# Robert Ramon White v. State of Indiana (mem. dec.)

> Indiana Court of Appeals · June 9, 2016

URL: https://www.frixlaw.com/law-library/cases/3211517

## Case

- **Court:** Indiana Court of Appeals
- **Decided:** June 9, 2016
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this FILED
Memorandum Decision shall not be Jun 09 2016, 5:34 am

regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David T. A. Mattingly Gregory F. Zoeller
Lafayette, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Robert Ramon White, June 9, 2016
Appellant-Defendant, Court of Appeals Case No.
79A05-1509-CR-1464
v.
Appeal from the Tippecanoe
Circuit Court
State of Indiana,
The Honorable Thomas H.
Appellee-Plaintiff. Busch, Judge
Trial Court Cause No.
79C01-1503-F5-5

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 1 of 25
STATEMENT OF THE CASE

[1] Appellant-Defendant, Robert R. White (White), appeals his conviction for

intimidation, a Class A misdemeanor, Ind. Code § 35-45-2-1; and neglect of a

child, a Level 6 felony, I.C. § 35-46-1-4.

[2] We affirm, in part, and reverse, in part, and remand for resentencing.

ISSUES

[3] White raises five issues on appeal, which we consolidate and restate as follows:

(1) Whether the trial court properly denied White’s motion to continue;

(2) Whether the trial court properly allowed the State to exercise a peremptory

strike on a potential juror;

(3) Whether the State presented sufficient evidence to sustain White’s

convictions; and

(4) Whether the trial court abused its discretion by not allowing White to

introduce certain evidence at his sentencing hearing.

FACTS AND PROCEDURAL HISTORY

[4] White and T.S. lived together with their children, M.W., R.W., and A.A.

(collectively, Children). On March 1, 2015, T.S. went to a bar and left the

Children with White. An intoxicated T.S. returned home at approximately

11:00 p.m. and began arguing with White. Twelve-year-old M.W., who was

awake at the time, sent an email to her friend informing her that her parents

were quarreling. M.W. woke up her ten-year-old brother, R.W., when the

argument turned violent. A.A. remained asleep the entire time.
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[5] At some point, M.W. and R.W. went downstairs and saw White punch T.S.,

who fell and then lay motionless on the floor. Upon seeing M.W. and R.W.,

White commanded them to go back upstairs. White and T.S. resumed fighting,

and once again, M.W. and R.W. went back downstairs. M.W. observed White

hit T.S. in the face. In addition, M.W. and R.W. witnessed White pull T.S. by

her hair, punch T.S. in the ribs, and slap and kick her. Thereafter, White threw

a piece of glass at T.S. M.W. tried to pull White off of T.S. but White pushed

M.W. into a corner and stated “don’t ever touch me again” and he moved his

hand as if he was going to hit her. (Tr. p. 326).

[6] M.W. became increasingly upset and she threatened to run away to her Aunt

Misty’s house which was about five blocks from their house. At around 3:00

a.m., wearing nothing but her pajamas pants, t-shirt, and socks, M.W. ran out

the back door to Aunt Misty’s house. It was cold and the ground was covered

with snow. When she arrived at Aunt Misty’s residence and talked to her,

Aunt Misty called the police. Meanwhile, at White’s and T.S.’s residence,

R.W. gave T.S. a rag for her forehead since she complained of a headache. At

one point, White and T.S. resumed fighting. R.W. tried to break up the fight

and White hit him in the nose, causing R.W.’s nose to bleed.

[7] Officer David Chapman (Officer Chapman) of the Lafayette Police Department

was dispatched to White’s and T.S.’s residence in response to a domestic

disturbance call. When he arrived, he heard a man and a woman arguing.

After he knocked on the door, the woman identified herself as T.S., but did not

let him in and spoke to him through a window. Officer Chapman observed an

Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 3 of 25
injury on T.S.’s face, but because he was unable to substantiate a domestic

disturbance, he left.

[8] Shortly thereafter, R.W. and T.S. left the residence and walked over to Aunt

Misty’s house. T.S. showed Aunt Misty her injuries but then returned to her

home. At around 3:30 a.m., Officer Chapman, accompanied by another officer

returned to White’s and T.S.’s home due to yet another domestic disturbance

call. Officer Chapman again attempted to make contact by knocking on the

door. The second time around, T.S., stepped outside but was unhelpful as to

what had occurred. The officers learned that M.W. and R.W. were at Aunt

Misty’s house and proceeding to Aunt Misty’s house, briefly talked to Aunt

Misty and then left.

[9] At around that same time, T.S. called her mother (Grandmother) and asked her

to pick M.W. and R.W. from Aunt Misty’s house. Again, between 5:00 a.m.

and 6:00 a.m., the officers returned to Aunt Misty’s house due to another

disturbance call. The officers found White banging on Aunt Misty’s door

demanding to see M.W. and R.W. White had left eight-year-old A.A. home

alone. Aunt Misty requested the officers to inform White that he could not

have M.W. and R.W. When the officers communicated that to White, he

responded by stating that he would return with a plan. The officers asked

White to leave and they followed him home. Aunt Misty expressed to the

officers that M.W. and R.W. were at Grandmother’s house.

Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 4 of 25
[10] The Department of Child Services (DCS) was notified of the domestic

disturbance call at White’s and T.S.’s family home. The following morning, at

approximately 8:30 a.m., Carrie Strangle (Strangle) of DCS arrived at White’s

and T.S.’s home to interview the Children. While speaking with T.S., Strangle

observed that T.S. had crusted blood in her nostrils, and a little on the crease of

her nose. Strangle learned that the Children were not present in the home but

were at Grandmother’s house. T.S., who seemed agitated, gave Strangle

permission to interview the Children and slammed the door in her face.

Strangle also called White and sought permission to conduct forensic video

interviews of the Children.

[11] On the same day, Strangle visited Grandmother’s house. Strangle informed

Grandmother that she needed to interview the Children at The Heartford

House Way. 1 A forensic interviewer, Maria Hannock (Hannock) of the

Tippecanoe County Prosecutor’s Office, conducted the interviews. According

to Hannock, the Children were nervous and scared. Still on the same day, at

approximately 2:30 p.m., Strangle returned to T.S.’s and White’s home. T.S.

1
In the transcripts, the name has been spelled as Hartford but the correct spelling is Heartford. The
Heartford House Way is a child advocacy center where forensic interviews of possible child victims are
conducted. See http://www.heartford.net/our-story/ (last visited May 9, 2016).

Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 5 of 25
was more cooperative and she showed to Strangle the bruises on her ribcage.

Strangle also observed that T.S. had a welt on the bridge of her nose.

[12] After the interviews were conducted, the police obtained a search warrant for

T.S. and White’s home. White was subsequently arrested and taken to the

police station where he was read his Miranda rights and agreed to be

interviewed. White admitted that he had previously argued with T.S. and

restrained her. However, White stated that T.S.’s injuries resulted from a fall

after she returned from the bar.

[13] On March 4, 2015, the State filed an Information, charging White with Count

I, battery on a child, a Level 5 felony; Count II, intimidation, a Level 6 felony;

Count III, domestic battery committed in the presence of a child less than 16

years of age, a Level 6 felony; and Count IV, neglect of a dependent, a Level 6

felony. At White’s initial hearing on March 5, 2015, the trial court ordered the

parties to conduct discovery. The State disclosed the existence of the forensic

video interviews on April 21, 2015. On July 22, 2015, after White’s second trial

counsel signed the stipulation, the State turned over the forensic video

interviews of the Children.

[14] White’s trial date was set for July 28, 2015. A day before trial, White filed a

motion to continue, seeking “additional time to investigate a myriad of issues

that the forensic interview[s] disclosed.” (Appellant’s App. p. 37). On the same

day, the trial court heard arguments from both sides on White’s motion. White

argued that he needed time to depose the Children, T.S. and Aunt Misty

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because he was concerned that the Children had been coached. At the close of

that hearing, the trial court denied White’s motion.

[15] White’s jury trial began as scheduled. At the start of trial, White renewed his

motion to continue, and after hearing arguments on the motion, the trial court

denied it. At the close of White’s jury trial, the jury found White guilty of the

lesser included offense of intimidation as a Class A misdemeanor, and neglect

of a dependent, a Level 6 felony, and returned a not guilty verdict with respect

to battery on a child and domestic battery committed in the presence of a child

less than 16 years of age.

[16] Approximately a month before his sentencing hearing, on August 6, 2015,

White filed a witness list and an exhibit for his sentencing hearing. In response,

the State filed a motion to exclude the witnesses arguing that the witnesses and

the exhibit had no relation or bearing on White’s case. On August 28, 2015, the

trial court conducted a hearing and granted the State’s motion to exclude. On

September 4, 2015, the trial court held White’s sentencing hearing and

thereafter sentenced White to concurrent sentences of 374 days for the

intimidation conviction and six months for the neglect of a dependent

conviction.

[17] White now appeals. Additional facts will be provided as necessary.

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DISCUSSION AND DECISION

I. Motion to Continue

[18] First, White asserts that the trial court abused its discretion in denying his

motion for continuance a day prior to his trial. The decision to grant or deny a

motion for continuance based on non-statutory grounds is left to the discretion

of the trial court, and we will not reverse unless there is an abuse of that

discretion. Hamilton v. State, 864 N.E.2d 1104, 1108-09 (Ind. Ct. App. 2007).

An abuse of discretion occurs when the decision is against the logic and effect

of the facts and circumstances before the court. Id. at 1109. A denial of a

continuance is only reversible when the defendant can demonstrate that he was

prejudiced by the denial. Macklin v. State, 701 N.E.2d 1247, 1250 (Ind. Ct. App.

1998).

[19] A day before trial, on June 27, 2015, White filed his motion to continue

because he needed “additional time to investigate a myriad of issues that the

forensic interview[s] disclosed.” (Appellant’s App. p. 37). White argued that

while the State had been in possession of the forensic video interviews, it had

only released the recordings six days prior to his jury trial. Due to this late

disclosure, White’s counsel stated that he was not in a position to sufficiently

represent White. Specifically, White contended that he needed time to depose

the Children since he suspected that they had been coached. At the close of the

hearing, the trial court denied the motion. The following day and at the start of

his jury trial, White renewed his motion to continue, making the same

arguments. The State argued:

Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 8 of 25
Your honor[,] the existence of the forensic interviews of all three
children were disclosed with the [S]tate’s discovery disclosures filed
and provided to . . . [White’s] first attorney of record on April 21,
2015. The [S]tate will note that the process of obtaining a forensic
interview at the [Heartford] House is well known to [White’s second
counsel] . . . We consider them protected interviews because of the
confidential nature of the interviews themselves. In order to release
them[,] a stipulation has to be signed and provided to the court and
filed with the court that the interviews will not be copied, will not be
distributed, [and] will not be posted in anyway. That stipulation was
signed on July 22,[2015]. Furthermore[,] the State will note that . . .
the police report which covers about 3 pages, . . . goes into details of
the allegations and what the [C]hildren said throughout their
interviews. And at that point, [White’s first counsel] as well as
[White’s second counsel] was aware of what was involved in those
[Heartford] House interviews. . . . The [S]tate will note that [White’s
second counsel], and before him, [White’s first counsel], had ample
time to conduct depositions if they so wished. . . .

(Tr. pp. 49-50).

[20] In denying White’s motion, the trial court stated:

I would note as well[], that the Affidavit of Probable Cause does reveal
that there were interviews and describes at least from the [S]tate’s
point of view what the relevant statements made in the interviews
were. [] I will also note that the [I]formation disclosed the names of
the [S]tate’s witness and their depositions could have been taken at any
time after the case was filed. The court was not presented with a
motion to compel and the court will incorporate its ruling from
yesterday’s hearing and deny the motion to continue.

(Tr. p. 50).

[21] Here, we find that White’s assertion that he needed additional time to

investigate a myriad of issues that the forensic interviews created is

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disingenuous. The record reveals that the affidavit of probable cause, dated

March 4, 2015, noted that the Children had been interviewed about the

domestic violence that ensued in their family home on March 2, 2015. Further,

the record shows that White gave Hancock, the forensic interviewer, permission

to interview the Children. White was cognizant of the interviews at the

inception of the police investigation and up to the point when formal charges

were proffered against him. While it is true that White changed trial counsel

during trial preparations, his second trial counsel should have followed protocol

by signing the stipulation ahead of time in order to evaluate the video

interviews. Issues of the Children being coached, if any, would then have been

addressed prior to the trial.

[22] In addition, we find that the denial of the continuance was harmless because

White was not prejudiced by his alleged lack of time to prepare. See Macklin,

701 N.E.2d at 1250. The record shows that when White renewed his motion at

the start of his trial and the trial court denied his motion, the court invited

White to prove his theory to the jury—i.e., that the Children had been coached.

Both M.W. and R.W. testified at his trial, and White cross-examined both

children. White had all the tools he needed at his jury trial to show evidence of

coaching, yet he failed to prove his claim.

[23] Overall, we conclude that none of the reasons offered by White were such that

a continuance was appropriate a day prior to trial. Because White has the

burden of showing that the trial court abused its discretion by denying his

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request for a continuance, we will not presume prejudice. Accordingly, the trial

court did not abuse its discretion in denying White’s motion to continue.

II. Batson Challenge

[24] Next, White contends that the trial court erred by accepting the State’s race-

neutral explanation for its peremptory strike against a minority juror member of

the jury venire. Generally, “a peremptory challenge may be [exercised] for no

cause whatsoever.” Bond v. State, 273 Ind. 233, 237, 403 N.E.2d 812, 816

(1980). However, in Batson v. Kentucky, 476 U.S. 79, 106 (1986), (extending

Batson to cases where the defendant and excluded juror were of different races),

modified by Powers v. Ohio, 499 U.S. 400, 405-06 (1991), the United States

Supreme Court qualified that principle to preclude the use of peremptory

challenges to exclude venire persons from a jury solely on the basis of race. In

Batson, the Court “determined that the prosecutor’s use of a peremptory

challenge to strike a potential juror solely on the basis of race violated the Equal

Protection Clause of the Fourteenth Amendment.” Jeter v. State, 888 N.E.2d

1257, 1262 (Ind. 2008). Batson set forth a three-step test to determine whether

the State has improperly used a peremptory challenge to strike a juror from the

venire solely because of that individual’s race. First, the party contesting the

use of a peremptory challenge must make a prima facie showing of

discrimination based upon race against the member of the venire. Batson, 476

U.S. at 96–97. Next, the party using a peremptory challenge may “present a

race-neutral explanation for using the challenge.” Jeter, 888 N.E.2d at 1263. If

the party seeking to strike a member of the venire provides a race-neutral

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explanation, “the trial court must then decide whether the challenger has

carried its burden of proving purposeful discrimination.” Id.

[25] Because of the importance of the demeanor of potential jurors and the

prosecutor when the trial court evaluates a race-neutral explanation for a

peremptory challenge, we afford broad latitude to the trial court’s decision in

such matters. Killebrew v. State, 925 N.E.2d 399, 401 (Ind. Ct. App. 2010), trans.

denied. Upon appellate review, we will set aside the trial court’s decision

concerning whether a peremptory challenge is discriminatory only if it is found

to be clearly erroneous. Forrest v. State, 757 N.E.2d 1003, 1004 (Ind. 2001).

[26] At the close of the jury selection process, the trial court read out the names of

the juror members. Among them was Juror no 1397, K. Ramirez (Ramirez).

At that point, the State informed the trial court that it had exercised its

peremptory strike on venire person Ramirez. In response, the trial court stated,

in part, “[S]ince her last name is Ramirez do you believe we [] have a [Batson]

issue[?]” (Tr. p. 135). At that moment, White’s counsel lodged a Batson

objection. Accordingly, the State explained that Ramirez had disclosed in her

juror questionnaire that she had been in a “domestic situation before” and was

previously convicted of possessing cocaine eleven years ago and had served

probation. (Tr. p. 135). At the close of the Batson hearing, the trial court found

the State’s race-neutral explanations credible.

[27] We note that “[a] neutral explanation means ‘an explanation based on

something other than the race of the juror.’” McCormick v. State, 803 N.E.2d

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1108, 1111 (Ind. 2004) (quoting Hernandez v. New York, 500 U.S. 352, 360,

(1991)). “‘Unless a discriminatory intent is inherent in the prosecutor’s

explanation, the reason offered will be deemed race neutral.’” Addison v. State,

962 N.E.2d 1202, 1209 (Ind. 2012) (quoting Purkett v. Elem, 514 U.S. 765, 768,

(1995)).

[28] After the Batson challenge, the State gave two neutral reasons for striking

Ramirez from the jury venire. The first was because Ramirez had been in a

domestic situation, and the second was due to her prior criminal history.

Although the trial court’s evaluation of step three was transitory, we find that it

sufficiently satisfied the three-part step process under Batson. On step three, the

trial court found that the State’s race-neutral explanations were credible, and

there is nothing in the record to indicate that the State’s reasons were merely

pretextual. In our review of the State’s explanation, we do not find any racial

motivation on the State’s part in striking Ramirez as juror. Accordingly, White

has not carried his burden to show purposeful discrimination. We therefore

conclude that the trial court’s decision in this regard is not clearly erroneous.

III. Sufficiency of the Evidence

[29] White argues that there was insufficient evidence to sustain his convictions for

neglect of a dependent and intimidation. When reviewing the sufficiency of the

evidence needed to support a criminal conviction, we neither reweigh evidence

nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).

“We consider only the evidence supporting the judgment and any reasonable

inferences that can be drawn from such evidence.” Id. We will affirm if there is
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substantial evidence of probative value such that a reasonable trier of fact could

have concluded the defendant was guilty beyond a reasonable doubt. Id.

A. Neglect of a Dependent

[30] In the instant case, the State filed an Information alleging

On or about March 1, 2015, through March 2, 2015, in Tippecanoe
County, [] White, a person having the care of dependent, to wit: M.W.
(12 years of age), R.W. (10 years of age,) and /or A.A. (8 years of
age), whether assumed voluntarily or because of legal obligation, did
knowingly and intentionally place M.W., R.W., and /or A.A. in a
situation that endangered his/her life or health.

(Appellant’s App. p. 11). For the State to convict White of neglect of a

dependent, as charged, it was required to prove that White, having care of

M.W., R.W. or A.A., whether voluntarily or because of a legal obligation, did

knowingly or intentionally place the dependents in a situation that endangered

their life or health. See I.C. § 35-46-1-4.

[31] The purpose of the neglect statute is to protect a dependent from the failure of

those entrusted with his or her care to take the action necessary to ensure the

dependent is safe. Harrison v. State, 644 N.E.2d 888, 891 (Ind. Ct. App. 1994),

trans. denied. In Harrison, we concluded that the meaning of the word “health,”

as it relates to the child neglect statute, “is not limited to one’s physical state,

but includes an individual’s psychological, mental and emotional status.” Id.

With respect to the knowledge required to support a neglect conviction, the

question is whether the defendant was subjectively aware of a high probability

that he placed the dependents in a situation involving an actual and appreciable

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danger to them. Id. Such danger arises when dependent children are exposed

to some risk of physical or mental harm that goes significantly beyond the

“normal risk of bumps, bruises, or even worse that accompany the activities of

the average child.” Gross v. State, 817 N.E.2d 306, 309 (Ind. Ct. App. 2004).

[32] The record shows that on the early morning of March 2, 2015, White was

engaged in a physical altercation with T.S. M.W. and R.W. observed White

punch, hit, and kick T.S. Although White was found not guilty of domestic

battery committed in the presence of a child, it does not negate the fact that

M.W. and R.W. witnessed the battery. Upset by her parents quarreling, a little

after 3:00 a.m., twelve-year-old M.W., ran to her aunt’s house five blocks away.

M.W. only wore pajama pants, a t-shirt, and socks. R.W. followed his sister

about thirty minutes later, but he was accompanied by T.S. Thereafter at

around 5:00 a.m., leaving behind eight-year-old A.A., White walked to Aunt

Misty’s house to retrieve M.W. and R.W.

[33] White argues that the State did not offer any evidence that he was subjectively

aware that M.W. ran away from home without a winter coat or shoes,

therefore, he did not place her in any appreciable danger. We agree with White

that the State did not offer any evidence that he was subjectively aware that

M.W. had left the house dressed as she had, thus placing her in any appreciable

danger on that cold winter morning. The record shows that during the parent’s

altercation, M.W. proclaimed that she would run away to Aunt Misty’s house.

White told M.W., “No you are not.” (Tr. p. 322). Unbeknownst to White,

M.W. ran out through the back door.

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[34] Ultimately, the burden did rest with the State to prove that White was

subjectively aware of a high probability that he placed M.W. in a situation

involving an actual and appreciable danger. Looking at the record before us,

we agree with White that the State failed to develop testimony from any of the

witnesses it called, that White knew M.W. had left the house when she did, or

he was mindful of how M.W. was dressed. While it is not wise for a twelve-

year-old to be on the streets at 3:00 a.m., no evidence was offered that M.W.

suffered any harm when she ran to Aunt Misty’s house. The record shows that

Aunt Misty welcomed M.W. to her house and thereafter called the police.

[35] White further claims that the State failed to meet its burden of showing actual

and appreciable danger because A.A. remained unharmed and undisturbed that

night as he walked to Aunt Misty’s house to retrieve M.W. and R.W. In

determining this issue, we are mindful of the holding in Scruggs v. State, 883

N.E.2d 189, 190 (Ind. Ct. App. 2008), trans. denied. There, the defendant left

her seven-year-old son, M.H., at home while she ran an errand. Id. When she

returned approximately three hours later, he was missing. Id. M.H. was later

found safe at the defendant’s boyfriend’s uncle’s home, but the defendant was

charged and subsequently convicted of neglect of a dependent. Id. On appeal,

this court concluded the evidence was insufficient to establish the defendant had

a “subjective awareness of a ‘high probability’ that M.H. was placed in a

dangerous situation when she left him home alone.” Id. at 191. M.H. was

seven years old, the defendant testified M.H. knew “not to mess with the stove

or open the door or anything,” and the State failed to present any evidence

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contradicting the defendant’s evidence that suggested M.H. was responsible

enough to be home alone. Id. Because the only evidence presented suggested

M.H. was responsible enough to be left at home, we concluded there was

insufficient evidence that the defendant was subjectively aware of a high

probability that M.H. was placed in a dangerous situation. Id.

[36] In Thames v. State, 653 N.E.2d 517 (Ind.Ct.App.1995), on the other hand, we

concluded sufficient evidence was presented to support the defendant’s

conviction of neglect of a dependent after the defendant left his girlfriend’s five-

year-old daughter alone and the child wandered out of her home and was

eventually taken to the police department. Although the defendant was only a

few houses away from the child, he was gone for several hours and the child

was found wandering the street. Id. We concluded the defendant “was

experienced at watching children and thus should have been subjectively aware

of a high probability that he placed [the child] in a dangerous situation by

leaving her at home.” Id.

[37] In the instant case, the record shows that between 5:00 a.m. and 6:00 a.m., on

March 2, 2015, the officers were dispatched to Aunt Misty’s house because

White was banging on her door demanding to have his children. When the

officers arrived, they resolved the matter by requesting White to go home and

the officers followed White home. The record is absent any showing that A.A.

woke up that night, let alone walked outside the residence. In Scruggs, 883

N.E.2d at 190, we declined to adopt the per se rule that merely leaving a seven-

year-old child home alone for any period of time constituted neglect, and

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considered the facts and circumstances surrounding the case. In light of the

foregoing, we find that the State failed to meet its burden of showing that White

exposed A.A. to actual and appreciable danger since A.A. remained unharmed

and undisturbed that night while he walked to Aunt Misty’s house.

[38] The State further claims that witnessing a domestic dispute, and the fact that

M.W. and R.W. both had to flee their family home at 3:00 a.m. in a cold winter

night, is sufficient to prove that White subjectively placed M.W.’s and R.W.’s

emotional health in actual and appreciable danger. We disagree. Other than

the fact that the children were upset by their parents fighting, the State did not

offer any evidence, that the events of that night rose to this level of emotional

harm referred to in the neglect statute.

[39] As we observed in Gross, 817 N.E.2d at 311, “[t]here is admittedly a fine line

between properly exercising the police power to protect dependents and

improperly subjecting every mistake a parent may make in raising his or her

child to prosecutorial scrutiny.” Here, White admittedly argued with T.S. in

front of the Children and that argument turned violent. M.W. and R.W., who

observed the domestic dispute, were upset from the events. M.W. ran away

against White’s reprimand and White was subjectively unaware the she had run

away. At around 5:00 a.m., White walked to Aunt Misty’s house to retrieve

M.W. and R.W. While White may have demonstrated bad judgment, leaving

A.A. home alone, the State did not prove beyond a reasonable doubt that

White had a subjective awareness of a high probability that he had placed A.A.

in a dangerous situation. We agree with White that the State failed to prove the

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mens rea element of the crime. See Martin v. Ohio, 480 U.S. 228, 238 (1987).

Accordingly, we reverse White’s conviction.

B. Intimidation

[40] White also challenges the sufficiency of his conviction for a Class A

misdemeanor intimidation as a lesser-included offense of Level 6 felony

intimidation. In the instant case, the State charged White with Level 6 felony

intimidation stating

“[O]n or about March 1, 2015, through March 2, 2015, in Tippecanoe
County, [] White, did knowingly or intentionally communicate a
threat to commit a forcible felony to another person, to wit: M.W.
and/or R.W. with the intent that M.W. and /or R.W. be placed in fear
of retaliation for a prior lawful act.”

(Appellant’s App. p. 10).

[41] To show that White committed intimidation, as a Class A misdemeanor, the

State was required to show, first, that White “communicate[d] a threat” to

M.W. and/or R.W. and, second, that he did so with the intent that M.W.

and/or R.W. “be placed in fear of retaliation for a prior lawful act.” I.C. § 35-

45-2-1 (2013).

[42] Here, the first question under the intimidation statute is whether White

“communicate[d] a threat.” I.C. § 35-45-2-1(a). In the instant case, the events

surrounding the crime were that M.W. and R.W. witnessed a domestic

altercation between their parents. M.W. saw White punch, kick, and pull T.S.’s

hair. At some point, M.W. tried to disrupt the fight by pulling White away

Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 19 of 25
from T.S. In turn, White backed M.W. into a corner and barked, “[D]on’t ever

touch me again.” (Tr. p. 326). White then gestured his hand as if he was going

to hit M.W. Also, R.W. tried to break up the fight between his parents. An

angry White hit R.W. in the nose causing him to bleed.

[43] White first argues that his threat to M.W., “don’t ever touch me again” was

conditional and that any other evidence concerning whether he intended his

threat to place M.W. in fear of retaliation for a prior lawful act is irrelevant.

(Tr. p. 326). In support of that analysis, White notably cites C.L. v. State, 2

N.E.3d 798, 801 (Ind. Ct. App. 2014).

[44] In C.L., the defendant wanted about $1,700 from his grandfather so that he

could purchase a car. Id. At some point, the defendant became “huffy and

puffy,” and told his grandfather that he would “beat the heck out of” him if he

“didn’t get the money” for the car. Id. The defendant also told his grandfather

that if he “ever got sent to jail and . . . [got] out, [that he would] kill him.” Id.

Also, the defendant stated that he would kill others, including his mother and

brother. Id. This court determined the defendant’s threats of violence were

conditional and aimed at future conduct. As a result, the defendant’s threats of

violence were not made in retaliation against the prior lawful acts of the victim.

Id. at 801. Under the reasoning of C.L., no defendant can be convicted of

intimidation if he has the presence of mind to explicitly use conditional

language in the course of communicating his threat to another. Roar v. State,

No. 49A02-1506-CR-506, at *4 (Ind. Ct. App. Apr. 21, 2016). We, however,

find that is an unreasonable interpretation of our intimidation statute. Id.

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Threats are, by definition, expressions of an intention to do a future
thing, and, thus, to some degree, all threats are conditional. See I.C. §
35-45-2-l(d). And once the facts demonstrate that the defendant
communicated a threat, the only question left is whether the defendant
did so “with the intent” to place the victim “in fear of retaliation for a
prior lawful act.” I.C. § 35-45-2-1(a)(2). Mere use of conditional
language in the course of communicating a threat does not vitiate the
statute’s application when the factual predicate for the threat was a
prior lawful act of the victim. Stated another way, the language a
defendant uses in communicating a threat may be relevant to the fact-
finder’s assessment of the defendant’s intent, but the language used is
not the only relevant consideration.

Id. White’s argument on appeal is such that we weigh his threat to M.W. as

conditional while simultaneously discrediting all other evidence. We will not

reweigh the evidence on appeal. The jury was capable of discerning whether

intimidation occurred where, as here, there is a clear nexus between the prior

lawful act and the threat. White verbally communicated a conditional threat to

M.W., and he further accompanied that threat with his body-language—lifting

his hand as if he was going to hit M.W. Secondly, both threats—verbal and

body language—were communicated directly after M.W. committed a prior

lawful act, which was an attempt to break up the fight between her parents.

Accordingly, we affirm White’s intimidation conviction.

V. Order Excluding Evidence at Sentencing Hearing

[45] Lastly, White argues that the trial court erred by denying him the opportunity

to present certain evidence at his sentencing hearing. As such, White claims

that his Fifth and Fourteenth Amendment rights under the United State

Constitution and I.C. § 35-38-1-3 were violated.

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[46] The Fifth and Fourteenth Amendments of the U.S. Constitution provide in part

that no person shall be “deprived of life, liberty, or property, without due

process of law[.]” Further, Indiana Code Section 35-38-1-3 states:

Before sentencing a person for a felony, the court must conduct a
hearing to consider the facts and circumstances relevant to sentencing.
The person is entitled to subpoena and call witnesses and to present
information in his own behalf. The court shall make a record of the
hearing, including:

(1) a transcript of the hearing;
(2) a copy of the presentence report; and
(3) if the court finds aggravating circumstances or mitigating
circumstances, a statement of the court's reasons for selecting the
sentence that it imposes.

(emphasis added). The record shows that on August 6, 2015, White filed a

witness list and an exhibit for his sentencing hearing. The witnesses were

names of two Lafayette police officers, and the exhibit was a reference to a

motion filed in unrelated case—i.e., “United States v. Samuel Bradbury”—with no

cause number or citation provided. (Appellant’s App. p. 90). On the same day,

the State filed a motion to exclude the officers as witnesses and the exhibit,

arguing that the evidence had no bearing on White’s case. Still on the same

day, White filed a reply, arguing that the police officers were relevant to the

intimidation charge as “the State of Indiana has refused to prosecute these

witnesses for far worse statements made to an individual;” and that “United

States v. Samuel Bradbury involves the witnesses . . . and it will assist the [c]ourt

in showing how the State is treating allegations of intimidation differently as to

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other different citizens.” (Appellant’s App. p. 87). On August 28, 2015, the

trial court issued an order granting the State’s motion to exclude the evidence.

[47] In support of his argument, White cites Wilson v. State, 865 N.E.2d 1024, 1029

(Ind. Ct. App. 2007). Wilson was convicted of murder and a misdemeanor

handgun offense. Id. He appealed because the trial court would not allow him

to present personal information—e.g., family history, employment history,

mental health history—at his sentencing hearing. Id. Upon review, we held

that because a convicted person is entitled to subpoena and call witnesses at

their sentencing hearing, the trial court did in fact violate the statute and

Wilson’s federal due process rights by refusing to admit evidence presented on

Wilson’s behalf through the testimony of others at the sentencing hearing. Id.

[48] We note that the “purpose of the sentencing hearing is to give the trial court the

opportunity to consider the facts and circumstances relevant to the sentencing

of the individual defendant before it. Page v. State, 424 N.E.2d 1021, 1023 (Ind.

1981). The trial court should determine those facts and circumstances by

referring to the entire record of the proceedings, which includes the testimony

and evidence given at trial. Id. Here, the evidence that White intended to

present did not show that he deserved a lenient sentence; rather, he attempted

to show that he should not have been charged, let alone convicted of the

intimidation offense.

[49] Notably, the right to present evidence and call witnesses exists only for persons

convicted of felonies. See I.C. § 35-38-1-3. Because White’s evidence—

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witnesses and an exhibit—related to the misdemeanor intimidation conviction,

the holding in Wilson does not support White’s request for relief.

[50] Because the evidence presented by White did not relate to his case nor was it

intended to convince the trial court that he deserved a lenient sentence, and

coupled with the explicit statutory language of Ind. Code § 35-38-1-3, we agree

with the State that White has not demonstrated error in his sentencing or that

the trial court’s procedure violated his right to due process. Accordingly, we

affirm White’s sentence, but only with respect to his intimidation conviction.

CONCLUSION

[51] In light of the foregoing, we conclude that (1) the trial court properly denied

White’s motion to continue; (2) the trial court properly allowed the State to

exercise a peremptory strike on a potential juror; (3) there was insufficient

evidence to sustain White’s conviction for neglect of a dependent; however,

there was sufficient evidence to sustain White’s intimidation conviction; and (4)

the trial court did not abuse its discretion for excluding White’s proffered

evidence at his sentencing hearing.

[52] Affirmed, in part, and reversed, in part, and remanded for resentencing.

[53] Kirsch, J. concurs

[54] Pyle, J. concurring and dissenting with separate opinion

Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 24 of 25
IN THE
COURT OF APPEALS OF INDIANA

Robert Ramon White, Court of Appeals Case No.
79A05-1509-CR-1464
Appellant-Defendant,

v.

State of Indiana,
Appellees-Plaintiffs.

Pyle, Judge.

[55] I respectfully dissent from my colleague’s decision to reverse White’s conviction

for neglect of a dependent. In my opinion, there is sufficient evidence from

which a jury could infer White’s intent to commit the offense. In all other

respects, I concur.

Court of Appeals of Indiana | Memorandum Decision 79A05-1509-CR-1464 | June 9, 2016 Page 25 of 25

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3211517. Public record. Not legal advice.