Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of                        May 22 2013, 9:25 am

establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

VALERIE K. BOOTS                                GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                JOSEPH Y. HO
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

FIONA C. LEE,                                   )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 49A05-1208-CR-420
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Carol J. Orbison, Judge
                           Cause No. 49G22-1008-FA-59143


                                       May 22, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                                 STATEMENT OF THE CASE

       Appellant-Defendant, Fiona Lee (Lee), appeals her conviction for neglect of a

dependent, a Class A felony, Indiana Code § 35-46-1-4.1

       We affirm.

                                              ISSUES

       Lee raises two issues on appeal, which we restate as follows:

       1.      Whether there is sufficient evidence to support her conviction; and

       2.      Whether fundamental error occurred when the trial court admitted evidence

               that Lee had ammunition and a second loaded gun upstairs in her bedroom.

                          FACTS AND PROCEDURAL HISTORY

        The facts most favorable to the verdict reveal that in July 2010, Lee and her

boyfriend lived in a two-story house with Lee’s three children, six-year-old daughter

Am.; four-year-old son Av.; and three-year-old daughter, Au. Lee’s boyfriend’s four-

year-old son, C., had recently moved in with them.

       On July 29, 2010, Lee spent the morning at home. She and the children worked

outside, and when it started getting too hot, Lee took Am. in the house because of the

child’s asthma problems. While Am. was upstairs watching television, and the younger

children were still outside playing, Lee decided to take a shower downstairs. After the

shower, as she walked upstairs to get dressed, Lee noticed that her loaded .45 caliber

1
 A jury also convicted Lee of possession of marijuana, a Class D misdemeanor, Indiana Code § 35-48-4-
11. She does not appeal that conviction.



                                                  2
semi-automatic handgun was lying on a plastic set of drawers sitting on a microwave cart

in the kitchen. Lee walked right past the gun and did not pick it up or move it.

       Shortly thereafter, Lee heard a “pop” from downstairs. (Tr. p. 343). Lee ran down

the stairs just as C. was walking out the back door. Au. was lying on the kitchen floor

with a gunshot wound to her head. Lee realized that C. had picked up the gun on the

microwave cart and used it to shoot Au. Lee immediately contacted the police. When

the officers arrived at the house, they searched it and found marijuana in an ashtray under

the couch in the living room. The officers also discovered a loaded .22 caliber revolver

in the closet in Lee’s bedroom, as well as a box of .45 caliber semi-automatic

ammunition and magazines on a nightstand.

       Au. was transported to Riley Hospital by ambulance where she died later that day.

When Lee arrived at the hospital, she was taken to a quiet room near the emergency

room. She told Department of Family Services Fatality Specialist Kama Grund that she

had noticed the loaded handgun on the microwave stand as she went upstairs to take a

shower. Lee also told Detective Edward Miller that she noticed the handgun in the

kitchen right before the shooting but did not move it. Au. died from the gunshot wound

to her head later that afternoon.        That same evening, Detective Miller and another

detective interviewed Lee at their office. Lee told the officers that she saw the handgun

in the kitchen but did not pick it up.

       On August 2, 2010, the State filed an Information, charging Lee with neglect of a

dependent as a Class A felony, possession of cocaine as a Class D felony, and possession

                                               3
of marijuana as a Class A misdemeanor.2 At trial, the state introduced without objection

Lee’s .45 caliber handgun, the box of .45 caliber semiautomatic ammunition recovered

from Lee’s bedroom, and the .22 revolver recovered from her bedroom closet. A jury

convicted Lee of neglect of a dependent as a Class A felony and possession of marijuana

as a Class A misdemeanor.

          On August 3, 2012, the trial court sentenced Lee to thirty years with twenty years

suspended and five years probation for the Class A felony and one year for the Class A

misdemeanor, with sentences to run concurrently. The trial court also had Lee placed on

the waiting list for a program at Craine House, and she was ordered to serve her time in

the Department of Correction until a spot became available in this program.3

          Lee now appeals. We will provide additional facts when necessary.

                                    DISCUSSION AND DECISION

                                       I. Sufficiency of the Evidence

          Lee first argues that there is insufficient evidence to support her conviction.

Specifically, she contends that the State “failed to prove the mens rea element of the

offense.” (Appellant’s Br. p. 9). In reviewing a challenge to the sufficiency of the

evidence, this court neither reweighs the evidence nor judges the credibility of witnesses.

McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Rather, we will consider only the


2
    The jury did not convict Lee of possession of cocaine.
3
  Craine House offers a court-ordered alternative sentencing work-release program that serves non-violent
female offenders with pre-school children. The program allows women to serve their sentences with their
children instead of in prison.

                                                      4
evidence that is favorable to the verdict and the reasonable inferences to be drawn

therefrom.     Id.   If there is substantial evidence of probative value to support the

conviction, it will not be set aside. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003).

       Indiana Code section 35-46-1-4(a) provides, in relevant part, that a person having

the care of a dependent who knowingly or intentionally places the dependent in a

situation that endangers the dependent’s life or health commits neglect of a dependent as

a Class D felony. The crime is a Class A felony if it results in the death of a dependent

under the age of fourteen. I.C. § 35-46-1-4(b)(3). Here, the information charged that Lee

“did knowingly place [Au.] in a situation that did endanger the life or health of [Au.]. that

is: left [Au.] unattended in a room with a loaded gun in plain view on a small table;

further, that said act resulted in the death of the dependent child [Au.]” (Appellant’s

App. p. 39).

       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.” I.C. § 35-41-2-2(b). Under the child

neglect statute, a “knowing” mens rea requires a subjective awareness of a “high

probability” that a dependent has 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 fact finder 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.

       Here, the State presented evidence that Lee left a loaded gun in plain view on a

microwave cart in an unattended room. In fact, Lee admitted this on several occasions.

                                              5
This evidence supports the jury’s conclusion that Lee knowingly placed Au. in a situation

that endangered her life or health, and that this act resulted in Au’s death. There is

sufficient evidence beyond a reasonable doubt to support Lee’s conviction of neglect of a

dependent as a Class A felony.

                                 II. Admission of Evidence

      Lee also argues that the trial court erred in admitting evidence regarding the

presence of ammunition and a second loaded gun in the home. Because Lee did not

object to the admission of this evidence at trial, she has waived appellate review of this

issue. See Manuel v. State, 793 N.E.2d 1215, 1218 (Ind. Ct. App. 2003), trans. denied.

      In an attempt to avoid procedural default, Lee contends that the admission of this

evidence constituted fundamental error. However, the fundamental error exception is

extremely narrow. Mitchell v. State, 726 N.E.2d 1228, 1236 (Ind. 2000), abrogated in

part on other grounds Beattie v. State, 924 N.E.2d 643 (Ind. 2010). To qualify as

fundamental error, an error must be so prejudicial to the rights of the defendant as to

make a fair trial impossible. Id. To be fundamental error, the error must constitute a

blatant violation of basic principles, the harm or potential for harm must be substantial,

and the resulting error must deny the defendant fundamental due process.          Id.    In

determining whether the error in the introduction of evidence affected an appellant’s

substantial rights, we assess the probable impact of the evidence on the jury. Manual,

793 N.E.2d at 1219.



                                            6
      Our review of the evidence reveals that Lee knew that the handgun in the kitchen

was loaded when she walked by it on her way upstairs. She did not pick it up or move it.

Instead, she left it in plain view on a microwave cart. Given this compelling evidence,

testimony that Lee had ammunition and a second loaded gun upstairs in her bedroom had

a minimal impact on the jury, did not deny Lee fundamental due process, and therefore

was not fundamental error. See id.

                                     CONCLUSION

      Based on the foregoing, we conclude that there is sufficient evidence to support

Lee’s conviction of neglect of a dependent as a Class A felony, and the admission of

evidence that Lee had ammunition and a second loaded gun in her bedroom was not

fundamental error.

      Affirmed.

BRADFORD, J. and BROWN, J. concur




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