Dunn v. State

202 N.E.3d 1158

Andre DUNN, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 21A-CR-1893

Court of Appeals of Indiana.

Filed February 2, 2023

Attorney for Appellant: Jonathan D. Harwell, Harwell Legal Counsel LLC, Indianapolis, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Caroline G. Templeton, Deputy Attorney General, Indianapolis, Indiana

Tavitas, Judge.

Case Summary

[1] Andre Dunn appeals his conviction for neglect of a dependent resulting in bodily injury, a Level 5 felony. Dunn argues that: (1) the trial court abused its discretion by excluding certain evidence; and (2) the State failed to present sufficient evidence to support his conviction. Finding that the trial court did not abuse its discretion and that the State presented sufficient evidence, we affirm.

Issues

[2] Dunn raises two issues on appeal, which we reorder and restate as:

I. Whether the trial court abused its discretion in excluding certain evidence.

II. Whether the State presented sufficient evidence to support Dunn's conviction.

Facts

[3] K.W. was born on August 17, 2018, to Shanea White. On October 13, 2018, K.W.’s paternal grandmother, Jama Childress, picked up K.W. from White's home to watch him for the weekend. At the time, Childress was living with Dunn, her boyfriend.

[4] Around noon the following day, Childress left K.W. with Dunn for approximately forty-five minutes while she ran errands. When Childress returned, K.W. "was screaming bloody murder." Tr. Vol. II p. 126. Dunn asked Childress if K.W.’s "head look[ed] off from what it should normally look like" and stated that K.W.’s head "felt crunchy." Id. at 127. Dunn also observed that K.W.’s head looked "swollen." Tr. Vol. III p. 15. Childress, a LPN for dialysis, believed that K.W.’s head "was slightly misshaped" but concluded that the misshapen head was "regular" for a newborn.¹ Tr. Vol. II p. 147.

[5] That evening, Dunn and Childress returned K.W. to White. Dunn and Childress did not report any concerns about K.W.’s head to White, and White did not immediately notice anything wrong with K.W.’s head. K.W. was crying when Childress and Dunn dropped him off, but he fell asleep in his car seat after White carried him inside. White let K.W. sleep for approximately forty-five minutes. White then attempted to take K.W.’s snowsuit off, and K.W. started "screaming ... like he was in pain." Id. at 63. White removed K.W.’s hood and observed that K.W. could not hold his head up and that "the side of his head was swollen and the back of his head was completely flat." Id. She further observed that K.W. could not "follow you with his eyes. His eyes would not move from the left." Id. at 65.

[6] White took K.W. to the hospital, where he was diagnosed with "bilateral skull fractures," "subgaleal hemorrhage," bruising on the rim of the ear, and bruising across the shin. Id. at 168, 170. The bilateral skull fractures "started at the back of [K.W.’s] head and wrapped around the sides of his head." Id. at 172.

[7] On December 7, 2018, the State charged Dunn with three counts: Count I, battery resulting in serious bodily injury to a person less than fourteen years old, a Level 3 felony; Count II, neglect of a dependent resulting in serious bodily injury, a Level 3 felony; and Count III, neglect of a dependent resulting in bodily injury, a Level 5 felony. Regarding Count III, the State alleged that Dunn "did knowingly place [K.W.] in a situation that endangered [K.W.’s] life or health" by "fail[ing] to seek medical treatment for [K.W.] after [K.W.] suffered an injury to his head." Appellant's App. Vol. II pp. 30.

[8] The trial court held a jury trial in May 2021. Dunn testified in his own defense and admitted he did not have "a whole lot" of experience with caring for babies. Tr. Vol. III p. 4. He testified that he did not seek medical treatment for K.W. because, based on Childress "being a mother, a grandmother and a nurse," he "had no reason to question anything." Tr. Vol. III p. 11. Dunn denied stating that K.W.’s head felt crunchy but rather testified that he stated K.W.’s head "looked" crunchy "because [K.W.’s] head looked like a golf ball in a sense because he had potholes in a sense all over his head." Tr. Vol. III p. 15. Childress, Dunn, and White all denied injuring K.W.

[9] Dr. Tara Holloran, a physician with Riley Children's Hospital who specializes in child abuse pediatrics and who personally examined K.W., testified regarding K.W.’s injuries. Dr. Holloran attributed K.W.’s injuries to "non-accidental trauma" based on the combination of "bilateral skull fractures and bruising on other place[s] of the child" and the fact that "the caretakers have not offered any history that explains [the injuries] or any history of an accident that would have caused them." Tr. Vol. II p. 183; Tr. Vol. III p. 22. She further testified that a newborn's cries of pain are distinct from other newborn cries and that she "would expect the caretaker to recognize that [K.W.] was in pain" based on K.W.’s screaming. Tr. Vol. II. 177. Dr. Andre Lloyd, a forensic bio-mechanic engineer who investigates the causes of injuries, testified that K.W.’s "head injuries were likely caused by a single impact and [K.W.] experienced a[n] impact that would be force equivalent to a two (2) to three (3) feet fall." Tr. Vol. II p. 222.

[10] Dunn sought to introduce evidence of prior neglect of K.W. by White. The trial court found the evidence irrelevant and inadmissible, and Dunn made an offer of proof.

[11] The jury found Dunn not guilty on Counts I and II and guilty on Count III. The trial court entered judgment of conviction on Count III and sentenced Dunn to three years, all suspended to probation. Dunn now appeals.

Discussion and Decision

[12] Dunn argues that the trial court abused its discretion by excluding alleged instances of prior neglect by White and that the State presented insufficient evidence to support his conviction for neglect of a dependent. We disagree.

I. Exclusion of Evidence

[13] We review challenges to the exclusion of evidence for an abuse of the trial court's discretion. Clark v. State , 994 N.E.2d 252, 259-60 (Ind. 2013). In those instances, we will reverse only where the decision is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights. Id. "The effect of an error on a party's substantial rights turns on the probable impact of the impermissible evidence upon the jury in light of all the other evidence at trial." Gonzalez v. State , 929 N.E.2d 699, 702 (Ind. 2010).

[14] We look to Evidence Rules 402 and 401 to determine whether the trial court erred in excluding evidence of prior neglect of K.W. by White. Evidence Rule 402 provides, "[i]rrelevant evidence is not admissible." Evidence Rule 401 defines relevant evidence as evidence that "has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." Here, Dunn was convicted of neglecting K.W. by failing to seek medical treatment for K.W. after Dunn became concerned that K.W.’s "head look[ed] off from what it should normally look like," "felt crunchy," and appeared "swollen." Tr. Vol. II p. 127; Tr. Vol. III p. 15. White was not with K.W. at the time, and, moreover, White took K.W. to the hospital when she discovered his injuries later that evening. Accordingly, White's alleged history of neglect was not relevant and would not have substantially impacted Dunn's rights.²

II. Sufficiency of the Evidence

[15] Dunn next argues that the State failed to present sufficient evidence to support his conviction for neglect of a dependent. We disagree.

[16] Sufficiency of evidence claims "warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility." Powell v. State , 151 N.E.3d 256, 262 (Ind. 2020) (citing Perry v. State , 638 N.E.2d 1236, 1242 (Ind. 1994) ). Our deferential standard of review makes clear that "a criminal trial is ‘the main event’ at which a defendant's rights are to be determined." Young v. State , 198 N.E.3d 1172, 1176 (Ind. 2022) (quoting McFarland v. Scott , 512 U.S. 849, 859, 114 S. Ct. 2568, 2574, 129 L.Ed.2d 666 (1994) ). "When there are conflicts in the evidence, the jury must resolve them." Id.

[17] "To preserve the jury's primacy in determining whether the State has met this burden, appellate courts ‘consider only the evidence most favorable to the State together with all reasonable and logical inferences which may be drawn therefrom.’ " Id. (quoting Lyles v. State , 970 N.E.2d 140, 142 (Ind. 2012) ). "A conviction must be affirmed unless ‘no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.’ " Id. (quoting Jenkins v. State , 726 N.E.2d 268, 270 (Ind. 2000) ). "Hence, ‘the task for us, as an appellate tribunal, is to decide whether the facts favorable to the verdict represent substantial evidence probative of the elements of the offenses.’ " Id. (quoting Drane v. State , 867 N.E.2d 144, 147 (Ind. 2007) ).

[18] The State charged Dunn with neglect of a dependent pursuant to Indiana Code Section 35-46-1-4(a), which provides, in relevant part:

A person having the care of a dependent, whether assumed voluntarily or because of a legal 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, a Level 6 felony.

Subsection (b) makes the offense a Level 5 felony if it "results in bodily injury."

[19] " ‘Neglect is the want of reasonable care—that is, the omission of such steps as a reasonable [caregiver] would take, such as are usually taken in the ordinary experience of mankind.’ " Lush v. State , 783 N.E.2d 1191, 1197 (Ind. Ct. App. 2003) (quoting White v. State , 547 N.E.2d 831, 836 (Ind. 1989) ). "When the allegation of neglect is the failure to...