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

       interviews of the Children.


[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
