MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                      Feb 13 2015, 8:34 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Ellen M. O’Connor                                         Gregory F. Zoeller
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Cynthia L. Ploughe
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Tamika Williams,                                         February 13, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1407-CR-490
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable Helen Marchal,
State of Indiana,                                        Judge.
Appellee-Plaintiff                                       Cause No. 49G16-1209-FD-63868




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-490 | February 13, 2015   Page 1 of 9
[1]   Tamika Williams appeals her convictions for four counts of Neglect of a

      Dependent,1 a class D felony. Williams argues that the trial court improperly

      instructed the jury by including an instruction that she did not wish to include

      and excluding other instructions that she did wish to include. Finding no error,

      we affirm.


                                                     Facts
[2]   On September 13, 2012, at about 6:30 p.m., Williams’s neighbor, Chienne

      Peacock, looked towards Williams’s house and noticed Williams’s car pull

      away. A short while later, Peacock again looked towards Williams’s house and

      noticed a child hanging out of the first-floor window. Peacock yelled at the

      child and the child retreated inside the house. Once the child was inside the

      house, all of the lights went out. Peacock sent her boyfriend to the house to

      check on the children, but no one answered when he knocked. Peacock was

      worried, so she called the police.


[3]   Officer Samuel House arrived at Williams’s house and knocked on the door.

      Officer House continued to knock until, eventually, eleven-year-old T.W.

      answered the door. Behind T.W., Officer House could see two four-year-old

      children running around. Officer House was then joined by Officer Justin




      1
          Ind. Code § 35-46-1-4.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-490 | February 13, 2015   Page 2 of 9
      Callahan, who arrived while Officer House was still at the front door talking to

      T.W.


[4]   While Officer House went across the street to talk to Peacock, Officer Callahan

      entered Williams’s home to perform a safety check. Officer Callahan asked

      T.W. if any adults were home. T.W. informed him that no adults were home

      and that she did not have a phone to contact anyone. Officer Callahan then

      noticed a door with a chain lock towards the very top of it. He unlocked the

      door and found two two-year-old boys in the darkened room. He noticed that a

      window in the room was broken and that the hole was big enough for a child to

      fit through.


[5]   When Officer House returned, the two officers moved all the children into the

      living room. Officer House then went to his car to contact a child abuse

      detective. Shortly thereafter, Williams returned home. She exited her car and

      angrily approached the house. “Why did you open the door?” she yelled at

      T.W. Tr. p. 182. Officer House approached Williams and told her to calm

      down but Williams continued to yell at T.W. Williams was arrested shortly

      thereafter.


[6]   On September 14, 2012, the State charged Williams with four counts of class D

      felony neglect of a dependent. A jury trial was held on January 16, 2014.

      Williams did not testify at trial and both parties, along with the trial court,

      discussed instructing the jury to refrain from considering this fact in any way.

      When the trial court asked about two proposed instructions on the issue,


      Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-490 | February 13, 2015   Page 3 of 9
      defense counsel responded: “I would prefer just taking out both of them if the

      court is fine with that.” Tr. p. 333. The trial court then decided to include one

      of the instructions. The trial court also excluded three instructions tendered by

      Williams regarding the crime of neglect of a dependent.


[7]   The jury found Williams guilty as charged. On June 20, 2014, the trial court

      sentenced Williams to four concurrent terms of 365 days with 359 days

      suspended. Williams now appeals.


                                   Discussion and Decision
[8]   Williams claims that the trial court made multiple errors regarding jury

      instructions. Instructing the jury lies within the discretion of the trial court and

      we will reverse only when the instructions amount to an abuse of discretion.

      Murray v. State, 798 N.E.2d 895, 900 (Ind. Ct. App. 2003). The trial court

      abuses its discretion if it gives instructions that, taken as a whole, misstate the

      law or otherwise mislead the jury. Id.


[9]   “The purpose of jury instructions is to inform the jury of the law applicable to

      the facts without misleading the jury and to enable it to comprehend the case

      clearly and arrive at a just, fair, and correct verdict.” Id. at 899. In reviewing a

      trial court’s decision to give a tendered jury instruction, we consider (1) whether

      the instruction correctly states the law, (2) whether it is supported by the

      evidence in the record, and (3) whether it is not covered in substance by other

      instructions. Id. at 899-900.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-490 | February 13, 2015   Page 4 of 9
[10]   Williams first claims that the trial court erred by giving the following

       instruction: “No defendant can be compelled to testify. A defendant has no

       obligation to testify. The Defendant did not testify today. You must not

       consider this in any way.” Appellant’s App. p. 87. Williams claims that she

       objected to the inclusion of this instruction and that the trial court’s decision to

       include it over her objection violated her rights under the Fifth Amendment to

       the United States Constitution.


[11]   On the issue of instructions involving an accused’s decision not to testify, our

       Supreme Court has held:

               If, as a trial tactic, the defense determines that such an instruction
               would assist its case, it may request the judge to so instruct.
               Furthermore, if the judge sua sponte offers to give the instruction, and
               the defense fails to object, the defense will be deemed to have
               consented to its submission. However, if the judge states his intention
               to submit the instruction and the defense does object, the giving of the
               instruction constitutes an invasion of Fifth Amendment rights and
               judicial error.
       Gross v. State, 261 Ind. 489, 491-92, 306 N.E.2d 371, 372-73 (Ind. 1974).


[12]   Here, the record shows that Williams failed to object to the inclusion of the

       instruction. The following exchange took place when both parties were

       discussing jury instructions with the trial court:

               Trial Court: Okay, I want to give you an opportunity to look at those
                            [jury instructions].
               State:           And so we are using the alternate and no defendant can
                                be compelled to testify then?
               Trial Court: Yes. We are going to pull the one . . . had Ms. Williams
                            testified . . . so we are going with no defendant may be
       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-490 | February 13, 2015   Page 5 of 9
                                compelled to testify. She did not testify. You must not
                                consider that in any way.
               Defense:         I would . . . I would prefer just taking out both of them if
                                the court is fine with that. . . . I don’t see the purpose of
                                [] either one of these.
               Trial Court: Okay State’s position?
               State:           I will defer to the court.
               Trial Court: The court is going to leave that instruction in.
       Tr. p. 332-33.


[13]   Although Williams contends that this statement constituted an objection, we

       disagree. An objection to a jury instruction at trial must be “timely, clear, and

       specific, to inform the trial court of the claimed error, to afford an opportunity

       for timely correction and thus prevention of inadvertent error, and to facilitate

       appellate review.” McGregor v. State, 725 N.E.2d 840, 842 (Ind. 2000).


[14]   Here, although there was no error in the substance of the trial court’s

       instruction, Williams had a Fifth Amendment right to have the instruction

       excluded if she so desired. However, the objection needed to be stated clearly

       to alert the trial court that Williams wished to exercise her right. Simply stating

       that one “would prefer just taking both of them out if the court is fine with

       that,” does not accomplish this. A mere indication of preference for one

       outcome is not an objection to all other outcomes. Consequently, Williams has

       waived her argument on appeal by failing to object.


[15]   Moreover, we do not believe that Williams was prejudiced as a result of this

       instruction. Errors in giving jury instructions are subject to a harmless error


       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-490 | February 13, 2015   Page 6 of 9
       analysis. Randolph v. State, 802 N.E.2d 1008, 1011 (Ind. Ct. App. 2004).

       “Errors in the giving or refusing of instructions are harmless where a conviction

       is clearly sustained by the evidence and the instruction would not likely have

       impacted the jury’s verdict.” Id. at 1013.


[16]   Williams left her four young children, ages two and four, in the care of her

       eleven-year-old daughter. The two two-year-old children were left locked in a

       bedroom with a broken window. The lock was high enough that none of the

       children could have reached it. Williams’s neighbor reported that she saw one

       of the children hanging out of a window. Furthermore, the children were left

       with no phone to contact anyone in case of emergency. Given this, we find that

       the instruction on Williams’s decision not to testify was not likely to have

       impacted the jury’s verdict.


[17]   Williams next argues that the trial court erred in excluding three of her tendered

       jury instructions. Williams submitted the following three instructions regarding

       the elements of the offense:

               1.       The State must prove beyond a reasonable doubt that, Tamika
                        Williams had a subjective awareness that there was a high
                        probability the dependents were placed in actual and
                        appreciable danger. Any probability of danger is insufficient to
                        merit a conviction; there must be a high probability of danger.
                        Scruggs v. State, 883 N.E.2d 189, 191 (Ind. Ct. App. 2008); Gross
                        v. State, 817 N.E.2d 306, 309 (Ind. Ct. App. 2004).
               2.       The State must prove beyond a reasonable doubt that the
                        dependents were in actual or appreciable danger to life or
                        health that goes substantially beyond the normal risks inherent
                        in childhood. Gross v. State, 817 N.E.2d 306, 309 (Ind. Ct. App.
                        2004).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-490 | February 13, 2015   Page 7 of 9
               3.       Merely leaving a child home alone for any amount of time does
                        not constitute Neglect of a Dependent. Scruggs v. State, 883
                        N.E.2d 189, 191 (Ind. Ct. App. 2008).
       Appellant’s App. p. 82-84.


[18]   The trial court considered including these instructions, but concluded that they

       were cumulative of other preliminary instructions. Preliminary Instruction No.

       9 read as follows: A person engages in conduct “knowingly” if, when she

       engages in this conduct, she is aware of a high probability that she is doing so.”

       Appellant’s App. p. 70. And Preliminary Instruction No. 5 read as follows:

               Before you convict the Defendant, the State must have proved each of
               the following beyond a reasonable doubt:
               1.       The Defendant
               2.       Knowingly or intentionally
               3.       Placed [the child] in a situation that actually and appreciably
                        endangered [the child’s] life or health . . .
       Appellant’s App. p. 66. The trial court believed that these instructions

       contained essentially the same substance as Williams’s tendered instructions.

       The trial court encouraged Williams to include the substance of the proposed

       instructions in her closing argument. Tr. p. 339.


[19]   We agree with the trial court that the substance of Williams’s tendered

       instructions is covered by these preliminary instructions. Williams’s first

       instruction merely restates the preliminary instructions—namely, that the

       defendant is aware of a high probability that the child is in a situation that

       actually and appreciably endangers the child’s health. Williams’s third

       instruction is simply an incorrect statement of the law. This Court has never

       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-490 | February 13, 2015   Page 8 of 9
       held that “[m]erely leaving a child home alone for any amount of time does not

       constitute Neglect of a Dependent.” Appellant’s App. p. 84 (emphasis added).

       If taken literally, this would mean that leaving a two-year-old child home alone

       for a week, or even a month, would not constitute neglect of a dependent. This

       instruction could only have misled the jury.


[20]   While Williams’s second instruction clarifies that the appreciable danger must

       go substantially beyond normal childhood risks, we do not believe that the trial

       court’s decision to exclude this instruction amounted to an abuse of discretion.

       On appeal, we ask whether the instructions, taken as a whole, misstate the law

       or otherwise mislead the jury. Murray, 798 N.E.2d at 900. Although

       Williams’s second instruction arguably had the potential to bolster the jury’s

       understanding of the law, the instructions that were given did not misstate the

       law and the exclusion of Williams’s second instruction did not render the

       remaining instructions misleading.


[21]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1407-CR-490 | February 13, 2015   Page 9 of 9
