Armour v. State

• Decision Date: 03 July 1985
• Docket Number: No. 883S276,883S276
• Citation: 479 N.E.2d 1294
• Parties: Freddie ARMOUR, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 1294

479 N.E.2d 1294

Freddie ARMOUR, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 883S276.

Supreme Court of Indiana.

July 3, 1985.

Kenneth T. Roberts, Indianapolis, for appellant (defendant below).

Linley E. Pearson, Atty. Gen., Lee Cloyd, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

DeBRULER, Justice.

This is a direct appeal from a conviction for neglect of a dependent, a class B felony, Ind.Code Sec. 35-46-1-4 (Burns 1985 Repl.) and from a habitual offender determination. This case was tried before a jury. Defendant-Appellant was sentenced to a prison term of forty years.

Appellant raises five issues on appeal: (1) whether the evidence is sufficient to sustain appellant's conviction; (2) whether the trial court properly admitted appellant's tape-recorded statements into evidence; (3) whether the trial court properly refused appellant's tendered instructions numbered one through five; (4) whether the trial court properly admitted State's exhibits 9 and 10 into evidence at the habitual offender proceeding; (5) whether the trial court committed fundamental error by giving instruction number 28.

These are the facts which tend to support the determination of guilt. On January 10, 1983, Lynn Howard brought her three month old son to the Cumberland Clinic to be examined because her baby had not been eating for two or three days and he may have suffered a seizure a couple of days earlier. This clinic doctor testified that the baby looked small for his age, his head was somewhat larger than expected for his age, the veins on his head were prominent, and his eyes were slightly bulging. Since the baby experienced a seizure during the examination, the clinic doctor advised Ms. Howard to take her baby to Community Hospital to have the seizure treated.

During the examination at Community Hospital the baby was still having a seizure, was comatose, and unconscious. The mother told this emergency room staff physician that her baby had been shaking intermittently for the past four days. This doctor described the baby as "generally cachectic in appearance, an almost malnourished, starvation sort of appearance."

The Community Hospital doctors determined that this baby had a subdural hematoma caused by a trauma to the baby's head which occurred within the previous weeks. The baby's symptoms included an enlarged head, a bulging soft spot, extraordinary lethargy, bizarre jerking movements, unresponsive eyes, extremely thin and weak legs, weakness of the facial nerves, and the baby's development at three months was less than or equal to that of a normal newborn infant. The doctors testified that the baby would not have looked healthy and normal to a person of usual intelligence. A neurological surgeon testified that a subdural hematoma in a child of three months could be caused by injury, such as a fall or blows, or by shaking the baby. He also testified that it was too early to determine the effects of the brain damage which the baby now has.

Appellant, father of the baby, lived with Ms. Howard and the baby. He admitted that he was primarily responsible for his baby's care and was with his baby ninety percent of the time. His baby was vomiting and having tantrums for two weeks before receiving any medical treatment. Appellant knew that his baby's vomiting of food recently fed was a symptom of infantile starvation. Appellant recognized that his baby had suffered a seizure several days before the mother sought medical attention. In addition, his baby was not eating, was constipated and, in the appellant's own words, "looked bad" the day before his son was brought to the clinic. Appellant admitted that he had not sought medical treatment for his son. He told the police "[i]f he got neglected, it's neglected on my part for judging or not judging, but physical abuse, no, see, it's neglect on my part or something." Appellant also admitted to shaking his baby when his son cried too much.

I.

Appellant argues that the evidence was insufficient to sustain his conviction for neglect of a dependent because the element of knowledge or intent was not proved by the State. He maintains that the State never proved that he knew that his baby's health or life was endangered or that he intended harm to his baby. Appellant contends that he did not realize the severity of the situation and felt that he was taking sufficient measures to protect the baby's health.

The criminal offense of neglect of a dependent as charged here required the State to prove that appellant had care of a dependent, whether assumed voluntarily or because of legal obligation, and knowingly or intentionally placed the dependent in a situation which endangered the dependent's life or health, and that serious bodily injury resulted. Ind.Code Sec. 35-46-1-4 (Burns 1985 Repl.). The specific conduct alleged was the failure to seek timely medical care for his son. We conclude that the evidence and reasonable inferences therefrom satisfied the State's burden of proving the requisite state of mind beyond a reasonable doubt.

Indiana Code Sec. 35-41-2-2 (Burns 1985 Repl.) defines "knowingly" as conduct in which the actor is aware of a high probability that he is so engaged. However, the Indiana Court of Appeals disagrees as to the definition of "knowingly" in our child neglect statutes. One district applies an objective standard wherein the State need only prove that defendant-caretaker was aware of the facts which would alert a reasonable caretaker under similar circumstances to take affirmative action to protect the child. Smith v. State (1980), Ind.App., 408 N.E.2d 614. Other districts correctly apply the subjective standard mandated by our culpability definiting statute. McMichael v. State (1984), Ind.App. 471 N.E.2d 726; Ware v. State (1982), Ind.App., 441 N.E.2d 20; Perkins v. State (1979), 181 Ind.App. 461, 392 N.E.2d 490. We now hold that the level of culpability required when a child neglect statute requires knowing behavior is that level where the accused must have been subjectively aware of a high probability that he placed the dependent in a dangerous situation.

Our standard for reviewing sufficiency claims has been firmly established. On review, we do not weigh the evidence or judge the credibility. We are constrained to consider only that evidence most favorable to the State, together with all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value to support the conclusion of the trier of fact, the verdict will not be overturned. Perkins, 392 N.E.2d at 495. In the case at bar, the evidence most favorable to the State supports the jury's conclusion that appellant knowingly endangered the health or life of his dependent son by not seeking timely medical care for his son. Despite appellant's admitted knowledge that his son exhibited the aforementioned symptons recited in the statement of facts, he did not seek medical treatment for his son for at least two weeks.

II.

Appellant claims that the trial court erred in overruling his motion to suppress State's Exhibit 4 and in admitting State's Exhibit 8 over his objection. Exhibit 4 is a tape-recorded statement based upon a noncustodial police interview of appellant held on January 10, 1983, and Exhibit 8 is a tape-recorded statement based upon an interrogation of appellant held on January 12, 1983, the date of his arrest. Appellant presents two arguments: first, the incriminating statements contained in Exhibit 4 were not voluntarily made, and, second, Exhibit 8 was inaudible and therefore the indiscernible content could have confused the jury.

The tape-recorded confession which comprises Exhibit 4 was based upon a police interview conducted at police headquarters. After the police were notified that appellant's baby was hospitalized with a traumatic brain injury, the police went to appellant's home to ask whether appellant would discuss his baby's condition. Appellant accompanied them to the police station for questioning. Appellant was advised of his constitutional rights before questioning, stated that he understood each of these rights, and then signed the waiver form.

At the time appellant made his statement the police knew only that his baby was hospitalized for a traumatic head injury which had occurred within the previous two weeks, but were unaware of the exact condition or prognosis of his baby. The police were investigating the possibility of both battery, based upon the baby's injury, and neglect, based upon the length of time which elapsed between appellant's awareness of his son's poor health and the provision of medical care for his son.

Appellant claims that his confession was not voluntarily made because the police deceived him as to the true purpose of the questioning since he believed that he was merely denying battery charges and was unaware of potential neglect charges. He maintains that since he knew that he had not battered his son, he agreed to the questioning. Appellant also claims that his waiver of the Miranda warnings was based upon the same police deception.

Miranda requires that custodial interrogations be proceeded by procedural safeguards effective to secure the privilege against self-incrimination. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The two relevant warnings are the right to remain silent, designed to inform the accused of the privilege, and notice that any statements made may be used as evidence against the accused at trial, designed to forewarn the accused of the consequences of relinquishing the privilege. If the accused is warned that anything that he says will or may be used against him at his trial, the effect generally is to render admissible any confession made by him thereafter. Roell v. State (1982), Ind., 438 N.E.2d 298.

Since the advisements of rights were in accordance with the Miranda requirements, the issue remains...