Dexter v. State , 79A05–1003–CR–189.

• Decision Date: 22 June 2011
• Docket Number: No. 79A05–1003–CR–189.,79A05–1003–CR–189.
• Citation: 945 N.E.2d 220
• Parties: Thomas DEXTER, Appellant–Defendant,v.STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

945 N.E.2d 220

Thomas DEXTER, Appellant–Defendant,
v.
STATE of Indiana, Appellee–Plaintiff.

No. 79A05–1003–CR–189.

Court of Appeals of Indiana.

March 31, 2011.Transfer Granted June 22, 2011.

[945 N.E.2d 221]

Bruce W. Graham, Graham Law Firm, P.C., Lafayette, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION MAY, Judge.

Thomas Dexter was convicted after a jury trial of Class A felony neglect of a dependent ¹ and found to be an habitual offender.² He argues on appeal the trial court abused its discretion by permitting an expert to express an opinion concerning Dexter's guilt, it abused its discretion by rejecting jury instructions on negligent

[945 N.E.2d 222]

conduct, and the evidence is insufficient to support the conviction and the habitual offender finding. We affirm.

FACTS AND PROCEDURAL HISTORY³

In April of 2009, Dexter was living with A.H. and her three children. A.H. left the children in Dexter's care while she worked. On April 30, police responded to a 911 call from the apartment where Dexter and A.H. lived. When an officer arrived, A.H.'s three-year-old daughter was unresponsive and had labored breathing. Dexter reported he had left the child in the bathtub while he checked the laundry, and when he returned she was partially submerged.

A doctor who examined the child at the emergency room believed she had suffered head trauma and her condition was not likely the result of drowning. A second doctor concluded the child suffered brain injury from “abusive head trauma.” (Tr. at 369.) Two days after the incident, Dexter told A.H. he had been playing with the child and tossing her in the air, but he missed catching her and she hit her head on the bathtub. During a second police interview, Dexter told police the child hit her head when he was tossing her in the air and missed catching her.

The child died on May 5. An autopsy indicated the death was a homicide and was caused by “intracranial hemorrhage due to blunt force trauma to the head.” ( Id. at 467.) The State charged Dexter with felony neglect of a dependent and alleged he was an habitual offender.

At trial, Dexter offered instructions to the effect he could not be convicted if his acts were merely negligent. The trial court declined to so instruct the jury. A doctor testified the child received “abusive head trauma.” ( Id. at 368.) The jury found Dexter guilty of neglect of a dependent. In the habitual offender phase of the trial the State offered, as proof of one of Dexter's prior convictions, a document that purported to be an order accepting Dexter's plea agreement and sentencing him, but that order was not signed by a judge. The jury found Dexter was an habitual offender.

DISCUSSION AND DECISION 1. Expert Testimony

The State elicited testimony by a physician that the child experienced “abusive head trauma.” ( Id. at 368.) This, Dexter contends, was improper expert testimony concerning his guilt. Dexter has not demonstrated the trial court abused its discretion in allowing the testimony.

Admission of opinion testimony is within the discretion of the trial court. Julian v. State, 811 N.E.2d 392, 399 (Ind.Ct.App.2004), trans. denied. Pursuant to Indiana Evidence Rule 702(a), the trial court has the discretion to allow a witness, who is “qualified as an expert by knowledge, skill, experience, training, or education,” to testify

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in the form of an opinion “if scientific, technical or specialized knowledge will assist the trier-of-fact to understand the evidence or determine a fact in issue.” Opinion testimony “is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact.” Evid. R. 704(a). But “[w]itnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.” Evid. R. 704(b).

In Julian, an arson prosecution, a State's witness testified a fire was intentionally set. Specifically, the expert testified the fire started when molten metal dripped onto flammable acrylic carpeting, arson is frequently used to cover up burglaries, and the wires in the control panel for the fire alarm showed very heavy localized burning that was consistent with the very high heat conditions from the tip of an oxyacetylene torch. We determined the witness “merely testified that the fire was set intentionally, not that Julian intended to set the fire. Therefore, [the witness] did not violate Evid. R. 704(b) by testifying as to the intent, guilt, or innocence of Julian.” 811 N.E.2d at 400.

We adopt the Julian reasoning. The witness testified “this was most likely an abusive head trauma,” (Tr. at 369), but did not testify she believed Dexter was responsible. The State later asked the witness whether, “hypothetically speaking,” dropping the child while she was being tossed into the air would change the doctor's “ultimate conclusion ... regarding abuse or neglect.” ( Id. at 370.) Dexter objected to that question and the trial court sustained the objection, so the witness was prevented from commenting on that “ultimate conclusion.” As Dexter has not demonstrated this was “a direct comment on the guilt of Dexter,” (Br. of Appellant at 18), we cannot find an abuse of discretion.

2. Negligence Instructions

A decision not to give a tendered instruction is reviewed for an abuse of discretion. Springer v. State, 798 N.E.2d 431, 433 (Ind.2003), reh'g denied. We consider whether the instruction correctly states the law, whether there is evidence in the record to support giving the instruction, and whether the substance of the tendered instruction is covered by other instructions that are given. Id. As the substance of Dexter's instructions was covered by other instructions that were given, he has not demonstrated an abuse of discretion.

Dexter offered, and the court declined to give, the following instructions:

No. 2

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

No. 2A

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 commit the act and he was only negligent, then your verdict must be not guilty.

No. 2B

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

(App. at 64.)

Dexter's instructions to the effect he could not be convicted if he “were merely negligent,” id., were covered by the court's instruction on the definition of neglect of a dependent. The jury was instructed Dexter must have “knowingly or intentionally” placed the dependent in a situation that endangered her life. ( Id. at 72.) That

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instruction indicates mere negligent conduct is not enough. The jury was also instructed about the definition of “knowingly” and “intentionally.” ( Id. at 86.) Declining Dexter's instructions was not error. See Springer, 798 N.E.2d at 435 (“Defendant's negligence argument is simply a statement that the State failed to prove that he was reckless. No additional instruction to the jury on this point was required.”).

3. Sufficiency of Evidence—Neglect of a Dependent

Ind.Code § 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:

(1) places the dependent in a situation that endangers the dependent's life or health;

(2) abandons or cruelly confines the dependent;

(3) deprives the dependent of necessary...