MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                       Mar 09 2018, 8:42 am

regarded as precedent or cited before any                                        CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer D. Wilson Reagan                                Curtis T. Hill, Jr.
Wilson & Wilson                                          Attorney General of Indiana
Greenwood, Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Christopher Michael Potts,                               March 9, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         41A01-1705-CR-985
        v.                                               Appeal from the Johnson Superior
                                                         Court
State of Indiana,                                        The Honorable Lance D. Hamner,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         41D03-1509-F2-6



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 41A01-1705-CR-985 | March 9, 2018                  Page 1 of 9
[1]   Christopher Michael Potts appeals his conviction for Level 2 Felony Battery

      Resulting in Death to a Person Less Than Fourteen Years of Age.1 Potts argues

      that the trial court erred by (1) admitting his videotaped statement to police into

      evidence; and (2) refusing to give one of his tendered jury instructions. Finding

      no error, we affirm.


                                                    Facts
[2]   Potts and Annabelle Anderson entered into a romantic relationship and she

      became pregnant with his child. Their daughter, F.A., was born in February

      2015.


[3]   Annabelle, Potts, and F.A. lived together in a two-bedroom apartment.

      Annabelle worked at a Waffle House and Potts was unemployed. Therefore,

      Potts was their daughter’s primary caregiver. In August 2015, Annabelle’s

      father, Jack Anderson, who was also unemployed, moved into the apartment.


[4]   The morning of September 3, 2015, Annabelle woke up and checked on F.A.,

      who seemed slightly sluggish but fine. Annabelle went back to sleep until later

      in the morning, when Potts woke her up. Annabelle left the bedroom and

      heard “a bang” in the bedroom. Tr. Vol. III p. 43. Annabelle asked Potts if he

      was okay, and he replied that he had “tripped going to the crib.” Id. Potts went

      into the bathroom for about ten minutes and then returned to the bedroom.




      1
          Ind. Code § 35-42-2-1(k).


      Court of Appeals of Indiana | Memorandum Decision 41A01-1705-CR-985 | March 9, 2018   Page 2 of 9
[5]   A few minutes later, Annabelle walked into the bedroom and found Potts

      holding the infant in his arms. F.A. was not moving or breathing. Potts placed

      her on the bed and attempted to perform CPR; Annabelle called 911. Jack then

      entered the bedroom and began performing CPR and continued doing so until

      paramedics arrived. Paramedics transported F.A. to the hospital, where she

      was eventually pronounced dead.


[6]   A forensic pathologist performed an autopsy on F.A. and determined that she

      had “a scalp hematoma or collection of blood in the scalp,” as well as a large

      depressed skull fracture in the back of her head. Tr. Vol. II p. 219-21. The

      pathologist concluded, based on the type of injury, that the cause of F.A.’s

      death was blunt force trauma. The amount of force needed to cause this type of

      injury was analogous to being hit by a motor vehicle or having a large piece of

      furniture fall on top of the child’s head.


[7]   Franklin Police detectives interviewed Annabelle and Potts separately at the

      police station on September 4, 2015. While they were interviewing Annabelle,

      Lieutenant Peter Ketchum was in the room with Potts but no formal interview

      took place. Potts asked to use the restroom during that time and was allowed to

      do so.


[8]   After completing the interview with Annabelle, Detectives Adam Joseph and

      Raymond Tice spoke with Potts. They advised him of his Miranda2 rights and




      2
          Miranda v. Arizona, 384 U.S. 436 (1966).


      Court of Appeals of Indiana | Memorandum Decision 41A01-1705-CR-985 | March 9, 2018   Page 3 of 9
       informed him that he was not under arrest. Potts acknowledged that he

       understood and signed a waiver of rights form. The detectives interviewed

       Potts for approximately ninety minutes. At some point during that time, he

       asked to use the restroom but was not permitted to do so. At another point, he

       asked about seeing Annabelle and asked about leaving; one of the detectives

       understood Potts to be asking “what the next steps were.” Tr. Vol. II p. 16, 32.


[9]    During the interview, Potts initially stated that he did not know what caused

       F.A.’s injury. He admitted that he had been under stress because of the

       couple’s financial situation and because he was upset about how many hours

       Annabelle had been working. The detectives informed Potts that his possible

       explanations for F.A.’s injury3 were not consistent with the pathologist’s report,

       and he eventually admitted that he was mad when he went to check on F.A. the

       morning she died. He said that she had been fussing and that he threw her

       down. Detective Tice asked Potts how hard he had thrown the baby, and Potts

       replied, “[t]oo hard,” before putting his head down and beginning to cry.

       Appellee’s Ex. 17. At that point, Potts asked to go see Annabelle “to tell her

       that he was sorry,” but the detectives did not allow him to do so. Tr. Vol. III p.

       196.


[10]   On September 11, 2015, the State charged Potts with Level 2 felony battery

       resulting in death to a person less than fourteen years of age. Potts moved to




       3
         At different points in the interview, Potts theorized that F.A.’s injury could have been caused during a play
       session with Jack a day or two earlier; by hitting her head on a swing in the house; or by CPR.

       Court of Appeals of Indiana | Memorandum Decision 41A01-1705-CR-985 | March 9, 2018                 Page 4 of 9
       suppress his statement to the detectives. The trial court held an evidentiary

       hearing on the motion and denied it on February 21, 2017. The trial court

       noted for the record that Potts lodged a continuing objection to the admission

       of the statement into evidence.


[11]   Potts’s jury trial took place on March 10, 2017. Potts requested the trial court

       to instruct the jury that it should not consider his statement to police as

       evidence if the jury found that the police obtained the statement by abuse,

       threats, duress, violence, or false promises. The trial court declined to give the

       instruction unless Potts was able to point to evidence suggesting that, in fact, his

       statement was obtained by abuse, threats, duress, violence, or false promises.

       He was unable to do so, and the trial court refused to give the instruction.


[12]   At the close of the trial, the jury found him guilty as charged. On April 7, 2017,

       the trial court sentenced Potts to thirty years imprisonment, with five years

       suspended to probation. Potts now appeals.


                                    Discussion and Decision
                                  I. Admission of Statement
[13]   Potts first argues that the trial court erroneously admitted his statement to the

       detectives into evidence. The admissibility of a statement “is controlled by

       determining from the totality of the circumstances whether it was made

       voluntarily and not induced by violence, threats, or other improper influences

       that overcame the defendant’s free will.” Treadway v. State, 924 N.E.2d 621,

       635 (Ind. 2010). The State has the burden to prove beyond a reasonable doubt

       Court of Appeals of Indiana | Memorandum Decision 41A01-1705-CR-985 | March 9, 2018   Page 5 of 9
       that the defendant voluntarily and intelligently waived his rights and that the

       statement was voluntarily given. Id. On appeal, we will not reweigh the

       evidence and will affirm if the trial court’s ruling is supported by substantial

       evidence. Wilkes v. State, 917 N.E.2d 675, 680 (Ind. 2009).


[14]   In this case, it is undisputed that the detectives properly advised Potts of his

       Miranda rights. It is also undisputed that he waived those rights, both verbally

       and in writing. Potts argues that his waiver was not intelligent and that his

       subsequent statement was not voluntary.


[15]   With respect to the waiver, Potts points out that he was twenty-one years old,

       did not finish high school, and had been in special education classes while in

       school. Notwithstanding those facts, there is no indication that Potts had any

       difficulty understanding and communicating with the detectives during the

       interview. Detective Joseph testified that he had no concerns about Potts’s

       intellect: “During the course of the interview, he was interactive. He was able

       to speak with me, he answered questions. He described things, such as the

       CPR. He was able to describe things. He was very willing to ask

       questions . . . .” Tr. Vol. IV p. 6. In other words, nothing in the record

       remotely indicates that Potts’s mental state or intellectual abilities impacted his

       ability to intelligently waive his rights. See Jackson v. State, 735 N.E.2d 1146,

       1154 (Ind. 2000) (holding that a defendant’s limited education, standing alone,

       does not render a confession involuntary). We find no error on this basis.




       Court of Appeals of Indiana | Memorandum Decision 41A01-1705-CR-985 | March 9, 2018   Page 6 of 9
[16]   With respect to whether Potts’s statement was voluntary, he emphasizes that on

       multiple occasions during his interview with the detectives, he asked to use the

       restroom, leave, and/or see Annabelle; each time, they denied permission for

       him to do so. A review of the interview, however, shows that at no point did

       Potts invoke his rights to remain silent or speak with counsel, nor did he ask to

       end the interview.


[17]   We find Hodges v. State, 524 N.E.2d 774 (Ind. 1988), instructive. In Hodges, the

       defendant argued that his statement to police was involuntary because he

       claimed he “was illegally held until he took [a] polygraph test” and “reasonably

       believed he was not free to leave.” Id. at 782. He also claimed that “police

       failed to stop questioning him when he said he did not want to be questioned.”

       Id. Our Supreme Court, however, noted that the defendant had been advised of

       his rights and “voluntarily continued to talk with the officers and answer their

       questions.” Id. at 782-83. Consequently, the trial court did not err by finding

       that the defendant’s statement was voluntary. Id.


[18]   Here, likewise, the detectives advised Potts of his rights. He waived those

       rights. And although his requests to leave for various reasons were denied, he

       continued to talk with the detectives and answer their questions. There is no

       evidence whatsoever remotely tending to suggest that he experienced any

       physical abuse, psychological intimidation, deceptive interrogation tactics, or

       threats at the hands of police. Cf. Light v. State, 547 N.E.2d 1073, 1079 (Ind.

       1989) (defendant’s statement was voluntary despite evidence of a four-hour

       interrogation punctuated by police conduct involving cursing, lying, and

       Court of Appeals of Indiana | Memorandum Decision 41A01-1705-CR-985 | March 9, 2018   Page 7 of 9
       smacking the defendant on the arm); Malloch v. State, 980 N.E.2d 887, 902-03

       (Ind. Ct. App. 2012) (defendant’s statement was voluntary despite a

       “confrontational and intense” interrogation in which the detective challenged

       the defendant’s manhood, berated the defendants, and repeatedly made false

       assertions regarding evidence). The interview of Potts lasted less than two

       hours and the detectives behaved in a professional manner throughout. We

       find that the trial court did not err by finding that Potts’s statement was

       voluntary or by admitting the statement into evidence.


                                         II. Jury Instruction
[19]   Next, Potts argues that the trial court erred by refusing to give one of his

       tendered jury instructions. When evaluating jury instructions on appeal, we

       look to whether the tendered instruction correctly stated the law, whether there

       is evidence in the record to support giving the instruction, and whether the

       substance of the proffered instruction is covered by other instructions.

       Treadway, 924 N.E.2d at 636. We will reverse only if the instructional error

       prejudiced the defendant’s substantial rights. Id.


[20]   Potts’s tendered jury instruction stated as follows:


               Evidence has been introduced that the Defendant made a
               statement concerning the crime charged. It is for you to
               determine, in light of all the circumstances under which the
               statement was made, if it was properly obtained by the police.
               The law does not allow the police to obtain a statement by abuse,
               threats, duress, violence, or false promises. If you find that police
               obtained the statement by such means, you should not consider
               the statement as evidence against the Defendant. If you find
       Court of Appeals of Indiana | Memorandum Decision 41A01-1705-CR-985 | March 9, 2018   Page 8 of 9
               from a consideration of all the evidence that the statement was
               properly obtained by police, then it is for you to determine what
               value should be given to the statement.


       Appellant’s App. Vol. II p. 54.


[21]   Initially, we note that it is well established that it “is the role of the trial court—

       not the jury—to determine whether a statement made by a defendant is

       voluntary and therefore admissible.” Crain v. State, 736 N.E.2d 1223, 1239

       (Ind. 2000). As a result, to the extent that the above instruction—which,

       admittedly, is based on an Indiana Pattern Criminal Jury Instruction—would

       have permitted the jury to infringe on matters reserved for the trial court, it was

       improper. See id. (noting that the trial court was not obligated to present a jury

       instruction regarding the voluntariness of defendant’s statements).


[22]   Furthermore, the instruction was not supported by the evidence. As noted

       above, there was no evidence in the record that the police had obtained Potts’s

       statement by abuse, threats, duress, violence, or false promises. Therefore, the

       trial court was not obligated to present the jury instruction. We find no error in

       the trial court’s decision to decline to give this instruction to the jury.


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


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 41A01-1705-CR-985 | March 9, 2018   Page 9 of 9
