MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                         FILED
court except for the purpose of establishing                        Dec 11 2019, 9:32 am

the defense of res judicata, collateral                                  CLERK
                                                                     Indiana Supreme Court
estoppel, or the law of the case.                                       Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Gregory Bowes                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Matthew B. Mackenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Cheyanne V. Meredith,                                   December 11, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1332
        v.                                              Appeal from the Brown Circuit
                                                        Court
State of Indiana,                                       The Honorable Mary H. Wertz,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        07C01-1808-F6-410



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019            Page 1 of 18
                                     STATEMENT OF THE CASE
[1]   Appellant-Defendant, Cheyanne Meredith (Meredith), appeals her convictions

      for two Counts of neglect of a dependent, Level 6 felonies, Ind. Code § 35-46-1-

      4(a)(1).


[2]   We affirm.


                                                          ISSUES
[3]   Meredith presents three issues on appeal, which we restate as:


                 (1) Whether the State proved the offenses beyond a reasonable
                    doubt;


                 (2) Whether the trial court abused its discretion when it
                    instructed the jury on alternate juror participation; and


                 (3) Whether the trial court abused its discretion when it denied
                    Meredith’s motions for mistrial based on the State’s final
                    arguments.


                          FACTS AND PROCEDUARL HISTORY
[4]   Meredith is the mother of two girls, K.M. and A.M., who were two and three

      years old in the summer of 2018. 1 Meredith and the girls were living in a trailer

      on Sweetwater Trail in Brown County, Indiana. On August 1, 2018, Meredith

      allowed K.M. and A.M. to play in a camper parked on the trailer’s property.




      1
          It is unclear from the record which of the girls is older.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019   Page 2 of 18
      The camper was forty-seven and one-half feet from Sweetwater Trail, which is a

      hilly, curvy road that, despite traversing rural Brown County, is a main

      thoroughfare that is heavily traveled, especially in the summertime. There was

      no fence or natural barrier between the camper and Sweetwater Trail. A pond

      was also located approximately 200 feet from the camper, with no obstructions

      between the pond and the camper. Meredith was on the porch of the trailer on

      the north side of the camper where she could not see the camper’s exit door.

      Meredith was looking at a live chat on her cellphone, an activity that, according

      to Meredith’s sister, Meredith engaged in frequently and one which absorbed

      Meredith’s attention when she did it.


[5]   At dusk on August 1, 2018, Steppin Quillen and his wife, Angel, were driving

      home southbound on Sweetwater Trail. They suddenly came upon two

      toddlers, later identified as K.M. and A.M., in the middle of the road. Steppin

      was forced to apply his brakes quickly in order to avoid hitting the children. As

      the Quillens stopped to investigate, K.M. and A.M. ran across the road and

      under a boat in front of a home located approximately 600 feet from Meredith’s

      trailer. The residents of the home did not know the children. Steppin called 9-

      1-1.


[6]   While waiting for law enforcement to arrive, the Quillens, another motorist

      who had stopped to help, and the residents of the home where the children had

      been found tended to the toddlers. The older child was wearing only a pair of

      underwear. The younger child was clad in a diaper that was so saturated with

      urine that the front portion of the diaper had become detached with its weight

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019   Page 3 of 18
      and dragged on the ground, exposing her genitals. All of the adults present

      noted that K.M. and A.M. were covered in ground-in dirt as though they had

      not been bathed recently. The children’s hair was matted, and each was

      carrying a piece of hardened toast. The adults provided K.M. and A.M. with

      clothing and food.


[7]   From their unobstructed viewpoint in the yard of the home where the girls were

      found, the adults tending to the children eventually saw Meredith walk up to

      Sweetwater Trail near her trailer, look around, and disappear from view. Some

      of the adults heard Meredith shouting. When a sheriff’s deputy arrived and left

      his cruiser’s emergency lights shining, he too observed Meredith come up to

      Sweetwater Trail near her trailer, look around, and disappear from view. After

      the deputy had been on the scene for approximately fifteen minutes, Meredith

      walked up to the adults tending to her children. Initially, a boy under the age of

      ten accompanied her, but she loudly admonished the boy to return to the trailer.

      The boy walked back to the trailer by himself. The deputy present advised

      Meredith to keep the boy from walking in the roadway. When Meredith

      arrived, and while standing approximately ten feet away from one of her

      daughters, she asked if anyone had seen her children. Meredith did not appear

      frantic, did not inquire about the well-being of the girls, and did not move to

      make contact with either child.


[8]   On August 31, 2018, the State filed an Information, charging Meredith with

      two Counts of Neglect of a Dependent. On April 17, 2019, Meredith’s two-day

      jury trial began. Meredith’s counsel tendered a preliminary instruction that

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019   Page 4 of 18
      proposed to inform the alternate juror that “you will retire with the jury during

      recesses, but you are ordered not to participate in the discussions.” (Appellant’s

      App. Vol. II, p. 65). The trial court rejected the proposed preliminary

      instruction in favor of a pattern instruction which provided in relevant part,

      “You have been selected as jurors . . . You are permitted to discuss the evidence

      among yourselves in the jury room during recesses from trial but only when all

      jurors and alternates are present.” (Appellant’s App. Vol. II, p. 75). The trial

      court accepted Meredith’s proposed final instruction to the alternate juror

      which provided in relevant part as follows:


              Your duties are the same as those of the regular jurors, except
              you must not participate in the deliberations or voting of the jury,
              either verbally or non-verbally, unless I direct you to do so.


              The foreperson shall prevent an alternate juror from deliberating
              or voting with the jury. The foreperson shall promptly report any
              violation of this instruction to me.


      (Appellant’s App. Vol. II, p. 118).


[9]   During closing argument, the State informed the jury that the definition of

      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. Reasonable, ordinary. Do you
              hear that? Common sense.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019   Page 5 of 18
(Transcript Vol. II, p. 238). Meredith’s counsel objected to this argument on

the basis that it was a misstatement of the law in that the State was attempting

to inject a negligence standard into a criminal trial. The trial court sustained

the objection and proposed to admonish the jury that its instructions would be

the best source of the law of the case and that the parties were allowed to argue

what the law meant. Meredith’s counsel moved for a mistrial because the trial

court would not admonish the jury that the State had misstated the law. The

trial court denied the mistrial motion and admonished the jury in the manner it

had proposed. Meredith’s counsel subsequently offered his closing argument.

During the State’s closing rebuttal, it argued that


        I’m asking you this, if you believe that [two] toddlers found in
        the middle of a busy Brown County road, coupled with signs of
        neglect, coupled with a mother who did not appreciate
        emotionally the gravity of what could have happened to her
        children—if you believe that is not neglect and my office ought
        not pursue it and our county ought to accept such facts as mere
        parental mistakes, send me a message today and find her not
        guilty. On the other hand, if you find that this conduct is
        unacceptable under the totality of these circumstances, and do
        you want to send a message to [] Meredith that we, Brown
        County, do not accept this, type of behavior from a parent—


(Tr. Vol. III, pp. 19-20). Meredith’s counsel objected to the State’s argument.

Acknowledging that he “let [the prosecutor] slide on that message for finding

her not guilty,” Meredith’s counsel contended that the prosecutor was asking

the jury to disregard the law. (Tr. Vol. III, p. 20). The trial court disagreed that

the State had asked the jury to disregard the law, but proposed to admonish the


Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019   Page 6 of 18
       jury that it was not their job to send a message; rather, it was their job to base

       their decision solely on the facts and evidence of the case. Meredith’s counsel

       insisted that the trial court admonish the jury that it was not the law in Indiana

       that Meredith could be found guilty simply because her children were found in

       a heavily trafficked street. The trial court refused the proposed admonishment

       on the basis that the State had not argued as Meredith’s counsel said it had,

       whereupon Meredith’s counsel again moved for a mistrial. The trial court

       denied the second mistrial motion and admonished the jury in the manner it

       had proposed.


[10]   After deliberating for fifty-eight minutes during which it asked no questions, the

       jury found Meredith guilty as charged. On May 14, 2019, the trial court

       sentenced Meredith to concurrent two-year sentences, with ninety days

       executed, and the remainder suspended.


[11]   Meredith now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                         I. Sufficiency of the Evidence

[12]   Meredith first argues that the State did not prove beyond a reasonable doubt

       that she committed the offenses. It is well-established that when we review the

       sufficiency of the evidence to support a conviction, we consider only the

       probative evidence and reasonable inferences supporting the verdict. Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007). It is not our role as an appellate court to

       assess witness credibility or to weigh the evidence. Id. We will affirm the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019   Page 7 of 18
       conviction unless no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt. Id.


[13]   The State charged Meredith with neglect of a dependent as follows:


               On or about August 1, 2018, . . . Meredith having the care of
               A.M., a dependent, did knowingly place said dependent in a
               situation that endangered the dependent’s life or health, all in
               violation of Ind. Code [§] 35-46-1-4(a)(1).


       (Appellant’s App. Vol. II, p. 14). The second Count pertaining to K.M. was

       identical apart from the identity of the victim. A person acts “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). In the context of a charge of neglect of a

       dependent, a “knowing” intent 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 a

       defendant’s intent in a neglect case must be inferred, on appeal, we must

       examine all the surrounding circumstances of the case to determine if the jury’s

       verdict is proper. Burden v. State, 92 N.E.3d 671, 675 (Ind. Ct. App. 2018).


[14]   Meredith contends that the State failed to show that she knowingly placed her

       children in danger. However, the evidence showed that Meredith allowed her

       two daughters, who were two and three years old, to play in a camper while she

       sat on the porch of the trailer, absorbed in viewing a live chat on her cellphone.

       Meredith admitted later that she could not see the exit of the camper from

       where she was sitting on the porch. The camper was located close to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019   Page 8 of 18
       Sweetwater Trail, a busy, hilly, curvy road, and the camper was close to a

       pond. Both Sweetwater Trail and the pond were in plain view, and there was

       no fence or natural barrier between the road or the pond and Meredith’s two

       toddlers. Meredith knew the ages of her children, that they were outside at the

       camper, that she was looking at her cellphone, that she could not see the exit of

       the camper, and that there were a busy road and a pond nearby, directly

       accessible to her children. We conclude that the totality of these circumstances

       permitted an inference by the jury that Meredith was aware of a high

       probability that she was placing her children in a dangerous situation by

       essentially leaving them unattended close to at least two hazards.


[15]   Meredith asserts otherwise because she contends that “[w]ithout proving []

       Meredith knew her children were heading off to walk down the busy road, and

       did nothing about it, the State failed to prove she subjectively knew of the

       danger her children put themselves in.” (Appellant’s Br. p. 14). We find this

       argument to be unpersuasive because it is based on the incorrect assumption

       that the State was required to show that Meredith had actual knowledge of the

       danger posed by her conduct. The State was not required to show that

       Meredith had actual knowledge of the danger; rather, the State was permitted to

       make its case by showing that Meredith knew of a high probability that she was

       placing her children in danger. Villagrana, 954 N.E.2d at 468.


[16]   Meredith also argues that she only knew that her daughters were playing in the

       side yard in the camper, she was beside the camper, and that she could hear

       them playing and see their feet under the camper. Meredith further draws our

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019   Page 9 of 18
       attention to evidence she contends shows that A.M. and K.M. were only

       missing a few minutes, she began looking for them quickly, and that she was

       concerned when she noticed they were missing. However, as noted above,

       Meredith knew that she could not see the exit of the camper, she was attending

       to her cellphone while her children were playing, and there was nothing

       obstructing her children from the road or the pond. We also find these

       arguments unavailing inasmuch as they invite us to reweigh the evidence of the

       case and to consider evidence that does not support the jury’s verdict, both of

       which are contrary to our standard of review. See Drane, 867 N.E.2d at 146.


[17]   Meredith likens her case to Villagrana v. State in which this Court reversed a

       Level 6 felony neglect of a dependent conviction involving a child being found

       unattended close to a street. Villagrana, 954 N.E.2d at 469. In that case, the

       mother of Villagrana’s two-year-old daughter asked Villagrana to watch their

       daughter while the mother ran errands. Id. at 467. Villagrana assented but was

       watching TV and thought the child was upstairs with another adult in the

       home. Id. at 467-68. At the next commercial break, Villagrana went upstairs to

       give his daughter food and discovered that she was not there. Id. at 469.

       Unbeknownst to him, his daughter had pushed her way through the unlocked

       back door and was outside where she was found close to a street. Id. As soon

       as he discovered her missing, Villagrana began searching for his daughter. Id.

       The court found that, while the State had shown that Villagrana had acted

       negligently, it had not shown that he acted knowingly because the entire




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019   Page 10 of 18
       incident only lasted twenty minutes, during which Villagrana either thought his

       daughter was with another adult or he was out looking for her. Id.


[18]   We conclude that this case differs from Villagrana in at least two key respects.

       Unlike Villagrana, Meredith was under no misapprehension that someone else

       was watching her children as she sat on the porch of the trailer looking at her

       cellphone. We also find Meredith’s case to be distinguishable from Villagrana

       because Villagrana was unaware that the back door to his home was unlocked,

       allowing his two-year-old to push through to the outside. Here, Meredith knew

       that her children were already outside in an unfenced yard, and she knew she

       could not see the exit to the camper where they were playing. There were no

       facts in the record supporting an inference that Meredith thought there was

       anything stopping her children from accessing the road or the pond apart from

       her attentiveness, which the jury found was lacking that day.


[19]   As part of her argument attacking the sufficiency of the evidence, Meredith also

       contends that the State improperly relied upon an objective standard of

       knowledge at trial when it argued in closing statements that Meredith “‘knew or

       should have been aware of. Should have been aware of a high probability.

       Should have been aware of.’” (Appellant’s Br. pp. 12-13). Meredith did not

       object to this argument at trial, and, therefore, she has waived it as a claim of

       prosecutorial misconduct. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014).

       Meredith does not claim this argument constituted fundamental error. In

       addition, the jury was instructed that a person acts knowingly “if, when she

       engages in this conduct, she is aware of a high probability that she is doing so.”

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019   Page 11 of 18
       (Appellant’s App. Vol. II, p. 105). The jury was presumed to have followed this

       instruction. Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 2015). Meredith does not

       argue that this presumption was surmounted. Because we find that there was

       sufficient evidence from which the jury could infer that Meredith was aware of

       a high probability that she had placed her children in a situation which

       endangered their lives, we affirm the jury’s verdicts.


                                              II. Jury Instruction

[20]   Meredith also claims that the trial court abused its discretion when it gave what

       she contends were inconsistent jury instructions on the alternate juror’s

       participation in discussions during trial and during deliberations, thus allowing

       the “alternate juror to assert improper influence on the regular jurors.”

       (Appellant’s Br. p. 15). We begin by noting that jury instruction is a matter

       within the discretion of the trial court, and we will reverse a trial court’s

       instructional decision only upon an abuse of that discretion. Cardosi v. State,

       128 N.E.3d 1277, 1284 (Ind. 2019). In reviewing a challenge to a jury

       instruction, we consider: (1) whether the instruction is a correct statement of

       the law; (2) whether there was evidence supporting the instruction; and (3)

       whether the substance of the instruction was covered by other instructions given

       by the trial court. Thomas v. State, 61 N.E.3d 1198, 1201 (Ind. Ct. App. 2016),

       trans. denied.


[21]   Meredith contends that the trial court’s preliminary and final instructions were

       inconsistent because the trial court preliminarily instructed the alternate that it

       could participate in discussions with jurors during recesses but that it issued a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019   Page 12 of 18
       final instruction that the alternate juror could not participate in discussions until

       instructed to do so. We find that Meredith mischaracterizes the nature of the

       instructions given by the trial court. The trial court’s preliminary instruction to

       the jurors was that “[y]ou are permitted to discuss the evidence among

       yourselves in the jury room during recesses from trial but only when all jurors

       and alternates are present.” (Appellant’s App. Vol. II, p. 75). The trial court’s

       final instruction was that the alternate juror must not participate in the

       “deliberations or voting” of the jury unless instructed by the trial court.

       (Appellant’s App. Vol. II, p. 118). There was no inconsistency between these

       instructions because they covered two distinct phases of the trial—discussions

       during the reception of the evidence and deliberations and voting after the close

       of the evidence. See Weatherspoon v. State, 912 N.E.2d 437, 441 (Ind. Ct. App.

       2009) (“[O]ur [s]upreme [c]ourt has unambiguously made a distinction between

       discussions and deliberations.”), trans. denied.


[22]   What is more, the Indiana Jury Rules, as promulgated by our supreme court,

       provide that the trial court shall give the jury certain preliminary instructions

       before opening statements, one of which is that


               jurors, including alternates, are permitted to discuss the evidence
               among themselves in the jury room during recesses from trial
               when all are present, as long as they reserve judgment about the
               outcome of the case until deliberations commence.


       Ind. Jury Rule 20(a)(8). Thus, the preliminary instruction given by the trial

       court was not an abuse of discretion because it was supported by Jury Rule


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019   Page 13 of 18
       20(a)(8) and was a correct statement of the law. See Thomas, 61 N.E.3d at 1201.

       While Meredith argues that allowing jurors to participate in discussions prior to

       deliberations allows the alternate to somehow improperly influence the regular

       jurors, the Jury Rules expressly provide for it, and “[w]e are not at liberty to

       rewrite the rules promulgated by our [s]upreme [c]ourt.” Weatherspoon, 912

       N.E.2d at 441. Accordingly, we find no error in the trial court’s instructions on

       the role of the alternate juror.


                                           III. Motions for Mistrial

[23]   Meredith’s last argument is that the trial court erred when it denied her two

       motions for mistrial based on what she contends were improper closing

       arguments by the prosecutor. “A mistrial is an extreme remedy invoked only

       when no other curative measure can rectify the situation.” Hollowell v. State,

       707 N.E.2d 1014, 1024 (Ind. Ct. App. 1999). We review a trial court’s denial of

       a motion for mistrial only for an abuse of discretion, and its decision is afforded

       great deference on appeal because the trial court is in the best position to assess

       all of the circumstances and their impact on the jury. Mickens v. State, 742

       N.E.2d 927, 929 (Ind. 2001).


[24]   Meredith’s mistrial motions were based upon alleged prosecutorial misconduct.

       “‘In reviewing a properly preserved claim of prosecutorial misconduct, we

       determine (1) whether the prosecutor engaged in misconduct, and if so, (2)

       whether the misconduct, under all of the circumstances, placed the defendant in

       a position of grave peril to which he or she would not have been subjected.’”

       Jones v. State, 101 N.E.3d 249, 257 (Ind. Ct. App. 2018) (quoting Cooper v. State,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019   Page 14 of 18
       854 N.E.2d 831, 835 (Ind. 2006)), trans. denied. Whether a prosecutor’s closing

       argument amounts to misconduct is determined by reference to case law and

       the Rules of Professional Conduct. Id. The gravity of peril resulting from the

       challenged argument is measured by the probable persuasive effect of the

       misconduct on the jury’s decision rather than the degree of the impropriety of

       the conduct involved. Id.


                                        A. Reference to Neglect Definition

[25]   Meredith’s first claim of prosecutorial misconduct pertains to the prosecutor’s

       closing argument in which he provided the jury with a definition of “neglect” as

       “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. Reasonable, ordinary.” (Tr. Vol. II, p. 238). At trial, Meredith

       objected to this definition as a misstatement of the law pertaining to this neglect

       of a dependent case, a claim that she reiterates on appeal. The State counters

       that the prosecutor did not commit misconduct by misstating the law because

       the definition of neglect “has long been established[.]” (Appellee’s Br. p. 25).


[26]   Assuming, without deciding, that the prosecutor committed misconduct by

       arguing the definition of “neglect” to the jury, we conclude that Meredith has

       failed to show that she was placed in grave peril with this isolated reference.

       Meredith argues that, without a specific admonishment that the State had

       misstated the law, the “jury was free to base its decision on a misstatement of

       the law.” (Appellant’s Br. p. 17). However, upon Meredith’s objection to the

       State’s line of argument, the trial court admonished the jury that the parties

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019   Page 15 of 18
were free to argue what they thought the law meant but that the trial court’s

instructions were the best source of law for the case. In its final instructions, the

trial court provided the jury with correct statements of the elements of the

offense and the “knowing” mens rea required, advised the jury it was the judge

of the law and the facts of the case, and reiterated that its instructions were the

best source of the law. A definition of “neglect” was not part of the trial court’s

final instructions. Final instructions are presumed to correct any misstatements

of law made during final argument. See Steinberg v. State, 941 N.E.2d 515, 531

(Ind. Ct. App. 2011) (holding that the trial court’s correct final instructions on

the elements of the offense, that the jury was judge of both the law and the

facts, and that its instructions were the best source for law cured any prejudice

flowing from the prosecutor’s incomplete statement of the law), trans. denied; see

also Flowers v. State, 738 N.E.2d 1051, 1059 (Ind. 2000) (holding that any peril

resulting to defendant from the prosecutor’s implication during closing

argument that the burden of proof shifted to defendant was de minimis and was

cured by the trial court’s proper instructions); Hollowell v. State, 707 N.E.2d

1014, 1025 (Ind. Ct. App. 1999) (holding that any peril resulting from

prosecutor’s incorrect statement of the elements of the offense during closing

argument was cured by his other argument correctly citing all elements of the

offense and the trial court’s correct instructions). Here, the jury asked no

questions during deliberations, so there is no direct evidence in the record that it

was confused regarding the correct legal standards to be applied in this case.

We conclude that it was improbable that the prosecutor’s remark had any


Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019   Page 16 of 18
       persuasive effect on the jury and that the trial court did not abuse its discretion

       in denying Meredith’s motion for mistrial. See Mickens, 742 N.E.2d at 929.


                                    B. Argument on the Evidence of the Case

[27]   In the rebuttal portion of the State’s closing argument, it asked the jury to acquit

       Meredith of the offenses if it believed that “[two] toddlers found in the middle

       of a busy Brown County road, coupled with signs of neglect, coupled with a

       mother who did not appreciate emotionally the gravity of what could have

       happened to her children . . .” did not constitute neglect. (Tr. Vol. III, p. 19). It

       also requested that the jury find Meredith guilty if it found her conduct

       unacceptable under the “totality of these circumstances.” (Tr. Vol. III, p. 19).

       Meredith’s counsel objected to this argument on the basis that it was not a

       correct statement of the law that Meredith could be found guilty of neglect

       “merely because her children are found in a heavily trafficked street[.]” (Tr.

       Vol. III, p. 23). The trial court refused Meredith’s request to admonish the jury

       that the State had misstated the law and denied her motion for mistrial.


[28]   On appeal, Meredith argues that “[b]y leaving the jury with the impression that

       it could convict merely on evidence that [] Meredith allowed her children to

       play near a busy road, the State’s improper argument left her in a position of

       grave peril.” (Appellant’s Br. p. 18). However, the factual basis of Meredith’s

       argument is incorrect, as the State explicitly relied on other evidence, including

       what it contended were other signs of neglect and Meredith’s nonplussed

       response upon being reunited with her children, in arguing its case to the jury.

       Thus, the State did not argue that the jury could convict based simply on the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019   Page 17 of 18
       fact that children were found in the roadway. Rather it asked the jury to find

       Meredith guilty based on the “totality of these circumstances.” (Tr. Vol. III, p.

       19). As a result, Meredith has failed to demonstrate that the prosecutor

       engaged in any misconduct. 2 See Jones, 101 N.E.3d at 257. We conclude,

       therefore, that the trial court did not abuse its discretion in denying Meredith’s

       second motion for mistrial. See Mickens, 742 N.E.2d at 929.


                                                CONCLUSION
[29]   Based on the foregoing, we conclude that the State proved the offenses beyond

       a reasonable doubt, the trial court did not abuse its discretion in instructing the

       jury on the role of the alternate juror, and that the trial court did not abuse its

       discretion in denying Meredith’s motions for mistrial.


[30]   Affirmed.


[31]   Baker, J. and Brown, J. concur




       2
         Because we conclude that neither portion of the State’s argument challenged by Meredith on appeal placed
       her in a position of grave peril, we also reject her argument that the cumulative effect of that argument placed
       her in grave peril.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1332 | December 11, 2019                 Page 18 of 18
