                                                                              FILED
                                                                        Jan 25 2018, 10:49 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John D. Plascak                                            Curtis T. Hill, Jr.
Rensselaer, Indiana                                        Attorney General of Indiana
Robert V. Monfort                                          Laura R. Anderson
Rensselaer, Indiana                                        Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Billy J. Burden,                                           January 25, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           66A03-1706-CR-1298
        v.                                                 Appeal from the
                                                           Pulaski Circuit Court
State of Indiana,                                          The Honorable
Appellee-Plaintiff.                                        Michael Anthony Shurn, Judge
                                                           Trial Court Cause No.
                                                           66C01-1510-F6-93



Kirsch, Judge.




Court of Appeals of Indiana | Opinion 66A03-1706-CR-1298 | January 25, 2018                       Page 1 of 10
[1]   Following a jury trial, Billy J. Burden (“Burden”) was convicted of neglect of a

      dependent1 as a Level 6 felony. On appeal, Burden raises two issues, the

      following of which we find dispositive: whether the State presented sufficient

      evidence to support the element of neglect, requiring that Burden knowingly

      placed the dependent in a position that endangered her life or health.2


[2]   We reverse.


                                      Facts and Procedural History
[3]   In the fall of 2015, Burden and a woman named Christina were in a

      relationship and lived together with Christina’s two young children B.E. and

      K.E. Christina believed that Burden was the father of four-month old K.E.; yet,

      she wanted Burden to provide no care for either child, explaining, “I was their

      mother.” Tr. Vol. 3 at 40. Christina testified that she provided “clothing,

      shelter, and all of the necessities” for K.E., and when it came to medical care,

      Christina’s decision was the “rule of the day.” Id. K.E. was born with various

      health issues, and in the summer of 2015, she had heart surgery.


[4]   On September 28, 2015, Burden was the front-seat passenger in a car driven

      along a Pulaski County road by his sister, Tiffany. Tiffany’s child, A.K., was in

      the back, buckled into a car seat. Christina, B.E., and K.E. were also in the




      1
          See Ind. Code § 35-46-1-4(a)(1).
      2
       Burden also contends that the State’s voir dire questions pertaining to a father’s duty toward his injured
      child constituted prosecutorial misconduct that rose to the level of fundamental error. Because we reverse
      Burden’s conviction on other grounds, we need not address this issue.

      Court of Appeals of Indiana | Opinion 66A03-1706-CR-1298 | January 25, 2018                       Page 2 of 10
      back seat. B.E. sat in the middle, with his seatbelt fastened, and Christina sat

      next to B.E. Christina held a car seat on her lap, and K.E. was buckled into the

      car seat. The six individuals were driving to a grocery store when Tiffany,

      “show[ing] off her [new] car,” began to speed. Tr. Vol. 3 at 8. Reaching speeds

      of more than 100 miles per hour, Tiffany drove over a small hill, swerved to

      avoid an oncoming vehicle, swerved again to avoid a telephone pole, and lost

      control of the car. Tiffany’s car began to skid, went off the road into a

      cornfield, and rolled over several times before landing on its roof.


[5]   Christina testified that, as a result of the accident, she, B.E., K.E., and A.K.

      were ejected from the car. She said that she was thrown twenty feet from the

      car, and K.E., still in her car seat, landed seven feet from Christina. Id. at 11-

      12. Hearing K.E.’s cries, Christina rushed to her side and unbuckled K.E. from

      her car seat. From inside the car, Burden, asking about K.E., repeatedly yelled,

      “Where’s the f***ing baby at.” Id. 3 at 14. Christina responded, “She’s right

      f***ing here in my arms.” Id. When Burden extricated himself from the car, he

      went up to Christina and, again, asked about K.E. Id. at 15. Christina told

      Burden that K.E. was in her arms. Id. It was at that time that Burden asked if

      everyone was okay, and Christina said, “Yeah, everybody’s fine.” Id. That

      was the last time Christina saw Burden at the scene of the accident.


[6]   Dewain Davis (“Davis”), the driver of the car that Tiffany almost hit, testified

      that he saw the accident and called 911 to report it. Tr. Vol. 2 at 183. After

      Davis got off the phone, he approached the crash site and saw six individuals

      outside the wrecked car—two adult females, three children, and a male, later

      Court of Appeals of Indiana | Opinion 66A03-1706-CR-1298 | January 25, 2018   Page 3 of 10
      identified as Burden. Davis asked if everyone was okay, and he was assured

      that no one else was in the wreck. Davis saw Burden ask a passing driver if she

      would take him to get help. Id. at 188. When she refused, Burden asked

      whether Davis would give him a ride to get help. Id. at 186. Davis also

      refused, explaining that he had called 911 and “help was on the way.” Id.

      Davis testified that Burden “asked another gentleman there if he would take

      him to the house down the way to get help and that gentleman[, Michael Hartle

      (“Hartle”),] did take [Burden].” Id. at 187.


[7]   Hartle testified that he came upon the accident and saw a couple of farmers he

      knew at the scene. Hartle and the farmers tried to call 911, but were

      unsuccessful because they were in a cellular dead zone. Id. at 207. Burden,

      “cut up and injured,” approached Hartle, who asked Burden if he or anyone

      else needed medical attention. Id. at 206. Burden explained that he had gone

      through the windshield of the car, was the only one injured, and no one else

      needed medical assistance, but continued that he had children in the car and

      needed to call his mother-in-law to come to the scene to pick them up. Id. at

      206, 208. Burden said his phone did not work, explained that his house was

      down the road, and asked Hartle to take him there so he could call the police.

      Understanding that his own phone did not work, Hartle believed Burden and

      drove him home. Burden left the scene before the deputies arrived. Deputies

      later determined that Burden never called anyone for help after he left the scene.

      Pulaski County Sheriff’s Deputy Aaron Himes, who was one of the first to




      Court of Appeals of Indiana | Opinion 66A03-1706-CR-1298 | January 25, 2018   Page 4 of 10
      respond to the scene, testified that he believed Burden left the scene because

      there was “a warrant out for him.” Id. at 165.


[8]   Diana Lynn Farris (“Farris”), one of the paramedics who responded to the

      scene, testified about the heightened suspicion of injury for victims who have

      been ejected from a vehicle. Id. at 220. Farris was the paramedic overseeing

      K.E.’s care. She testified, “I listened to the baby’s breath sounds, looked at the

      color, did like a quick assessment. . . . Her heart rate was good, her lung

      sounds were good. . . . [S]o she looked fine at that point without having x-ray

      vision.” Id. at 221. Farris qualified her assessment, saying, “I suspect the worst

      in every kid . . . . They look fine one minute, and they’re dead the next. That’s

      how . . . we are taught to look for and treat trauma children because that’s what

      they do. Adults tend to slowly decline and decline . . ., but kids are the total

      opposite. They look fine, they compensate, they compensate, they compensate,

      and then they drop off the cliff.” Id. at 223. K.E. was taken by helicopter to a

      facility with a trauma center, as protocol directed. Id. at 225.


[9]   On October 8, 2015, the State charged Burden with Level 6 felony neglect of a

      dependent. On February 21-22, 2017, a jury trial was held, at the conclusion of

      which, the jury found Burden guilty as charged. The trial court imposed a two-

      year sentence. Burden now appeals, arguing that there was insufficient

      evidence to support his conviction.




      Court of Appeals of Indiana | Opinion 66A03-1706-CR-1298 | January 25, 2018   Page 5 of 10
                                       Discussion and Decision
[10]   Our standard of review upon a challenge to the sufficiency of the evidence is

       well established: we do not reweigh the evidence or judge the credibility of

       witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We examine

       only the probative evidence and reasonable inferences therefrom that support

       the conviction. Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012). “[W]e affirm if

       there is substantial evidence of probative value supporting each element of the

       crime from which a reasonable trier of fact could have found the defendant

       guilty beyond a reasonable doubt.” Davis v. State, 813 N.E.2d 1176, 1178 (Ind.

       2004).


[11]   To obtain a conviction for Level 6 felony neglect of a dependent, pursuant to

       Indiana Code section 35-46-1-4(a)(1) (“the Neglect Statute”), the State had to

       prove beyond a reasonable doubt that Burden: (1) had the care of a dependent,

       K.E.; and (2) knowingly or intentionally placed K.E. in a situation that

       endangered her life or health. On appeal, both parties argue extensively about

       whether there was sufficient evidence to prove that K.E. was a dependent in

       Burden’s care. However, we need not resolve that issue to decide the instant

       appeal, because there is a second element that must be proven. Assuming,

       without deciding, that there was sufficient evidence that K.E. was a dependent

       in Burden’s care, the key evidentiary question under the Neglect Statute was

       whether Burden knowingly placed K.E. in a situation that endangered her life

       or health.



       Court of Appeals of Indiana | Opinion 66A03-1706-CR-1298 | January 25, 2018   Page 6 of 10
[12]   “A person engages in conduct knowingly if, ‘when he engages in the conduct,

       he is aware of a high probability that he is doing so.’” Villagrana v. State, 954

       N.E.2d 466, 468 (Ind. Ct. App. 2011) (quoting Ind. Code § 35-41-2-2(b)). The

       mens rea under the Neglect Statute, requires the defendant to have a

       “‘subjective [ ] aware[ness] of a high probability that he placed the dependent in

       a dangerous situation.’” Perryman v. State, 80 N.E.3d 234, 250 (Ind. Ct. App.

       2017) (quoting Gross v. State, 817 N.E.2d 306, 308 (Ind. Ct. App. 2004)). Our

       court has repeatedly held that the Neglect Statute “must be read as applying

       only to situations that expose a dependent to an ‘actual and appreciable’ danger

       to life or health.” Scruggs v. State, 883 N.E.2d 189, 191 (Ind. Ct. App. 2008)

       (citing Gross, 817 N.E.2d at 308 (citing State v. Downey, 476 N.E.2d 121, 123

       (Ind. 1985))), trans. denied. In Scruggs, we reiterated:


               [T]hat to be an “actual and appreciable” danger for purposes of
               the neglect statute when children are concerned, the child must
               be exposed to some risk of physical or mental harm that goes
               substantially beyond the normal risk of bumps, bruises, or even
               worse that accompany the activities of the average child. This is
               consistent with a “knowing” mens rea, which requires subjective
               awareness of a “high probability” that a dependent has been
               placed in a dangerous situation, not just any probability.


       Scruggs, 883 N.E.2d at 191 (quoting Gross, 817 N.E.2d at 308). The purpose of

       the Neglect Statute “is ‘to authorize the intervention of the police power to

       prevent harmful consequences and injury to dependents’ without having to wait

       for actual loss of life or limb.” Gross, 817 N.E.2d at 309 (quoting Downey, 476

       N.E.2d at 123). “‘Because such a finding requires one to resort to inferential

       Court of Appeals of Indiana | Opinion 66A03-1706-CR-1298 | January 25, 2018   Page 7 of 10
       reasoning to ascertain the defendant’s mental state, the appellate courts must

       look to all the surrounding circumstances of a case to determine if a guilty

       verdict is proper.’” Id. (quoting McMichael v. State, 471 N.E.2d 726, 731 (Ind.

       Ct. App. 1984), trans. denied).


[13]   Here, the evidence adduced at trial demonstrated the following. On September

       28, 2015, Tiffany was driving Christina, Burden, and the three children to the

       grocery store. Burden sat in the passenger seat, and Christina sat in the back

       seat. K.E. was buckled into a car seat, which Christina held on her lap. Tiffany

       wanted to “show off” her new car and began driving faster. Tr. Vol. 3 at 8.

       Reaching a speed in excess of 100 miles per hour, Tiffany crested a small hill,

       swerved to avoid an oncoming car, and swerved again to avoid a telephone

       pole. Tiffany’s car began to skid, went off the road into a cornfield, and rolled

       over several times landing on its roof. During the rollover, Christina, B.E.,

       K.E., and A.K. were ejected from the car.


[14]   The above circumstances did not factor into the State’s decision to bring neglect

       of a dependent charges against Burden. Instead, it was Burden’s act of leaving

       the scene of the accident that was the basis for the State’s decision to bring

       charges against Burden. Specifically, the State contends that by leaving the

       scene of the car accident, Burden placed K.E. in a situation that endangered her

       life or health. Appellee’s Br. at 32. The State argues that Burden should have

       known he was leaving K.E. in appreciable danger because she had been ejected

       from Tiffany’s car during a high-speed crash, a situation compounded by the

       fact that K.E. had recently undergone surgery. Id. at 35. The State asserts that

       Court of Appeals of Indiana | Opinion 66A03-1706-CR-1298 | January 25, 2018   Page 8 of 10
       Burden should not have left K.E. with Christina, who had shown her parenting

       deficiencies by failing to properly secure K.E. into the car. Id. at 36. The State

       also points to the fact that K.E. could have sustained internal injuries, which

       would have required immediate attention. Id. at 15.


[15]   Burden responds that these facts and inferences do not support a finding that he

       had a subjective awareness of a “high probability” that K.E. was placed in a

       dangerous situation by his act of leaving the scene. Appellant’s Br. at 35 (citing

       Gross, 817 N.E.2d at 308). We agree. The evidence before the trial court

       revealed that, after the accident, Burden repeatedly inquired as to the

       whereabouts of K.E. Id. at 14. Christina responded, at least twice, that K.E.

       was in her arms. Id. There was no evidence that Burden had ever received first

       aid training. Furthermore, Burden’s ability to care for K.E. was limited because

       Christina, by her own admission, did not allow Burden to provide care for

       K.E., and when it came to medical care for K.E., Christina’s decision was the

       “rule of the day.” Tr. Vol. 3 at 40. Before Burden left the scene, Christina told

       him that everyone was fine, and Davis informed Burden that 911 had been

       called and assistance was on the way. Moreover, K.E. and the other occupants

       of the car, with the exception of B.E.,3 appeared uninjured4 and, in fact, did

       “not have any serious injuries.” Id. at 24. Finding no evidence to support the




       3
         Here, the State had charged Burden with neglect of a dependent only as to K.E. B.E.’s condition at the
       scene was irrelevant to the evidence necessary to convict Burden of neglect of dependent.
       4
        Davis testified that, while he had no way of examining the folks at the scene, it “looked like everybody was
       okay.” Tr. Vol. 2 at 197.

       Court of Appeals of Indiana | Opinion 66A03-1706-CR-1298 | January 25, 2018                      Page 9 of 10
       element that Burden had a subjective awareness of a high probability that, by

       leaving the scene, he had placed K.E. in a situation that endangered her life or

       health, we reverse Burden’s conviction for Level 6 felony neglect of a

       dependent.5


[16]   Reversed.


       Bailey, J., and Pyle, J., concur.




       5
         Here, some of the evidence pertaining to Burden’s role as a father could have been seen as unflattering, and
       the State contends that Burden fled the scene in order to avoid arrest on a pending warrant. Notwithstanding
       that evidence, we note that even a self-serving motive for leaving the scene is irrelevant where that evidence is
       insufficient for a jury to find beyond a reasonable doubt that Burden was subjectively aware of a high
       probability that by leaving the scene, he had placed his dependent, K.E., in a situation that created an actual
       and appreciable danger to her.

       Court of Appeals of Indiana | Opinion 66A03-1706-CR-1298 | January 25, 2018                        Page 10 of 10
