MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be Jun 09 2016, 5:34 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing 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 David T. A. Mattingly Gregory F. Zoeller Lafayette, Indiana Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Robert Ramon White, June 9, 2016 Appellant-Defendant, Court of Appeals Case No. 79A05-1509-CR-1464 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Thomas H. Appellee-Plaintiff. Busch, Judge Trial Court Cause No. 79C01-1503-F5-5
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 1 of 25 STATEMENT OF THE CASE
[1] Appellant-Defendant, Robert R. White (White), appeals his conviction for
intimidation, a Class A misdemeanor, Ind. Code § 35-45-2-1; and neglect of a
child, a Level 6 felony, I.C. § 35-46-1-4.
[2] We affirm, in part, and reverse, in part, and remand for resentencing.
ISSUES
[3] White raises five issues on appeal, which we consolidate and restate as follows:
(1) Whether the trial court properly denied White’s motion to continue;
(2) Whether the trial court properly allowed the State to exercise a peremptory
strike on a potential juror;
(3) Whether the State presented sufficient evidence to sustain White’s
convictions; and
(4) Whether the trial court abused its discretion by not allowing White to
introduce certain evidence at his sentencing hearing.
FACTS AND PROCEDURAL HISTORY
[4] White and T.S. lived together with their children, M.W., R.W., and A.A.
(collectively, Children). On March 1, 2015, T.S. went to a bar and left the
Children with White. An intoxicated T.S. returned home at approximately
11:00 p.m. and began arguing with White. Twelve-year-old M.W., who was
awake at the time, sent an email to her friend informing her that her parents
were quarreling. M.W. woke up her ten-year-old brother, R.W., when the
argument turned violent. A.A. remained asleep the entire time. Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 2 of 25 [5] At some point, M.W. and R.W. went downstairs and saw White punch T.S.,
who fell and then lay motionless on the floor. Upon seeing M.W. and R.W.,
White commanded them to go back upstairs. White and T.S. resumed fighting,
and once again, M.W. and R.W. went back downstairs. M.W. observed White
hit T.S. in the face. In addition, M.W. and R.W. witnessed White pull T.S. by
her hair, punch T.S. in the ribs, and slap and kick her. Thereafter, White threw
a piece of glass at T.S. M.W. tried to pull White off of T.S. but White pushed
M.W. into a corner and stated “don’t ever touch me again” and he moved his
hand as if he was going to hit her. (Tr. p. 326).
[6] M.W. became increasingly upset and she threatened to run away to her Aunt
Misty’s house which was about five blocks from their house. At around 3:00
a.m., wearing nothing but her pajamas pants, t-shirt, and socks, M.W. ran out
the back door to Aunt Misty’s house. It was cold and the ground was covered
with snow. When she arrived at Aunt Misty’s residence and talked to her,
Aunt Misty called the police. Meanwhile, at White’s and T.S.’s residence,
R.W. gave T.S. a rag for her forehead since she complained of a headache. At
one point, White and T.S. resumed fighting. R.W. tried to break up the fight
and White hit him in the nose, causing R.W.’s nose to bleed.
[7] Officer David Chapman (Officer Chapman) of the Lafayette Police Department
was dispatched to White’s and T.S.’s residence in response to a domestic
disturbance call. When he arrived, he heard a man and a woman arguing.
After he knocked on the door, the woman identified herself as T.S., but did not
let him in and spoke to him through a window. Officer Chapman observed an
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 3 of 25 injury on T.S.’s face, but because he was unable to substantiate a domestic
disturbance, he left.
[8] Shortly thereafter, R.W. and T.S. left the residence and walked over to Aunt
Misty’s house. T.S. showed Aunt Misty her injuries but then returned to her
home. At around 3:30 a.m., Officer Chapman, accompanied by another officer
returned to White’s and T.S.’s home due to yet another domestic disturbance
call. Officer Chapman again attempted to make contact by knocking on the
door. The second time around, T.S., stepped outside but was unhelpful as to
what had occurred. The officers learned that M.W. and R.W. were at Aunt
Misty’s house and proceeding to Aunt Misty’s house, briefly talked to Aunt
Misty and then left.
[9] At around that same time, T.S. called her mother (Grandmother) and asked her
to pick M.W. and R.W. from Aunt Misty’s house. Again, between 5:00 a.m.
and 6:00 a.m., the officers returned to Aunt Misty’s house due to another
disturbance call. The officers found White banging on Aunt Misty’s door
demanding to see M.W. and R.W. White had left eight-year-old A.A. home
alone. Aunt Misty requested the officers to inform White that he could not
have M.W. and R.W. When the officers communicated that to White, he
responded by stating that he would return with a plan. The officers asked
White to leave and they followed him home. Aunt Misty expressed to the
officers that M.W. and R.W. were at Grandmother’s house.
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 4 of 25 [10] The Department of Child Services (DCS) was notified of the domestic
disturbance call at White’s and T.S.’s family home. The following morning, at
approximately 8:30 a.m., Carrie Strangle (Strangle) of DCS arrived at White’s
and T.S.’s home to interview the Children. While speaking with T.S., Strangle
observed that T.S. had crusted blood in her nostrils, and a little on the crease of
her nose. Strangle learned that the Children were not present in the home but
were at Grandmother’s house. T.S., who seemed agitated, gave Strangle
permission to interview the Children and slammed the door in her face.
Strangle also called White and sought permission to conduct forensic video
interviews of the Children.
[11] On the same day, Strangle visited Grandmother’s house. Strangle informed
Grandmother that she needed to interview the Children at The Heartford
House Way. 1 A forensic interviewer, Maria Hannock (Hannock) of the
Tippecanoe County Prosecutor’s Office, conducted the interviews. According
to Hannock, the Children were nervous and scared. Still on the same day, at
approximately 2:30 p.m., Strangle returned to T.S.’s and White’s home. T.S.
1 In the transcripts, the name has been spelled as Hartford but the correct spelling is Heartford. The Heartford House Way is a child advocacy center where forensic interviews of possible child victims are conducted. See http://www.heartford.net/our-story/ (last visited May 9, 2016).
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 5 of 25 was more cooperative and she showed to Strangle the bruises on her ribcage.
Strangle also observed that T.S. had a welt on the bridge of her nose.
[12] After the interviews were conducted, the police obtained a search warrant for
T.S. and White’s home. White was subsequently arrested and taken to the
police station where he was read his Miranda rights and agreed to be
interviewed. White admitted that he had previously argued with T.S. and
restrained her. However, White stated that T.S.’s injuries resulted from a fall
after she returned from the bar.
[13] On March 4, 2015, the State filed an Information, charging White with Count
I, battery on a child, a Level 5 felony; Count II, intimidation, a Level 6 felony;
Count III, domestic battery committed in the presence of a child less than 16
years of age, a Level 6 felony; and Count IV, neglect of a dependent, a Level 6
felony. At White’s initial hearing on March 5, 2015, the trial court ordered the
parties to conduct discovery. The State disclosed the existence of the forensic
video interviews on April 21, 2015. On July 22, 2015, after White’s second trial
counsel signed the stipulation, the State turned over the forensic video
[14] White’s trial date was set for July 28, 2015. A day before trial, White filed a
motion to continue, seeking “additional time to investigate a myriad of issues
that the forensic interview[s] disclosed.” (Appellant’s App. p. 37). On the same
day, the trial court heard arguments from both sides on White’s motion. White
argued that he needed time to depose the Children, T.S. and Aunt Misty
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 6 of 25 because he was concerned that the Children had been coached. At the close of
that hearing, the trial court denied White’s motion.
[15] White’s jury trial began as scheduled. At the start of trial, White renewed his
motion to continue, and after hearing arguments on the motion, the trial court
denied it. At the close of White’s jury trial, the jury found White guilty of the
lesser included offense of intimidation as a Class A misdemeanor, and neglect
of a dependent, a Level 6 felony, and returned a not guilty verdict with respect
to battery on a child and domestic battery committed in the presence of a child
less than 16 years of age.
[16] Approximately a month before his sentencing hearing, on August 6, 2015,
White filed a witness list and an exhibit for his sentencing hearing. In response,
the State filed a motion to exclude the witnesses arguing that the witnesses and
the exhibit had no relation or bearing on White’s case. On August 28, 2015, the
trial court conducted a hearing and granted the State’s motion to exclude. On
September 4, 2015, the trial court held White’s sentencing hearing and
thereafter sentenced White to concurrent sentences of 374 days for the
intimidation conviction and six months for the neglect of a dependent
conviction.
[17] White now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 7 of 25 DISCUSSION AND DECISION
I. Motion to Continue
[18] First, White asserts that the trial court abused its discretion in denying his
motion for continuance a day prior to his trial. The decision to grant or deny a
motion for continuance based on non-statutory grounds is left to the discretion
of the trial court, and we will not reverse unless there is an abuse of that
discretion. Hamilton v. State, 864 N.E.2d 1104, 1108-09 (Ind. Ct. App. 2007).
An abuse of discretion occurs when the decision is against the logic and effect
of the facts and circumstances before the court. Id. at 1109. A denial of a
continuance is only reversible when the defendant can demonstrate that he was
prejudiced by the denial. Macklin v. State, 701 N.E.2d 1247, 1250 (Ind. Ct. App.
1998).
[19] A day before trial, on June 27, 2015, White filed his motion to continue
because he needed “additional time to investigate a myriad of issues that the
forensic interview[s] disclosed.” (Appellant’s App. p. 37). White argued that
while the State had been in possession of the forensic video interviews, it had
only released the recordings six days prior to his jury trial. Due to this late
disclosure, White’s counsel stated that he was not in a position to sufficiently
represent White. Specifically, White contended that he needed time to depose
the Children since he suspected that they had been coached. At the close of the
hearing, the trial court denied the motion. The following day and at the start of
his jury trial, White renewed his motion to continue, making the same
arguments. The State argued:
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 8 of 25 Your honor[,] the existence of the forensic interviews of all three children were disclosed with the [S]tate’s discovery disclosures filed and provided to . . . [White’s] first attorney of record on April 21, 2015. The [S]tate will note that the process of obtaining a forensic interview at the [Heartford] House is well known to [White’s second counsel] . . . We consider them protected interviews because of the confidential nature of the interviews themselves. In order to release them[,] a stipulation has to be signed and provided to the court and filed with the court that the interviews will not be copied, will not be distributed, [and] will not be posted in anyway. That stipulation was signed on July 22,[2015]. Furthermore[,] the State will note that . . . the police report which covers about 3 pages, . . . goes into details of the allegations and what the [C]hildren said throughout their interviews. And at that point, [White’s first counsel] as well as [White’s second counsel] was aware of what was involved in those [Heartford] House interviews. . . . The [S]tate will note that [White’s second counsel], and before him, [White’s first counsel], had ample time to conduct depositions if they so wished. . . .
(Tr. pp. 49-50).
[20] In denying White’s motion, the trial court stated:
I would note as well[], that the Affidavit of Probable Cause does reveal that there were interviews and describes at least from the [S]tate’s point of view what the relevant statements made in the interviews were. [] I will also note that the [I]formation disclosed the names of the [S]tate’s witness and their depositions could have been taken at any time after the case was filed. The court was not presented with a motion to compel and the court will incorporate its ruling from yesterday’s hearing and deny the motion to continue.
(Tr. p. 50).
[21] Here, we find that White’s assertion that he needed additional time to
investigate a myriad of issues that the forensic interviews created is
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 9 of 25 disingenuous. The record reveals that the affidavit of probable cause, dated
March 4, 2015, noted that the Children had been interviewed about the
domestic violence that ensued in their family home on March 2, 2015. Further,
the record shows that White gave Hancock, the forensic interviewer, permission
to interview the Children. White was cognizant of the interviews at the
inception of the police investigation and up to the point when formal charges
were proffered against him. While it is true that White changed trial counsel
during trial preparations, his second trial counsel should have followed protocol
by signing the stipulation ahead of time in order to evaluate the video
interviews. Issues of the Children being coached, if any, would then have been
addressed prior to the trial.
[22] In addition, we find that the denial of the continuance was harmless because
White was not prejudiced by his alleged lack of time to prepare. See Macklin,
701 N.E.2d at 1250. The record shows that when White renewed his motion at
the start of his trial and the trial court denied his motion, the court invited
White to prove his theory to the jury—i.e., that the Children had been coached.
Both M.W. and R.W. testified at his trial, and White cross-examined both
children. White had all the tools he needed at his jury trial to show evidence of
coaching, yet he failed to prove his claim.
[23] Overall, we conclude that none of the reasons offered by White were such that
a continuance was appropriate a day prior to trial. Because White has the
burden of showing that the trial court abused its discretion by denying his
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 10 of 25 request for a continuance, we will not presume prejudice. Accordingly, the trial
court did not abuse its discretion in denying White’s motion to continue.
II. Batson Challenge
[24] Next, White contends that the trial court erred by accepting the State’s race-
neutral explanation for its peremptory strike against a minority juror member of
the jury venire. Generally, “a peremptory challenge may be [exercised] for no
cause whatsoever.” Bond v. State, 273 Ind. 233, 237, 403 N.E.2d 812, 816
(1980). However, in Batson v. Kentucky, 476 U.S. 79, 106 (1986), (extending
Batson to cases where the defendant and excluded juror were of different races),
modified by Powers v. Ohio, 499 U.S. 400, 405-06 (1991), the United States
Supreme Court qualified that principle to preclude the use of peremptory
challenges to exclude venire persons from a jury solely on the basis of race. In
Batson, the Court “determined that the prosecutor’s use of a peremptory
challenge to strike a potential juror solely on the basis of race violated the Equal
Protection Clause of the Fourteenth Amendment.” Jeter v. State, 888 N.E.2d
1257, 1262 (Ind. 2008). Batson set forth a three-step test to determine whether
the State has improperly used a peremptory challenge to strike a juror from the
venire solely because of that individual’s race. First, the party contesting the
use of a peremptory challenge must make a prima facie showing of
discrimination based upon race against the member of the venire. Batson, 476
U.S. at 96–97. Next, the party using a peremptory challenge may “present a
race-neutral explanation for using the challenge.” Jeter, 888 N.E.2d at 1263. If
the party seeking to strike a member of the venire provides a race-neutral
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 11 of 25 explanation, “the trial court must then decide whether the challenger has
carried its burden of proving purposeful discrimination.” Id.
[25] Because of the importance of the demeanor of potential jurors and the
prosecutor when the trial court evaluates a race-neutral explanation for a
peremptory challenge, we afford broad latitude to the trial court’s decision in
such matters. Killebrew v. State, 925 N.E.2d 399, 401 (Ind. Ct. App. 2010), trans.
denied. Upon appellate review, we will set aside the trial court’s decision
concerning whether a peremptory challenge is discriminatory only if it is found
to be clearly erroneous. Forrest v. State, 757 N.E.2d 1003, 1004 (Ind. 2001).
[26] At the close of the jury selection process, the trial court read out the names of
the juror members. Among them was Juror no 1397, K. Ramirez (Ramirez).
At that point, the State informed the trial court that it had exercised its
peremptory strike on venire person Ramirez. In response, the trial court stated,
in part, “[S]ince her last name is Ramirez do you believe we [] have a [Batson]
issue[?]” (Tr. p. 135). At that moment, White’s counsel lodged a Batson
objection. Accordingly, the State explained that Ramirez had disclosed in her
juror questionnaire that she had been in a “domestic situation before” and was
previously convicted of possessing cocaine eleven years ago and had served
probation. (Tr. p. 135). At the close of the Batson hearing, the trial court found
the State’s race-neutral explanations credible.
[27] We note that “[a] neutral explanation means ‘an explanation based on
something other than the race of the juror.’” McCormick v. State, 803 N.E.2d
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 12 of 25 1108, 1111 (Ind. 2004) (quoting Hernandez v. New York, 500 U.S. 352, 360,
(1991)). “‘Unless a discriminatory intent is inherent in the prosecutor’s
explanation, the reason offered will be deemed race neutral.’” Addison v. State,
962 N.E.2d 1202, 1209 (Ind. 2012) (quoting Purkett v. Elem, 514 U.S. 765, 768,
(1995)).
[28] After the Batson challenge, the State gave two neutral reasons for striking
Ramirez from the jury venire. The first was because Ramirez had been in a
domestic situation, and the second was due to her prior criminal history.
Although the trial court’s evaluation of step three was transitory, we find that it
sufficiently satisfied the three-part step process under Batson. On step three, the
trial court found that the State’s race-neutral explanations were credible, and
there is nothing in the record to indicate that the State’s reasons were merely
pretextual. In our review of the State’s explanation, we do not find any racial
motivation on the State’s part in striking Ramirez as juror. Accordingly, White
has not carried his burden to show purposeful discrimination. We therefore
conclude that the trial court’s decision in this regard is not clearly erroneous.
III. Sufficiency of the Evidence
[29] White argues that there was insufficient evidence to sustain his convictions for
neglect of a dependent and intimidation. When reviewing the sufficiency of the
evidence needed to support a criminal conviction, we neither reweigh evidence
nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).
“We consider only the evidence supporting the judgment and any reasonable
inferences that can be drawn from such evidence.” Id. We will affirm if there is Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 13 of 25 substantial evidence of probative value such that a reasonable trier of fact could
have concluded the defendant was guilty beyond a reasonable doubt. Id.
A. Neglect of a Dependent
[30] In the instant case, the State filed an Information alleging
On or about March 1, 2015, through March 2, 2015, in Tippecanoe County, [] White, a person having the care of dependent, to wit: M.W. (12 years of age), R.W. (10 years of age,) and /or A.A. (8 years of age), whether assumed voluntarily or because of legal obligation, did knowingly and intentionally place M.W., R.W., and /or A.A. in a situation that endangered his/her life or health.
(Appellant’s App. p. 11). For the State to convict White of neglect of a
dependent, as charged, it was required to prove that White, having care of
M.W., R.W. or A.A., whether voluntarily or because of a legal obligation, did
knowingly or intentionally place the dependents in a situation that endangered
their life or health. See I.C. § 35-46-1-4.
[31] The purpose of the neglect statute is to protect a dependent from the failure of
those entrusted with his or her care to take the action necessary to ensure the
dependent is safe. Harrison v. State, 644 N.E.2d 888, 891 (Ind. Ct. App. 1994),
trans. denied. In Harrison, we concluded that the meaning of the word “health,”
as it relates to the child neglect statute, “is not limited to one’s physical state,
but includes an individual’s psychological, mental and emotional status.” Id.
With respect to the knowledge required to support a neglect conviction, the
question is whether the defendant was subjectively aware of a high probability
that he placed the dependents in a situation involving an actual and appreciable
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 14 of 25 danger to them. Id. Such danger arises when dependent children are exposed
to some risk of physical or mental harm that goes significantly beyond the
“normal risk of bumps, bruises, or even worse that accompany the activities of
the average child.” Gross v. State, 817 N.E.2d 306, 309 (Ind. Ct. App. 2004).
[32] The record shows that on the early morning of March 2, 2015, White was
engaged in a physical altercation with T.S. M.W. and R.W. observed White
punch, hit, and kick T.S. Although White was found not guilty of domestic
battery committed in the presence of a child, it does not negate the fact that
M.W. and R.W. witnessed the battery. Upset by her parents quarreling, a little
after 3:00 a.m., twelve-year-old M.W., ran to her aunt’s house five blocks away.
M.W. only wore pajama pants, a t-shirt, and socks. R.W. followed his sister
about thirty minutes later, but he was accompanied by T.S. Thereafter at
around 5:00 a.m., leaving behind eight-year-old A.A., White walked to Aunt
Misty’s house to retrieve M.W. and R.W.
[33] White argues that the State did not offer any evidence that he was subjectively
aware that M.W. ran away from home without a winter coat or shoes,
therefore, he did not place her in any appreciable danger. We agree with White
that the State did not offer any evidence that he was subjectively aware that
M.W. had left the house dressed as she had, thus placing her in any appreciable
danger on that cold winter morning. The record shows that during the parent’s
altercation, M.W. proclaimed that she would run away to Aunt Misty’s house.
White told M.W., “No you are not.” (Tr. p. 322). Unbeknownst to White,
M.W. ran out through the back door.
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 15 of 25 [34] Ultimately, the burden did rest with the State to prove that White was
subjectively aware of a high probability that he placed M.W. in a situation
involving an actual and appreciable danger. Looking at the record before us,
we agree with White that the State failed to develop testimony from any of the
witnesses it called, that White knew M.W. had left the house when she did, or
he was mindful of how M.W. was dressed. While it is not wise for a twelve-
year-old to be on the streets at 3:00 a.m., no evidence was offered that M.W.
suffered any harm when she ran to Aunt Misty’s house. The record shows that
Aunt Misty welcomed M.W. to her house and thereafter called the police.
[35] White further claims that the State failed to meet its burden of showing actual
and appreciable danger because A.A. remained unharmed and undisturbed that
night as he walked to Aunt Misty’s house to retrieve M.W. and R.W. In
determining this issue, we are mindful of the holding in Scruggs v. State, 883
N.E.2d 189, 190 (Ind. Ct. App. 2008), trans. denied. There, the defendant left
her seven-year-old son, M.H., at home while she ran an errand. Id. When she
returned approximately three hours later, he was missing. Id. M.H. was later
found safe at the defendant’s boyfriend’s uncle’s home, but the defendant was
charged and subsequently convicted of neglect of a dependent. Id. On appeal,
this court concluded the evidence was insufficient to establish the defendant had
a “subjective awareness of a ‘high probability’ that M.H. was placed in a
dangerous situation when she left him home alone.” Id. at 191. M.H. was
seven years old, the defendant testified M.H. knew “not to mess with the stove
or open the door or anything,” and the State failed to present any evidence
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 16 of 25 contradicting the defendant’s evidence that suggested M.H. was responsible
enough to be home alone. Id. Because the only evidence presented suggested
M.H. was responsible enough to be left at home, we concluded there was
insufficient evidence that the defendant was subjectively aware of a high
probability that M.H. was placed in a dangerous situation. Id.
[36] In Thames v. State, 653 N.E.2d 517 (Ind.Ct.App.1995), on the other hand, we
concluded sufficient evidence was presented to support the defendant’s
conviction of neglect of a dependent after the defendant left his girlfriend’s five-
year-old daughter alone and the child wandered out of her home and was
eventually taken to the police department. Although the defendant was only a
few houses away from the child, he was gone for several hours and the child
was found wandering the street. Id. We concluded the defendant “was
experienced at watching children and thus should have been subjectively aware
of a high probability that he placed [the child] in a dangerous situation by
leaving her at home.” Id.
[37] In the instant case, the record shows that between 5:00 a.m. and 6:00 a.m., on
March 2, 2015, the officers were dispatched to Aunt Misty’s house because
White was banging on her door demanding to have his children. When the
officers arrived, they resolved the matter by requesting White to go home and
the officers followed White home. The record is absent any showing that A.A.
woke up that night, let alone walked outside the residence. In Scruggs, 883
N.E.2d at 190, we declined to adopt the per se rule that merely leaving a seven-
year-old child home alone for any period of time constituted neglect, and
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 17 of 25 considered the facts and circumstances surrounding the case. In light of the
foregoing, we find that the State failed to meet its burden of showing that White
exposed A.A. to actual and appreciable danger since A.A. remained unharmed
and undisturbed that night while he walked to Aunt Misty’s house.
[38] The State further claims that witnessing a domestic dispute, and the fact that
M.W. and R.W. both had to flee their family home at 3:00 a.m. in a cold winter
night, is sufficient to prove that White subjectively placed M.W.’s and R.W.’s
emotional health in actual and appreciable danger. We disagree. Other than
the fact that the children were upset by their parents fighting, the State did not
offer any evidence, that the events of that night rose to this level of emotional
harm referred to in the neglect statute.
[39] As we observed in Gross, 817 N.E.2d at 311, “[t]here is admittedly a fine line
between properly exercising the police power to protect dependents and
improperly subjecting every mistake a parent may make in raising his or her
child to prosecutorial scrutiny.” Here, White admittedly argued with T.S. in
front of the Children and that argument turned violent. M.W. and R.W., who
observed the domestic dispute, were upset from the events. M.W. ran away
against White’s reprimand and White was subjectively unaware the she had run
away. At around 5:00 a.m., White walked to Aunt Misty’s house to retrieve
M.W. and R.W. While White may have demonstrated bad judgment, leaving
A.A. home alone, the State did not prove beyond a reasonable doubt that
White had a subjective awareness of a high probability that he had placed A.A.
in a dangerous situation. We agree with White that the State failed to prove the
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 18 of 25 mens rea element of the crime. See Martin v. Ohio, 480 U.S. 228, 238 (1987).
Accordingly, we reverse White’s conviction.
B. Intimidation
[40] White also challenges the sufficiency of his conviction for a Class A
misdemeanor intimidation as a lesser-included offense of Level 6 felony
intimidation. In the instant case, the State charged White with Level 6 felony
intimidation stating
“[O]n or about March 1, 2015, through March 2, 2015, in Tippecanoe County, [] White, did knowingly or intentionally communicate a threat to commit a forcible felony to another person, to wit: M.W. and/or R.W. with the intent that M.W. and /or R.W. be placed in fear of retaliation for a prior lawful act.”
(Appellant’s App. p. 10).
[41] To show that White committed intimidation, as a Class A misdemeanor, the
State was required to show, first, that White “communicate[d] a threat” to
M.W. and/or R.W. and, second, that he did so with the intent that M.W.
and/or R.W. “be placed in fear of retaliation for a prior lawful act.” I.C. § 35-
45-2-1 (2013).
[42] Here, the first question under the intimidation statute is whether White
“communicate[d] a threat.” I.C. § 35-45-2-1(a). In the instant case, the events
surrounding the crime were that M.W. and R.W. witnessed a domestic
altercation between their parents. M.W. saw White punch, kick, and pull T.S.’s
hair. At some point, M.W. tried to disrupt the fight by pulling White away
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 19 of 25 from T.S. In turn, White backed M.W. into a corner and barked, “[D]on’t ever
touch me again.” (Tr. p. 326). White then gestured his hand as if he was going
to hit M.W. Also, R.W. tried to break up the fight between his parents. An
angry White hit R.W. in the nose causing him to bleed.
[43] White first argues that his threat to M.W., “don’t ever touch me again” was
conditional and that any other evidence concerning whether he intended his
threat to place M.W. in fear of retaliation for a prior lawful act is irrelevant.
(Tr. p. 326). In support of that analysis, White notably cites C.L. v. State, 2
N.E.3d 798, 801 (Ind. Ct. App. 2014).
[44] In C.L., the defendant wanted about $1,700 from his grandfather so that he
could purchase a car. Id. At some point, the defendant became “huffy and
puffy,” and told his grandfather that he would “beat the heck out of” him if he
“didn’t get the money” for the car. Id. The defendant also told his grandfather
that if he “ever got sent to jail and . . . [got] out, [that he would] kill him.” Id.
Also, the defendant stated that he would kill others, including his mother and
brother. Id. This court determined the defendant’s threats of violence were
conditional and aimed at future conduct. As a result, the defendant’s threats of
violence were not made in retaliation against the prior lawful acts of the victim.
Id. at 801. Under the reasoning of C.L., no defendant can be convicted of
intimidation if he has the presence of mind to explicitly use conditional
language in the course of communicating his threat to another. Roar v. State,
No. 49A02-1506-CR-506, at *4 (Ind. Ct. App. Apr. 21, 2016). We, however,
find that is an unreasonable interpretation of our intimidation statute. Id.
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 20 of 25 Threats are, by definition, expressions of an intention to do a future thing, and, thus, to some degree, all threats are conditional. See I.C. § 35-45-2-l(d). And once the facts demonstrate that the defendant communicated a threat, the only question left is whether the defendant did so “with the intent” to place the victim “in fear of retaliation for a prior lawful act.” I.C. § 35-45-2-1(a)(2). Mere use of conditional language in the course of communicating a threat does not vitiate the statute’s application when the factual predicate for the threat was a prior lawful act of the victim. Stated another way, the language a defendant uses in communicating a threat may be relevant to the fact- finder’s assessment of the defendant’s intent, but the language used is not the only relevant consideration.
Id. White’s argument on appeal is such that we weigh his threat to M.W. as
conditional while simultaneously discrediting all other evidence. We will not
reweigh the evidence on appeal. The jury was capable of discerning whether
intimidation occurred where, as here, there is a clear nexus between the prior
lawful act and the threat. White verbally communicated a conditional threat to
M.W., and he further accompanied that threat with his body-language—lifting
his hand as if he was going to hit M.W. Secondly, both threats—verbal and
body language—were communicated directly after M.W. committed a prior
lawful act, which was an attempt to break up the fight between her parents.
Accordingly, we affirm White’s intimidation conviction.
V. Order Excluding Evidence at Sentencing Hearing
[45] Lastly, White argues that the trial court erred by denying him the opportunity
to present certain evidence at his sentencing hearing. As such, White claims
that his Fifth and Fourteenth Amendment rights under the United State
Constitution and I.C. § 35-38-1-3 were violated.
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 21 of 25 [46] The Fifth and Fourteenth Amendments of the U.S. Constitution provide in part
that no person shall be “deprived of life, liberty, or property, without due
process of law[.]” Further, Indiana Code Section 35-38-1-3 states:
Before sentencing a person for a felony, the court must conduct a hearing to consider the facts and circumstances relevant to sentencing. The person is entitled to subpoena and call witnesses and to present information in his own behalf. The court shall make a record of the hearing, including:
(1) a transcript of the hearing; (2) a copy of the presentence report; and (3) if the court finds aggravating circumstances or mitigating circumstances, a statement of the court's reasons for selecting the sentence that it imposes.
(emphasis added). The record shows that on August 6, 2015, White filed a
witness list and an exhibit for his sentencing hearing. The witnesses were
names of two Lafayette police officers, and the exhibit was a reference to a
motion filed in unrelated case—i.e., “United States v. Samuel Bradbury”—with no
cause number or citation provided. (Appellant’s App. p. 90). On the same day,
the State filed a motion to exclude the officers as witnesses and the exhibit,
arguing that the evidence had no bearing on White’s case. Still on the same
day, White filed a reply, arguing that the police officers were relevant to the
intimidation charge as “the State of Indiana has refused to prosecute these
witnesses for far worse statements made to an individual;” and that “United
States v. Samuel Bradbury involves the witnesses . . . and it will assist the [c]ourt
in showing how the State is treating allegations of intimidation differently as to
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 22 of 25 other different citizens.” (Appellant’s App. p. 87). On August 28, 2015, the
trial court issued an order granting the State’s motion to exclude the evidence.
[47] In support of his argument, White cites Wilson v. State, 865 N.E.2d 1024, 1029
(Ind. Ct. App. 2007). Wilson was convicted of murder and a misdemeanor
handgun offense. Id. He appealed because the trial court would not allow him
to present personal information—e.g., family history, employment history,
mental health history—at his sentencing hearing. Id. Upon review, we held
that because a convicted person is entitled to subpoena and call witnesses at
their sentencing hearing, the trial court did in fact violate the statute and
Wilson’s federal due process rights by refusing to admit evidence presented on
Wilson’s behalf through the testimony of others at the sentencing hearing. Id.
[48] We note that the “purpose of the sentencing hearing is to give the trial court the
opportunity to consider the facts and circumstances relevant to the sentencing
of the individual defendant before it. Page v. State, 424 N.E.2d 1021, 1023 (Ind.
1981). The trial court should determine those facts and circumstances by
referring to the entire record of the proceedings, which includes the testimony
and evidence given at trial. Id. Here, the evidence that White intended to
present did not show that he deserved a lenient sentence; rather, he attempted
to show that he should not have been charged, let alone convicted of the
intimidation offense.
[49] Notably, the right to present evidence and call witnesses exists only for persons
convicted of felonies. See I.C. § 35-38-1-3. Because White’s evidence—
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 23 of 25 witnesses and an exhibit—related to the misdemeanor intimidation conviction,
the holding in Wilson does not support White’s request for relief.
[50] Because the evidence presented by White did not relate to his case nor was it
intended to convince the trial court that he deserved a lenient sentence, and
coupled with the explicit statutory language of Ind. Code § 35-38-1-3, we agree
with the State that White has not demonstrated error in his sentencing or that
the trial court’s procedure violated his right to due process. Accordingly, we
affirm White’s sentence, but only with respect to his intimidation conviction.
CONCLUSION
[51] In light of the foregoing, we conclude that (1) the trial court properly denied
White’s motion to continue; (2) the trial court properly allowed the State to
exercise a peremptory strike on a potential juror; (3) there was insufficient
evidence to sustain White’s conviction for neglect of a dependent; however,
there was sufficient evidence to sustain White’s intimidation conviction; and (4)
the trial court did not abuse its discretion for excluding White’s proffered
evidence at his sentencing hearing.
[52] Affirmed, in part, and reversed, in part, and remanded for resentencing.
[53] Kirsch, J. concurs
[54] Pyle, J. concurring and dissenting with separate opinion
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 24 of 25 IN THE COURT OF APPEALS OF INDIANA
Robert Ramon White, Court of Appeals Case No. 79A05-1509-CR-1464 Appellant-Defendant,
v.
State of Indiana, Appellees-Plaintiffs.
Pyle, Judge.
[55] I respectfully dissent from my colleague’s decision to reverse White’s conviction
for neglect of a dependent. In my opinion, there is sufficient evidence from
which a jury could infer White’s intent to commit the offense. In all other
respects, I concur.
Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 25 of 25