Smith v. State

Decision Date19 August 1980
Docket NumberNo. 2-580A119,2-580A119
Citation408 N.E.2d 614
PartiesLawanna SMITH, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

Dwight F. Ritter, Indianapolis, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Asst. Atty. Gen., Indianapolis, for plaintiff-appellee.

NEAL, Judge.


Defendant Lawanna Smith appeals her convictions of the offenses of neglect of a dependent, a class D felony, Ind.Code 35-46-1-4 (Supp.1979), and involuntary manslaughter, a class C felony, Ind.Code 35-42-1-4 (Supp.1979), which were entered upon guilty verdicts returned by a jury on the two charges. Thereupon, she was sentenced to imprisonment for terms of four years and eight years, respectively, the sentences to be served concurrently.

We affirm but remand for vacation of the four-year sentence.


Defendant assigns four alleged errors for our review which we will consider in the following order:

I. Whether the trial court erred in overruling Defendant's motion for judgment on the evidence where the State failed to present any evidence as to venue.

II. Whether the trial court erred in overruling Defendant's motion to sequester the jury.

III. Whether the trial court erred in precluding the Defendant from presenting a defense to the crimes with which she was charged.

IV. Whether the trial court erred in overruling Defendant's motion for judgment on the evidence when there was insufficient evidence to prove any criminal intent or to prove that any acts of the Defendant proximately caused the death of the victim.


The evidence most favorable to the State reveals the following: On February 19, 1978, Defendant resided in an apartment in Indianapolis with her son, Eric, and her boyfriend, Lawrence Burkhalter. Eric was four years old; Burkhalter was 29 years old and unemployed. At about 11:00 that morning, Defendant was showing Eric a book and attempting to have Eric spell the word "butterfly," but he was having some trouble doing so correctly. Burkhalter, who was listening from another room, entered the room and demanded that Eric spell the word. When Eric could not spell it correctly, Burkhalter took the child into the bathroom, filled the tub with water, and ordered Eric to undress and get in the tub. Burkhalter repeatedly dunked Eric's head under the water while urging him to correctly spell the word. Burkhalter then warned Eric that if he did not spell the word correctly, he would take off his own clothes, get in the tub, and sit on Eric. Eric still failed. Burkhalter took off his pants and entered the tub, placing his knee upon Eric's stomach. Eric was on his back in the tub. Burkhalter persisted in his dunking of Eric, and Eric resisted, trying to get out. At one point Eric slipped and bumped his head on the tub. Defendant witnessed this entire episode, but did nothing to protect Eric or restrain Burkhalter, except to ask Burkhalter on several occasions to stop. Finally, Eric spelled the word correctly, and Defendant removed him from the tub. She dried him and helped him dress.

Burkhalter then kicked Eric, knocking him to the floor, and repeatedly kicked and struck him all over his body. Eric would stand up and Burkhalter would strike him down again. This happened repeatedly. Burkhalter also struck Eric on the face. Defendant also witnessed this abuse, protesting verbally several times but failing to intercede in any other manner.

Finally, Eric was unable to stand on his own. Burkhalter and Defendant helped Eric to his feet several times. Eric could walk, but with much difficulty. The episode lasted until approximately 2:00 p. m.

Eric was put to bed at 8:00 p. m. and had difficulty going to sleep. Defendant went to work at 10:00 p. m. At about 11:00 p. m., Eric complained of pain and Burkhalter gave him aspirin. At about 1:00 a. m., Burkhalter went to Defendant's place of employment and notified her that Eric was sick. Defendant left work and returned home. Eric was having trouble breathing and his eyes were red. He was unconscious.

The day after the beating, doctors performed abdominal surgery, a tracheotomy, and brain surgery. The latter procedure required the removal of a large portion of Eric's skull. Eric underwent additional surgery on March 17 and May 2 to relieve complications resulting from the collection of fluids on his brain.

Eric was found dead in his hospital bed on May 26. An autopsy performed by a forensic pathologist disclosed that Eric's death was caused by complications developing from a blood clot which had resulted from a blunt trauma to the head.

Burkhalter had punished Eric on occasions prior to February 19, 1978, in the presence of Defendant, whipping the lad with a belt and often causing bruises.

Burkhalter was convicted in a separate trial of neglect of a dependent, battery, and murder. 1

Issue I.

Defendant first alleges that the trial court erred in denying her motion for judgment on the evidence since the State allegedly failed to establish that the offense took place in Marion County. Defendant asserts the venue issue for the first time on appeal, having neglected to bring the issue to the attention of the trial court either in her motion for judgment on the evidence or her motion to correct errors. Inasmuch as this asserted error questions the sufficiency of the evidence, it falls within an exception to the former Ind. Rules of Procedure, Trial Rule 59(G) in effect at the time of Defendant's trial. Otherwise, Defendant's failure to raise the issue at the trial level would have precluded our consideration of the issue. 2 Guardiola v. State, (1978) Ind., 375 N.E.2d 1105.

Venue is not an essential element of the offense. As such, the State sustains its burden by proving venue by a preponderance of the evidence. Sizemore v. State, (1979) Ind., 395 N.E.2d 783. In Sizemore, the court stated, at 787:

"(I)f the facts and circumstances are of a character to permit the jury to infer that the crime occurred in a given county, such a finding will not be disturbed on appeal."

In determining the question of sufficiency of evidence as to venue, every intendment will be made in favor of the trial court. Neblett v. State, (1979) Ind.App., 396 N.E.2d 930; Williams v. State, (1978) Ind.App., 383 N.E.2d 416.

In the case at bar, there was evidence that Defendant resided at 310 West New York Street, across the street from the State Office Building where she worked. Officer Jerry Barker, who investigated the case, testified that he was a police officer for the City of Indianapolis. Carolyn Walsh, a caseworker with the Marion County Department of Public Welfare, testified that she made a home visit to Defendant at her residence at 310 West New York Street where Defendant testified that the beating occurred.

There was thus sufficient evidence from which a jury could infer that the offense took place in Marion County. See Neblett, supra.

Issue II.

Defendant claims that the trial court erred in overruling her motion to sequester the jury. Defendant has waived her right to assert this alleged error on appeal, however. Since she neglected to include it in her motion to correct errors, she may not argue it for the first time on appeal. Guardiola, supra; Spivey v. State, (1971) 257 Ind. 257, 274 N.E.2d 227. The exception to this rule of waiver concerning claims of insufficiency of the evidence is clearly inapposite here.

Defendant's waiver of the issue notwithstanding, there is no merit to her argument. The decision whether to sequester a jury during trial is a determination to be made by the trial judge in the exercise of his sound discretion. Vaughn v. State, (1978) Ind., 378 N.E.2d 859. It follows that Defendant must demonstrate an abuse of that discretion in order to obtain a reversal of her conviction on that ground. She has made no such showing. While it appears from the record of the voir dire proceedings that some prospective jurors were aware of the case, had formed opinions thereon, and were for that reason excused, Defendant has not shown that any jurors were exposed to any prejudicial publicity during the trial. Owen v. State, (1978) Ind., 381 N.E.2d 1235; Vaughn, supra. Further, the trial court properly admonished the jury prior to each recess. We see no prejudice suffered by Defendant nor any abuse of discretion by the trial court.

Issue III.

Defendant sought to present evidence that her personality was meek, timid, and dependent. The State filed a motion in limine to exclude any evidence that Defendant had a "passive or dependent" personality and the trial court granted the motion.

On appeal, Defendant asserts error in the granting of the motion, claiming she had a right to present such evidence as matters constituting the defense of diminished capacity which, she argues, would have operated to exonerate her or mitigate her guilt. Defendant acknowledges that insanity was not at issue. She contends, however, that certain mental conditions may exist, short of statutory insanity, which render the afflicted individual incapable of forming the requisite criminal intent for culpability. The State maintains that the evidence was not relevant and would not have established a defense. We agree.

In support of her position, Defendant cites Gunn v. State (1977) Ind.App., 365 N.E.2d 1234. That case is distinguishable from the case at bar and inapposite. In Gunn, the appellant's conviction of involuntary manslaughter was reversed because the trial court refused to allow the appellant to put forth certain evidence of self-defense. That defense was, in the trial court's view, inconsistent with the defense of accident, which the appellant had also asserted. The appellate court found the two theories to be not inconsistent as a matter of law. In the case sub judice, the defendant apparently cites Gunn as authority for the erroneous proposition that an accused...

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