Johnson v. State

• Decision Date: 10 April 2012
• Docket Number: No. 82A01–1103–CR–130.,82A01–1103–CR–130.
• Parties: David L. JOHNSON, Jr., Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

959 N.E.2d 334

David L. JOHNSON, Jr., Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 82A01–1103–CR–130.

Court of Appeals of Indiana.

Dec. 29, 2011.Rehearing Denied April 10, 2012.

Matthew J. McGovern, Evansville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

David L. Johnson, Jr. appeals his conviction for neglect of a dependent, as a Class A felony, following a jury trial. Johnson raises three issues for our review:

1. Whether the trial court abused its discretion when it denied his request for jury instructions on lesser-included offenses;

2. Whether the trial court abused its discretion when it admitted into evidence Johnson's statements on a mental health assessment that he was concerned he would harm his infant child, A.J.; and

3. Whether the prosecutor filed an amended information against him out of “vindictiveness,” Appellant's Br. at 8.

We affirm.

FACTS AND PROCEDURAL HISTORY

A.J. was born to Johnson and Lori Record in September of 2008. On January 12, 2009, Johnson attended a voluntary counseling session with a social worker. At that session, Johnson filled out an assessment in which he expressed concern that he might become angry and hurt A.J., who was with him. Personnel at the session noticed a bruise on A.J.'s cheek and called child protective services. The case manager then met with Johnson and Lori, who stated that A.J. had caused the bruise by pinching her own cheek. The case manager requested that A.J. be seen by a physician and have x-rays taken. Johnson and Lori complied, and the x-rays revealed no injuries.

On February 5, Lori went to sleep and left Johnson with A.J. Johnson fed A.J. and then went to bed. About fifteen minutes later, Johnson got up to get a drink, and he noticed that A.J. was no longer breathing and had turned purple in color. Johnson moved A.J. to the couch and attempted CPR for about two minutes before waking Lori and calling 911.

Upon their arrival, paramedics intubated A.J. and were able to restore a pulse. They then rushed A.J. to the hospital. The treating emergency medical physician noticed that A.J. was hypothermic, with a temperature of ninety-four degrees, indicating a lack of heartbeat or respiration for one to three hours. A.J. had small abrasions on her neck, scratches on her chin, and a knot on the right side of her head by her hairline. A.J. was diagnosed as brain dead, and she died on February 9.

The radiologist who had originally reviewed A.J.'s January 15 x-rays re-evaluated them. Upon reconsideration, he noticed a non-displaced fracture of the right clavicle. He also reviewed x-rays taken of A.J. when she arrived at the emergency room on February 5. According to those scans, A.J. had suffered a fractured humerus and a tibia injury. The subsequent autopsy report revealed evidence of multiple blunt force trauma to A.J.'s head and face; swelling around her eyes; a torn frenulum; a laceration to her spleen; hemorrhages of the liver; subdural hematomas in the back of A.J.'s head; and a brain herniation. In light of those injuries, the coroner concluded that A.J. had died of child abuse and was the victim of homicide.

On April 7, the State charged Johnson with neglect of a dependent, as a Class A felony. On June 9, 2010, Johnson moved to dismiss the State's allegation on the ground that it lacked sufficient specificity. Three days later, Johnson agreed to plead guilty to a Class B felony charge of neglect of a dependent.

On July 12, the trial court rejected Johnson's plea agreement. At the same time, the court granted Johnson's motion to dismiss the indictment but permitted the State the opportunity to amend. The State filed its amended indictment later that day, in which it specifically alleged that A.J. had died of blunt force trauma to the head. The State also added an additional charge of Class A felony neglect of a dependent in which the State alleged that Johnson “did knowingly place [A.J.] in situations of abuse and violent behavior that included striking of [A.J.] and the eventual death of said dependent....” Appellant's App. at 521.

Johnson objected to the inclusion of an additional charge in the State's amended indictment. In particular, Johnson asserted that the additional charge “constituted vindictive prosecution.” Appellant's Br. at 27. On September 24, 2010, the court held a hearing on Johnson's motion. And, on November 23, the court entered findings of fact and conclusions thereon denying the motion. In relevant part, the court concluded as follows:

(4) In the case at bar, the Defendant had plea bargained[,] which the Court rejected. His Second Motion to Dismiss was granted with the State having leave to amend. The State's amendment more specifically addressed the alleged criminal actions of the Defendant and left the dates of the offense unchanged. The Defendant's Motions in Limine and 404(b) were still under advisement by the Trial Court with no indication or ruling made by the Court when Count II was filed. At the hearing of September 24, 2010, the Deputy Prosecuting Attorney claimed Count II was not filed earlier because of the plea agreement being filed. When the Court rejected the plea agreement, the State felt entitled to go forward on filing Count II.... When given further opportunity to present direct evidence to support the claim of vindictiveness ... Defense Counsel called no witnesses and rested on [the] briefs and arguments.

(5) Rather than direct evidence of vindictiveness, the Defendant has argued circumstantial inferences such as the time of filing Count II and that[,] as of September 24, 2010, the Co–Defendant, Lori Record, had not had a Count II filed in her case. The Court finds no direct evidence exists to show the State of Indiana's decision to file an additional charge was motivated by a desire to punish the Defendant for doing something the law allowed him to do.

Appellant's App. at 259–60. Johnson then moved to sever Count I and Count II, which the trial court granted. The State then proceeded to prosecute Johnson on Count II.

At the ensuing jury trial on Count II, the trial court admitted into evidence, over Johnson's objection, Johnson's January 12, 2009, mental health assessment, in which Johnson had stated that he might become angry and hurt A.J. And at the close of the trial, the court denied Johnson's tendered jury instructions on the lesser-included offenses of neglect of a dependent, as either a Class C or Class D felony. The jury found Johnson guilty of neglect of a dependent, as a Class A felony. The trial court entered its judgment of conviction and sentenced Johnson to an executed term of forty years. This appeal ensued.

DISCUSSION AND DECISION

Issue One: Jury Instructions

Johnson first contends that the trial court abused its discretion when it denied his proffered jury instructions for two lesser-included crimes of neglect of a dependent. As we have discussed:

“The purpose of a jury instruction ‘is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.’ ” Dill v. State, 741 N.E.2d 1230, 1232 (Ind.2001) (quoting Chandler v. State, 581 N.E.2d 1233, 1236 (Ind.1991)). Instruction of the jury is left to the sound judgment of the trial court and will not be disturbed absent an abuse of discretion. Schmidt v. State, 816 N.E.2d 925, 930 (Ind.Ct.App.2004), trans. denied. Jury instructions are not to be considered in isolation, but as a whole and in reference to each other. Id. The instructions must be a complete, accurate statement of the law which will not confuse or mislead the jury, Id. at 930–31. Still, errors in the giving or refusing of instructions are harmless where a conviction is clearly sustained by the evidence and the jury could not properly have found otherwise, Id. at 933 (citing Dill, 741 N.E.2d at 1233).

Williams v. State, 891 N.E.2d 621, 630 (Ind.Ct.App.2008). Further:

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 in the record to support giving the instruction; and (3) whether the substance of the instruction is covered by other instructions given by the court.

Simpson v. State, 915 N.E.2d 511, 519 (Ind.Ct.App.2009) (quotation omitted), trans. denied.

Our supreme court has explained the process for accepting a tendered instruction on a lesser-included offense as follows:

First, a trial court must compare the statute defining the crime charged with the statute defining the alleged lesser included offense. If (a) the alleged lesser included offense may be established “by proof of the same material elements or less than all the material elements” defining the crime charged, Ind.Code § 35–41–1–16(1) (1993), Aschliman v. State (1992), Ind., 589 N.E.2d 1160, 1161, or (b) the only feature distinguishing the alleged lesser included offense from the crime charged is that a lesser culpability is required to establish the commission of the lesser offense, Ind.Code § 35–41–1–16(3) (1993), Holder v. State (1991), Ind., 571 N.E.2d 1250, 1256, then the alleged lesser included offense is inherently included in the crime charged. If an offense is inherently included in the crime charged, then a trial court should proceed to step three below. We emphasize here that the wording of a charging instrument never forecloses or precludes an instruction on an inherently lesser included offense. Aschliman, 589 N.E.2d at 1161.

Second, if a trial court determines that an alleged lesser included offense is not inherently included in the crime charged under step one, then it must compare the statute defining the alleged lesser included offense with the charging instrument in the case. If the charging instrument...