Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                  Dec 23 2014, 9:43 am

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:

THOMAS W. VANES                                    GREGORY F. ZOELLER
Office of the Public Defender                      Attorney General of Indiana
Crown Point, Indiana
                                                   KARL M. SCHARNBERG
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JOANNA LATRICE STOKES,                             )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 45A03-1404-CR-140
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Samuel L. Cappas, Judge
                              Cause No. 45G04-1102-FB-17


                                       December 23, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Senior Judge
                                    STATEMENT OF THE CASE

          Joanna Latrice Stokes appeals from her convictions after a jury trial for two counts
                                            1
of Class B felony neglect of a dependent. We affirm.

                                            ISSUES

          Stokes presents the following issues for our review:

          I.      Whether there is sufficient evidence to support Stokes’s convictions
                  of neglect of a dependent, each as a Class B felony.

          II.     Whether the trial court committed fundamental error by instructing
                  the jury to evaluate Stokes’s conduct under a reasonable parent
                  standard of care.

                                   FACTS AND PROCEDURAL HISTORY

          At noon on January 5, 2011, Stokes took her one-year-old son, K.H., to an

appointment with his pediatrician for K.H.’s twelve-month well child visit. While at the

appointment, K.H. was attended to by a medical assistant and the pediatrician, and he

received the appropriate immunizations. Neither the medical assistant nor the pediatrician

observed any signs of abuse. Stokes returned home with K.H. and arrived at the apartment

at around 2:30 or 3:00 p.m.

          Stokes’s fiancé, Michael Lampkin, was at the apartment preparing to go to work

when Stokes and K.H. returned home. Lampkin left the apartment at approximately 3:30

p.m. and clocked into work at 3:56 p.m. A printout of Lampkin’s time card reflects that he

clocked out from his job at approximately 10:15 p.m.

          At around 5:30 p.m., Stokes woke up from a nap when she heard K.H. fussing in


1
    Ind. Code §35-46-1-4 (2007).

                                                2
his bedroom. Upon entering K.H.’s bedroom, Stokes observed that K.H. had a nosebleed

and had vomited. Stokes attempted to bottle feed K.H., but he would not eat. Stokes later

described K.H.’s behavior as unusual because he was extremely lethargic and kept drifting

off. Stokes laid K.H. down to sleep, but returned twice more between then and 8:00 p.m.

to find that K.H. had vomited on each occasion.

       At approximately 8:00 p.m., Stokes telephoned her mother and described K.H.’s

condition. Stokes’s mother advised her to take K.H. to the hospital. A friend drove Stokes

and K.H. to St. Margaret Mercy Hospital in Hammond, which was approximately a mile

from Stokes’s apartment. Records at the hospital reflected that K.H. was admitted at St.

Margaret’s at 8:20 p.m. After explaining K.H.’s symptoms to the triage person in the

emergency room, Stokes was told that it would be five or six hours before anyone would

be available to examine him. Stokes stayed at St. Margaret’s for approximately an hour,

but then called another friend and arranged a ride to a different hospital. Stokes’s friend

drove her and K.H. to Community Hospital in Munster arriving there at approximately

10:00 p.m.

       K.H. was attended to and evaluated at Community Hospital. K.H. underwent a CT

scan and was placed on anti-seizure medication after it was discovered that K.H. had a

subdural hematoma, or bleeding on the brain. While she was at Community Hospital,

Stokes told a social worker there that she had picked up K.H. from her ex-husband’s care

the previous day and noticed K.H. had some injuries. Stokes claimed that K.H.’s injuries

were the reason for the visit to the pediatrician. Stokes stated that K.H. had a nosebleed,

had been vomiting, and had some unusual marks on his face.

                                            3
       Because of the seriousness of his condition, K.H. was transported to the University

of Chicago Comer’s Children’s Hospital. Dr. Kelley Staley, the Associate Director of

Child Protective Services of the Child Abuse Pediatric Team at the hospital, received the

referral on K.H. and examined him in the ICU upon his arrival. At that time, Stokes offered

no explanation for K.H.’s injuries. Dr. Staley ordered another CT scan, an ophthalmology

examination to detect signs of trauma, and a skeletal survey.          The results of the

examinations revealed that K.H. had suffered a bilateral subdural hematoma as well as a

subarachnoid hematoma, and the right side of his brain was swollen. K.H. had two bruises

on the left side of his face and redness on his left eye. He had two small bruises,

approximately the size of a dime, on the right side of his cheek. He also had significant

bruises on the inner and outer helixes of his right ear. Despite that Community Hospital

had administered anti-seizure medication, K.H. suffered two break-through seizures on

January 8, 2011, requiring that the dosage of his anti-seizure medication be adjusted.

       Dr. Staley made three diagnoses regarding K.H.’s injuries. The first was bruising

on both sides of K.H.’s face, second was a subdural bilateral hematoma, and third,

encephalopathy, or an altered level of consciousness and abnormal state. Dr. Staley

indicated that the injuries K.H. suffered do not occur from an accidental fall and could not

have been self-inflicted. Dr. Staley concluded that K.H. suffered those injuries when his

head impacted an object at least once. She testified at trial that the fact that K.H. was

suffering from breakthrough seizures while on anti-seizure medication was very

concerning. Brain injuries such as the ones from which K.H. suffered are very painful.

       Police officers used a key Stokes had given to them to enter her apartment. Police

                                             4
officers were surprised to find Lampkin present at the apartment because Stokes had told

them that Lampkin did not live there. Lampkin, who had put the safety chain on the door,

refused to take it off to allow the officers to enter. After the officers forced entry into the

apartment, they looked around the apartment. They discovered a cup-shaped hole in the

drywall next to a closet in K.H.’s bedroom. The hole was four feet eight inches from the

floor and measured approximately two and one-half inches in diameter. An evidence

technician took a swab of the interior and exterior of the hole, and DNA test results revealed

that K.H.’s DNA, along with an unknown individual’s DNA, was on the swab.

       The State charged Stokes with two counts of neglect of a dependent, each as a Class

B felony. At the conclusion of a four-day jury trial the jury found Stokes guilty as charged.

The trial court sentenced Stokes to a term of ten years executed on each count to be served

concurrently. Stokes now appeals.

                              DISCUSSION AND DECISION

                         I. SUFFICIENCY OF THE EVIDENCE

       Stokes contends that there is insufficient evidence to support her convictions for two

counts of Class B felony neglect of a dependent. Our Supreme Court has set forth the

appropriate standard of review as follows:

       When reviewing a claim of insufficient evidence to support a conviction, we
       consider only the probative evidence and reasonable inferences supporting
       the verdict. It is the fact-finder’s role, not that of the appellate courts, to
       assess witness credibility and weigh the evidence to determine whether it is
       sufficient to support a conviction. . . . Appellate courts affirm the conviction
       unless no reasonable fact-finder could find the elements of the crime proven
       beyond a reasonable doubt. It is therefore not necessary that the evidence
       overcome every reasonable hypothesis of innocence. [T]he evidence is
       sufficient if an inference may reasonably be drawn from it to support the

                                              5
       verdict.

Erkins v. State, 13 N.E.3d 400, 406-07 (Ind. 2014) (quoting Drane v. State, 867 N.E.2d

144, 146-47 (Ind. 2007)) (internal quotations and footnotes omitted).

       Stokes was convicted of neglect of a dependent under two separate subsections of

Indiana Code section 35-46-1-4 (2007). In order to prove the first of the counts against

Stokes, neglect through endangerment, the State was required to prove beyond a reasonable

doubt that Stokes, who had the care of K.H. through either a legal obligation or a

voluntarily assumed obligation, knowingly or intentionally placed K.H. in a situation that

endangered K.H.’s life or health, which resulted in serious bodily injury to K.H. Ind. Code

§35-46-1-4(b)(2).

       The evidence presented at trial revealed that K.H. suffered a serious head injury,

with internal hemorrhaging on both sides of his brain. He also had bruises on his face,

redness on his left eye, and significant bruising on the inner and outer helixes of his right

ear. Dr. Staley testified that K.H.’s injuries could not have been self-inflicted and were

unlikely to have occurred accidentally. K.H. had no sign of injury or symptoms of a brain

injury at his routine check-up earlier in the day. K.H.’s DNA was found in the hole in his

bedroom wall. By Stokes’s own account the only people who had access to K.H. during

the time between the visit to the pediatrician and the trip to St. Margaret’s were Stokes and

Lampkin.

       Lampkin admitted during his deposition that he had once thrown a knife into the

living room wall after watching a movie depicting violence. He had been previously

arrested for assault in 2009, had a conviction for domestic violence against a former

                                             6
girlfriend in 2008, and had a conviction for aggravated vehicular highjacking. Lampkin

claimed that the hole in the wall of K.H.’s bedroom was caused when he errantly struck a

golf ball while practicing chip shots in the house. K.H.’s father did not approve of Lampkin

being entrusted with K.H.’s care. Stokes, who was engaged to Lampkin, was aware of

Lampkin’s history.

       Thus, the evidence supports the theory that Stokes committed the abuse herself, or

the theory that she entrusted K.H. to Lampkin’s care knowing that he was not supposed to

be caring for K.H. and was aware of the abuse he inflicted.

       Further, the jury had before it evidence that Stokes was not merely present at the

scene of the crime but also had the opportunity to commit the offense. “[M]ere presence

at the scene of the crime, with nothing more, is insufficient evidence to sustain a conviction

for participation in the crime.” Menefee v. State, 514 N.E.2d 1057, 1059 (Ind. 1987).

“However, presence at the scene in connection with other circumstances tending to show

participation in the crime may be sufficient to sustain a conviction.” Id. In this case, the

evidence supporting Stokes’s conviction showed that Stokes was awake during the entire

time she and Lampkin were in the apartment together after K.H.’s pediatric appointment.

This evidence supports either theory advanced by the State; Stokes either inflicted the

injuries on K.H. or was aware that Lampkin had done so. Stokes’s arguments challenging

the reasonableness of the inference reached by the jury amounts to an invitation to reweigh

the evidence, which we may not accept. Erkin, 13 N.E.3d at 406. There is sufficient

evidence to support Stokes’s conviction on this count.

       In the second count, neglect through delay of medical care, the State was required

                                              7
to prove beyond a reasonable doubt that Stokes, with a legal obligation or a voluntarily

assumed obligation to care for K.H., knowingly or intentionally deprived K.H. of necessary

support resulting in serious bodily injury. Ind. Code §35-46-1-4(b)(2). Our standard of

review of this issue is the same as stated above.

       Stokes either caused the injuries to K.H. or was present and awake when Lampkin

caused K.H.’s injuries. If Lampkin caused the injuries, then they were inflicted sometime

between 2:30 or 3:00 and 3:30 p.m. Under that scenario, Stokes waited nearly five hours

before taking K.H. to the hospital to seek medical attention. Upon taking K.H. to the

hospital, Stokes lied about the cause and nature of K.H.’s injuries, thus delaying

appropriate treatment and care for her son.

       If Stokes caused the injuries, then they could have been inflicted anytime from 2:30

or 3:00 p.m. until 5:30 p.m., when Stokes claimed she first noticed a change in K.H.’s

health and behavior. He vomited for the first time at approximately 5:30 p.m. and had done

so twice more before arriving at St. Margaret’s at approximately 8:00 p.m.

       Under either scenario, however, Stokes was aware of the cause and nature of K.H.’s

injuries but she delayed seeking appropriate and prompt medical attention for him. When

she did seek medical attention for his injuries, she misrepresented the nature and cause of

the injuries to medical personnel. Dr. Staley testified that head injuries such as the one

K.H. sustained evolve over the course of a few hours, and the symptoms manifest within

minutes of the injury. Seizures will often result if prompt medical attention is not sought.

K.H. received anti-seizure medications at Community Hospital, but he experienced at least

two breakthrough seizures at the hospital in Chicago after the medication had been

                                              8
administered. Dr. Staley further testified that those seizures can cause additional swelling

and inflammation in the brain and difficulty breathing.

       “A parent is charged with an affirmative duty to care for his or her child.” Lush v.

State, 783 N.E.2d 1191, 1197 (Ind. Ct. App. 2003) (citing Mallory v. State, 563 N.E.2d

640, 644 (Ind. Ct. App. 1990)). “Neglect is the want of reasonable care—that is, the

omission of such steps as a reasonable parent would take, such as are usually taken in the

ordinary experience of mankind. . . .” Id. (quoting White v. State, 547 N.E.2d 831, 836

(Ind. 1989)). “When there are symptoms from which the average layperson would have

detected a serious problem necessitating medical attention, it is reasonable for the jury to

infer that the defendant knowingly neglected the dependent.” Id. (quoting Mitchell v.

State, 726 N.E.2d 1228, 1240 (Ind. 2000)). In Lush, a fifteen-minute delay in obtaining

medical care was found sufficient to support that defendant’s conviction. Here, the

circumstances involve more than the delay in reaching a hospital, but also the delay caused

by Stokes’s failure to communicate the information necessary for K.H. to receive prompt

and appropriate treatment for his injuries. There is sufficient evidence to support the jury’s

verdict as to this count.

       Stokes presents the additional argument that her conviction based on delay of

medical care should be reduced to a Class D felony because there is insufficient evidence

that any delay resulted in serious bodily injury to K.H. Proof of a serious bodily injury is

what elevates what would otherwise be a Class D felony offense to a Class B felony

offense. See Ind. Code §35-46-1-4. The State presented Dr. Staley’s evidence regarding

the necessity of early diagnosis and treatment in order to prevent the onset of seizures or

                                              9
the evolution of the severity of seizures. She testified that patients with bleeding in the

brain relate how painful those injuries can be. In K.H.’s case, he was too young to verbalize

the extent of the pain he experienced, but exhibited behavior indicative of one who is

experiencing pain and discomfort. The State presented sufficient evidence to support the

Class B felony conviction here.

                              II. INSTRUCTIONAL ERROR

       Although Stokes did not object to Instruction Number 4 at trial, on appeal, Stokes

contends that the trial court committed fundamental error by instructing the jury to evaluate

Stokes’s conduct under a reasonable parent standard of care. Instructing a jury is left to

the sound discretion of the trial court, and we review its decision only for an abuse of

discretion. Springer v. State, 798 N.E.2d 431, 433 (Ind. 2003). On review, we evaluate a

trial court’s decision to give or refuse a tendered jury instruction in three steps: (1) we

determine whether the tendered instruction correctly states the law; (2) we next determine

whether the evidence supports giving the instruction; and (3) we determine whether the

substance of the instruction was covered by other instructions. Id. “We consider jury

instructions as a whole and in reference to each other and do not reverse the trial court . . .

unless the instructions as a whole mislead the jury as to the law in the case.” Lyles v. State,

834 N.E.2d 1035, 1048 (Ind. Ct. App. 2005), trans. denied.

       Failure to object to an instruction at trial typically results in waiver of the issue on

appeal. Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998). If an instruction is so flawed

that it constitutes fundamental error, however, waiver does not preclude review on appeal.

Id. To qualify as fundamental, an error must be so prejudicial to the rights of the defendant

                                              10
as to make a fair trial impossible. Id. Fundamental error is a substantial, blatant violation

of due process. Taylor v. State, 717 N.E.2d 90, 93 (Ind. 1999).

       The instruction given by the trial court reads as follows:

       A parent is charged with an affirmative duty to care for her child and the
       standard of care is what a reasonable parent would do or not do under the
       circumstances.

App. p. 115. Stokes contends that the trial court’s decision to give the instruction amounts

to fundamental error because the jury was misled regarding the appropriate mens rea for

the offense. More particularly, Stokes claims that the jury was invited to convict her of the

offense by applying a lesser negligence standard of care rather than by applying the

knowingly or intentionally mens rea required for a criminal conviction.

       Instruction Number 4 was based on language used in Mallory v. State, 563 N.E.2d

640, 644 (Ind. Ct. App. 1990), a case in which the defendant was charged with knowingly

depriving her child of necessary support. That language has not been expressly approved

for use in instructions. The challenged instruction, standing alone, would not be sufficient

to inform the jury of the mens rea. However, in the present case, the jury was otherwise

instructed with respect to both counts that the mens rea for the offenses was knowingly or

intentionally. App. pp. 111-14. Taking the instructions as a whole we cannot conclude

that the jury was misled such that fundamental error occurred.

                                      CONCLUSION

       In light of the above, we affirm the trial court’s decision.

       Affirmed.

       NAJAM, J., and CRONE, J., concur.

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