Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     Sep 04 2014, 9:24 am
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:                            ATTORNEYS FOR APPELLEE:
JANE H. CONLEY                                     GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   LYUBOV GORE
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA


SHAWNEE WILSON,                                    )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 49A05-1401-CR-13
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Helen Marchal, Judge
                            Cause No. 49G16-1307-FD-45785




                                       September 4, 2014
                MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Senior Judge

                              STATEMENT OF THE CASE

       Shawnee Wilson appeals her conviction of two counts of neglect of a dependent, as

Class D felonies. Ind. Code § 35-46-1-4 (2013).

       We affirm.

                                            ISSUE

       Wilson presents one issue for our review, which we restate as: whether the evidence

is sufficient to support her convictions.

                        FACTS AND PROCEDURAL HISTORY

       In July 2013, Wilson and her seven-month-old twins were staying in an apartment

belonging to Anita Matthews. One night, Wilson left the twins sleeping alone in the

apartment while she went to a nearby apartment to see a friend. Matthews returned home

to find the twins in the apartment by themselves. Matthews called 911, and officers

responded to the apartment. Wilson later returned to the apartment and was arrested.

       Based upon this incident, Wilson was charged with two counts of neglect of a

dependent. Following a bench trial, she was found guilty as charged and was sentenced to

545 days of probation for each count, to run concurrently, all of which was to be served

consecutively to a term of probation she was ordered to serve in Hamilton County. Wilson

now appeals.

                             DISCUSSION AND DECISION

       Wilson contends that the evidence is insufficient to support her conviction of two

counts of neglect of a dependent. When reviewing claims of insufficiency of the evidence,

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this Court neither reweighs the evidence nor assesses the credibility of the witnesses.

Brasher v. State, 746 N.E.2d 71, 72 (Ind. 2001). Rather, we look to the evidence most

favorable to the judgment and any reasonable inferences drawn therefrom. Id. We will

affirm the conviction if there is probative evidence from which a reasonable factfinder

could have found the defendant guilty beyond a reasonable doubt. Id.

       In order to prove neglect of a dependent, the State was required to show beyond a

reasonable doubt that Wilson, having the care of dependents, J.W.1 and J.W.2, whether

assumed voluntarily or because of a legal obligation, knowingly or intentionally placed

J.W.1 and J.W.2 in a situation that endangered the life or health of J.W.1 and J.W.2. See

Ind. Code § 35-46-1-4(a)(1). Specifically, the information alleged that Wilson placed the

twins in a situation that endangered their life or health by leaving them unsupervised.

       In challenging the sufficiency of the evidence, Wilson argues that the State failed to

prove that she knowingly left her children in a dangerous situation. Under the child neglect

statute, a person acts “knowingly” if she is subjectively aware of a high probability that she

placed the dependent in a dangerous situation. Villagrana v. State, 954 N.E.2d 466, 468

(Ind. Ct. App. 2011). In most cases, such a finding requires the factfinder to infer the

defendant’s mental state; therefore, this Court must look to all the surrounding

circumstances of a case to determine if a finding of guilt is proper. Id.

       Here, the State presented evidence that Wilson left her seven-month-old twins alone

in an apartment. Matthews testified that she left the apartment at 8:00 a.m. and returned

home some time between 11:30 and 11:45 p.m. When she arrived home, no one was in the

apartment except the twins, so she called 911. One baby was asleep on a blanket on the

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floor with items such as baby powder, lotion, toys, perfume, and tampons nearby. She

testified that both children were able to crawl. Approximately one hour after Matthews

called the police, Wilson returned to the apartment.

       Wilson testified on her own behalf at trial. She stated that the twins fell asleep at

approximately 11:15 p.m. The seventeen-year-old boy who was in town with his family

visiting Matthews was sitting at the table, and she told him she was “about to run across

the street real fast.” Tr. p. 31. Wilson testified that he responded, “Okay.” Id. She stated

that the boy’s name begins with the letter J and is hard to pronounce. She also said he had

visited the previous January, and he had watched the twins before. Wilson further testified

that she left to go to another building in the apartment complex to obtain repayment of a

loan from a friend. She stated that her friend had cooked dinner, so she stayed to eat and

then returned to Matthews’ apartment approximately one hour and ten minutes later.

       On rebuttal, Matthews testified that the boy’s name is Shane, that he last visited five

years ago, and that he had not watched the twins before. In addition, Matthews stated that

the boy and his family had gone out to dinner that evening and had returned to her

apartment five minutes after the police arrived.

       Wilson’s version of the events is contradicted by Matthews’ testimony. It is within

the province of the factfinder to judge the credibility of the witnesses, Brasher, 746 N.E.2d

at 73, and therefore to determine which version of the incident to credit. Barton v. State,

490 N.E.2d 317, 318 (Ind. 1986). Given the evidence in this case, it was reasonable for

the factfinder to conclude that Wilson was not being truthful about the teenage boy’s

presence in the apartment when she left to visit her friend and that she knowingly placed

                                              4
her twins in a situation that endangered their life or health by leaving them unsupervised

for over one hour late at night within reach of items that could be hazardous to them.

       Wilson also argues that the State failed to establish that the twins were exposed to

an “actual and appreciable” danger. For purposes of the neglect of a dependent statute, our

Supreme Court has determined that the danger must be “actual and appreciable.” State v.

Downey, 476 N.E.2d 121, 123 (Ind. 1985). To be exposed to actual and appreciable danger

means to 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.” Gross v. State, 817 N.E.2d 306, 309 (Ind. Ct. App. 2004).

       In this case, Wilson left seven-month-old twins sleeping late at night in an apartment

shared by several people. Both twins were able to crawl. One of the twins was in the crib

with a blanket, and the other twin was sleeping on a blanket on the floor with numerous

toiletry items nearby. Both twins were at risk of getting twisted in their blankets, and,

amounting to an even greater danger, the twin sleeping on the floor was at risk of ingesting

and/or choking on the toiletry items that were left nearby on the floor. In addition to these

dangers is the actual and appreciable danger inherent to infancy of being unable to respond

to whatever harm may befall them by escaping the situation or calling for help.

       Wilson argues that the State failed to meet its burden of showing actual and

appreciable danger because the twins were found sleeping unharmed and undisturbed.

However, the purpose of the neglect statute is to authorize intervention “to prevent harmful

consequences and injury to dependents without having to wait for actual loss of life or

limb.” Id. By leaving the infant children unsupervised in this case, Wilson placed the

                                             5
twins in actual and appreciable danger. Wilson’s claims to the contrary are merely an

invitation for us to reweigh the evidence and assess the credibility of the witnesses, which

we cannot do. See Brasher, 746 N.E.2d at 72.

                                     CONCLUSION

       For the reasons stated, we conclude there was sufficient evidence to sustain

Wilson’s conviction of two counts of neglect of a dependent.

       Affirmed.

FRIEDLANDER, J., and MAY, J., concur.




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