                                                                          FILED
                                                                   Apr 04 2017, 8:39 am

                                                                          CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                      Curtis T. Hill, Jr.
Joel C. Wieneke                                            Attorney General of Indiana
Wieneke Law Office, LLC                                    Chandra K. Hein
Brooklyn, Indiana                                          Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Joseph Lee Pierson,                                        April 4, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           89A05-1306-CR-311
        v.                                                 Appeal from the Wayne Superior
                                                           Court
State of Indiana,                                          The Honorable Gregory A. Horn,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           89D02-1202-MR-2



Baker, Judge.




Court of Appeals of Indiana | Opinion 89A05-1306-CR-311 | April 4, 2017                     Page 1 of 15
[1]   Joseph Pierson appeals his conviction for Neglect of a Dependent Resulting in

      Death,1 a Class A Felony. He argues that because he is intellectually disabled 2

      he could not have formed the requisite intent to knowingly and voluntarily

      neglect a dependent; instead, he requests that he be convicted of reckless

      homicide. Additionally, he argues that the trial court erred by permitting one

      expert witness to testify via video deposition, and by permitting another expert

      witness to suggest that the legal definition of “mental disease” or “insanity”

      requires psychosis or hallucination. We find that there was sufficient evidence

      from which a jury could find that Pierson acted in a knowing and voluntary

      manner, that parties in a criminal case are permitted to agree to use a video

      deposition, and that the full context of the experts’ remarks did not mislead the

      jury of the applicable legal standards; accordingly, we affirm.




      1
          Ind. Code § 35-46-1-4(a)(1).
      2
        We strongly prefer to use the term “intellectual disability” rather than “mental retardation.” It is the case,
      however, that much of our older statutes, case law, and technical language used by expert psychiatrists retain
      the latter phraseology—fidelity to the record compels us to quote testimony accurately, and so we will use the
      latter phrase where we have no other choice.

      Court of Appeals of Indiana | Opinion 89A05-1306-CR-311 | April 4, 2017                            Page 2 of 15
                                                        Facts      3




[2]   Pierson and Amy Hockett had their fourth child, K.H., on October 11, 2011. 4

      K.H. weighed roughly eight and one-half pounds at birth, and at his discharge

      from the hospital weighed just under eight pounds.


[3]   On February 5, 2012, the parents called the police because K.H. was not

      breathing. Emergency responders found Pierson holding K.H. They noted that

      the baby was extremely skinny, his limbs were stiff, and his skin was pale and

      cool to the touch. There were urine-soaked diapers around the home, which

      were also covered in feces. One responder later testified that K.H. had died

      long before they arrived.


[4]   Investigators interviewed the parents, but Hockett did most of the talking.

      Hockett said that K.H. could not keep food down well and that he suffered

      from diarrhea. She said that they would feed the baby every three or four

      hours. She informed investigators that Pierson has the mental functioning of a

      twelve- to fifteen-year-old.


[5]   An autopsy revealed that K.H. was extremely malnourished and that his body

      had wasted “away to practically nothing.” Tr. p. 977. At his death, K.H.




      3
        We held oral argument on March 14, 2017, at Vincennes University in Vincennes, Indiana. We thank the
      University and its staff and students for their hospitality, and we thank the parties for their engaging and
      illuminating oral advocacy.
      4
        A pre-sentence investigation report, prepared after Pierson’s conviction, indicates that Pierson voluntarily
      terminated his parental rights to a fifth child. The record does not reveal the circumstances of this
      termination, nor the reason why Pierson’s other children were left in his custody.

      Court of Appeals of Indiana | Opinion 89A05-1306-CR-311 | April 4, 2017                             Page 3 of 15
      weighed six pounds, two ounces, which was two pounds less than when he left

      the hospital four months earlier. K.H. had bed sores on his lower back, which

      could have resulted from being left on his back for an extensive period of time

      or from staying in a soiled, unchanged diaper. The autopsy doctor estimated

      that K.H.’s level of malnutrition would only be possible after ten to eleven

      weeks.


[6]   On February 15, 2012, the State charged Pierson with murder and neglect of a

      dependent, a Class A felony.5 The State later added a separate charge of neglect

      of a dependent, a Class D felony. Pierson filed a notice that he would argue

      insanity, based on his intellectual disability. After an evaluation, Pierson was

      found competent to stand trial.


[7]   At his February 4-8 and 11-12, 2013, trial, the State presented evidence that

      another of Hockett’s and Pierson’s children, D.P., was hospitalized for low

      weight in 2009. Hockett and Pierson received instructions on how to prevent

      such a medical condition in the future. A family friend testified that she had

      previously scolded Pierson for improperly filling K.H.’s formula bottles. That

      friend, Hockett’s mother, and Hockett’s step-father all testified that Hockett

      repeatedly mentioned taking K.H. to the local hospital for medical treatment

      for a range of maladies including leukemia, reflux, gallbladder problems, and

      kidney stones. Representatives from that hospital, however, testified that K.H.



      5
       Hockett was also charged, and ultimately convicted, of murder. Pierson appealed separately, so Hockett’s
      case is not before us.

      Court of Appeals of Indiana | Opinion 89A05-1306-CR-311 | April 4, 2017                       Page 4 of 15
      had not been brought into the hospital since October 18, 2011, one week after

      his birth, and that he was perfectly healthy at the time.


[8]   Two expert witnesses testified regarding Pierson’s low-level mental functioning.

      They both opined that Pierson had a mild intellectual disability based upon his

      low I.Q. score and his inability to respond to basic abstract questioning.

      Pierson’s I.Q. score has consistently registered around sixty-seven; the threshold

      score to be considered intellectually disabled is seventy. Neither expert,

      however, thought that Pierson met the definition of insanity. One expert, Dr.

      Parker, said the following: “Well the Indiana definition of mental disease calls

      for the presence of significantly impaired perception, uh, which I interpret to

      mean symptoms of psychosis, like hallucinations or delusions . . . .” Tr. p.

      1065. Because Pierson did not experience psychosis or hallucinations, Dr.

      Parker concluded that Pierson did not meet the definition of insane. Pierson

      did not object to this testimony.


[9]   Both experts6 did agree that Pierson’s disability would impose moderate

      limitations on his capacity to maintain concentration, keep a routine, or carry

      out the basic activities of daily living. Dr. Parker also testified that someone

      with Pierson’s condition might not even notice his own medical conditions, or

      that he should seek medical treatment, let alone notice the medical needs of

      another. Dr. Parker testified that Pierson was unable to calculate eight plus




      6
          The other expert, Dr. Davidson, testified via prerecorded video deposition, to which Pierson did not object.


      Court of Appeals of Indiana | Opinion 89A05-1306-CR-311 | April 4, 2017                             Page 5 of 15
       five, twelve minus nine, or ten minus four. Id. at 1076-77. Pierson was able to

       recall, however, that he should add one scoop of formula for every two ounces

       of water, two scoops for four ounces of water, and three scoops for six ounces

       of water. Id. at 1098.


[10]   The jury found Pierson not guilty of murder. He was found guilty but mentally

       ill of reckless homicide (a lesser included offense of murder), Class A felony

       neglect of a dependent resulting in death, and Class D felony neglect of a

       dependent. Out of double jeopardy concerns, the trial court entered a

       conviction for Class A felony neglect of a dependent resulting in death and

       vacated the other convictions. After a sentencing hearing, the trial court

       sentenced Pierson to thirty-seven years executed. Pierson now appeals.


                                     Discussion and Decision
[11]   Pierson argues that there is insufficient evidence to convict him of neglect of a

       dependent resulting in death. That crime requires the State to prove, among

       other things, that the defendant acted “knowingly or intentionally” to place a

       dependent in a situation that endangers the dependent’s life. I.C. § 35-46-1-

       4(a)(1). He contends that, because of his intellectual disability, the State did not

       prove that he acted with the requisite intent; accordingly, he asks that he be

       convicted of reckless homicide instead. He also argues that the trial court

       committed reversible error by allowing Dr. Davidson to testify via video

       deposition, which foreclosed the jury’s ability to ask him questions. Finally, he




       Court of Appeals of Indiana | Opinion 89A05-1306-CR-311 | April 4, 2017   Page 6 of 15
       argues that the trial court erred by allowing Dr. Parker to suggest that a person

       can only be found insane if suffering from psychosis or hallucinations.


                                 I. Sufficiency of the Evidence
[12]   Pierson acknowledges that “[l]ow mental capacity is not a defense to a criminal

       charge.” Hester v. State, 512 N.E.2d 1110 (Ind. 1987). But he notes that neglect

       of a dependent is somewhat unique in that it applies not only to affirmative

       actions, but failures to act as well. Pierson can only be convicted if he is shown

       to have acted or omitted to act “voluntarily,” Ind. Code § 35-41-2-1(a), and he

       asks rhetorically, “If Pierson’s mild mental retardation prevented him from

       maintaining the standard of care of a ‘reasonable parent,’ then how could his

       failure to act as a reasonable parent be voluntary?” Appellant’s Br. p. 16.

       Pierson distinguishes Smith v. State, 408 N.E.2d 614, 619 (Ind. Ct. App. 1980),

       in which we affirmed a trial court’s refusal to allow the defendant to present

       evidence that “her personality was meek, timid, and dependent” in an attempt

       to argue that she could not be guilty of neglect of a dependent. Pierson argues

       that his mental incapacity is tied directly to whether he would be capable of

       properly caring for a dependent.


[13]   Pierson also emphasizes the expert testimony that a person with his condition

       would be susceptible to manipulation and implanted memories. He notes the

       behavior of Hockett, who spun a complex set of lies and stories regarding the

       medical care that K.H. was receiving. Pierson argues that a person with his

       condition cannot be said to have “voluntarily” neglected to care for K.H. when


       Court of Appeals of Indiana | Opinion 89A05-1306-CR-311 | April 4, 2017   Page 7 of 15
       Hockett was lying to him, making him believe that the child was receiving

       proper and adequate care.


[14]   Our standard of review compels us to affirm Pierson’s conviction unless no

       reasonable fact-finder could find the elements proven beyond a reasonable

       doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). “Under the child

       neglect statute a ‘knowing’ mens rea requires a subjective awareness of a ‘high

       probability’ that a dependent had been placed in a dangerous situation.”

       Villagrana v. State, 954 N.E.2d 466, 468 (Ind. Ct. App. 2011). “Because, in most

       cases, such a finding requires the factfinder to infer the defendant’s mental state,

       this Court must look to all the surrounding circumstances of a case to determine

       if a guilty verdict is proper.” Id.


[15]   We find that the State presented sufficient evidence to prove that Pierson’s

       actions were voluntary and knowing. K.H. was Pierson’s fourth child with

       Hockett. Several witnesses testified that Pierson was able to take basic care of

       the children, including changing them, playing with them, and feeding them.

       One of his older children struggled with nutrition, and a hospital told Pierson

       how to properly feed the child. Moreover, while Pierson does suffer from an

       intellectual disability, the State presented evidence that his disability is mild:

       his I.Q. score is three points below the cutoff to be considered impaired. The

       expert witnesses also opined that Pierson would be capable of basic life tasks,

       like feeding a child. All of those who interviewed him found his answers to be

       responsive and coherent, even if basic. Moreover, the jury took account of



       Court of Appeals of Indiana | Opinion 89A05-1306-CR-311 | April 4, 2017     Page 8 of 15
       Pierson’s mental handicap by declining to find him guilty of murder and finding

       him guilty but mentally ill of the remaining charges.


[16]   This case is a tragedy. Even the most able parents struggle to ensure that the

       needs of their children are met. When a parent is intellectually disabled and

       struggles with the basics of taking care of himself, let alone his children, it feels

       less than perfectly just to send him away to prison for failing to do what he may

       be barely capable of doing. Of course, it would also be unjust to the child-

       victims of those who neglect their dependents if our justice system made an

       exception for parents in difficult circumstances, as those children likely require

       the most protection.


[17]   In sum, the question of whether Pierson could understand his surroundings

       enough to knowingly and voluntarily neglect K.H. is an extremely difficult and

       fact-sensitive inquiry, which our justice system reserves for a jury. Here, the

       jury was presented with extensive information regarding Pierson’s intellectual

       disability. Some of this evidence suggests that Pierson was capable of

       understanding the harm that the failure to feed K.H. was inflicting, and other

       evidence suggests the opposite. Because the evidence conflicts on this matter,

       our standard of review forbids us from disturbing the determination of the jury.


                                    II. The Video Deposition
[18]   Indiana Jury Rule 20 mandates trial courts to instruct the jury before opening

       statements on several matters, one of which is “that jurors, including alternates,

       may seek to ask questions of the witnesses by submission of questions in

       Court of Appeals of Indiana | Opinion 89A05-1306-CR-311 | April 4, 2017      Page 9 of 15
       writing.” Accord Ind. Evidence Rule 614. Pierson cites case law in which we

       have reversed and remanded convictions where a jury was not permitted to ask

       questions, even “without a showing by the appellant that he had actually been

       prejudiced by the erroneous instruction . . . . that prejudice is presumed and a

       new trial is required.” Dolezal v. Goode, 433 N.E.2d 828, 834 (Ind. Ct. App.

       1982). Pierson argues that the trial court erred by allowing Dr. Davidson’s

       video deposition to be played at trial, since the jury could not ask Dr. Davidson

       any questions.


[19]   We disagree. Indiana Trial Rule 32(A) explicitly permits courts to use portions

       of a deposition attended by both parties if the parties agree to do so. The parties

       in this case agreed to its use, as shown by a pre-trial order: “[r]espective

       counsel further agree that Dr. Davidson need not be subpoenaed and that the

       use of the videotape deposition of Dr. Davidson will be satisfactory for use at

       trial.” Appellant’s App. Vol. 3 p. 3.7


[20]   Pierson’s attorney was present for Dr. Davidson’s deposition, and so had an

       opportunity to cross-examine him. During this recorded cross-examination,

       Pierson’s attorney was able to elicit testimony regarding the extent of Pierson’s

       disability, asking Dr. Davidson about Pierson’s limited ability to understand his

       surroundings or to carry out instructions. To rule that parties cannot agree to

       use recorded video depositions could harm the rights of defendants who want



       7
        Not only did the parties agree to the video’s admission, the transcript even suggests that Pierson’s attorney
       volunteered to operate the projector. Tr. p. 1129.

       Court of Appeals of Indiana | Opinion 89A05-1306-CR-311 | April 4, 2017                           Page 10 of 15
       the testimony to be admitted—we hesitate to say that the jury’s right to ask

       questions of witnesses could supersede the defendant’s right at his own trial to

       present the evidence he chooses. Accordingly, this argument is unavailing. 8


                                   III. Dr. Parker’s Testimony
[21]   At trial, Dr. Parker testified that the Indiana definition of mental disease and

       insanity requires “the presence of significantly impaired perception, uh, which I

       interpret to mean symptoms of psychosis, like hallucinations or delusions . . . .”

       Tr. p. 1065. In fact, the definition does not require psychosis or hallucinations:

       “A person is not responsible for having engaged in prohibited conduct if, as a

       result of mental disease or defect, he was unable to appreciate the wrongfulness

       of the conduct at the time of the offense.” Ind. Code § 35-41-3-6(a). “Mental

       disease or defect” is defined as “a severely abnormal mental condition that

       grossly and demonstrably impairs a person’s perception . . . .” Id. at -6(b).


[22]   Pierson acknowledges that trial counsel did not object to this testimony.

       “Failure to object at trial waives the issue for review unless fundamental error

       occurred.” Hoagland v. State, 962 N.E.2d 1230, 1239 (Ind. 2012). “In order to

       be fundamental, the error must represent a blatant violation of principles




       8
        While we do not believe that the admission of the video deposition was error, we also note that it would be
       an invited error of which Pierson cannot take advantage. Nichols v. State, 55 N.E.3d 854, 862 (Ind. Ct. App.
       2016).

       Court of Appeals of Indiana | Opinion 89A05-1306-CR-311 | April 4, 2017                        Page 11 of 15
       rendering the trial unfair to the defendant and thereby depriving the defendant

       of due process.” Id.


[23]   Pierson argues that Dr. Parker’s testimony was so blatantly prejudicial that the

       trial court committed fundamental error by allowing it to occur. “By virtue of

       Dr. Parker being a profession [sic] expert in the area of evaluating sanity under

       Indiana law, this misinformation undoubtedly discouraged the jury from giving

       due consideration to the defense of insanity.” Appellant’s Br. p. 24.


[24]   Dr. Parker’s statement, by itself, certainly appears to misstate the elements of

       the insanity defense. We find, however, that the full remarks made by both

       experts more than adequately informed the jury of the applicable standards.

       When Pierson cross-examined Dr. Parker, they had the following colloquy:

               PIERSON: Doctor Parker, as you understand the definition of
               mental disease or defect does it explicitly state in the definition of
               that term the words that you just used regarding psychosis and
               hallucinations?


               DR. PARKER: Not specifically. It calls for evidence of gross
               and demonstrable per--, uh disturbance of perception.


               PIERSON: And, it does not include in its definition anywhere
               the word delusional, does it?


               DR. PARKER: No, it does not.


               PIERSON: That’s your interpretation of the words provided in
               the statute, correct?


       Court of Appeals of Indiana | Opinion 89A05-1306-CR-311 | April 4, 2017     Page 12 of 15
               DR. PARKER: Yes, Sir.


       Tr. p. 1065. Dr. Parker was also asked, “Is mental retardation a mental defect,”

       to which he answered, “That’s kind of a hard phrase [] but yeah, that’s sort of

       how I think of it . . . .” Id. at 1087. On re-direct, the State read the exact

       definition of insanity, including both mental disease or defect, but Dr. Parker

       stuck to his conclusion that Pierson “could have appreciated the wrongfulness

       of his actions.” Id. at 1091. A few moments later, he again affirmed the

       statement, “it is further my opinion with reasonable medical certainty that

       Defendant could have appreciated the wrongfulness of his behavior at the time

       of the alleged offense . . . .” Id. at 1098. Dr. Parker then explained why he did

       not use more definitive language: “I wrote he could have appreciated because

       it’s also possible he could not have appreciated. So that reflects a certain

       amount of uncertainty. . . . I was unable to say that he did appreciate the

       wrongfulness which is a very clear, declarative statement, and I chose to use

       could have instead.” Id. at 1120.


[25]   In his video deposition, Dr. Davidson came to very similar conclusions. He

       also diagnosed Pierson as having a borderline to mild intellectual disability. Id.

       at 1139. He also testified that it was “improbable” that Pierson had a mental

       disease or defect such that he could not understand the wrongfulness of his

       actions. Id. at 1141-42. He opined that the mild form of intellectual disability

       that Pierson suffers would not qualify as a mental disease for purposes of the

       insanity defense. Id. at 1167. But like Dr. Parker’s testimony, this statement

       was clarified:
       Court of Appeals of Indiana | Opinion 89A05-1306-CR-311 | April 4, 2017    Page 13 of 15
               Q.: And, in regard to that as far as your understanding the
               question for a jury or a trial to the bench by the Court as to
               whether or not a person is responsible for having engaged in
               prohibited conduct is that they not only have a mental disease or
               defect but they are unable to appreciate the wrongfulness of the
               conduct at the time of the offense, do you understand –


               A.: That’s my understanding of the statute.


               Q.: And, so in this case even though Mr. Pierson is mildly
               mentally retarded or handicapped, which I think obviously is a
               better term, you made a finding that or are you saying that he
               was able to appreciate the wrongfulness of the conduct at the
               time of the offense in regard to the charges filed?


               A.: That’s correct, that was my opinion.


       Id. at 1167-68. In a later cross-examination, Dr. Davidson says that it “is really

       very difficult” to say whether mild mental retardation would qualify as a mental

       disease or defect, but he affirmed that he “can’t say that . . . it’s [his]

       understanding that mental retardation is not a mental disease or defect as a

       matter of law.” Id. at 1194.


[26]   In sum, when we look at the remarks of both expert witnesses in their full

       context, we find that the jury was repeatedly informed of the correct legal

       standard. On multiple occasions, the experts responded directly to the question

       of whether Pierson was able to understand the wrongfulness of his conduct,

       which is the precise definition of insanity for the purposes of Pierson’s defense.

       Moreover, both experts testified that low-level functioning might be able to


       Court of Appeals of Indiana | Opinion 89A05-1306-CR-311 | April 4, 2017       Page 14 of 15
       qualify under the defense, but they did not believe that Pierson met that

       standard. Finally, both experts gave very nuanced testimony; they both

       explained the symptoms of Pierson’s disability, informed the jury of their

       uncertainty regarding Pierson’s ability to understand what was happening to

       K.H., but ultimately concluded (despite their uncertainty) that Pierson likely

       understood the wrongfulness of his conduct.


[27]   Inferring a state of mind is difficult enough for the ordinary defendant, and even

       more difficult for a defendant who suffers from an intellectual disability. The

       experts’ remarks, taken in their full context, appropriately explained their

       conclusions in light of the correct legal standard. We find no error in this

       regard, and we also note that it is primarily the responsibility of the trial court,

       not expert witnesses, to instruct the jury on the applicable law—Pierson does

       not argue that the trial court improperly instructed the jury.


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


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 89A05-1306-CR-311 | April 4, 2017    Page 15 of 15
