MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 31 2018, 11:20 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David L. Joley Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General
Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Chelsea Madden, December 31, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1737 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff Judge Trial Court Cause No. 02D05-1712-F5-348
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1737 | December 31, 2018 Page 1 of 7 Case Summary [1] Chelsea Madden appeals her convictions, following a jury trial, for level 5
felony neglect of a dependent and class A misdemeanor domestic battery. She
asserts that the trial court abused its discretion in instructing the jury and that
the State presented insufficient evidence to support her neglect of a dependent
conviction. Concluding that she has waived her claim of instructional error and
further finding the evidence sufficient, we affirm.
Facts and Procedural History [2] Madden married Roberto Calvillo in June 2016, and she filed for divorce in
2017. Madden was awarded provisional custody of the couple’s minor child,
D.M., in December 2017. At that time, although Madden and Calvillo still had
an on-again-off-again relationship, Madden was primarily living with her
boyfriend, Jason Zent, and D.M. was living with Calvillo. On December 3,
2017, Madden and Calvillo had a telephone conversation about their
relationship, and Madden expressed her desire to reconcile with Calvillo. The
pair arranged that Madden would come to Calvillo’s home to spend time with
him and three-year-old D.M.
[3] Madden arrived at Calvillo’s house, Calvillo let her in, and she began to play
with D.M. Shortly thereafter, Madden grabbed D.M. and ran out of the house.
Calvillo chased after Madden and took D.M. from her and turned to go back
into the house. Madden pushed Calvillo in the back, causing him to lose his
balance and fall. Both Calvillo and D.M. hit the ground. As Calvillo stood up
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1737 | December 31, 2018 Page 2 of 7 and walked back inside, Madden continued to punch him in the back. As a
result of the fall, both of Calvillo’s knees were scratched, his hand and elbow
were swollen, and he had pain in his lower back. D.M. suffered a cut to his
head. Calvillo called 911 to report the incident.
[4] Because D.M. was vomiting the following day, Calvillo took him to the doctor.
A CT scan revealed no injuries to the skull bones, or intracranially. D.M. was
diagnosed as having an abrasion to the left side of his scalp and a small
hematoma on the back of the right side of his head.
[5] The State charged Madden with level 5 felony neglect of a dependent and class
A misdemeanor domestic battery. Following a trial, the jury found Madden
guilty of both charges. The trial court sentenced Madden to an aggregate term
of five years, with two years suspended to probation. This appeal ensued.
Discussion and Decision
Section 1 – Madden has waived her claim that the trial court abused its discretion in instructing the jury. [6] Madden first asserts that the trial court abused its discretion in instructing the
jury. “Generally, jury instructions are within the sole discretion of the trial
court, and we will reverse the trial court’s decision only for an abuse of that
discretion.” Harris v. State, 884 N.E.2d 399, 402 (Ind. Ct. App. 2008), trans.
denied. “Jury instructions are to be considered as a whole and in reference to
each other, and we will not reverse the trial court’s decision as an abuse of
discretion unless the instructions as a whole mislead the jury as to the law of the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1737 | December 31, 2018 Page 3 of 7 case.” Id. (quoting Brown v. State, 830 N.E.2d 956, 966 (Ind. Ct. App. 2005)).
“To be entitled to a reversal, the defendant must affirmatively show that the
erroneous instruction prejudiced his substantial rights.” Id.
[7] Prior to the start of trial, the State tendered the following instruction:
A person having the care, custody, or control of any child need not have specific intent to commit the crime of neglect of a dependent, but allowing an act inconsistent with the dependent’s well-being to be committed will support a conviction for neglect of a dependent.
Appellant’s App. Vol. 2 at 19. At the conclusion of trial, Madden objected to
the above instruction alleging that the Indiana pattern jury instruction on
neglect of a dependent, which also was tendered to the court, “sufficiently
covers the elements” and therefore this instruction “would tend to confuse the
jury.” Tr. Vol. 2 at 203. The trial court overruled Madden’s objection and gave
the instruction.1
[8] On appeal, Madden now argues that the above instruction is an incorrect
statement of the law and invaded the province of the jury. Madden has waived
these claims because she did not object on these bases at trial. It is well settled
that an objection to a jury instruction at trial “must be sufficiently clear and
1 The trial court also gave the pattern jury instruction regarding the elements of level 5 felony neglect of a dependent. Appellant’s App. Vol. 2 at 36. Moreover, the trial court instructed the jury on the definitions of knowingly and intentionally, id. at 42, and further instructed that “in construing any single instruction you should consider it with all other instructions given.” Id. at 34.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1737 | December 31, 2018 Page 4 of 7 specific to inform the trial court of the claimed error, identifying both the
claimed objectionable matter and the grounds for the objection.” Phillips v. State,
22 N.E.3d 749, 762 (Ind. Ct. App. 2014) (quoting Childers v. State, 719 N.E.2d
1227, 1231 (Ind. 1999)), trans. denied. “In fact, Indiana Trial Rule 51(C)
requires the parties to identify the specific objection to the instruction in part to
provide the trial court the opportunity to correct an instructional error, if any.”
Id. Here, Madden raises wholly different grounds of instructional error than
she did at trial. An argument is waived where the appellant presents one
argument at trial and raises a different argument on appeal. Id. Accordingly,
her claim of instructional error is waived, and we decline to address it.
Section 3 – Sufficient evidence supports Madden’s neglect of a dependent conviction. [9] Madden next contends that the State presented insufficient evidence to support
her neglect of a dependent conviction. When reviewing a claim of insufficient
evidence, we neither reweigh the evidence nor assess witness credibility. Bell v.
State, 31 N.E.3d 495, 499 (Ind. 2015).
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 31 2018, 11:20 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David L. Joley Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General
Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Chelsea Madden, December 31, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1737 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff Judge Trial Court Cause No. 02D05-1712-F5-348
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1737 | December 31, 2018 Page 1 of 7 Case Summary [1] Chelsea Madden appeals her convictions, following a jury trial, for level 5
felony neglect of a dependent and class A misdemeanor domestic battery. She
asserts that the trial court abused its discretion in instructing the jury and that
the State presented insufficient evidence to support her neglect of a dependent
conviction. Concluding that she has waived her claim of instructional error and
further finding the evidence sufficient, we affirm.
Facts and Procedural History [2] Madden married Roberto Calvillo in June 2016, and she filed for divorce in
2017. Madden was awarded provisional custody of the couple’s minor child,
D.M., in December 2017. At that time, although Madden and Calvillo still had
an on-again-off-again relationship, Madden was primarily living with her
boyfriend, Jason Zent, and D.M. was living with Calvillo. On December 3,
2017, Madden and Calvillo had a telephone conversation about their
relationship, and Madden expressed her desire to reconcile with Calvillo. The
pair arranged that Madden would come to Calvillo’s home to spend time with
him and three-year-old D.M.
[3] Madden arrived at Calvillo’s house, Calvillo let her in, and she began to play
with D.M. Shortly thereafter, Madden grabbed D.M. and ran out of the house.
Calvillo chased after Madden and took D.M. from her and turned to go back
into the house. Madden pushed Calvillo in the back, causing him to lose his
balance and fall. Both Calvillo and D.M. hit the ground. As Calvillo stood up
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1737 | December 31, 2018 Page 2 of 7 and walked back inside, Madden continued to punch him in the back. As a
result of the fall, both of Calvillo’s knees were scratched, his hand and elbow
were swollen, and he had pain in his lower back. D.M. suffered a cut to his
head. Calvillo called 911 to report the incident.
[4] Because D.M. was vomiting the following day, Calvillo took him to the doctor.
A CT scan revealed no injuries to the skull bones, or intracranially. D.M. was
diagnosed as having an abrasion to the left side of his scalp and a small
hematoma on the back of the right side of his head.
[5] The State charged Madden with level 5 felony neglect of a dependent and class
A misdemeanor domestic battery. Following a trial, the jury found Madden
guilty of both charges. The trial court sentenced Madden to an aggregate term
of five years, with two years suspended to probation. This appeal ensued.
Discussion and Decision
Section 1 – Madden has waived her claim that the trial court abused its discretion in instructing the jury. [6] Madden first asserts that the trial court abused its discretion in instructing the
jury. “Generally, jury instructions are within the sole discretion of the trial
court, and we will reverse the trial court’s decision only for an abuse of that
discretion.” Harris v. State, 884 N.E.2d 399, 402 (Ind. Ct. App. 2008), trans.
denied. “Jury instructions are to be considered as a whole and in reference to
each other, and we will not reverse the trial court’s decision as an abuse of
discretion unless the instructions as a whole mislead the jury as to the law of the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1737 | December 31, 2018 Page 3 of 7 case.” Id. (quoting Brown v. State, 830 N.E.2d 956, 966 (Ind. Ct. App. 2005)).
“To be entitled to a reversal, the defendant must affirmatively show that the
erroneous instruction prejudiced his substantial rights.” Id.
[7] Prior to the start of trial, the State tendered the following instruction:
A person having the care, custody, or control of any child need not have specific intent to commit the crime of neglect of a dependent, but allowing an act inconsistent with the dependent’s well-being to be committed will support a conviction for neglect of a dependent.
Appellant’s App. Vol. 2 at 19. At the conclusion of trial, Madden objected to
the above instruction alleging that the Indiana pattern jury instruction on
neglect of a dependent, which also was tendered to the court, “sufficiently
covers the elements” and therefore this instruction “would tend to confuse the
jury.” Tr. Vol. 2 at 203. The trial court overruled Madden’s objection and gave
the instruction.1
[8] On appeal, Madden now argues that the above instruction is an incorrect
statement of the law and invaded the province of the jury. Madden has waived
these claims because she did not object on these bases at trial. It is well settled
that an objection to a jury instruction at trial “must be sufficiently clear and
1 The trial court also gave the pattern jury instruction regarding the elements of level 5 felony neglect of a dependent. Appellant’s App. Vol. 2 at 36. Moreover, the trial court instructed the jury on the definitions of knowingly and intentionally, id. at 42, and further instructed that “in construing any single instruction you should consider it with all other instructions given.” Id. at 34.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1737 | December 31, 2018 Page 4 of 7 specific to inform the trial court of the claimed error, identifying both the
claimed objectionable matter and the grounds for the objection.” Phillips v. State,
22 N.E.3d 749, 762 (Ind. Ct. App. 2014) (quoting Childers v. State, 719 N.E.2d
1227, 1231 (Ind. 1999)), trans. denied. “In fact, Indiana Trial Rule 51(C)
requires the parties to identify the specific objection to the instruction in part to
provide the trial court the opportunity to correct an instructional error, if any.”
Id. Here, Madden raises wholly different grounds of instructional error than
she did at trial. An argument is waived where the appellant presents one
argument at trial and raises a different argument on appeal. Id. Accordingly,
her claim of instructional error is waived, and we decline to address it.
Section 3 – Sufficient evidence supports Madden’s neglect of a dependent conviction. [9] Madden next contends that the State presented insufficient evidence to support
her neglect of a dependent conviction. When reviewing a claim of insufficient
evidence, we neither reweigh the evidence nor assess witness credibility. Bell v.
State, 31 N.E.3d 495, 499 (Ind. 2015). We look to the evidence and reasonable
inferences drawn therefrom that support the conviction, and will affirm if there
is probative evidence from which a reasonable factfinder could have found the
defendant guilty beyond a reasonable doubt. Id. In short, if the testimony
believed by the trier of fact is enough to support the conviction, then the
reviewing court will not disturb it. Id. at 500.
[10] Indiana Code Section 35-46-1-4(a) provides in relevant part that a “person
having the care of a dependent, whether assumed voluntarily or because of legal Court of Appeals of Indiana | Memorandum Decision 18A-CR-1737 | December 31, 2018 Page 5 of 7 obligation, who knowingly or intentionally: (1) places the dependent in a
situation that endangers the dependent’s life or health; commits neglect of a
dependent[.]” The offense is a level 5 felony if it results in bodily injury. Ind.
Code § 35-46-1-4(b)(1). A parent is charged with an affirmative duty to care for
his or her child. Lush v. State, 783 N.E.2d 1191, 1197 (Ind. Ct. App. 2003).
Both action and inaction can place a child in an undesirable position by
inadequate performance of the affirmative duty of reasonable care. McMichael
v. State, 471 N.E.2d 726, 732 n.2 (Ind. Ct. App. 1984).
[11] Here, the State presented sufficient evidence to support the conviction. The
evidence shows that Madden was legally obligated to care for D.M., in that she
is D.M.’s mother and she had even been awarded provisional custody of D.M.
The evidence shows that she went to the home where D.M. had been staying
with his father, and after playing with him for a bit, grabbed him and took him
out of the house without warning. To make matters worse, when Calvillo
prevented her from leaving with D.M. in this manner, Madden was the one
who placed her child in an undesirable position and caused his injuries when
she pushed Calvillo in the back, causing both Calvillo and D.M. to fall and hit
the ground.
[12] Without citation to authority, Madden simply argues that the State presented
insufficient evidence that she had “the care, custody and control” of D.M. at
the time he was actually injured because it was Calvillo, and not her, who was
physically holding D.M. when he fell and was injured. Appellant’s Br. at 18.
This argument is unavailing. There is ample evidence that Madden placed
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1737 | December 31, 2018 Page 6 of 7 D.M., a child that she had an affirmative duty to care for, in a situation that
endangered his health and resulted in bodily injury. Sufficient evidence
supports her conviction, and we affirm it.
[13] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1737 | December 31, 2018 Page 7 of 7