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As described by Indiana Statute 35-46-1-5(a) non Support of a Dependent Child is a Class D Felony and states "Anyone who knowingly or intentionally fails to provide support to a dependent child commits non-support of a dependent, a Class D felony."
This statute immediately follows I.C. 35-46-1-4 Neglect of a dependent which reads (a) 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; (2) abandons or cruelly confines the dependent; (3) deprives the dependent of necessary support; or (4) deprives the dependent of education as required by law; commits neglect of a dependent, a Class D felony.
The difference in the two statutes is the inclusion of the word "necessary". Neglect is a stricter interpretation of non support requiring the burden to prove that the dependent was actually deprived of support that resulted in actual harm such as a diet without sufficient calcium that resulted in brittle bones and a bone fracture. Under non-support the prosecutor would only need to prove the child went without food and was discomforted or was underweight because of it but had not suffered actual harm.
Thus, the legislature included the statute of 'non-support' for a continuing lack of support that was a detriment to the child but could not meet the tougher standard required by 'Neglect'. Married couples without support payment orders can be charged under this statute.
Unscrupulous prosecutors use this charge to target the parent, primarily fathers, who have a child support payment arrearage. These prosecutors seek to harm a child through their misapplication of the statute to include child support payments. To settle this we must look to the case law by the Indiana Court of Appeals and the Indiana Supreme Court.
The Indiana Court of Appeals in Rzeszutek v Beck, 649 N.E. 2d 673, 678 (Ind. Ct App. 1995) [citing Miller v Walker, 642 N.E. 2d 1000, 1001-2 (Ind Ct. App. 1994)] stated "[W]hen a statute is clear and unambiguous on its face, this court need not, and indeed may not, interpret the statute. Instead we must hold the statute to its clear and plain meaning." The same Court went further in Ware v State 441 N.E.2d 20 (1983) when it held that when the legislature provides a definition of a word, courts are bound by it regardless of other possible meanings attributed to the word.
The Indiana Court of Appeals also stated in Boss v Indiana "In construing a statute, our objective is to determine and give effect to legislative intent. Millian v. State, 646 N.E.2d 998, 1001 (Ind. Ct. App. 1995). Because the statute here imposes criminal penalties, the State may only prevail if the plain language of the statute is clear. State v. Moore, 688 N.E.2d 917, 918 (Ind. Ct. App. 1997). Ambiguities must be resolved in favor of the criminal defendant. Id."
There have been many appeals citing that the language of this statute is ambiguous as to what the meaning of support is. The court has addressed ambiguity and definitions of words this way. If there is an ambiguity, we turn to rules of statutory construction to aid in our determination of the legislative intent.
Undefined words in a statute are given their plain, ordinary and usual meaning. {I.C. § 1-1-4-1(c)}. Courts may consult English language dictionaries to ascertain the plain and ordinary meaning of a statutory term. State Bd. of Accounts v. Indiana University Found., 647 N.E.2d 342, 347 (Ind.Ct.App.1995), trans. denied.
The meaning of doubtful words may also be determined by reference to their relationship with other associated words and phrases. The canon of construction known as noscitur a sociis provides that the meaning of a doubtful word may be ascertained by reference to the meaning of other words associated with it. Lincoln Nat'l Bank v. Review Bd. of Indiana Employment Sec. Div., 446 N.E.2d 1337, 1338-39 (Ind.Ct.App.1983). This maxim means "it is known from its associates" and in practical application means that a word may be defined by an accompanying word, and ordinarily the coupling of words denotes an intention that they should be understood in the same general sense. State v. D.M.Z., 674 N.E.2d at 588.
I.C. 35-46-1-1 defines 'support' as "food, clothing, shelter, or medical care" So there is no ambiguity or lack of definition in this statute and it is only incompetent lawyers or those who collude with prosecutors who do not seek to dismiss based upon this definition.
Thus, from a plain reading the charge then states, "Anyone who knowingly or intentionally fails to provide food, clothing, shelter, or medical care to a dependent child commits non-support of a dependent, a Class D felony." Nowhere there is payment of child support to an ex-spouse or other parent mentioned. If the Charging Information cites that code then only evidence relating to actual food, clothing, shelter, or medical care can be introduced.
The prosecutor has broad discretion in determining what crimes to prosecute and what penalties to seek. Conner v. State, 580 N.E.2d 214, 218 (Ind. 1991), cert. denied, 503 U.S. 946, 112 S. Ct. 1501, 17 L. Ed. 2d 640 (1992). The legislature's continued placement of such discretion with the prosecutor does not render the statute unconstitutional. Id. (death penalty statute is not rendered unconstitutional because prosecutor has discretion to decide when to request such penalty).
A statute will not be found unconstitutionally vague if individuals of ordinary intelligence would comprehend it to adequately inform them of the prohibited conduct. Mallory v. State, 563 N.E.2d 640, 644 (Ind. Ct. App. 1990), trans. denied (1991). Furthermore, the statute need only inform the individual of the generally prohibited conduct. Id. A statute is void for vagueness only if it is vague as applied to the precise circumstances of a case, and the fact that the legislature could have provided clearer or more precise language does not render the statute necessarily vague. Id. If a statute can be construed to support its constitutionality, such construction must be adopted. State v. Land, 688 N.E.2d 1307, 1311 (Ind. Ct. App. 1997), trans. denied. Here, the statute clearly informs defendants that criminal penalties can be attached for failure to support (provide food, clothing, shelter or medical care) ones children. This statute is not unconstitutionally vague.
The prosecutor may argue, and is likely interpreting the statute as applying to child support payments. As you have just read it is a crime to withhold adequate food, clothing, shelter and medical care from your child. You also read that "Ambiguities must be resolved in favor of the criminal defendant" State v. Moore, 688 N.E.2d 917, 918 (Ind. Ct. App. 1997). If the prosecutor presents the statute as ambiguous arguing it could mean money used to buy those items then it must be resolved in the defendants favor and that it can only have the strict interpretation of providing those items not money.
If the charging information does not allege an actual failure to provide those four defined means of support then it fails to bring the action within the scope of the statute and is deficient. Only those cases that are clearly within its meaning and intention can be brought within the statute. State v. McGill, 622 N.E.2d 239 (Ind. Ct. App.1993).
First, you will need to file an Indiana Rules of Evidence (IRE) 404(B) Motion. This Motion directed to the Prosecutor ask that s/he disclose any intention to offer into evidence any "other crimes, wrongs, or acts" perpetrated by the defendant for the purpose of showing motive, intent, etc.
The prosecutor most likely, incorrectly, feels that the statute you are charged with applies to civil orders of child support payments. It does not as you have read above. Most likely the prosecutor will see no reason to disclose the evidence from the civil order. Once the deadline passes to submit 404(B) acts you will move on to the next Motion. Any prior civil contempt should be considered an "other wrong or act" for purposes of 404(B).
A Motion in Limine is a motion to exclude specific evidence. The prosecutor will attempt to mislead the jury with child support orders and testimony. To prevent this confusion from being presented you will need to file a Motion in Limine. For this cause cite IRE402 and ask 'to exclude all documents from [cause number of civil case] related to financial support arrearage, however named, and testimony by any prosecution witness related to such documents from admission into evidence or consideration by the court, and, in support of this Motion in Limine, adopts the accompanying memorandum in support of defendant Motion in Limine".
The memorandum should state the specifics from the prosecutors pre-trial discovery responses naming documents and witnesses. Also, cite the two statutes quoted above and Rzeszutek v Beck and Ware v State.
It is important to remember that to preserve an issue for appeal, if needed, you must file a "Motion to reconsider" within 10 days after any adverse ruling on a Motion.
Do not be intimidated by a prosecutor or his interpretation of the statute. The Indiana Court of Appeals has spoken on this issue quite clearly. It must be shown that the defendant failed to provide "food, clothing, shelter or medical care" to support the charge. In the case of the enhancement to a Class C felony for an amount of $15,000 or greater then the aggregate amount of food, clothing, shelter or medical care must have exceeded that amount.
Stuart Showalter successfully fought this charge arguing that the State presented no prima facia evidence that he ever failed to provide "food, clothing, shelter or medical care" to his dependent child. The case (06C01-0502-FD-0016) was dismissed on 05 February 2007.
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