidence. discretion concurrent or consecu cases, tive sentences certain aggravating circumstances must be listed where consec III imposed. utive sentences are The record Appellant argues that there insuffi- must disclose what factors were considered support cient his for conviction by trial mitigating aggra court to be confinement Ms. Sowers. He contends circumstances, vating and the record must that his conduct did not constitute confine- further show that the determination ment she because was handcuffed to a sentence was based a consideration of bannister in her home. own specific the facts of the crime and what by Criminal confinement is defined I.C. objec relation the sentence bears § 35-42-3-3 as follows: tives that will be served a consecutive (a) Washington person knowingly A v. State (1981), who or intention- sentence. Ind.,

ally: 422 N.E.2d 1218. (1) person another his confines without Here the aggravating circumstances consent; were not listed. (2) fraud, person, removes another convictions affirmed and this enticement, force, force, or threat of sentencing case for a hearing is remanded another; place from one opinion. consistent this person, un- removes another who is eighteen years age, der to a GIVAN, C.J., HUNTER, PRENTICE place Indiana when the outside remov- JJ., PIVARNIK, concur. custody al violates a child order of a court; confinement,

commits criminal a Class

D felony. felony the offense a Class C child,

if the is not B child his a Class

felony if it is committed while armed deadly weapon

with a or results in seri- Davis, Mary Appel- Reed DAVIS and bodily injury person. ous to another (Defendants Below), lants The circumstances here fall under § 35-42-3-3(a)(l). I.C. This section of the Indiana, Appellee STATE of provide exceptions statute does not (Plaintiff Below). depend upon where the is confined. victim No. 2-1083A356. person The fact is confined in his provide own home or automobile does not Indiana, Appeals Court of sufficient a claim that the confine basis Second District. ment is not criminal. essence of March person’s offense is the restriction of free liberty against dom of movement and his

will. The evidence most favorable to clearly support

state is sufficient

conviction for confinement.

IV complains

Appellant that the trial court imposing

erred in a consecutive sentence

for the confinement of Ms. Sowers. gravel

was found at side of a road near Warren, anonymous An tele- Indiana. implicated Da- phone police call to investiga- parents. After an vises as proba- tion tests to determine the and blood parentage, in- bilities of the Davises were grand Huntington County dicted jury neglect dependent. After of a trial, guilty found and sen- both were years. tenced to an executed term of two I. CONSTITUTIONALITY § argue The Davises Ind.Code 35-46-1- 4(a)(1) Specifi unconstitutionally vague. Paul, III, Indianap- Voyles, J.J. James H. allege cally, they prohibition of conduct olis, for appellants. “places dependent in situation a health,” may endanger his life or Gen., Linley Pearson, Atty. Cloyd, Lee E. § 35-46-1-4(a) fails to inform the Ind.Code Gen., Deputy Indianapolis, appel- for Atty. public and law enforcement officers of lee. specific prohibited. Ind.Code conduct § 35-46-1-4(a) added). In their (emphasis SHIELDS, Judge. brief, use of the the Davises focus Mary Defendants Reed Davis and Davis example, permissive “may”. For word (Davises) appeal their convictions for ne- parental engage they argue permission to § a glect dependent, Ind.Code Ann. 35- “may sports contact interscholastic and (Burns 1979),1 felony. D 46-1-4 a class endanger” a life or Conse child’s health. They following raise the issues: they allege proscribes quently, the statute § 1) un- whether Ind.Code 35-46-1-4 is life or even reasonable conduct where constitutionally vague; endangered.3 actually not health is 2) were suffi- whether indictments Thus, attempt to cient; challenge to constitu present a facial 3) properly the trial ad- whether court tionality neglect statute. probabil- of parentage mitted evidence chal vagueness “it established that is well ities; involve lenges to which do not statutes 4) whether the evidence was sufficient exam Amendment freedoms must be First support the convictions. light of facts of the case at ined in Judgment Mary re- affirmed as to Mazurie, 419 v. U.S. hand.” United States as Reed. versed 714, 550, 710, 544, 42 L.Ed.2d 706 95 S.Ct. 3, liberty 1982, approximately The Davises are at August On at (Baby hypothetical infant situation which would p.m., full-term male devise 12:30 old, statute is vagueness;4 demonstrate Lucky),2 estimated a few hours 35-46-l-4(a) alternatively provides 2. infant was referred as as follows: 1. Ind.Code Lucky” “Baby Doe” and at trial. "Infant care, having custody, person or "A control knowingly dependent or of a who intentional- "danger “endanger" or 3. note is defined as We (1) dependent ly: places in situation that peril probable harm or loss.” Webster’sThird health; (2) may endanger life his or abandons (1976) (emphasis Dictionary New International (3) dependent; cruelly de- confines the added). necessary support; prives dependent vagueness invalidity facial of a statute for 4. dependent deprives as education may be raised outside the facts or overbreadth law; neglect required by de- commits of a speech controversy where free of the case pendent. ...” rights implicat- other first amendment vagueness for vague void only if it is II. INDICTMENTS applied precise to the circumstances of The Davises were individually indicted Id.; their case. accord United States v. neglect dependent. of a The indict- Powell, 423 U.S. 96 S.Ct. 46 ments except were identical for the named (1975); State, L.Ed.2d 228 e.g., defendant: Terrel Ind.App. 422, 353 N.E.2d 553 “On day or after the 3rd August,

(statute omitting “knowledge” Huntington County, from of State In- diana, [Reed/Mary] Davis, having then visiting fense of a common nuisance not care, custody or control of an infant vague where evidence demonstrated de child, male dependent, did knowingly knowledge); fendant’s City Connell v. place dependent such in a situation that Logansport, 397 N.E.2d 1058 (Ind.App. endanger did his health and/or did aban- 1979)(“conduct unbecoming an officer” not dependent don said child.” vague supe- where defendant addressed Record at 16. The indictments cited obscene, rior in threatening abusive and § Ind.Code statutory pro- 35-46-1-4 as the language). In making this determination allegedly vision violated. Davises al- arewe not concerned the ability 1) lege the indictments fail to state any Legislature our to have chosen clearer and comprising facts basis the offense precise language. more United States v. charged 2) a process violation of due Powell, 423 U.S. at S.Ct. charging endangerment the of both and Rather, we must determine an in- whether in abandonment the same indictment.5 ordinary intelligence of dividual would rea- unsuccessfully sought sonably contemplated understand dismissal of the indictments in the trial proscribed. conduct is United States v. court because “the indictment does not set Mazurie, 553, 419 95 U.S. S.Ct. at 715. out that situation and circumstances which allegedly endangered the life or health of Although argue the Davises Baby support In of Lucky.” argu their proscribes statute even reasonable conduct ment, appeal, at trial and on the Davises may actually endanger which not the de § (Burns 35-34-l-2(a) Supp. cite Ind.Code pendent, such not conduct was involved in 1984) 35-3.1-l-2(a)) (formerly which re the case at bar. evidence indicates quires the indictment contain “the essen that within hours of birth and few with constituting tial facts offense attached, Baby the umbilical cord still charged.” the Davises waived Lucky in wrapped paper was a brown sack sufficiency by failing of the indictments by left of side a deserted road in a in to include the issue their motion to cor wooded area outside the of passersby. view rect errors. dehydrated

A found in jogger baby Nonetheless, find we the indict condition, sunburned and bruised su Omitting ments were sufficient. the for perficial cuts and puncture scratches and a parts, specified mal both indictments wound on the back his head. No reason offense, place alleged time iden person ordinary intelligence able would name, by tified the defendants and identi difficulty determining have that such activ yet them as fied unnamed victim “an ity proscribed the statute at issue. child, dependent,” infant male all in lan conduct, Given the nature the Davises guage paralleling the proscribing statute statute was sufficient to advise the neglect dependent. of a The indictments Baby their statutory Davises that treatment language then followed in Lucky proscribed. specifying particular acts which consti- 352, See, Lawson, e.g., 35-46-l-4(a) separate 461 U.S. Ind.Code five §

ed. Kolender v. lists 8, 1855, 8, (1983); neglect, endanger- n. L.Ed.2d 903 of which are n. 103 S.Ct. 75 forms two Connell, 1064, supra N.E.2d at n. 2. ment and abandonment. See note 1. 397 132 abandonment, 3) confinement, 4) alleged depriva- neglect. When

tute the statu specific 5) tory language acts support, deprivation enumerates tion of educa- crime, § Here, constitute the an indictment tion.6 Ind.Code 35-46-1-4. paralleling the words of the statute is suffi acts constitut- indictments enumerated two 556, State, 240 Ind. 166 cient. Allison v. language, ing neglect conjunctive en- denied, (1960), 171 N.E.2d cert. 365 U.S. dangerment According- and abandonment. 822, (1961). 81 S.Ct. L.Ed.2d 821 5 hybrid ly, did not create a the indictments description need There is no for further offense, they duplicitous: nor were injury employed or methods commit “[Wjhere the statute denounces several State, ting crime. v. 448 Moody crime, charged they may acts as a (Ind.1983). 660 N.E.2d single count if one indictment or in a conjunctive. charging they did of a connected in the

Nor violation (a)(1) (a)(2) render An manner is of both subsections indictment drawn in that prove We first ob duplicitous. duplicitous, the information it suffices endangerment charge any charges.” serve one or more of the in the abandonment indictment “and/or” State, 448 N.E.2d Shanholt v. charged effectively the Davises with both quoting (Ind.App.1983) States v. United acts; superfluous. the use of “or” was (7th Amick, Cir.), F.2d 351 cert. denied Pratt, 233 So.2d 883 255 La. State L.Ed.2d U.S. 91 S.Ct. (1970), Supreme of Louisiana Court grand indicted the Davis- similar indictment sufficient. found a neglect dependent es of a charge challenged aggravated Pratt acts, ne two either of which constitutes rape resistance was al where victim’s indictment, the glect. such an State Under leged overcome force to have been prove either needed the Davises bodily harm; great “and/or” threats of Baby Lucky. endangered abandoned aggravated rape listed force and statute subsections, disjunctive two intimidation III. PARENTAGE aggravated of which constituted either allege trial The Davises also court rule, pros rape. conjunctive Under the in overruling erred motion limine in their charge disjunctive was allowed to ecution objections sought continuing conjunctive language because the acts concerning the expert testimony exclude may unavoidably un prosecution have been probability of the Davises’ mathematical equiv form of “and/or” was certain which Baby Lucky parentage of based acts, charging Pratt with both alent Specifically, tests. the Da- results of blood did not conjunctive only, prevent 1) exaggerated potentially argue vises understanding charge. Pratt from We evidence, 2) impact probability of inval- similarly conclude the Davises were idity “Bayes Theorem” to calculate the of endangerment and charged with both involved, 3) misrepresenta- probabilities abandonment; inclusion of “and/or” tion calculations as the of of hamper ability to their did understand parentage rather than the of charge prepare of or to nature exclusion, 4) any of foun- absence defense. dation for calculations when conjunctive to the also adheres Indiana is parent neither known. charge prosecution allows the rule which objections target The of the Davises language. conjunctive acts in disjunctive testimony Conneally, of Michael dependent of statute is neglect professor genetics medical at Indiana of disjunctive subsections. framed Conneally testimony University. based dependent neglect of a occurs crime of separate of two series of dis- on the results any five commission one 1) 2) (Human Leucocyte 1) endangerment, tests: HLA acts, including standard tinct 2) single statutory 3) subsection. are contained in Items Antigen) 2) tissue-typing and a series of that Mr. and Davis Mrs. are the father separate genetic blood tests for 20 marker of Baby Lucky rather than another [sic] systems. The test results are not disputed; couple taken at random communi- Only the presentation statistical ty.” calculations based the re- Record at Conneally 423-24. converted the subject argument. sults are the probability percentages into “real num- Conneally first testified that the results bers” and one couple concluded in half of the tests “do not exclude the possibility a million couples have par- could been the that Mr. and Miss Davis are the father [sic] Baby ents of Lucky. and mother parents are the of Infant Doe.” presented expert Davises also testi- Conneally Record at 409. then testified mony regarding probabil- the mathematical regarding “probability parentage” ities of parentage. Dr. Herbert Polesky, computed by multiplying the frequency of Minneapolis Director of the War Memorial occurrence of genetic each marker in the Blood Bank genetic tested for 15 different population Caucasian Indiana. The fre- systems; again, marker none of the test quencies accepted were based on scientific results excluded Reed Mary either tables. Record at 417-18. Based on the 20 parents Baby Lucky. test,7 Conneally prob- series concluded “the Polesky testified “there was a 91.4% ability Miss that —uh—Mr. and Davis [sic] greater chance mary that Reed and could parents Baby Lucky are the rather than parents” have been the rather than a ran- couple picked another at random from the couple. dom Record 553. On cross-ex- community point ninety-eight per- three amination, Polesky opined, using the re- (98.3%).” cent on the Davises Based rare sults of both his 15 test series and Conneal- typing, HLA Conneally testified: ly’s test, 20 series “would be they parents “the chance are the ninety-nine (99%) percent more likely to parents this child versus a set of random parents” have been the than a random cou- in the community ... comes out to be ple, represented which in turn out of ninety point eight eight nine nine six every couples hundred could also be the (99.98867%) percent just seven parents. Record at 566. typing eight on tissue alone odds of thou- eight sand twenty eight hundred and Polesky then converted results into (8,828) to one that Mr. and Mrs. Davis “real numbers”. Based on his 15 series parents Baby Lucky are the rather test, couples one out ten every could couple

than another taken from the com- parented Lucky. If Baby Conneally’s have munity. ...” added, 20 series results one were out of Conneally Record at 423. then every combined couples par- 91 random could be the the results of the HLA and 20 adding series test Finally, upon ents. the HLA re- and concluded: sults, 10,000 every couples 1 out of could produced Baby Lucky. Discounting have point ninety-eight per-

“we have seven age, (98.7%)_When population ap- for the local contained multiply we cent these 130,000 125,000 potential proximately get eighteen we odds of hundred and five (1).... parent-couples.8 Polesky (518,000) explained one then thousand [T]he compared probability ninety-nine point three nine another non-excluded (99.398079%) alone, eight couple,9 tests percent 0 seven based on the blood the [sic] (3d ed.1984), on the 7. The blood tests different blood char- Evidence random man is "a identified acteristics, Conneally (and "genetic hypothetical markers.” entity genotypes hence whose tested for 20 different characteristics. phenotypes) average are a across kind all men. Id. at [excluded non-excluded] 660. motion, Upon 8. the Davises the trial court took Indeed, "the random man use of the factor is 438,719. judicial population notice at of the area paternity inherent test.” the HLA Tice v. Richardson, 509, 490, Kan.App.2d 7 P.2d 644 accepted 9. The use of a man" is an "random 494 practice. Cleary, E. As defined in McCormick 134 parents timony

chances that the Davises were the on which the calculations were was 50/50. based, describing physical the characteris robbers, conflicting. tics of the Probability Testimony although court concluded that “risks of probability The Davises challenge the ev- permeate prosecution’s error circum unduly prejudicial. They idence as claim case, jurors stantial ... could few resist necessarily “unlawfully but temptation disproportionate accord impressed by mystique of mathematical weight” probable to a index of “numerical Consequently, they demonstrations.” ar- guilt.” at Id. 438 P.2d at 66 Cal. gue probability evidence should have Rptr. at 504. “potentially excluded been because of its exaggerated impact.” Appellant’s Brief Similarly inadequate statistical bases for calculations have been tradition- Courts commentators have consistently rejected in criminal cases. ally probability testi- viewed mathematical (8th v. Massey, United States 594 F.2d 676 mony extreme of its caution because Cir.1979) an testified to witness foundational need support need for and its similarity samples of hair taken from the explanation for sufficient to the fact finder. alleged defendant and found in a ski mask deficiencies wide- Foundational ly robbery. used a bank The expert spread. example, leading For in the case matched, samples testified the hair and he Collins, People 438 68 Cal.2d distinguish had been unable to the hair of Cal.Rptr. P.2d 497 the Califor- 2,000 two individuals twice in cases. Supreme nia Court reversed a conviction During expert’s testimony, the trial robbery unduly prejudicial for attempted judge testimony to convert the probabilities effect of mathematical intro- a statistical probability into of one in a prosecutor. duced A mathematics thousand. The the validity witness denied college instructor at a state had calculated converting his personal experience into couple charged Nonetheless, probabilities. statistical robbery the occur- committed based on prosecutor, closing argument, exacerbat population couple’s rence in the un- judge's misunderstanding trial ed the prose- physical characteristics.10 The usual argued the evidence that a “better closing argument thereby cutor arrived proof beyond than chance was 99.44%” at a one in 12 million that prosecutor’s reasonable doubt. The misuse randomly any couple possessed selected already confusing colloquy was held charged couples’ of distinctive combination prejudicial Accord, to be error. Miller v. probabilities characteristics. State, Ark. S.W.2d assigned each individual characteristic (estimated probabilities of occurrence of speculative. emphasized purely were As types); Annot., generally soil see 36 A.L. presenting any the court: “Without (1971). Thus, R.3d the concern of support evidence whatsoever in statistical courts which in ultimately these resulted probabilities select- factors excluding probability testimony focuses not ed, proceeded then to have prosecutor on the calculations but foundation assume factors the witnesses for the calculations. When unsubstantiat for various characteristics which he the are probability ed estimates used in calcula guilty couple by to shared deemed be tions, speculation presented is to the couples answering to such and all other 325, prejudi clothed in accuracy; 438 scientific Id. at distinctive characteristics.” 500-501, (em- 36-37, impact clearly outweighs probative Cal.Rptr. at cial P.2d at 66 Moreover, phasis original). the tes- in even value. by allegedly partly yellow a Cau- beard and a mustache in a

10. The crime was committed auto- ponytail with a who left casian woman blond mobile. accompanied by a scene a black male with

135 probability upon where is testimony empirical based scientific In data. data, Carlson, on empirical (Minn. scientific rather State v. 267 N.W.2d 170 estimates, presen 1978) than expert unsubstantiated an witness for the State testi probability tation admission of testimo “1 fied there was in 800 “1 a chance” and a ny need not Three 4,500 constitute error. recent samples in chance” hair did not emphasize cases an this distinction between belong to Supreme the accused. The Court inadequate adequate an foundation expressed of Minnesota concern over the probability testimony. In v. State Wash potentially exaggerated impact on the trier 47, (1981), ington, 229 986 Kan. P.2d “Testimony expressing opinions of fact: expert permitted testify an was to witness in probabili conclusions terms of statistical prosecution only in a murder that .6% ties can make seem the uncertain all but population had blood with same proven, suggest, by quantification, sat Similarly, characteristics as defendant. requirement guilt isfaction of the Garrison, in State v. 120 Ariz. ‘beyond established a reasonable doubt’.” (1978), permitted P.2d 563 dentist to was Tribe, by Id. at Trial citing Mathe- “eight there an in testify one million matics, 84 Harv.L.Rev. 1329 Al- probability” that teeth marks found on the though acknowledged ability the court by body victim’s not were made defend diligent cross-examination minimize DiGiacomo, And in People ant. 71 Ill. confusion, psychological impact App.3d 27 Ill.Dec. 388 N.E.2d 1281 precision mathematical was found too com- (1979), criminologist allowed testi pelling. The court nonetheless found the sample fy belonged chances a hair testimony expert cumulative of another person to a other than the defendant was testimony samples witness’s that the were cases, “1 in 4500.” In three all sufficient similar concluded the erroneous admis- reliability foundation demonstrated the probability sion of calculations was not upon calculations based sci prejudicial. In Boyd, State v. N.W.2d reports upon entific or tables rather than (Minn.1983), rationale, using the same speculation. mere supreme court of Minnesota excluded paternity in statistical There no foundational error actions. the instant case. calcula upon speculation tions were not based but Minnesota, approach taken in how- accepted reporting scientific tables ever, rejected impressive an has been frequency genetic of each marker myriad of and commentators. In- courts population the Caucasian in Indiana. Both deed, in- enjoyed blood results test have employed same witnesses meth creasing acceptance judicial in the forum virtually od of calculation and arrived at reliability of HLA because the increased probability percentages.11 identical procedures significant testing exclude possible portion population fa- unpersuaded

We are also “exaggerated impact” paternity claim due to the thers in actions. impressive alleged ability seemingly the American Bar Association jury. numbers mislead confuse and the American Medical Association persuaded probability Nor we calcula- guidelines governing jointly promulgated complicated too difficult or

tions are in paterni- tissue the use blood and tests explain. Krause, Abbott, ty & actions. See Sell AMA-ABA Guidelines: Present indepen our Joint The Davises brief and Serologic Testing Problems only one case which Status dent research reveal Disputed Fam.L.Q. 247 Parentage, error in admission found of (1976). guidelines specifically recom- unquestioningly were calculations which conversion, object routinely but experts significantly to such a two differed 11. The probability percentages advantage. employed the conversion of the to their conversion ” numbers; "real not did into recognized Legislature has relating to The Indiana admission of evidence mended in inclu- paternity: significant of medical advances sionary testing procedures and has liberal- the National recommend] “[We paternity in the use of such evidence on Uni- ized Conference of Commissioners Garfield, Survey Re- develop legislation actions. See form State Laws new of Law, 14 Parentage Developments in Indiana Act’ or amend ‘Uniform cent (1981). Test Act’ to ... In Ind.Code and the ‘Uniform Blood Ind.L.Rev. 358 1980), § (Burns simplify admissibility evidence 31-6-6.1-8 Ann. effect probative test results and the of test re- to allow the admission amended thereof, evidentiary including the value Indeed, majority a into evidence.12 sults paterni- of estimations of ‘likelihood of blood and now admit the results states ty’.” tests, only to exclude the typing not tissue father, on the alleged but also as evidence Indeed, Parentage 283. the Uniform Id. at alleged father paternity issue of where expressly provides for the admis- Act now Cleary, excluded. E. McCormick on is not paterni- statistical sion of the 621-22, (3d 1984). ed. Theorem, Evidence generated by Bayes the for- ty in the instant case: mula used expert jurisdictions, In most testimo- paternity may in- relating to “Evidence finding similarity, ny is not limited to a clude: signifi- or “nonexclusion”. Id. at 657. similarity types can-

cance of the of blood results, weighted in accord- test intelligently blood without not understood be evidence, available, if of the ance with frequency knowledge of the of that blood alleged fa- probability of statistical population. “Where type the relevant paternity.” ther’s population estimates of the fre- reasonable available, they not quencies are should be § Parentage 12. The Com- Act Uniform Typically, kept jury.” from the Id. at Par- to the Uniform missioners’ Comments cases, paternity experts report the fre- entage explain parent that when a Act incriminating quency of distribution of excluded, “paternity a index” is calcu- population. genetic markers in the relevant experts in turn lated which enables testimony is often charac- at 657. This If Id. paternity. calculate exclusion,” in “probability terized as or falls below exceeds 95% words, proportion of the relevant other 5%, produced “de facto the results have exclude population that the tests would Id. at 604. inclusions or exclusions.” findings the results or read: less the court excludes § Ind.Code Ann. 31-6-6.1-8 12. In added.) good (emphasis cause.” any party, "Upon the court shall motion for version, as amended in redes- parties The current to the action to under- order all of the grouping ignated go test or a Human the subsections as follows: either a blood (HLA) Leukocyte Antigen "(a) any party, Upon tissue test. The the motion of expert performed by qualified tests shall be approved parties order all of the to the court shall court, by and the results undergo testing. The tests blood action (emphasis may be received in evidence." tests by qualified expert ap- performed shall added) proved by the court. amended, part, the statute was tests, (b) together The results of the expert’s the test results and the find- admit both ing. finding expert of the constitute conclusive finding if the results and exclude "(a) any party, Upon the motion of biological party father of the child. as the parties all of the to the court shall order finding are admissible in all The results testing. undergo antigen action to blood paternity proceedings, court ex- unless the by qualified expert performed shall be tests finding good cause. cludes the results or of the approved tests, the court. The results commentator, “the As observed at least one finding together with the statutory continuing reflect confi- amendments evidence if the results conclusive constitute King, validity testing.” dence in the of blood party biological finding as the exclude a Developments Survey in Indiana Recent finding the child. The results father of Law, 17 Ind.L.Rev. paternity proceedings, un- in all are admissible

137 upon the of frequency based occurrence of finder against equating probability the of incriminating Id.; see, characteristics. parentage with proven guilt. Blackman, Hausner v. Kan.App.2d 7 thorough preparation and cross-examina- 648 P.2d 249 aff'd, tion, 233 Kan. 662 case, as demonstrated in the instant 1183 P.2d are adequate opportunities for clarification. example, For probability if parent- of Thus, testimony regarding probabili- 99%, age is a full popula- relevant 1% exclusion, ty more, of without has been tion, every or 1 out persons of 100 tested incomplete viewed as misleading. E. random, would also exhibit the incrimina- Cleary, supra at In 657-58. Hausner v. ting In characteristics. a popula- relevant Blackman, 253-54, 648 P.2d at for exam- 1,000,000 tion 10,000 of persons, persons ple, the jury finding court reversed a of would also have a of probability parentage paternity expert where an testified to of Again, 99%. based on the blood tests probability of 70% exclusion without calcu- alone, the defendant is no likely more than lating probability paternity. of In oth- any 10,000 of remaining persons to be words, er the series of tests run parent.13 short, the true In the defendant expert in designed Hausner were to ex- is explain entitled to he merely is one mem- falsely males; clude of accused 70% how- ber of relatively small population which ever, although the defendant was not ex- exhibits the incriminating genetic markers. the expert cluded to failed calculate the When explained manner, in this the fact probability paternity of his finder need further understand that individual results in derived the defend- probability parentage of does not con- ant’s case. Accordingly, although Kansas sider nonquantitive evidence which the testimony regarding excludes probabili- jury together must prob- evaluate with the exclusion, ty Richardson, of v. Tice ability evidence. Kan.App.2d 644 P.2d 490 an expert permitted testify to to a agree Supreme We 99.96% of Court “plausibility” paternity. of Utah in jury’s ability its evaluation of the to probability testimony: evaluate this jurisdictions Several other have allowed “This higher opinion Court ... aof [has] testimony regarding probability pa jury’s ability weigh to the credibility of ternity. Carlyon Weeks, In 387 So.2d figures such properly presented when (Fla.Dist.Ct.App.1980), challenged, and type accord this of testimo- testify to allowed to a “plausibility pa ny weight Clay- it deserves.” State v. ternity” of In California 99.9%. and Mis ton, (Utah 1982). 646 P.2d at n. 1 A souri, experts were testify allowed presentation which finds this of this probabilities paternity 85.95% type conjunction with the 81.15%, respectively, although per these nonquantitive highly evidence to per- be centages were considered inconclusive. justified suasive is in its evaluation. County Marcus, Ventura v. 139 Cal. App.3d Cal.Rptr. (1983); Bayes State v. Theorem Williams, (Mo.Ct.App. 609 S.W.2d 456 Theorem, experts Both Bayes used 1980). object, assigning recognize the

We need for percentages caution the Davises’ admission evaluation of tes- parentage. Bayes The use of is Theorem timony. presentation of a percentage mathematically necessary to convert the representing parentage probabilities percentages. into Record at may deceptively calculations, attractive to the 558. their experts fact both Indeed, may finder. it equal be well within the assumed an chance the Davises or trial court’s caution couple parents. discretion to the fact another random were similarity Consequently, types of blood ence support at the scene of crime insufficient paternity the support as insufficient to a conviction for theft. finding paternity pres- as is mere equal assumption

The contend this im- and was as an Davises described chance properly ignored weight couple the of the other the Davises or a chosen at random parented Lucky.14 neutrality circumstantial non-test evidence and denied The Baby of them presumption the of innocence. this be substitution can demonstrated = (1) (99.98867) In follows: x 99.98867%. Bayes Theorem, The proba- function of words, application Bayes other of Theo- the bility the theory, is to show effect of a new tests, prior rem to the scientific previously item of evidence on a estab- 50/50, probability of 1 or determined the probability. lished In this case the new exclusively upon the probability based item and tissue was the blood tests. The assumption tests. com- The 50/50 was previously probability established pletely neutral. parentage probability of their based on other non-test evidence without benefit argument The Davises’ therefore defeats Theoretically, Bayes of the tests. scientific they They itself. contend if had in- been permits Theorem calcula- mathematical Baby Lucky’s time of carcerated at probability par- tion of the of the Davises’ abandonment, birth and calculations entage Lucky Baby upon based all the of employed by experts ig- would have Baby Lucky known about information probabili- nored and therefore the this fact the Davises. generated by Bayes ties Theorem would high still have been nineties due to Simplified, the theorem reduces to the assumption. the inclusion of the 50/50 multiplication probability of the of the Da- generated prior probability parentage vises’ on the based circumstan- by these facts and hypothetical theoretical- (“prior probability”) tial non-test evidence ly employed by fact finder would have of the parent- times the likelihood Davises’ approached zero. A substitution of this (“likeli-. age on the scientific tests based finder probability by the fact would have ratio”). product hood of these two yielded probability parentage of of total represents probability the total factors of (PROBABILITY X BASED UPON 0%: parentage Baby Lucky of = ONLY) BLOOD PROBABILI- TESTS 0% based the evidence This on all available. PARENTAGE; (99.98867) X TY OF or simplification may expressed as follows: = words, In the blood other test evi- 0%. (PROBABILITY BASED NON- UPON impact no dence would have had the fact EVIDENCE) (PROBABILITY X TEST finder. BASED UPON SCIENTIFIC TESTS = ONLY) TOTAL PROBABILITY OF reject the Davises’ We invitation product expressed PARENTAGE. is prior require experts prob to include a case, percentile In the form. instant ability upon a consideration based of prosecution’s experts and the defendant’s circumstantial non-test evidence available probability parentage arrived at a total of parentage Baby concerning the Davises’ respectively. and 99.% 99.98867% Lucky. function of the finder It is the fact respective arriving percent- prior probability In at their to determine the ages, parentage upon Davises’ experts were restricted to a based non-test both only. Any expert the test evidence introduced at trial. consideration of Theorem, prior experts probability determination this employ order jury. function of the probability a neutral would invade the It therefore substituted i.e., variable, properly a function the fact probability remained prior prior prob finder to determine the Davises’ probability non-test evidence. ability and, ultimately, total probability employed precise parentage. “50/50”, to a reduces factor "always” Moreover, assumption dard used ex- 14. as stated Davises' own witness, pert assumption equal Cleary, supra note 8 the initial calculations. E. n. given probabilities parentage any between couple remaining population a stan- and the Probability Exclusion Mary Mary alleges the evidence was insuffi- experts

Similarly, represented both cient to demonstrate she was the mother of par the calculations as the Baby Lucky and therefore she was not entage rather than the of exclu care, shown to have “the custody con- sion. The testimony Davises cite to no Baby Lucky. trol” of See Ind.Code Ann. authority impeaches which the character § 35-46-l-4(a). reviewing sufficiency ization of the “probability results as the questions we do not reweigh the evidence parentage.”15 Further, the evidence was judge credibility of witnesses. Rath- couples all that shared Baby Lucky’s who er only we consider the evidence most fa- blood and tissue characteristics would have vorable to the State to determine whether equal probability parentage. an there was probative substantial evidence of support value to the conviction. Smith v. Foundation State, 408 (Ind.App.1980). N.E.2d 614 Lastly, we reject the challenge bar, In the case at the evidence community’s acceptance scientific of most favorable to the Baby State reveals probability calculations par- Lucky where neither 3rd, born August was on 1982 and ent is Although Conneally known. testi- was few hours old when he was found at approximately p.m. fied this was the first occasion on 12:30 on that date. he Mary physical underwent a probabilities calculated such examination on a criminal 11, 1982, August eight days case, Baby after he had made such “many calculations Lucky was born. The examining witness times non-criminal cases for research.” physician Mary testified an exhibited en specifically Record at 433. He denied such larged pendulous uterus and breasts with a parent calculations where neither was milky discharge among other indications of experimental protocol. known was an As pregnancy. Although recent Mary expert testified, the Davises own the same experienced claimed she had “flooding” or method of typically calculation was used miscarriage night 2d, on of August colleagues in kidnapping immigration and examining physician concluded Although cases. neither had been Mary’s condition was consistent with the previously called compute parent- delivery recent of a “close full-term” probabilities age parent where neither was baby one to three Although weeks earlier. known, the method of calculation was dem- Mary pills, testified she took birth control generally onstrated to accepted by be prescription Septem she filled one on Kuo, community. See, e.g., Link- scientific 11, 1981, 11 ber Baby months Lucky before ing Missing a Bloodstain to a Person was born. Sciences, Inheritance, J. Forensic Genetic Mary Several witnesses testified suf- (1982). The trial court did not err in ad- legs fered from swollen and ankles and mitting the evidence. appeared pregnant days in the immediately preceding months Baby IV. SUFFICIENCY Lucky’s Mary birth. Co-workers testified appeared very pale but much slimmer when Mary allege Both Reed and the evidence appeared she for work late in the afternoon insufficient to sustain their was convic- August 3rd. find the tions. We evidence sufficient to Mary’s but sustain conviction insufficient proba- Blood tests indicated a 99.98867% bility Mary to convict Reed. parents Reed and were the recognize probabilities capable properly explained adequately 15. We' were was to the phrasing. example, indicated, of alternative probability For jury through expert testimony, 99% as parentage also indicates 1% of the weight, and affected rather than the admissi- population, couples, (cid:127) or 1 out of 100 could have bility, of the calculations. parented Baby Lucky. This alternative view Lucky. Baby at work at 6:08 a.m. and clocked out 5:40 H.L.A. results revealed Baby Lucky Tyson, p.m. both the Davises’ He took his lunch to and was work son, young typing. throughout had identical H.L.A. workplace at his observed testimony essentially Expert indicated day. We must therefore reverse Reed’s people types no two exhibit identical H.L.A. for insufficient evidence. conviction they closely unless related such Judgment Mary respect affirmed with brother sister. We find respect with to Reed. and reversed support finding Mary sufficient to Baby Lucky’s mother. BUCHANAN, C.J., concurs. Mary alleges also the evidence was SULLIVAN, J., concurs, separate she insufficient to demonstrate abandoned opinion. Lucky placed Baby in a situation that endangered Baby Lucky health. SULLIVAN, concurring. Judge, just a he born “few hours” before fully majority opinion I concur in the as p.m. p.m. on found between 12:30 and 1:00 However, I through to II disa Issues IV. August 3rd. The uncontroverted evidence I gree with the under Issue that conclusion alone, accompa Mary was home indicates prohibited challeng the Davises are from only by Tyson, son nied her between 35-46-1-4(a). ing the of I.C. overbreadth day p.m. a.m. and on the hours 5:30 3:30 any person as statute overbroad to Lucky shortly Baby Sometime was born. is, therefore, prosecuted under it. It over- birth, Baby Lucky left alone after say that broad as to Davises. To gravel country road the side a deserted may not assert overbreadth passersby. The evidence out of view actually alleged their conduct en because Lucky Mary’s Baby control sole over dangered beg question. the child is to a that she supports reasonable inference remains does not The fact statute placed him or him a situation abandoned endangers, prohibit actually conduct which must endangered his health. We interpretation unless an more restrictive Mary's affirm conviction. therefore language suggest is taken. than would Reed Furthermore, vague the statute is so as similarly provide guidelines with no

The evidence is suffi to law officers Lucky’s my Baby to conclude Reed' was standards for its enforcement. cient or § view, ordinarily Ind.Code this constitute a fa- father. 35-46-1-4 would endangerment (1983) or requires the abandon 461 tal defect. Kolender v. Lawson knowing 1855, 903; inten ment to have been either L.Ed.2d U.S. 103 S.Ct. Although parent possess need tional. People Berck 32 N.Y.2d v. neglect, to commit he or specific intent N.Y.S.2d N.E.2d 411. at a minimum “aware of facts she must defect, however, is not fatal this parent under that would alert reasonable instance. As indicated Kolender v. ac circumstances take affirmative Lawson, may place supra, state courts State, protect the child.” Smith v. tion limiting construction an otherwise . 621 408 N.E.2d at preserve overbroad statute and thus its constitutionality. It is therefore within our assuming

Even Reed was aware I prerogative evi and would exercise it con pregnancy, the uncontradicted Mary’s 35-46-1-4(a) workplace “may” word at his when strue the I.C. placed Reed dence born, abandoned, likely to mean “is to.” Corn Products Baby Lucky was twenty v. 324 U.S. workplace Refining was a Co. F.T.C. found.16 Reed’s He S.Ct. 89 L.Ed. 1320. As so con- clocked minute drive from home. Support opinion Code is defined in express § whether Reed’s Ann. 35-46-1-5. 16. We no (Burns Supp.1984) Baby § Ind.Code Ann. Lucky was found constitut- 35-46-1-1 after conduct "food, clothing, Dependent Nonsupport Ind. shelter medical care.” of a Child under ed strued, gains requisite the statute defi- properly subjects

niteness and the defend- prosecution

ants here the acts

charged.

Subject qualification, this I concur.

INDIANA-KENTUCKY ELECTRIC

CORPORATION, Appellant

(Plaintiff Below), GREEN and

Robert E. Green Construc- Indiana, Inc., Appellees

tion of

(Defendants Below).

No. 1-1183A364. Indiana, Appeals

Court District.

First

April May 8, 1985.

Rehearing Denied

Case Details

Case Name: Davis v. State

Court Name: Indiana Court of Appeals

Date Published: Mar 28, 1985

Citation: 476 N.E.2d 127

Docket Number: 2-1083A356

Court Abbreviation: Ind. Ct. App.