MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Aug 12 2020, 8:52 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
Christopher Kunz                                         Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         George P. Sherman
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Chanda Harris,                                           August 12, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2580
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Barbara Crawford,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Amy J. Barbar,
                                                         Magistrate

                                                         Trial Court Cause No.
                                                         49G01-1805-F6-14711



Darden, Senior Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-2580 | August 12, 2020                    Page 1 of 17
                                          Statement of the Case
[1]   Chanda Harris appeals her three convictions of neglect of a dependent, all as
                               1
      Level 6 felonies. We affirm.


                                                    Issues
[2]   Chanda Harris raises three issues, which we restate as:


                 I.       Whether the evidence is sufficient to sustain Harris’
                          convictions.


                 II.      Whether the trial court erred in excluding from evidence
                          three photographs submitted by Harris.


                 III.     Whether the trial court committed fundamental error
                          while instructing the jury.


                                   Facts and Procedural History
[3]   In 2015, Harris contacted Donald Campbell, stating she believed that she was

      his biological daughter. After paternity testing confirmed that he was her

      biological father, Donald and his wife, Denise Campbell, regularly

      communicated with Harris. At that time, the Campbells lived in Lake County,

      Indiana. Harris and her three children, seven-year-old I.V., five-year-old P.V.,

      and three-year-old H.H., all lived in a house in Indianapolis with Harris’ then-

      boyfriend, Robert Kuner. The house had previously belonged to Kuner’s



      1
          Ind. Code § 35-46-1-4(a)(1) (2014).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2580 | August 12, 2020   Page 2 of 17
      grandparents, but no one had lived there for twenty years before Kuner, Harris

      and the children moved in during March 2015. The house had primarily been

      used for storage purposes. Kuner’s parents lived next door.


[4]   In late 2015, Donald traveled to Harris’ house, planning to stay over-night

      before he and Harris were to leave for a trip to Kentucky. When he arrived, he

      saw that the house was in an “extremely run down” and cluttered condition.

      Tr. Vol. II, p. 69. Specifically, the ceiling in the kitchen had been ripped away

      exposing wiring, joists and roof. The living room ceiling had a long crack in it

      with signs of water damage, and a portion of the dining room walls and ceiling

      had also been torn open. In addition, there was “black mold throughout the

      house in several areas.” Id. at 75. The house was also cold inside.


[5]   In the main bathroom, the toilet, bathtub, and sink were rusty and moldy.

      Donald saw a new toilet in the house, but it had not been installed. The

      children’s bedrooms were also very cluttered, as was the garage. There was an

      upstairs bathroom, but it “was inoperable.” Id. at 82.


[6]   Donald testified that he visited the house at least four or five additional times

      over the next two years. Each time he visited he continued to see the same run-

      down conditions, clutter and defects in the house that he had observed during

      his first visit, however, it appeared to him that the rooms had become even

      more cluttered. In addition, Harris and Kuner bred dogs in one room of the

      house, and Donald regularly saw dog feces in the breezeway that connected the

      house and the garage. The strong odor of feces could be smelled throughout the


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2580 | August 12, 2020   Page 3 of 17
      house. At some point in 2017, there was no running water, the water had

      stopped draining in the bathroom, and Kuner, Harris, and the children had to

      go to Kuner’s parents’ house to bathe and/or use the restroom. Donald had

      purchased supplies to help them renovate the house, but the supplies were never

      used. The new toilet was never installed. During the ensuing period, Donald

      had expressed to Harris his concerns for the children’s health and welfare due to

      what he perceived to be unsafe conditions and extreme clutter in the house.

      Finally, in December, 2017, Donald helped Harris and her children move out

      of the house.


[7]   Meanwhile, in April 2016, the Campbells had visited Kuner’s parents’ house for

      a family gathering after a memorial service in honor of Kuner’s father. Denise

      entered Harris’ home to use the restroom. She saw broken glass in the

      breezeway entrance to the house. In the bathroom, she saw that the bathtub,

      the toilet, and the sink were “thick in rust and mildew and mold.” Id. at 61.

      She smelled strong odors of “urine and mold and mildew.” Id. at 58.


[8]   Apparently, either in late 2017 or early 2018, an investigation was conducted

      concerning the living conditions of the children. Detective Jonathan Schultz of

      the Indianapolis Metropolitan Police Department was assigned to investigate

      the interior conditions in the house. During his investigation, Harris told

      Detective Schultz that they had used space heaters to heat the house because

      the heating system was broken. She further stated that there was a hole in the

      ceiling, and that “water wouldn’t drain” out of the plumbing in the house. Id.

      at 88. In addition, Harris told Detective Schultz that she and the children had

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2580 | August 12, 2020   Page 4 of 17
       to go over to Kuner’s mother’s home to “stay warm” during the wintertime. Id.

       at 91.


[9]    When Detective Schultz had inspected the house on March 4, 2018, he

       observed that there was still a hole in the ceiling, there was clutter and dog feces

       throughout the house, and it was very cold inside. He took numerous

       photographs. Donald later stated and testified that the photographs accurately

       depicted the interior of the house during the times when he had visited, except

       that the rooms were more cluttered during his visits.


[10]   On March 7, 2018, the State charged Harris with three counts of neglect of a

       dependent, all Level 6 felonies. Harris’ counsel entered an appearance two

       days later. The trial court held an initial hearing for May 10, 2018, during

       which the trial court set an omnibus date of July 5, 2018.


[11]   The trial court presided over a jury trial on August 14, 2019. At the beginning

       of the trial, before the potential jurors were brought into the courtroom, the

       State raised an objection to Harris’ proposed introduction of Exhibits A, B, and

       C, which were photographs. Two of the photographs depicted the children in

       the house, and the third picture depicted a Christmas tree and presents in the

       corner of a room in the house. The State argued that Harris had not disclosed

       the photographs until the day before trial, i.e., less than 24 hours of trial.

       Neither the State nor Harris requested a continuance of the trial, and the trial

       court did not offer one. After the parties presented argument, the trial court

       excluded the photographs from evidence.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2580 | August 12, 2020   Page 5 of 17
[12]   The jury found Harris guilty as charged. Subsequently, the trial court imposed

       a sentence, and this appeal followed.


                                    Discussion and Decision
                                  I. Sufficiency of the Evidence
[13]   Harris argues that her convictions should be reversed because the State failed to

       prove the conditions in the house were dangerous, or that she was aware of any

       danger. When a defendant challenges the sufficiency of the evidence, we

       neither reweigh evidence nor judge witness credibility. McCallister v. State, 91

       N.E.3d 554, 558 (Ind. 2018). We instead consider only the probative evidence

       and the reasonable inferences that support the verdict. Phipps v. State, 90

       N.E.3d 1190, 1195 (Ind. 2018). We will affirm the conviction if probative

       evidence supports each element of the crime beyond a reasonable doubt.

       Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied, 139 S. Ct. 839, 202

       L. Ed. 2d 609 (2019).


[14]   To obtain convictions on the three counts of neglect of a dependent, all as Level

       6 felonies, the State was required to prove beyond a reasonable doubt that

       Harris: (1) had the care of dependents I.V., P.V., and H.H.; and (2) knowingly

       or intentionally (3) placed them in a situation that endangered their lives or

       health. Ind. Code § 35-46-1-4(a)(1). Harris does not dispute that I.V., P.V., and

       H.H. were dependents in her care. We instead address the elements of

       endangerment and Harris’ mental state.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2580 | August 12, 2020   Page 6 of 17
[15]   The purpose of Indiana Code section 35-46-1-4 “is to authorize the intervention

       of the police power to prevent harmful consequences and injury to dependents.”

       State v. Downey, 476 N.E.2d 121, 123 (Ind. 1985). The danger referred to in the

       statute must be “actual and appreciable.” Id. However, actual physical injury

       is not required to obtain a conviction. Williams v. State, 829 N.E.2d 198, 201

       (Ind. Ct. App. 2005), trans. denied.


[16]   Here, there is ample evidence that the deteriorated condition of Harris’ house

       posed an actual and appreciable risk of harm and danger to her three children.

       She admitted to Detective Schultz that the home’s heating system did not work

       and that she had to use space heaters to keep the children warm. Harris argues

       that the house was without heat for only a few months before she and the

       children moved out, and that she had the children sleep at Kuner’s mother’s

       house on only one cold night, but her argument is nothing more than a request

       to reweigh the evidence. Donald testified that the house was “cold” even

       during his first visit in late 2015, indicating that the problem was more long-

       lasting. Tr. Vol. II, p. 69.


[17]   In addition, the house lacked running water for several months, requiring the

       children to go next door for showers and to use the restroom. Even when the

       house had running water, the only functioning bathtub, sink, and toilet in the

       house were covered in mold, rust, and mildew. Further, the ceiling and drywall

       had been removed in several places, revealing water damage and additional

       mold. According to the testimony of Donald and Denise, the entire house had

       a terrible stench of urine, mold, mildew, and dog feces when they visited.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2580 | August 12, 2020   Page 7 of 17
[18]   Finally, the house had been used primarily for storage purposes before Harris

       and the children moved in and it continued to be cluttered with Kuner’s

       family’s belongings throughout the time they stayed there, including the

       children’s bedrooms. This is ample evidence of actual and appreciable risks of

       danger to the children’s health, including their mental health. See Germaine v.

       State, 718 N.E.2d 1125, 1132 (Ind. Ct. App. 1999) (ample evidence supported

       conviction of neglect of a dependent; parent had allowed garbage to clutter the

       house, posing a risk of fire and disease), trans. denied.


[19]   We next turn to Harris’ claim that the evidence does not show that she acted

       “knowingly,” as set forth in the governing statute. Proof of a defendant’s

       mental state is “almost inevitably, absent a defendant’s confession or

       admission, a matter of circumstantial proof.” Bowser v. State, 984 N.E.2d 236,

       240 (Ind. Ct. App. 2013). We may infer the required mental state “from the

       facts and circumstances of each case.” Baxter v. State, 891 N.E.2d 110, 121 (Ind.

       Ct. App. 2008). For purposes of the offense of neglect of a dependent, a

       defendant acts “knowingly” when the defendant is “subjectively aware of a high

       probability that [he or she] placed the dependent in a dangerous situation.”

       Ware v. State, 441 N.E.2d 20, 23 (Ind. Ct. App. 1982).


[20]   In this case, the children ranged in age from seven to three in 2015, and were

       completely dependent upon Harris to keep them safe throughout the two-year

       period that they lived in the house. The children’s bedrooms, and many other

       rooms, were filled with clutter. The house had obvious safety issues, including

       water-damaged ceilings, mold, damaged drywall, and a broken heating system.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2580 | August 12, 2020   Page 8 of 17
       The one functional bathroom contained mold, mildew, and rust, and even that

       bathroom ceased to be usable after the drainpipe quit working. Harris admitted

       to Detective Schultz that the condition of the house was not “good,” conceding

       that there was a hole in the ceiling, the heating system was broken, and water

       did not drain out of the house. Donald testified that the poor conditions never

       changed for the better during the multiple visits they made to the house over a

       two year period. This is ample evidence from which the jury could have

       determined beyond a reasonable doubt that Harris was subjectively aware that

       she had placed the children in a home that posed a danger to their health for

       several years. Cf. Scruggs v. State, 883 N.E.2d 189, 190 (Ind. Ct. App. 2008)

       (insufficient evidence of Scruggs’ mental state to support a conviction of neglect

       of a dependent; Scruggs left her seven-year-old child alone at home for three

       hours). There is sufficient evidence to sustain Harris’ conviction.


                  II. Exclusion of Belatedly Disclosed Photographs
[21]   Harris argues the trial court erred in excluding from evidence her Exhibits A, B,

       and C, consisting of three photographs. “A trial judge has the responsibility to

       direct the trial in a manner that facilitates the ascertainment of truth, ensures

       fairness, and obtains economy of time and effort commensurate with the rights

       of society and the criminal defendant.” Vanway v. State, 541 N.E.2d 523, 526

       (Ind. 1989). “The trial court must be given wide discretionary latitude in

       discovery matters since it has the duty to promote the discovery of truth and to

       guide and control the proceedings, and will be granted deference in assessing

       what constitutes substantial compliance with discovery orders.” Id. at 527. A

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2580 | August 12, 2020   Page 9 of 17
       trial court’s ruling on the admissibility of evidence constitutes an abuse of

       discretion only if the ruling is clearly against the logic and effect of the facts and

       circumstances before it, or if the trial court has misinterpreted the law. Hastings

       v. State, 58 N.E.3d 919, 922 (Ind. Ct. App. 2016).


[22]   Sanctions for failure to comply with discovery deadlines are within the trial

       court’s discretion, but when deciding whether to exclude evidence, the primary

       factors that a trial court should consider are “whether the breach was

       intentional or in bad faith and whether substantial prejudice has resulted.”

       Wiseheart v. State, 491 N.E.2d 985, 988 (Ind. 1986). “[I]t is necessary that the

       trial court determine more than the existence of a violation,” id. at 988, because

       exclusion of evidence is an “extreme sanction.” Id. at 991. In general, a

       continuance of the trial, rather than exclusion of evidence, is the appropriate

       remedy for belatedly disclosed evidence. Cook v. State, 675 N.E.2d 687, 691

       (Ind. 1996).


[23]   Marion Superior Court Criminal Rule 107(1)(c) provides: “All Discovery shall

       be completed by the omnibus date unless extended for good cause shown.” In

       Harris’ case, the trial court set an omnibus date of July 5, 2018. Neither party

       requested an extension of the discovery deadline. Harris’ belated disclosure of

       the three photographs on August 13, 2019, less than 24 hours of the day before

       the trial, thus violated the local rule. The question is whether there was bad

       faith or substantial prejudice, above and beyond the rule violation, to justify the

       extreme sanction of exclusion of evidence.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2580 | August 12, 2020   Page 10 of 17
[24]   The State did not allege at trial, and does not allege on appeal, that Harris acted

       in bad faith. As a result, our analysis focuses on whether the State was

       substantially prejudiced by the belated disclosure. There is no dispute that

       Harris failed to disclose the photographs to the prosecutor until the day before

       trial. Thus, the State was caught completely unawares. Cf. Cook, 675 N.E.2d at

       691 (trial court erred in excluding Cook’s witness; although Cook failed to

       timely disclose the witness to the State, the State had named the witness in its

       own discovery materials and was aware of the substance of her testimony well

       in advance of trial). Further review of the record reveals that Harris had been

       granted at least 5 continuances of the trial dates from 2018 to 2019.


[25]   Further, the State submitted ample evidence that it would be substantially

       prejudiced by the admission of the belatedly disclosed evidence at trial, or by a

       continuance. First, two of its witnesses, the Campbells, had traveled to

       Indianapolis from Lake County the day before to testify, incurring traveling and

       lodging expenses.


[26]   Second, the State was deprived of an opportunity to timely investigate the

       circumstances under which the photographs were taken, including what

       cleaning may have been done prior to taking the photographs. These

       circumstances could have been crucial to the State in attempting to challenge

       the value of the photographs during trial.


[27]   Third, two of Harris’ photographs, specifically Exhibits A and B, depicted the

       child-victims, with smiles on their faces. The prosecutor informed the trial


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2580 | August 12, 2020   Page 11 of 17
       court that she had not intended to have the children testify at trial because they

       had been diagnosed with “PTSD as a result of what they’ve been through.” Tr.

       Vol. II, p. 4. The prosecutor further stated that, under the circumstances, after

       advance notice to defense and taking into consideration the health and welfare

       of the children, Harris’ counsel knew the State had not intended to call the

       children to testify. But because the children were depicted in two of the

       photographs, the prosecutor may be forced to call the children to testify

       “against their mom.” Id. As a result of the late notice by the defense, the State

       would be obligated to bring the children to court and hurriedly attempt to

       prepare them for a possibly traumatizing experience.


[28]   Under these facts and circumstances, herein, the State demonstrated that it

       would have been substantially prejudiced by the belatedly disclosed

       photographs being admitted into evidence. The trial court did not abuse its

       discretion in excluding them.


[29]   Even if the trial court erred in excluding Harris’ photographs from evidence,

       any error was harmless. When evidence is erroneously excluded, reversal is

       required only if the error relates to a material matter or substantially affects the

       rights of the parties. Hill v. State, 51 N.E.3d 446, 450 (Ind. Ct. App. 2016). In

       determining whether an error is harmless, we must assess the probable impact

       of that evidence upon the jury. Id. (quotation omitted).


[30]   In the instant case, testimony from the Campbells, testimony and photographs

       from Detective Schultz, and Harris’ admissions to Detective Schultz strongly


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2580 | August 12, 2020   Page 12 of 17
       support the State’s charges of neglect of a dependent. By contrast, Harris’ three

       photographs provide only limited information about the house. Two of the

       three photographs focus upon the children rather than the entirety of the rooms.

       The third photograph shows a Christmas tree and presents placed in the small

       corner of a room. None of the photographs show the damaged walls or

       ceilings, or the decrepit, filthy bathroom or the conditions of the entire house.

       Considering all the evidence presented at trial, if the photographs had been

       presented to the jury, their probable impact would have been minimal if any.

       See Townsend v. State, 26 N.E.3d 619, 629 (Ind. Ct. App. 2015) (trial court’s

       error in excluding testimony from Townsend’s witness was harmless

       considering the other evidence submitted at trial), trans. denied. We conclude

       the trial court did not abuse its discretion in excluding the photographs from

       evidence.


                     III. Jury Instructions and Fundamental Error
[31]   Harris argues the trial court should have instructed the jurors that they were

       required to unanimously agree as to which of her acts endangered the children.

       In general, the manner of instructing a jury is left to the sound discretion of the

       trial court. Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct. App. 2013), trans. denied.

       We review the trial court’s decision only for an abuse of that discretion. Id.


[32]   Harris concedes that she did not object to the omission of an unanimity

       instruction from the trial court’s jury instructions. When a defendant fails to

       preserve an alleged instructional defect, the objection is waived, and reversal is


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2580 | August 12, 2020   Page 13 of 17
       warranted only in instances of fundamental error. Pattison v. State, 54 N.E.3d

       361, 365 (Ind. 2016). Fundamental error is error that represents a blatant

       violation of basic principles rendering the trial unfair to the defendant, thereby

       depriving the defendant of fundamental due process. Evans v. State, 81 N.E.3d

       634, 637 (Ind. Ct. App 2017). The error must be so prejudicial to the rights of

       the defendant as to make a fair trial impossible. Id.


[33]   Harris claims that during trial, the State “proposed a variety of options” as to

       how she committed three counts of neglect of a dependent, Appellant’s Br. p.

       10, and in the absence of a jury instruction requiring the jury to unanimously

       agree which set of facts constituted neglect of a dependent, the jurors could

       have inappropriately “reached six different verdicts” as to which acts

       endangered each of the three children. Id. at 25.


[34]   The leading Indiana Supreme Court decision on unanimity in jury verdicts is

       Baker v. State, 948 N.E.2d 1169 (Ind. 2011). In that case, Baker was charged

       with three counts of child molesting involving three different relatives. At trial,

       each of the three victims testified that Baker had molested them on multiple

       occasions. A jury determined he was guilty as charged. On appeal, Baker

       argued the trial court should have instructed the jury that they needed to

       unanimously agree as to the specific circumstances under which Baker had

       committed each offense. Baker had not presented that argument to the trial

       court, so the Indiana Supreme Court reviewed his claim for fundamental error.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2580 | August 12, 2020   Page 14 of 17
[35]   Our Supreme Court noted that the State may allege alternative theories of

       culpability when prosecuting a defendant for a single offense, but problems arise

       when “evidence is presented of a greater number of separate criminal offenses

       than the defendant is charged with.” Id. at 1175. As a result, the Court

       determined:


               [T]he State may in its discretion designate a specific act (or acts)
               on which it relies to prove a particular charge. However if the
               State decides not to so designate, then the jurors should be
               instructed that in order to convict the defendant they must either
               unanimously agree that the defendant committed the same act or
               acts or that the defendant committed all of the acts described by
               the victim and included within the time period charged.


       Id. at 1177. The Baker Court further noted the trial court did not provide an

       unanimity instruction to the jury. However, any error in failing to provide the

       instruction was not fundamental because Baker’s sole defense was a challenge

       to the victims’ credibility, and by resolving the credibility dispute against Baker,

       the jury would have convicted him of any of the offenses that had been shown

       by the evidence to have been committed.


[36]   In the instant case, the State alleged that Harris had committed each offense

       between March 1, 2015 and December 14, 2017. There is no dispute that the

       prosecutor failed to specify for the jury the acts or omissions by Harris that

       amounted to the three offenses of neglect of a dependent. There is also no

       dispute that the trial court’s jury instructions merely told the jurors that they




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2580 | August 12, 2020   Page 15 of 17
       must “agree” to a verdict and should not sign a verdict form unless they had

       reached a “unanimous” decision. Appellant’s App. Vol. II, pp. 160-61.


[37]   In any event, even if the trial court was required to give an unanimity

       instruction according to the holding in Baker, we conclude any error was not

       fundamental. As in Baker, the key dispute in this case was witness credibility.

       Harris testified in her own defense, and she challenged the version of events put

       forth by the State’s witnesses. She stated that she had cleaned up the clutter in

       the children’s rooms upon moving in. Harris also disputed that there was lots

       of clutter in the house, and she further stated that there were no more than three

       dogs in the house when she lived there. In addition, she claimed that she

       repeatedly attempted to clean the only functioning bathroom, but that it was

       stained from well water. Finally, she testified that Kuner let the house

       deteriorate after his father died, and the worst problems arose only after she and

       the children had moved out. Having staked her defense on credibility

       determinations, we conclude, as the Baker Court did, that once the jury

       determined the credibility question against Harris, the jury would have

       convicted her of any of the theories raised by the State. Harris has failed to

       establish that the absence of an unanimity instruction was so prejudicial as to

       render a fair trial impossible.


                                                 Conclusion
[38]   For the reasons stated above, we affirm the judgment of the trial court.


[39]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2580 | August 12, 2020   Page 16 of 17
[40]   Riley, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2580 | August 12, 2020   Page 17 of 17
