Kellogg v. State

• Decision Date: 30 June 1994
• Docket Number: No. 30A01-9310-CR-337,30A01-9310-CR-337
• Citation: 636 N.E.2d 1262
• Parties: Michael G. KELLOGG, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1262

636 N.E.2d 1262

Michael G. KELLOGG, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 30A01-9310-CR-337.

Court of Appeals of Indiana,

First District.

June 30, 1994.

Stephen Gerald Gray, Indianapolis, for appellant.

Pamela Carter, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

NAJAM, Judge.

STATEMENT OF THE CASE

Michael G. Kellogg appeals from his conviction and sentence for Neglect of a Dependent, a Class D felony. Kellogg was arrested for operating while intoxicated at the time his young daughter was a passenger in his vehicle. Following a jury trial, Kellogg was also found guilty of (1) Operating a Vehicle With a Blood Alcohol Level of .10% or More; (2) Operating a Vehicle While Intoxicated; (3) Child Restraint Violation; (4) Speeding; and (5) No Valid Operator's License When Required. The trial court entered judgments of conviction and sentenced Kellogg only for the Operating a Motor Vehicle While Intoxicated and Neglect of a Dependant counts. Kellogg raises the following issues for review which we restate as:

1. Whether the State was required to prove the minor passenger in Kellogg's car was Kellogg's daughter in order to establish neglect of a dependent.

2. Whether the evidence was sufficient to prove that Kellogg knowingly placed a dependent in a situation which endangered the dependent's life or health.

3. Whether Kellogg's convictions and sentences for both operating a vehicle while intoxicated and neglect of a dependent violate the prohibition against double jeopardy.

We affirm in part, reverse in part, and remand.

DISCUSSION AND DECISION

Issue One: Care of a Dependent

Kellogg first alleges that the trial court erred when it allowed admission of his statement, made to the police following his arrest, that the minor passenger in his car was his daughter. Kellogg claims that the statement was made during custodial interrogation and, absent Miranda warnings, was inadmissible. In Kellogg's view, the State was required to show that the dependent was his daughter and because his inadmissible statement was the only evidence which proved that fact, the State could not prove this essential element of its case.

We need not decide whether Kellogg's statement was admissible or made during custodial interrogation. Proof that the passenger in Kellogg's car was his child was not an element of the State's case for the offense of neglect of a dependent. The neglect of a dependent statute states in pertinent part:

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 may endanger his life or health ...

commits neglect of a dependent, a Class D felony.

IND.CODE § 35-46-1-4(a)(1) (emphasis added). A "dependent" for purposes of this statute means either "(1) an unemancipated person who is under eighteen (18) years of age; or (2) a person of any age who is mentally or physically disabled." IND.CODE § 35-46-1-1.

Thus, to prove that Kellogg had the care of a dependent, the State was required to show that Kellogg had either assumed the care of an unemancipated person under 18 or had that person in his care pursuant to a legal obligation. Proof that the defendant is the parent or legal guardian of the dependent establishes care "because of a legal obligation." However, the statutory language also makes it clear that assuming care of a dependent voluntarily, even if that dependent is not the defendant's child, is sufficient to prove care of a dependent under Indiana Code § 35-46-1-4. ¹

The evidence in this case showed that as Reserve Deputy Robert L. Jeffers of the Hancock County Sheriff's Department followed Kellogg's vehicle, he observed a small child moving around in the back of the vehicle. Deputy Jeffers later noticed that the child weighed approximately 50 to 75 pounds and that her size and appearance were consistent with that of a child four years of age. Record at 249-50. Thus, the fact that a four-year-old child was present in Kellogg's vehicle, as it sped down the highway, supported the reasonable inference that Kellogg had the child in his care. We conclude that the evidence established Kellogg's care of a dependent under Indiana Code § 35-46-1-4(a)(1).

Issue Two: Knowing Endangerment

Kellogg next contends that the State failed to prove he knowingly endangered a dependent when he operated a motor vehicle while intoxicated and while his daughter was a passenger in the vehicle. Based on our decision in Fout v. State (1993), Ind.App., 619 N.E.2d 311, Kellogg maintains that the State must demonstrate he was subjectively aware he placed a dependent in a dangerous situation. See Fout, 619 N.E.2d at 313. According to Kellogg, the State did not present any direct evidence in which he admitted that he "knew he was impaired but chose to drive anyway" and, thus, the State failed to carry its burden. We do not agree.

When reviewing the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of the witnesses. Jenkins v. State (1993), Ind., 627 N.E.2d 789, 799. We consider only that evidence which supports the verdict and reasonable inferences which may be drawn from that evidence. Id. On appeal, even where the evidence is entirely circumstantial, the evidence need not Deputy Jeffers testified that at approximately 6:55 p.m. on July 4, 1992, he observed Kellogg's vehicle travelling at a high rate of speed on U.S. 52 in Hancock County. He stated that as he followed behind Kellogg's vehicle, he observed Kellogg driving erratically and with "jerking" or sudden movements. Record at 208-09. Deputy Jeffers observed Kellogg's vehicle swerve off on the right side of the roadway and "in and out of traffic" over the center line. See Record at 208. He also noticed a small child moving about in the vehicle who appeared to be unrestrained by a safety belt or car seat. By following Kellogg, Deputy Jeffers gauged Kellogg's speed at approximately 76 miles per hour. When Deputy Jeffers activated his emergency red lights in order to stop Kellogg, Kellogg "pulled erratically off the roadway" and down into the steep incline of a ditch. Record at 214.

                exclude every reasonable hypothesis of innocence.  Beadin v. State (1989), Ind., 533 N.E.2d 144, 146.   Rather, a jury verdict will not be disturbed if there is substantial evidence of probative value to support the verdict.  See Jenkins, 627 N.E.2d at 799
                

Deputy Jeffers further testified that he noticed a strong odor of alcohol on Kellogg's breath when he requested Kellogg's driver's license and vehicle registration. Kellogg admitted to Deputy Jeffers that he had consumed four or five beers that day. After Deputy Jeffers asked Kellogg to step outside his vehicle, Kellogg staggered and had difficulty maintaining his balance. Kellogg failed several field sobriety tests, and his blood alcohol content later registered at .18% by weight.

We conclude that the evidence was sufficient to show Kellogg was subjectively aware that he was placing his daughter in a dangerous situation. A defendant "knowingly" engages in conduct when "he is aware of a high probability that he is doing so." IND.CODE § 35-41-2-2. The term "knowingly" as used in criminal statutes imports that the accused person knew what he was doing and, possessing such knowledge, proceeded to commit the crime of which he is charged. See Clark v. State (1980), Ind.App., 400 N.E.2d 172, 174.

Further, for the offense of neglect of a dependent, proof of subjective awareness that a child was placed in a dangerous situation requires resort to inferential reasoning to ascertain the defendant's mental state. Hill v. State (1989), Ind.App., 535 N.E.2d 153, 154. We must look to all of the surrounding circumstances. Id. In those cases where we have found that the defendant possessed the requisite subjective awareness, the circumstances demonstrated that the defendant had actual knowledge that a dangerous situation existed for the dependent. See White v. State (1989), Ind., 547 N.E.2d 831, 836 (defendant's knowing exposure of dependent to environment of illegal drug use posed danger to dependent); Sample v. State (1992), Ind.App., 601 N.E.2d 457, 459 (defendant had actual knowledge of "bump" on child's head which was later discovered as skull fracture; jury could infer that defendant was aware she placed child in danger by failing to obtain prompt medical treatment); Fout v. State (1991), Ind.App., 575 N.E.2d 340, 342 (defendant was specifically informed of two conditions of child which required immediate medical attention); Hill, 535 N.E.2d at 155 (defendant aware of child's symptoms from which average layperson would have detected serious problem).

Kellogg's reliance on Fout v. State (1993), Ind.App., 619 N.E.2d 311, is misplaced because in Fout, the evidence did not show that the defendant/mother knew her newborn daughter had a bacterial infection and was in peril. Id. at 313. While there was evidence that the defendant knew that her baby was at risk during the pregnancy, the defendant did not know that her daughter's signs of illness following birth indicated a serious problem. Id. Here, Kellogg admitted to Deputy Jeffers when he was stopped that he had consumed alcoholic beverages that day. In fact, Kellogg was acutely aware of the amount of alcohol he had consumed that day because he told Deputy Jeffers that he had drank four or five beers. When questioned concerning the occupants of his vehicle, Kellogg's responses indicated that he knew his

                daughter was in his vehicle. 2  Because of Kellogg's actual knowledge that he had consumed a substantial quantity of alcohol and actual knowledge that his child was a passenger in his vehicle, the jury could have reasonably inferred that Kellogg had actual knowledge that a dangerous situation existed.  Accordingly, the jury could have drawn the reasonable inference that

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