Appeal from the Delaware Circuit Court, No. 18C05-1103-CM-01. The Honorable Thomas Cannon, Judge.
On Petition to Transfer from the Indiana Court of Appeals, No. 18A02-1204-CR-331.
ATTORNEYS FOR APPELLANT: Scott E. Shockley, James R. Williams, Muncie, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Ian A.T. McLean, Deputy Attorney General, Indianapolis, Indiana.
David, Justice. Massa and Rush, JJ., concur. Rucker, J., dissents with separate opinion in which Dickson, C.J., concurs.
The Indiana Code requires certain school officials to immediately report instances of suspected child abuse occurring within their institutions to the Department of Child Services or law enforcement. Here, a high school principal was convicted for failing to comply with this requirement after a student at his school told him she had been raped by a fellow student, and he did not notify the police or the Department of Child Services for four hours. We affirm.
Facts and Procedural History
G.G. was a sixteen-year-old student at Muncie Central High School. G.G. had previously been found to be a child in need of services and made a ward of the Madison County office of the Indiana Department of Child Services. She resided, by court order, at the Youth Opportunity Center in Muncie. The YOC served as G.G.'s custodial parent and provided care, room, and board to G.G. pursuant to a contract with DCS.
Between 12:20 and 12:25 p.m. on November 9, 2010, a fellow student brought G.G. to the office of Kathy McCord, the assistant principal at Muncie Central. G.G. told McCord that she had been raped (during lunch) by a fellow student, S.M., in a bathroom at the school. McCord immediately went to the office of Christopher Smith, then the principal at Muncie Central, and told him of the rape allegation.
Smith and McCord returned to McCord's office, where G.G. repeated the allegation. Smith contacted Trudy Anderson, the school nurse, at approximately 12:40, and also Jackie Samuels, the associate principal, informing them of the allegation and asking them to come to McCord's office. Anderson went into McCord's office to sit with G.G., and Smith, Samuels, and McCord went to Smith's office. Smith directed McCord to review the school's security footage to identify the whereabouts of the two students--a process that took McCord about an hour. Anderson sat with G.G. until McCord returned, and at some point during that time G.G. was directed to provide a handwritten statement of her allegation, which she did.
At the time, there were between three and five commissioned and sworn police officers on school grounds, serving as security officers. Samuels asked Smith if she should contact one of those officers, call the YOC, or find S.M. Smith directed her to call the YOC. Samuels spoke on the phone with Crystal Dunigan, a staff member at the YOC responsible for G.G.'s cottage, and informed her of the alleged rape. Dunigan asked Samuels to call back, because Dunigan needed to talk to other individuals at the YOC.
Sometime between 12:45 and 1:00, Smith called the administration for the Muncie Community School District and spoke to the director of secondary education, Joann McCowan. Smith was trying to reach Tim Heller, the assistant superintendent. Smith relayed G.G.'s allegation to McCowan, and said his question for Heller was whether a security officer should be present if S.M. was questioned. McCowan reached the district's director of human resources, Lon Sloan, who told her that Smith should have another administrator present, but did not need a security officer as they were not sure if it was a criminal matter or not. Both McCowan and Sloan were headed to Muncie Central later that afternoon for job interviews.
Samuels called Dunigan a second time, shortly before 1:00. Dunigan explained that the YOC would send a driver to take G.G. to the emergency room. The two also discussed G.G.'s credibility, including an incident earlier that year in which Anderson believed G.G. had faked a seizure, and an attendance issue in which G.G. lied about where she had been. After the conversation concluded, Samuels told Smith that the YOC was coming to take G.G. to the emergency room.
Smith then directed Samuels, at about 1:25, to go get S.M.--who had spent the intervening time finishing lunch and then attending a science class--and bring him to Smith's office. Smith asked the Muncie Central athletic director, Thomas Jarvis, to be a witness while he questioned S.M. Jarvis asked Smith if this should be a police matter instead, but Smith said that it was still a school matter.
Smith questioned S.M. about the allegation, but S.M. denied raping G.G. He was not asked to provide a written statement. The questioning last between fifteen and twenty minutes, and S.M. was then allowed to return to his class and--at the end of the school day--eventually went home.
After S.M. left, Smith asked Jarvis to search S.M.'s and G.G.'s lockers. S.M. indicated during the questioning that he
and G.G. had exchanged several notes, but that he had thrown them away; but Jarvis and Smith believed the letters would still be in the students' lockers. Jarvis contacted one of the school's security officers, Officer Mike Edwards of the Muncie Police, and asked him for assistance in the search. Jarvis did not, however, tell Officer Edwards that there had actually been an allegation of a rape occurring on school grounds--nor did anyone else at the school.
After completing the search, Officer Edwards continued his normal duties until 3:30, when he left the school for the day. Later that afternoon, Officer Edwards's supervisor with the police department informed him of the rape, and that it had occurred at Muncie Central. Officer Edwards immediately went to Ball Memorial. He served as the lead investigator briefly, before another officer--Detective George Hopper--assumed that function two days later.
Meanwhile, back at Muncie Central, Samuels, Smith, Sloan, and McCowan proceeded to conduct interviews with candidates for an open administrator position. The interviews lasted until after 4:00.
At the conclusion of the second interview, Sloan realized that Heller and the superintendent for the district, Dr. Eric King, still had not yet been notified of the alleged rape. With Sloan and McCowan in the room, Smith then called Heller. Smith explained to Heller that G.G. had reported that she had been raped, and that she was then at the hospital. Heller told Smith to contact DCS.
A little after 4:30, Sloan placed a call to the Indiana Child Abuse Hotline, operated by DCS. Smith then explained the circumstances of G.G.'s allegations to the hotline operator, who indicated that because S.M. was also sixteen, " this would be something I believe that we would probably refer to law enforcement," and that " this looks like something we are going to screen out on our end," but she would forward the report to her supervisors. (Joint Ex. 3 at 1, 6, 8.) Smith told the operator that he would contact law enforcement.
Smith then tried several times to contact the YOC to check on G.G., before finally getting ahold of Ross at the hospital, sometime between 4:30 and 4:50. The rape kit had not yet been completed at that time, and Smith asked Ross if the YOC intended to report the allegation, or if Muncie Central should do it. Ross replied that she assumed Muncie Central should make the report, as the rape occurred at the school.
Sloan then called the district's chief of security and operations, Brian Lipscomb, and asked--hypothetically--what Lipscomb's response would be if a student were sexually assaulted at school. Lipscomb responded that he would call the police. Sloan then informed Lipscomb of G.G.'s allegations, and that she was now at Ball Memorial. Lipscomb immediately went to the hospital, where he met with Officer Edwards, and Smith arrived there at about 5:30. Smith remained until about 6:10 and then left for a school board meeting, because he was recognizing several coaches and the volleyball team at the meeting. Lipscomb remained for about another thirty minutes--until G.G. was taken back to the YOC. At no point did Smith, Muncie Central, or the district ever directly contact the Muncie Police Department to report the rape.
On November 11, Detective Hopper began his investigation into the alleged rape. Six days into the investigation, S.M. admitted to raping G.G., and he was arrested
and later pleaded guilty. At a point, however, the investigation shifted focus to Smith; why he did not contact the police at all--or DCS sooner--after G.G. informed him of the rape, and why district officials were then claiming G.G. had recanted, been vague in her accusation, or somehow changed her story over the course of the day. Smith told police he assumed that notifying the YOC and getting G.G. to the hospital would take care of the police notification.
The State eventually charged Smith with failure report G.G.'s allegation to DCS or local law enforcement, a class B misdemeanor under Indiana's statutory scheme requiring school officials to report instances of child abuse. Ind. Code § 31-33-22-1(a) (2008). Smith filed a motion to dismiss the charges, claiming the State had inappropriately combined the reporting requirements of two statutes, and also arguing that the reporting statute was void for vagueness. The trial court denied Smith's motion and affirmed the constitutionality of the criminal provision, but amended the charging information to cure Smith's claim that the information inappropriately combined two statutory provisions. Smith was convicted following a bench trial, sentenced to 120 days in jail, all suspended to probation, ordered to serve one hundred hours of community service, and also ordered to pay a fine of one hundred dollars along with court and probation costs.
Smith appealed, claiming the evidence was insufficient to sustain his conviction and also reiterating his claim that the criminal statute was unconstitutionally vague. In a split opinion, the Court of Appeals reversed and vacated Smith's conviction.
Smith v. State, 982 N.E.2d 348, 363 (Ind.Ct.App. 2013).
Without needing to reach the question of the statute's constitutionality, the majority concluded that the State failed to present sufficient evidence that Smith had reason to believe G.G. had been a victim of child abuse as required by the reporting statute, because neither he nor his fellow administrators believed that a student-on-student rape was child abuse as defined by the Indiana Code, and it also interpreted the statutory scheme to permit a reasonable investigation made in good faith. Id. at 362-63. Judge Vaidik dissented, believing that the majority's interpretation of the reporting requirements to first allow a reasonable investigation undermined the purpose behind the statutory scheme and might operate to discourage, rather than encourage, the reporting of child abuse. Id. at 363-66 (Vaidik, J., dissenting).
We granted transfer, thereby vacating the Court of Appeals opinion.
Smith v. State, 987 N.E.2d 70 (Ind. 2013) (table); Ind. Appellate Rule 58(A).
Criminal Liability Under Indiana's Child Abuse Reporting Statutes
Indiana Code article 31-33 contains a statutory structure to govern the reporting and investigation of child abuse and neglect. The structure's purpose is to:
(1) encourage effective reporting of suspected or known incidents of child abuse or neglect;
(2) provide effective child services to quickly investigate reports of child abuse or neglect;
(3) provide protection for an abused or a neglected child from further abuse or neglect;
(4) provide rehabilitative services for an abused or a neglected child and the child's parent, guardian, or custodian; and
(5) establish a centralized statewide child abuse registry and an automated child protection system.
Ind. Code § 31-33-1-1 (2008). In furtherance of those aims, the statutes in this article provide that " an individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report as required by this article." Ind. Code § 31-33-5-1 (2008). If the individual is " a member of the staff of a medical or other public or private institution, school, facility, or agency, the individual shall immediately notify the individual in charge." Ind. Code § 31-33-5-2(a) (2008). That " individual in charge . . . shall report or cause a report to be made." Ind. Code § 31-33-5-2(b). The report must be made " immediately . . . to: (1) the department [DCS]; or (2) the local law enforcement agency." Ind. Code § 31-33-5-4 (2008).
An individual has " reason to believe" a child is a victim of child abuse or neglect when the individual is presented with " evidence that, if presented to individuals of similar background and training, would cause the individuals to believe that a child was abused or neglected." Ind. Code § 31-9-2-101 (2008). And at the time of the incident here, a " victim of child abuse or neglect" was defined in relevant part as " a child described in: (1) IC 31-34-1-1 through IC 31-34-1-5." Ind. Code § 31-9-2-133(a) (2008).
That range of statutory provisions--" IC 31-34-1-1 through 31-34-1-5" --establishes the fixed set of circumstances under which a child might be found to be a child in need of services, or CHINS. Of those circumstances, section 31-34-1-3 applies here, as it provides that
(a) A child is a child in need of services if, before the child becomes eighteen (18) years of age:
(1) the child is a victim of a sex offense under:
(A) IC 35-42-4-1;
* * *
(2) the child needs care, treatment, or rehabilitation that:
(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the coercive intervention of the court.
Ind. Code § 31-34-1-3(a) (2008). And, finally, the relevant portion of Indiana Code § 35-42-4-1
--the criminal provision for rape--defines that offense as occurring when a person " knowingly or intentionally has sexual intercourse with a member of the opposite sex when: (1) the other person is compelled by force or imminent threat of force." Ind. Code § 35-42-4-1(a) (2008).
The statutes presume that a person making such a report is acting in good faith, and immunize such good-faith conduct from civil or criminal liability. Ind. Code § § 31-33-6-1, -3 (2008). But failure to comply with section 31-33-5-1 is a class B misdemeanor. Ind. Code § 31-33-22-1(a).
Therefore, in order for the State to successfully convict Smith of the class B misdemeanor offense of failure to report child abuse or neglect, it was required to ...