MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 27 2017, 8:50 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General Madison, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Diana S. Davis, January 27, 2017 Appellant-Defendant, Court of Appeals Case No. 58A01-1607-CR-1737 v. Appeal from the Ohio Circuit Court State of Indiana, The Honorable James D. Appellee-Plaintiff Humphrey, Judge The Honorable Kimberly A. Schmaltz, Magistrate Trial Court Cause No. 58C01-1506-F6-25
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 58A01-1607-CR-1737 | Janaury 27, 2017 Page 1 of 7 Case Summary [1] Diana Davis appeals her conviction for neglect of a dependent, arguing that the
evidence is insufficient to support her conviction. Finding no error, we affirm.
Facts and Procedural History [2] In June 2015, Davis lived in a trailer home near the Dearborn-Ohio county line
with three of her ten children, including her teenage son, D.V., and her almost-
two-year-old toddler, N.A.D. The home is bordered by Laughery Creek and
State Road 262, which has a speed limit of 55 miles per hour. Davis’s driveway
led directly to State Road 262.
[3] Around 10:00 a.m. on June 6, Vanessa and Ricky Knigga were driving past
Davis’s trailer on State Road 262 when they noticed an unattended toddler,
N.A.D., following several dogs down Davis’s driveway, headed for State Road
262. Concerned for the child’s safety, Vanessa had her husband pull over; she
jumped out of the car and ran toward N.A.D. By the time she reached N.A.D.
he had walked onto the shoulder of State Road 262. Vanessa got him off the
highway and led him back up the driveway toward his home. Vanessa heard
Davis’s German Shepherd barking near the home and chose to stay in the
driveway with N.A.D. for fear of being attacked.
[4] Meanwhile, Ricky turned the car around and pulled over in front of Davis’s
driveway. To get the attention of anyone inside, Ricky started “blowing the
horn” but to no avail. Tr. p. 72. He blew the horn for approximately fifteen
Court of Appeals of Indiana | Memorandum Decision 58A01-1607-CR-1737 | Janaury 27, 2017 Page 2 of 7 minutes, “lay[ing] on it . . . for a minute at a time,” at which point Vanessa
decided to call 911. Id. at 57. Roughly fifteen minutes after calling 911 and
while waiting for police to arrive on the scene, Ricky spotted an off-duty police
officer driving a marked police car and flagged down the officer. Officer Brian
Potts with the Lawrenceburg Police Department pulled over and assisted the
Kniggas, taking N.A.D. from Vanessa and carrying him to the trailer.
[5] As Officer Potts approached the trailer, he noticed that the gate to the yard was
wide open as well as the front door to the trailer. He stood at the threshold of
the front door, yelled “Lawrenceburg Police,” and started banging on the door.
Id. at 95. He identified himself because he was in plain clothes but was carrying
his off-duty firearm on his hip. Roughly ten feet inside the door fifteen-year-old
D.V. was sleeping in a chair. D.V. slept through the yelling and banging on the
door. Officer Potts entered the trailer, continued yelling “Lawrenceburg
Police,” and started “slamming [his] fist against the door, trying to make as
much noise as possible.” Id. at 96. Yet D.V. continued to sleep.
[6] After several minutes of Officer Potts yelling and slamming his fist against the
door in order to wake D.V. or get anyone else’s attention, Davis walked out of
a side room, the door to which had been open the entire time. When she saw
Officer Potts holding N.A.D., all Davis said was, “Where did you find him?”
Id. at 99. Davis never asked who Officer Potts was, why he was inside her
home, or why he was holding N.A.D. After learning that N.A.D. was outside
unattended, Davis responded that he “couldn’t have been outside too long,
Court of Appeals of Indiana | Memorandum Decision 58A01-1607-CR-1737 | Janaury 27, 2017 Page 3 of 7 because his socks weren’t dirty.” Id. at 100. Davis was arrested and charged
with neglect of a dependent as a Level 6 felony.
[7] At the jury trial, D.V. testified that he was supposed to be watching N.A.D.
while Davis was getting ready for a yard sale. He took N.A.D. into the living
room to play—putting out toys on the floor and turning on the TV to cartoons.
He stated that he slept through the dog barking, the honking car horn, and
Officer Potts’s yelling and banging because both the washer and dryer were
running, the air conditioner and fans were on, and the TV was on. D.V.
admitted that he had a juvenile adjudication for theft, a crime of dishonesty. In
response, Officer Potts testified that he was never told that D.V. was supposed
to be watching N.A.D. Officer Potts stated that the trailer was very hot and
that he did not remember the air conditioner or fans being on; he did not see
any toys on the living-room floor or hear the TV; and he did not remember
hearing the washer and dryer running. The jury found Davis guilty as charged.
[8] Davis now appeals.
Discussion and Decision [9] Davis argues that the evidence is insufficient to support her conviction for
neglect of a dependent because the State failed to prove that she knowingly
placed N.A.D. in a situation that endangered his life or health. When
reviewing the sufficiency of the evidence, we neither reweigh the evidence nor
determine the credibility of witnesses; that role is reserved for the factfinder.
Court of Appeals of Indiana | Memorandum Decision 58A01-1607-CR-1737 | Janaury 27, 2017 Page 4 of 7 Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). “The evidence—even if
conflicting—and all reasonable inferences drawn from it are viewed in a light
most favorable to the conviction.” Id. A conviction will be affirmed “if there is
substantial evidence of probative value supporting each element of the crime
from which a reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt.” Id.
[10] In order to convict Davis of neglect of a dependent as charged here, the State
had to prove that Davis was responsible for the care of N.A.D. and knowingly
or intentionally placed N.A.D. in a situation that endangered his life or health.1
See Ind. Code § 35-46-1-4(a)(1). For neglect of a dependent, “knowingly”
requires a “subjective awareness of a high probability that a dependent has been
placed in a dangerous situation.” Villagrana v. State, 954 N.E.2d 466, 468 (Ind.
Ct. App. 2011). Davis argues that her “subjective awareness was that [N.A.D.]
was in the home being supervised by a sibling” and that the State has not
proven otherwise. Appellant’s Br. p. 14.
[11] Vanessa testified that around 10:00 a.m. she witnessed N.A.D. outside
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 27 2017, 8:50 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Curtis T. Hill, Jr. Alcorn Sage Schwartz & Magrath, LLP Attorney General Madison, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Diana S. Davis, January 27, 2017 Appellant-Defendant, Court of Appeals Case No. 58A01-1607-CR-1737 v. Appeal from the Ohio Circuit Court State of Indiana, The Honorable James D. Appellee-Plaintiff Humphrey, Judge The Honorable Kimberly A. Schmaltz, Magistrate Trial Court Cause No. 58C01-1506-F6-25
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 58A01-1607-CR-1737 | Janaury 27, 2017 Page 1 of 7 Case Summary [1] Diana Davis appeals her conviction for neglect of a dependent, arguing that the
evidence is insufficient to support her conviction. Finding no error, we affirm.
Facts and Procedural History [2] In June 2015, Davis lived in a trailer home near the Dearborn-Ohio county line
with three of her ten children, including her teenage son, D.V., and her almost-
two-year-old toddler, N.A.D. The home is bordered by Laughery Creek and
State Road 262, which has a speed limit of 55 miles per hour. Davis’s driveway
led directly to State Road 262.
[3] Around 10:00 a.m. on June 6, Vanessa and Ricky Knigga were driving past
Davis’s trailer on State Road 262 when they noticed an unattended toddler,
N.A.D., following several dogs down Davis’s driveway, headed for State Road
262. Concerned for the child’s safety, Vanessa had her husband pull over; she
jumped out of the car and ran toward N.A.D. By the time she reached N.A.D.
he had walked onto the shoulder of State Road 262. Vanessa got him off the
highway and led him back up the driveway toward his home. Vanessa heard
Davis’s German Shepherd barking near the home and chose to stay in the
driveway with N.A.D. for fear of being attacked.
[4] Meanwhile, Ricky turned the car around and pulled over in front of Davis’s
driveway. To get the attention of anyone inside, Ricky started “blowing the
horn” but to no avail. Tr. p. 72. He blew the horn for approximately fifteen
Court of Appeals of Indiana | Memorandum Decision 58A01-1607-CR-1737 | Janaury 27, 2017 Page 2 of 7 minutes, “lay[ing] on it . . . for a minute at a time,” at which point Vanessa
decided to call 911. Id. at 57. Roughly fifteen minutes after calling 911 and
while waiting for police to arrive on the scene, Ricky spotted an off-duty police
officer driving a marked police car and flagged down the officer. Officer Brian
Potts with the Lawrenceburg Police Department pulled over and assisted the
Kniggas, taking N.A.D. from Vanessa and carrying him to the trailer.
[5] As Officer Potts approached the trailer, he noticed that the gate to the yard was
wide open as well as the front door to the trailer. He stood at the threshold of
the front door, yelled “Lawrenceburg Police,” and started banging on the door.
Id. at 95. He identified himself because he was in plain clothes but was carrying
his off-duty firearm on his hip. Roughly ten feet inside the door fifteen-year-old
D.V. was sleeping in a chair. D.V. slept through the yelling and banging on the
door. Officer Potts entered the trailer, continued yelling “Lawrenceburg
Police,” and started “slamming [his] fist against the door, trying to make as
much noise as possible.” Id. at 96. Yet D.V. continued to sleep.
[6] After several minutes of Officer Potts yelling and slamming his fist against the
door in order to wake D.V. or get anyone else’s attention, Davis walked out of
a side room, the door to which had been open the entire time. When she saw
Officer Potts holding N.A.D., all Davis said was, “Where did you find him?”
Id. at 99. Davis never asked who Officer Potts was, why he was inside her
home, or why he was holding N.A.D. After learning that N.A.D. was outside
unattended, Davis responded that he “couldn’t have been outside too long,
Court of Appeals of Indiana | Memorandum Decision 58A01-1607-CR-1737 | Janaury 27, 2017 Page 3 of 7 because his socks weren’t dirty.” Id. at 100. Davis was arrested and charged
with neglect of a dependent as a Level 6 felony.
[7] At the jury trial, D.V. testified that he was supposed to be watching N.A.D.
while Davis was getting ready for a yard sale. He took N.A.D. into the living
room to play—putting out toys on the floor and turning on the TV to cartoons.
He stated that he slept through the dog barking, the honking car horn, and
Officer Potts’s yelling and banging because both the washer and dryer were
running, the air conditioner and fans were on, and the TV was on. D.V.
admitted that he had a juvenile adjudication for theft, a crime of dishonesty. In
response, Officer Potts testified that he was never told that D.V. was supposed
to be watching N.A.D. Officer Potts stated that the trailer was very hot and
that he did not remember the air conditioner or fans being on; he did not see
any toys on the living-room floor or hear the TV; and he did not remember
hearing the washer and dryer running. The jury found Davis guilty as charged.
[8] Davis now appeals.
Discussion and Decision [9] Davis argues that the evidence is insufficient to support her conviction for
neglect of a dependent because the State failed to prove that she knowingly
placed N.A.D. in a situation that endangered his life or health. When
reviewing the sufficiency of the evidence, we neither reweigh the evidence nor
determine the credibility of witnesses; that role is reserved for the factfinder.
Court of Appeals of Indiana | Memorandum Decision 58A01-1607-CR-1737 | Janaury 27, 2017 Page 4 of 7 Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). “The evidence—even if
conflicting—and all reasonable inferences drawn from it are viewed in a light
most favorable to the conviction.” Id. A conviction will be affirmed “if there is
substantial evidence of probative value supporting each element of the crime
from which a reasonable trier of fact could have found the defendant guilty
beyond a reasonable doubt.” Id.
[10] In order to convict Davis of neglect of a dependent as charged here, the State
had to prove that Davis was responsible for the care of N.A.D. and knowingly
or intentionally placed N.A.D. in a situation that endangered his life or health.1
See Ind. Code § 35-46-1-4(a)(1). For neglect of a dependent, “knowingly”
requires a “subjective awareness of a high probability that a dependent has been
placed in a dangerous situation.” Villagrana v. State, 954 N.E.2d 466, 468 (Ind.
Ct. App. 2011). Davis argues that her “subjective awareness was that [N.A.D.]
was in the home being supervised by a sibling” and that the State has not
proven otherwise. Appellant’s Br. p. 14.
[11] Vanessa testified that around 10:00 a.m. she witnessed N.A.D. outside
unsupervised and walking on the shoulder of State Road 262. Both she and
Ricky testified that they sat with N.A.D. for at least thirty minutes before
Officer Potts drove by. No one came out of the trailer looking for N.A.D.
during that time despite Ricky honking the car horn for minutes at a time.
1 On appeal, the State only argues that Davis “knowingly” neglected N.A.D.
Court of Appeals of Indiana | Memorandum Decision 58A01-1607-CR-1737 | Janaury 27, 2017 Page 5 of 7 Officer Potts testified that Davis reacted to seeing him holding N.A.D. inside
her home by simply asking “Where did you find him?” and that Davis told him
that N.A.D. could not have been outside that long because his socks were not
dirty. Officer Potts also identified several dangers around Davis’s house for
N.A.D., including State Road 262 and Laughery Creek. This evidence is
sufficient to support Davis’s conviction.
[12] As for Davis’s argument that she thought D.V. was watching N.A.D., it
amounts to a request for us to determine the credibility of witnesses, which is a
job for the jury. The jury heard conflicting stories from D.V. and Officer Potts
and had to decide which version of events to believe. D.V. testified that it was
his responsibility to watch N.A.D. that morning, that he had set out toys and
turned on the TV for N.A.D., and that the washer and dryer and the air
conditioner were running inside the trailer. In contrast, Officer Potts testified
that the gate to the yard and the door into the home were open, that neither
Davis nor D.V. told him that D.V. was watching N.A.D. that morning, that
there were no toys on the living-room floor, that the TV was not on, and that
neither the washer or dryer nor the air conditioner were running. The jury is in
the best place to judge the credibility of witnesses, especially when conflicting
testimony is presented, and the jury was allowed to discredit D.V.’s testimony,
particularly in light of his juvenile adjudication for theft, a crime of dishonesty.
Court of Appeals of Indiana | Memorandum Decision 58A01-1607-CR-1737 | Janaury 27, 2017 Page 6 of 7 [13] We conclude that the evidence is sufficient to support Davis’s Level 6 felony
conviction for neglect of a dependent.2
[14] Affirmed.
Bradford, J., and Brown, J., concur.
2 Davis also argues that the trial court abused its discretion when it admitted testimony from Vanessa and Officer Potts regarding N.A.D.’s appearance, the trash in her yard, and the smell and condition of her home. Vanessa stated that N.A.D. “had a very wet diaper that was sagging to his knees. He was in a pair of socks and a wet diaper.” Tr. p. 57. Officer Potts testified that N.A.D. was “very dirty” and wearing a diaper “soaked with urine” that ran down both of his arms, “soaking” them in urine. Id. at 87, 89, 96. Officer Potts also said that when he reached Davis’s trailer that there was “junk trash everywhere” in the yard and that the home was “very dirty [with] a very pungent odor - - I about got sick from the odor . . . .” Id. at 90, 93. Davis objected to this testimony at trial, but the trial court overruled her objection. We conclude that this testimony was properly admitted and relevant to show that N.A.D. was neglected on June 6. Even without the challenged testimony, there is substantial independent evidence of guilt to support Davis’s conviction, as discussed above.
Court of Appeals of Indiana | Memorandum Decision 58A01-1607-CR-1737 | Janaury 27, 2017 Page 7 of 7