Robert Coleman v. State of Indiana

FILED
Jun 30 2020, 6:11 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth Johnson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Ian McLean
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Coleman, June 30, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2336
v. Appeal from the Sullivan Superior
Court
State of Indiana, The Honorable Hugh Hunt, Judge
Appellee-Plaintiff. Trial Court Cause No.
77D01-1810-F6-771
Pyle, Judge.
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Statement of the Case
[1] Robert Coleman (“Coleman”) was charged with Level 6 felony battery1 based
on his act of placing bodily fluid on a public safety official when he spit on a
correctional officer at the prison where he was an inmate. A jury convicted
Coleman of the offense, and he now appeals his conviction. He argues that,
because the term “bodily fluid” is undefined in the battery statute, the battery
statute was unconstitutionally vague and denied him due process. At the trial
court level, Coleman used the lack of statutory definition as a defense theory to
argue to the jury that the evidence was insufficient. Coleman, however, neither
filed a motion to dismiss the charge against him nor otherwise raised a
constitutional vagueness or due process challenge to the trial court. As a result,
he has waived any such challenges on appeal. Waiver notwithstanding, we
conclude that Coleman has failed to show that the statute was
unconstitutionally vague and that he was not denied due process. Accordingly,
we affirm his conviction.
[2] We affirm.
1
IND. CODE § 35-42-2-1. We note that our legislature amended the battery statute during the 2020 legislative
session. The amended statute, which has an effective date of July 1, 2020, does not affect our analysis in this
appeal.
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Issue
Whether the lack of a statutory definition of the term “bodily
fluid” in the battery statute subjected Coleman to an
unconstitutionally vague statute and denied him due process.
Facts
[3] On September 24, 2018, Coleman was an inmate at the Wabash Valley
Correctional Facility (“WVCF”), serving his sentence for his 2017 convictions
of conspiracy to commit armed robbery and false identity statement.
Correctional Officers Dalton Rhinehart (“Officer Rhinehart”) and Cole Banta
(Officer Banta”) were on duty at the prison that day. Coleman was housed in a
secured housing unit of WVCF and was in a cell by himself. Inmates who are
in the secured housing unit are required to remain in their cells all day except
for taking a shower or having one hour of recreation per day. Unlike the
general population cell doors, which contained a window, the secured housing
unit cell doors are “honeycombed,” containing “a lot of small holes all over
them.” (Tr. Vol. 2 at 61). The secure housing cell door also contains a “cuff
port” that “has a locking mechanism on it that [is] turn[ed] with a key and
when [it is] unlock[ed] . . . , it pulls out to be served a meal or . . . to apply
restraints.” (Tr. Vol. 2 at 61-62). The cuff port, otherwise, remains secured by
being closed and locked.
[4] As Officer Banta was picking up a dinner tray from Coleman through the cuff
port, Coleman took “the cuff port hostage” by sticking his arm in the cuff port
and not allowing Officer Banta to secure it. (Tr. Vol. 2 at 90). Officer Banta
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instructed Coleman to remove his arm, and Coleman told Officer Banta that he
wanted to speak with Officer Rhinehart. When Officer Rhinehart arrived at
Coleman’s cell, Coleman put his arm inside his cell, thereby allowing Officer
Banta to secure the cuff port. Officer Rhinehart asked Coleman, “what’s going
on?” and Coleman “hocked a loogie” and “spit through the door[.]” (Tr. Vol. 2
at 64, 90, 102). Officer Banta saw “some fluid come out through th[e]
perforations [of Coleman’s cell door] and hit Officer Rhinehart in the face.”
(Tr. Vol. 2 at 90). After Officer Rhinehart felt the “warm and thick and bubbly”
fluid on his face, he went to the control room where photographs were taken of
his face, showing saliva on the officer’s eyebrow, forehead, temple, and bridge
of his nose. (Tr. Vol. 2 at 64).
[5] The State charged Coleman with Level 6 felony battery by bodily fluid or waste
against a public safety official. Specifically, the State alleged that Coleman
knowingly or intentionally, in a rude, insolent, or angry manner placed “bodily
fluid” on Officer Rhinehart’s face when Coleman “spit” on the officer while he
was engaged in his official duties. (App. Vol. 2 at 18). Prior to trial, Coleman
neither filed a motion to dismiss the charge against him nor otherwise raised a
constitutional vagueness or due process challenge to the battery statute.
[6] On August 14, 2019, the trial court held a jury trial. Coleman had alternative
theories for his defense. During opening arguments, Coleman’s attorney stated
that the State would not be presenting any DNA evidence to prove that the
fluid on Officer Rhinehart’s face was saliva, and he suggested that it could have
been perspiration. His counsel also contended that, even if the fluid were
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saliva, the evidence would not be sufficient because: (1) the statute did not
define the term bodily fluid, suggesting that the legislature only meant the term
bodily fluid to apply only to fluids containing “communicable diseases” such
blood, urine, or feces and not saliva; (2) any saliva that Coleman may have
gotten on Officer Rhinehart was merely an accident; (3) a fellow prison inmate
would testify that he did not hear or see Coleman spit on Officer Rhinehart; and
(4) the prison did not take a “corrective action” against Coleman such as
putting up a plexiglass door or making him wear a mask. (Tr. Vol. 2 at 54).
[7] The State presented testimony from Officer Rhinehart and Officer Banta, who
testified to the facts of the offense as set forth above. Additionally, Officer
Rhinehart specifically testified that the fluid on his face was Coleman’s saliva
and not perspiration. The State also introduced, without objection, exhibits
that included the photographs of Officer Rhinehart’s face and a surveillance
video taken from the prison’s camera stationed near Coleman’s cell.
[8] Coleman presented testimony from a prison inmate, who was in the prison cell
next to Coleman’s cell and who testified that he did not see or hear Coleman
spit on Officer Rhinehart. Coleman also testified on his own behalf. Coleman
admitted that he had stuck his hand in the cuff port but denied that he had spit
on Officer Rhinehart. He also testified that he had been angry with Officer
Rhinehart for refusing his previous request to pass an envelope to another
inmate and that he “could have got [sic] some spit on [Officer Rhinehart]”
when he was “cursing” and “talking loud” at the officer. (Tr. Vol. 2 at 115).
Additionally, Coleman testified that he had been convicted of conspiracy to
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commit armed robbery and false identity statement in 2017, false informing in
2013, and robbery in 2011.
[9] During closing argument, Coleman’s counsel challenged the sufficiency of the
evidence in the case, arguing that the State had failed to establish that the liquid
on Officer Rhinehart was actually saliva instead of perspiration. His counsel
argued the State was attempting to prove the case “with very little or no
evidence” and that it should have DNA tested the liquid. (Tr. Vol. 2 at 123).
Coleman’s counsel also pointed out that the battery statute did not define the
term “bodily fluid” and that the statute should be applied only to “blood, urine,
feces; things that can cause infectious diseases.” (Tr. Vol. 2 at 123). Counsel
also argued that the statute was “overly broad” and told the jury that “it’s up to
you folks as to how you weigh this evidence and then look at the law and see if
it’s being fairly applied or . . . if it’s overly broad that means it’s
unconstitutional[.]” (Tr. Vol. 2 at 124, 127). The jury found Coleman guilty as
charged.
[10] During the September 2019 sentencing hearing, Coleman’s counsel asked to
make a “statement” in which he argued that the evidence was insufficient and
that “saliva does not qualify as bodily waste.” (Tr. Vol. 2 at 138). Counsel
argued that the statute was “overly broad” and “arbitrarily applied[,]” and he
opined that the statute was intended to apply to “blood and feces and urine;
bodily fluids such as that, to prevent infectious diseases.” (Tr. Vol. 2 at 138).
Additionally, Coleman’s counsel argued that the statute was “vague in that
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regard when it says bodily fluid, with saliva being included as one of the bodily
fluids[.]” (Tr. Vol. 2 at 138).
[11] The trial court imposed a two (2) year sentence at the Indiana Department of
Correction and ordered Coleman to serve it consecutively to the sentence he
had been serving. Coleman now appeals.
Decision
[12] Coleman challenges his Level 6 felony battery conviction, arguing that, because
the term “bodily fluid” was not defined in the battery statute, the battery statute
was unconstitutionally vague and denied him due process. In response, the
State cites to INDIANA CODE § 35-34-1-42 and contends that Coleman has
waived these arguments because he failed to file a motion to dismiss the
charging information or to otherwise raise those arguments, before or during
trial, to the trial court for a ruling on such arguments. Coleman acknowledges
2
INDIANA CODE § 35-34-1-4 provides, in relevant part, that:
(a) The court may, upon motion of the defendant, dismiss the indictment or information upon
any of the following grounds:
*****
(4) The indictment or information does not state the offense with sufficient certainty.
(5) The facts stated do not constitute an offense.
*****
(b) Except as otherwise provided, a motion under this section shall be made no later than:
(1) twenty (20) days if the defendant is charged with a felony; or . . .
prior to the omnibus date. A motion made thereafter may be summarily denied if based upon a
ground specified in subdivision (a)(1), (a)(2), (a)(3), (a)(4), or (a)(5) of this section. . . .
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that he did not raise the arguments at trial but argues that the constitutionality
of a statute may be raised at any stage of the proceeding, including on appeal.
[13] Our Indiana Supreme Court has held that “[g]enerally, the failure to file a
proper motion to dismiss raising the Constitutional challenge waives the issue
on appeal.” Payne v. State, 484 N.E.2d 16, 18 (Ind. 1985). See also Plank v.
Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013); Baumgartner v. State,
891 N.E.2d 1131, 1135 (Ind. Ct. App. 2008) (citing I.C. §§ 35-34-1-4 and -6).3
However, our supreme court has also held that “the constitutionality of a
statute may be raised at any stage of the proceeding including raising the issue
sua sponte by this Court.” Morse v. State, 593 N.E.2d 194, 197 (Ind. 1992)
(addressing a defendant’s challenge to the constitutionality of a statute even
though the issue was raised for the first time in a pro se motion filed with the
Court by a defendant who was represented by appellate counsel who did not
raise the issue in the appellant’s brief), reh’g denied. “Essentially, Morse stands for
the proposition that appellate courts are not prohibited from considering the
constitutionality of a statute even though the issue otherwise has been waived[,]
[a]nd indeed a reviewing court may exercise its discretion to review a
3
INDIANA CODE § 35-34-1-6 provides, in relevant part, that:
(a) An indictment or information is defective when:
(1) it does not substantially conform to the requirements of section 2(a) of this chapter;
*****
(3) the statute defining the offense charged is unconstitutional or otherwise invalid.
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constitutional claim on its own accord.” Plank, 981 N.E.2d at 53-54. See also
McBride v. State, 94 N.E.3d 703, 709-10 (Ind. Ct. App. 2018) (listing cases from
the Indiana Supreme Court and our Court in which constitutional challenges to
a statute were addressed despite the failure to file a motion to dismiss).
Accordingly, we will address the merits of Coleman’s arguments, waiver
notwithstanding.
[14] Although we will address Coleman’s arguments, we note that our decision to
do so does not equate to an endorsement of a defendant’s failure to file a
motion to dismiss when he has a constitutional challenge to a statute. Indeed,
we echo the prudent warning set forth by our Court in Tooley v. State: “We
caution that our decision to reach the merits is not an invitation to neglect to
file a motion to dismiss and then argue for the first time on appeal that the
statute is unconstitutional.” Tooley v. State, 911 N.E.2d 721, 723 n.3 (Ind. Ct.
App. 2009), trans. denied.
[15] The constitutionality of statutes is reviewed de novo. Conley v. State, 972 N.E.2d
864, 877 (Ind. 2012), reh’g denied. “Such review is ‘highly restrained’ and ‘very
deferential,’ beginning ‘with [a] presumption of constitutional validity, and
therefore the party challenging the statute labors under a heavy burden to show
that the statute is unconstitutional.’” Id. (quoting State v. Moss-Dwyer, 686
N.E.2d 109, 110 (Ind. 1997)). “[I]f a statute has two reasonable interpretations,
one constitutional and the other not, we will choose the interpretation that will
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uphold the constitutionality of the statute.” Morgan v. State, 22 N.E.3d 570,
573-74 (Ind. 2014) (internal quotation marks and citations omitted).
[16] “A fundamental aspect of our nation’s jurisprudence is that criminal statutes
must give a person of ordinary intelligence fair notice that his contemplated
conduct is forbidden so that no man shall be held criminally responsible for
conduct which he could not reasonably understand to be proscribed.” Lock v.
State, 971 N.E.2d 71, 74 (Ind. 2012) (internal quotation marks and citations
omitted). “[D]ue process requires that a penal statute clearly define its
prohibitions.” Id. (internal quotation marks and citations omitted).
[17] “A criminal statute can be found unconstitutionally vague: (1) for failing to
provide notice enabling ordinary people to understand the conduct that it
prohibits[;] or (2) for the possibility that it authorizes or encourages arbitrary or
discriminatory enforcement.” Morgan, 22 N.E.3d at 573 (internal quotation
marks and citations omitted). Here, Coleman does not argue that there was
arbitrary enforcement; instead, he argues that the statute did not provide him
with “notice that his conduct was criminally proscribed.” (Coleman’s Br. 12).
A statute, however, “need only inform the individual of the generally
proscribed conduct; it need not list with exactitude each item of prohibited
conduct.” Baumgartner, 891 N.E.2d at 1136. “A statute will not be held to be
unconstitutionally vague if individuals of ordinary intelligence would
comprehend it adequately to inform them of the proscribed conduct.” Id. “[A]
statute is void for vagueness only if it is vague as applied to the precise
circumstances of the present case.” Id. Additionally, a “defendant is not at
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liberty to devise hypothetical situations which might demonstrate vagueness.”
Id.
[18] Turning to the facts and circumstances of the present case, Coleman challenges
the constitutionality and the due process implications of the battery statute,
INDIANA CODE § 35-42-2-1, which provides, 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.
*****
(e) The offense described in subsection (c)(1) or (c)(2) is a Level 6
felony if one (1) or more of the following apply:
*****
(2) The offense is committed against a public safety official
while the official is engaged in the official’s official duty.
IND. CODE § 35-42-2-1 (emphasis added). To convict Coleman for battery as
charged, the State was required to establish beyond a reasonable doubt that
Coleman knowingly or intentionally, in a rude, insolent, or angry manner,
placed bodily fluid on Officer Rhinehart when he spat on him.
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[19] We first address Coleman’s constitutional vagueness challenge. Coleman
generally argues that “[w]ithout a statutory definition that specifically includes
saliva as a bodily fluid, [he] was not on notice that his conduct was criminally
proscribed, thus the statute is unconstitutionally vague as applied to [him.]”
(Coleman’s Br. 12). He asserts that bodily fluid “could include many things
such as tears or mucus, and reasonable minds can differ as to whether saliva is a
‘bodily fluid.’” (Coleman’s Br. 12).
[20] First and foremost, we reject Coleman’s argument that the battery statute is
unconstitutionally vague because it does not define saliva as a bodily fluid.
“[A] criminal statute does not need to provide an express or explicit list of
prohibited conduct with scientific precision, however much we might think it
helpful.” Lock, 971 N.E.2d at 75. Indeed, “[c]ondemned to the use of words,
we can never expect mathematical certainty from our language.” Id. (quotation
marks and citation omitted).
[21] Additionally, we reject Coleman’s suggestion that the battery statute is vague
because other fluids, which are not at issue in this case, may be included as a
bodily fluid. Coleman “is not at liberty to devise hypothetical situations which
might demonstrate vagueness.” Baumgartner, 891 N.E.2d at 1136. Instead, we
focus on the precise circumstances of the present case and whether a person of
ordinary intelligence would comprehend the battery statute to adequately
inform him/her that spitting, or placing saliva, on another person’s face was
included in the proscribed conduct. Because our analysis centers on how an
ordinary person would interpret the statute, we turn to standard language
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dictionaries definitions of bodily fluid. See Lock, 971 N.E.2d at 75. These
dictionary definitions make clear that saliva is a bodily fluid.4 Thus, a person of
ordinary intelligence would, from the phrase “bodily fluid” as used in the
battery statute, know that spitting or placing saliva, on another person’s face
was included in the proscribed conduct of placing bodily fluid on another
person. Accordingly, Coleman’s argument that the battery statute is
unconstitutionally vague fails. See, e.g., Tooley, 911 N.E.2d at 723 (rejecting the
defendant’s argument that undefined terms in a statute rendered the statute
unconstitutionally vague); Boyd v. State, 889 N.E.2d 321, 325 (Ind. Ct. App.
2008) (rejecting the defendant’s claim that domestic battery statute was
unconstitutionally vague), trans. denied.
[22] Next, we turn to Coleman’s due process argument. Coleman contends that he
was denied due process because the legislature’s failure to specifically define
saliva as being a “bodily fluid” resulted in a conviction based upon less than
proof beyond a reasonable doubt and insufficient evidence. Coleman has
abandoned his argument raised below to the jury, asserting that bodily fluid
should apply only to blood, feces, urine, or any bodily fluids that may pass
4
See, e.g., Cambridge Dictionary online, https://dictionary.cambridge.org/us/dictionary/english/bodily
(last visited June 17, 2020) [https://perma.cc/CP68-D9Z6] (defining “bodily” as “relating to the human
body” and giving a context example of “bodily fluids (= blood, saliva, etc.)”); American Heritage Dictionary
of the English Language online, https://ahdictionary.com/word/search.html?q=body+fluid (last visited
June 17, 2020) [https://perma.cc/2JHV-32X9] (defining “body fluid” as “[a] natural bodily fluid or secretion
of fluid such as blood, semen, or saliva”); Merriam Webster Dictionary online, https://www.merriam-
webster.com/medical/body%20fluid (last visited June 17, 2020) [https://perma.cc/PE8Q-VEND] (defining
“body fluid” as “a fluid or fluid secretion (such as blood, lymph, saliva, semen, or urine) of the body”).
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infectious diseases.5 Instead, Coleman contends that the term “bodily fluid” is
ambiguous. Coleman points out that—for purposes of INDIANA CODE § 35-45-
16-2, the malicious mischief with food statute—the legislature defined “body
fluid” as including saliva.6 He asserts that “[i]t would have been simple for the
legislature to include a definition of bodily fluid in the battery statute” and that
the legislature’s failure to do so “allow[ed] the jury discretion to determine that
saliva is a bodily fluid.” (Coleman’s Br. 10). As a result, Coleman asserts that
he was denied due process because the asserted ambiguity in the battery statute
allowed the jury to convict him based upon less than proof beyond a reasonable
doubt.
[23] Again, we reject Coleman’s argument regarding the lack of definition of bodily
fluid. See Lock, 971 N.E.2d at 75 (“[A] criminal statute does not need to
provide an express or explicit list of prohibited conduct with scientific precision,
however much we might think it helpful.”). Furthermore, Coleman’s argument
is essentially attacking the sufficiency of the evidence to support his conviction,
and we will review it as such.
[24] “When reviewing the sufficiency of the evidence to support a conviction,
appellate courts must consider only the probative evidence and reasonable
5
We note that the battery statute addresses battery that involves diseases. See I.C. §§ 35-42-2-1(f),(h)
(discussing battery involving hepatitis, tuberculosis, or human immunodeficiency virus).
6
INDIANA CODE § 35-45-16-2 defines “body fluid” as blood, saliva, sputum, semen, vaginal secretions,
human milk, urine, sweat, tears, any other liquid produced by the body, or any aerosol generated form of
liquids listed.
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inferences supporting the verdict[,]” and we will neither assess witness credibility
nor reweigh the evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)
(internal quotation marks and citation omitted) (emphasis in original). We will
affirm a conviction “unless no reasonable factfinder could find the elements of
the crime proved beyond a reasonable doubt.” Id. (internal quotation marks
and citation omitted). Additionally, our Indiana Supreme Court has explained
that “when determining whether the elements of an offense are proven beyond
a reasonable doubt, a fact-finder may consider both the evidence and the resulting
reasonable inferences.” Thang v. State, 10 N.E.3d 1256, 1260 (Ind. 2014)
(emphasis in original).
[25] Here, the evidence showed that when Officer Rhinehart went to see Coleman at
his secured housing cell door, Coleman “hocked a loogie” and “spit through the
door[.]” (Tr. Vol. 2 at 64, 90, 102). Officer Banta saw “some fluid come out
through th[e] perforations [of Coleman’s cell door] and hit Officer Rhinehart in
the face.” (Tr. Vol. 2 at 90). After Officer Rhinehart felt the “warm and thick
and bubbly” fluid on his face, he went to the control room where photographs
were taken of his face, showing saliva on the officer’s eyebrow, forehead,
temple, and bridge of his nose. (Tr. Vol. 2 at 64). Additionally, the jury was
specifically instructed that the State had the “strict and heavy” burden to prove
the elements of the battery offense beyond a reasonable doubt and that the jury
could find Coleman guilty only if the State had met that burden. (Tr. Vol. 2 at
130; App. Vol. 2 at 127). Thus, the jury did not apply less proof than beyond a
reasonable doubt, and Coleman was not denied due process.
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[26] The jury, as finder of fact, determined that the State had met its burden of
proving beyond a reasonable doubt that Coleman knowingly or intentionally
placed bodily fluid on Officer Rhinehart in a rude, insolent, or angry manner
when he spat on him. Coleman argued to the jury that the fluid may have been
perspiration instead of saliva, that saliva was not a bodily fluid, and that he
never intentionally spat on the officer; but the jury, by its verdict, rejected his
arguments. Coleman’s argument is simply a request to reweigh the evidence
and reassess the trial court’s credibility determination, which we will not do.
See Drane, 867 N.E.2d at 146. Accordingly, we affirm Coleman’s battery
conviction. See, e.g., Warr v. State, 877 N.E.2d 817, 824 (Ind. Ct. App. 2007)
(affirming a defendant’s battery conviction where—based on the evidence that
the defendant “spat” on an officer’s face—“the jury could conclude that [the
defendant] knowingly placed a body fluid on a law enforcement officer in a
rude, insolent, or angry manner while the officer was engaged in the
performance of official duties”), trans. denied.
[27] Affirmed.
May, J., and Crone, J., concur.
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