Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                             FILED
before any court except for the                             Aug 22 2012, 9:00 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the                          CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
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ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

STANLEY F. WRUBLE, III                           GREGORY F. ZOELLER
South Bend, Indiana                              Attorney General of Indiana

                                                 AARON J. SPOLARICH
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DENNIS OGUTU,                                    )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 71A03-1202-CR-98
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                            The Honorable Jerome Frese, Judge
                             Cause No. 71D03-1103-FD-169




                                      August 22, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                 Case Summary and Issues

       After a jury trial, Dennis Ogutu was found guilty and convicted of neglect of a

dependent as a Class A misdemeanor. Ogutu appeals, raising three issues for our review:

1) whether sufficient evidence supports his conviction for neglect of a dependent; 2)

whether the trial court abused its discretion by declining to give Ogutu’s proposed jury

instruction on negligence and recklessness; and 3) whether the trial court abused its

discretion by refusing to allow Ogutu to admit a map into evidence. Concluding the

evidence is sufficient to support Ogutu’s conviction, the trial court did not abuse its

discretion by refusing Ogutu’s proposed instruction, and the trial court’s refusal to admit

Ogutu’s map into evidence did not result in an unfair trial or affect his substantial rights,

we affirm.

                               Facts and Procedural History

       In March 2011, Ogutu was exercising parenting time with I.O., his almost-four-

year old son. While I.O. was sleeping, Ogutu’s friend, Twali Ngosi, called him to offer

to pick up Ogutu so Ngosi could return a vehicle that he borrowed from Ogutu. Ogutu

accepted Ngosi’s offer. When Ngosi arrived, he asked Ogutu, “where’s your son?”

Transcript at 95. Ogutu replied I.O. was “fine” and “in the home.” Id. Ngosi’s home

was approximately six to ten minutes from Ogutu’s apartment, but on the way there they

made an unexpected stop at a gas station because one of Ngosi’s tires had low air

pressure. After filling up the tire with air, Ngosi received a call on his cell phone from

the South Bend Police Department. The caller asked for Ogutu and informed him I.O.

had been found wandering outside his apartment building near the street, and Ogutu


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returned to his apartment. Ogutu was subsequently charged with neglect of a dependent

as a Class D felony.

      At trial, Ogutu attempted to admit into evidence a map printed from the internet

showing the route, distance, and travel time from Ogutu’s apartment to Ngosi’s

residence. The State objected, arguing the map was irrelevant, duplicative of other

evidence already presented, and unauthenticated, and the trial court agreed and refused to

admit the map into evidence. Ogutu offered a proposed jury instruction stating:

      If the accused were merely negligent in relation to the allegations of the
      State, then he is not criminally liable, and your verdict must be not guilty.

      One must intend to do, or omit to do the act resulting in injury to another in
      order to be guilty of a criminal act. Now if you believe that the accused did
      not intentionally or knowingly commit the act and he was only negligent,
      then your verdict must be not guilty.

      Negligent conduct without more will not support a finding of an individual
      being guilty for a criminal act in Indiana.

Appellant’s Appendix at 11. The trial court refused the instruction, and the jury found

Ogutu guilty of neglect of a dependent. Although Indiana Code section 35-46-1-4(a)

provides Ogutu’s offense is a Class D felony, the trial court reduced Ogutu’s conviction

to a Class A misdemeanor and sentenced him to sixty days in prison.

      Ogutu now appeals. Additional facts will be supplied as appropriate.

                                Discussion and Decision

                             I. Sufficiency of the Evidence

                                 A. Standard of Review

      When assessing a challenge to the sufficiency of the evidence, we neither reweigh

the evidence nor judge the credibility of witnesses. Rodriguez v. State, 714 N.E.2d 667,

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670 (Ind. Ct. App. 1999), trans. denied. We only consider the evidence most favorable to

the verdict and all reasonable inferences to be drawn therefrom, and we will affirm a

conviction if probative evidence exists from which a reasonable jury could have found

the defendant guilty beyond a reasonable doubt. Treadway v. State, 924 N.E.2d 621, 639

(Ind. 2010).

                              B. Knowingly or Intentionally

         Indiana Code section 35-46-1-4(a) provides, “A person having the care of a

dependent, whether assumed voluntarily or because of a legal obligation, who knowingly

or intentionally . . . places the dependent in a situation that endangers the dependent’s life

or health . . . commits neglect of a dependent[.]”          Ogutu argues the evidence is

insufficient to establish he “knowingly or intentionally” placed I.O. in a situation

endangering his life or health. “A person engages in conduct ‘intentionally’ if, when he

engages in the conduct, it is his conscious objective to do so,” and “[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.” Ind. Code § 35-41-2-2(a), (b). Our courts have more specifically

defined “knowingly” for the purposes of our neglect of a dependent statute to require “the

accused must have been subjectively aware of a high probability that he placed the

dependent in a dangerous situation.” Armour v. State, 479 N.E.2d 1294, 1297 (Ind.

1985).

         Ogutu analogizes this case to Scruggs v. State, 883 N.E.2d 189 (Ind. Ct. App.

2008), trans. denied. There, the defendant left her seven-year-old son, M.H., at home

while she ran an errand. When she returned approximately three hours later, he was

missing. M.H. was later found safe at the defendant’s boyfriend’s uncle’s home, but the
                                              4
defendant was charged and subsequently convicted of neglect of a dependent. On appeal,

this court concluded the evidence was insufficient to establish the defendant had a

“subjective awareness of a ‘high probability’ that M.H. was placed in a dangerous

situation when she left him home alone.” Id. at 191. M.H. was seven years old, the

defendant testified M.H. knew “not to mess with the stove or open the door or anything,”

id., and the State failed to present any evidence contradicting the defendant’s evidence

that suggested M.H. was responsible enough to be home alone.           Because the only

evidence presented suggested M.H. was responsible enough to be left at home, we

concluded there was insufficient evidence that the defendant was subjectively aware of a

high probability that M.H. was placed in a dangerous situation.

      In Thames v. State, 653 N.E.2d 517 (Ind. Ct. App. 1995), on the other hand, we

concluded sufficient evidence was presented to support the defendant’s conviction of

neglect of a dependent after the defendant left his girlfriend’s five-year-old daughter

alone and the child wandered out of her home and was eventually taken to the police

department. Although the defendant was only a few houses away from the child, he was

gone for several hours and the child was found wandering the street. We concluded the

defendant “was experienced at watching children and thus should have been subjectively

aware of a high probability that he placed [the child] in a dangerous situation by leaving

her at home.” Id. at 517.

      Examining the evidence most favorable to the jury’s verdict and the reasonable

inferences to be drawn therefrom and without reweighing the evidence, we conclude

sufficient evidence was presented to establish Ogutu was subjectively aware of a high

probability he placed I.O. in a dangerous situation by leaving him alone in Ogutu’s
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apartment. Ogutu was I.O.’s father and the evidence suggests he routinely exercised the

parenting time afforded non-custodial parents. I.O. was a few weeks away from turning

four years old. After a passerby notified the South Bend Police Department that a child

was wandering near the street, a police officer arrived and stopped I.O. just as he had

stepped from the sidewalk into the street in between two parked cars. Based on I.O.’s

age, Ogutu’s experience in watching I.O., and the fact that I.O. did in fact wander outside

Ogutu’s apartment and was apprehended as he began walking in the street, a reasonable

jury could conclude beyond a reasonable doubt the evidence supports a conclusion Ogutu

was subjectively aware of a high probability he placed I.O. in a dangerous situation by

leaving him home alone.

                            II. Ogutu’s Proposed Instruction

                                 A. Standard of Review

             The purpose of an instruction 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.
      Instruction of the jury is generally within the discretion of the trial court
      and is reviewed only for an abuse of that discretion. A trial court
      erroneously refuses to give a tendered instruction, or part of a tendered
      instruction, if: (1) the instruction correctly sets out the law; (2) evidence
      supports the giving of the instruction; and (3) the substance of the tendered
      instruction is not covered by the other instructions given.

Overstreet v. State, 783 N.E.2d 1140, 1163-64 (Ind. 2003) (citations omitted), cert.

denied, 540 U.S. 1150 (2004). We review jury instructions as a whole and in reference to

each other. Stringer v. State, 853 N.E.2d 543, 548 (Ind. Ct. App. 2006).




                                            6
                                               B. The Instruction

         The trial court read to the jury1 its instruction regarding Indiana Code section 35-

46-1-4 and the required elements for a conviction of neglect of a dependent:

         The statutes defining the offense charged herein provides [sic], in pertinent
         part, as follows:
         A person having the care of a dependent, whether assumed voluntarily or
         because of a legal obligation, who knowingly places the dependent in a
         situation that endangers the dependent’s health commits Neglect of a
         Dependent, a Class D felony. . . . 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.

Tr. at 184-85.         Ogutu contends the trial court’s instruction which only gave “the

standardized definition of the term [knowingly] without the context of negligence or

recklessness failed to adequately apprise the jury of its meaning and thereby lessoned

[sic] the State’s burden on the Statute’s [sic] mens rea requirement.” Appellant’s Brief at

13.

         We disagree that the trial court’s instruction lessened the State’s burden of

establishing Ogutu knowingly or intentionally placed I.O. in a position of harm. Rather,

the trial court’s instruction recites almost verbatim what is required by Indiana Code

sections 35-46-1-4(a) and 35-41-2-2(b).2                   Ogutu’s proposed instruction attempted to

further articulate the mens rea required by Indiana Code, but the substance of the trial

court’s jury instruction already defined the required mens rea. Moreover, in order for the

         1
           Ogutu included his proposed instruction in his Appellant’s Appendix, but he did not include any
instructions actually used by the trial court. We therefore refer to the trial court transcript to determine what was
included in the trial court’s instruction concerning the statutory elements of the crime of neglect of a dependent as a
Class D felony.
         2
          Based on what the trial court read to the jury, the instruction included Indiana Code section 35-46-1-4’s
requirement that Ogutu “knowingly” placed I.O. in a position of harm, but it does not mention “intentionally,” nor
does it define that term. This distinction is irrelevant, however, because the State’s argument was that Ogutu
knowingly placed I.O. in a position of harm, and the absence of the word “intentionally” would not have prejudiced
Ogutu in any way.
                                                          7
trial court to give a tendered instruction, the instruction must be a correct statement of the

law. The first sentence of the second paragraph of Ogutu’s tendered instruction is not

correct, so this alone would warrant its rejection. We therefore conclude refusing to give

Ogutu’s proposed jury instruction was not clearly erroneous and the trial court did not

abuse its discretion.

                               III. Admissibility of Evidence

                                  A. Standard of Review

       We review a trial court’s determination of admissibility of evidence for abuse of

discretion. Allen v. State, 813 N.E.2d 349, 361 (Ind. Ct. App. 2004), trans. denied. A

trial court’s decision whether to admit evidence will not be reversed absent a showing of

manifest abuse of that discretion resulting in the denial of a fair trial. Id. An error in the

admission or exclusion of evidence is generally harmless unless it affects the substantial

rights of a party. Id. (citing Coleman v. State, 694 N.E.2d 269, 277 (Ind. 1998)).

                                      B. Ogutu’s Map

       While Ngosi was testifying, Ogutu attempted to enter into evidence a map

generated on the internet displaying the route between Ogutu’s apartment and Ngosi’s

residence.   In addition to highlighting the route, the document included the route’s

approximate distance and travel time, 2.64 miles and six minutes, respectively.

Immediately preceding this, Ngosi testified he had driven to and from Ogutu’s apartment

on several occasions and that it typically takes six to ten minutes. He stated the various

turns included in the route and implied it was approximately a few miles.

       Even if Ogutu is correct that the map is admissible under the Indiana Rules of

Evidence, he has not established that the exclusion of the map denied him a fair trial or
                                              8
affected his substantial rights. The evidentiary point Ogutu was attempting to make by

presenting the map – that he was only leaving I.O. for a short period of time and only

traveling a few miles away – was already made by Ngosi’s testimony. The map was

duplicative of the evidence already presented, and, as such, the trial court’s exclusion of

the map did not result in Ogutu being denied a fair trial or affect his substantial rights.

                                         Conclusion

       The evidence sufficiently demonstrates Ogutu knowingly placed I.O. in a position

of harm by leaving him home alone. The trial court’s refusal to give Ogutu’s proposed

jury instruction was not an abuse of discretion, and even if the map Ogutu attempted to

admit into evidence was admissible, the trial court’s rejection of such evidence did not

result in an unfair trial or affect Ogutu’s substantial rights because it was duplicative of

evidence already presented. We therefore affirm.

       Affirmed.

BAKER, J., and BRADFORD, J., concur.




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