Tamika Williams v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Feb 13 2015, 8:34 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Ellen M. O’Connor Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Cynthia L. Ploughe
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tamika Williams, February 13, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1407-CR-490
v. Appeal from the Marion Superior
Court.
The Honorable Helen Marchal,
State of Indiana, Judge.
Appellee-Plaintiff Cause No. 49G16-1209-FD-63868
Baker, Judge.
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[1] Tamika Williams appeals her convictions for four counts of Neglect of a
Dependent,1 a class D felony. Williams argues that the trial court improperly
instructed the jury by including an instruction that she did not wish to include
and excluding other instructions that she did wish to include. Finding no error,
we affirm.
Facts
[2] On September 13, 2012, at about 6:30 p.m., Williams’s neighbor, Chienne
Peacock, looked towards Williams’s house and noticed Williams’s car pull
away. A short while later, Peacock again looked towards Williams’s house and
noticed a child hanging out of the first-floor window. Peacock yelled at the
child and the child retreated inside the house. Once the child was inside the
house, all of the lights went out. Peacock sent her boyfriend to the house to
check on the children, but no one answered when he knocked. Peacock was
worried, so she called the police.
[3] Officer Samuel House arrived at Williams’s house and knocked on the door.
Officer House continued to knock until, eventually, eleven-year-old T.W.
answered the door. Behind T.W., Officer House could see two four-year-old
children running around. Officer House was then joined by Officer Justin
1
Ind. Code § 35-46-1-4.
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Callahan, who arrived while Officer House was still at the front door talking to
T.W.
[4] While Officer House went across the street to talk to Peacock, Officer Callahan
entered Williams’s home to perform a safety check. Officer Callahan asked
T.W. if any adults were home. T.W. informed him that no adults were home
and that she did not have a phone to contact anyone. Officer Callahan then
noticed a door with a chain lock towards the very top of it. He unlocked the
door and found two two-year-old boys in the darkened room. He noticed that a
window in the room was broken and that the hole was big enough for a child to
fit through.
[5] When Officer House returned, the two officers moved all the children into the
living room. Officer House then went to his car to contact a child abuse
detective. Shortly thereafter, Williams returned home. She exited her car and
angrily approached the house. “Why did you open the door?” she yelled at
T.W. Tr. p. 182. Officer House approached Williams and told her to calm
down but Williams continued to yell at T.W. Williams was arrested shortly
thereafter.
[6] On September 14, 2012, the State charged Williams with four counts of class D
felony neglect of a dependent. A jury trial was held on January 16, 2014.
Williams did not testify at trial and both parties, along with the trial court,
discussed instructing the jury to refrain from considering this fact in any way.
When the trial court asked about two proposed instructions on the issue,
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defense counsel responded: “I would prefer just taking out both of them if the
court is fine with that.” Tr. p. 333. The trial court then decided to include one
of the instructions. The trial court also excluded three instructions tendered by
Williams regarding the crime of neglect of a dependent.
[7] The jury found Williams guilty as charged. On June 20, 2014, the trial court
sentenced Williams to four concurrent terms of 365 days with 359 days
suspended. Williams now appeals.
Discussion and Decision
[8] Williams claims that the trial court made multiple errors regarding jury
instructions. Instructing the jury lies within the discretion of the trial court and
we will reverse only when the instructions amount to an abuse of discretion.
Murray v. State, 798 N.E.2d 895, 900 (Ind. Ct. App. 2003). The trial court
abuses its discretion if it gives instructions that, taken as a whole, misstate the
law or otherwise mislead the jury. Id.
[9] “The purpose of jury instructions 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.” Id. at 899. In reviewing a
trial court’s decision to give a tendered jury instruction, we consider (1) whether
the instruction correctly states the law, (2) whether it is supported by the
evidence in the record, and (3) whether it is not covered in substance by other
instructions. Id. at 899-900.
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[10] Williams first claims that the trial court erred by giving the following
instruction: “No defendant can be compelled to testify. A defendant has no
obligation to testify. The Defendant did not testify today. You must not
consider this in any way.” Appellant’s App. p. 87. Williams claims that she
objected to the inclusion of this instruction and that the trial court’s decision to
include it over her objection violated her rights under the Fifth Amendment to
the United States Constitution.
[11] On the issue of instructions involving an accused’s decision not to testify, our
Supreme Court has held:
If, as a trial tactic, the defense determines that such an instruction
would assist its case, it may request the judge to so instruct.
Furthermore, if the judge sua sponte offers to give the instruction, and
the defense fails to object, the defense will be deemed to have
consented to its submission. However, if the judge states his intention
to submit the instruction and the defense does object, the giving of the
instruction constitutes an invasion of Fifth Amendment rights and
judicial error.
Gross v. State, 261 Ind. 489, 491-92, 306 N.E.2d 371, 372-73 (Ind. 1974).
[12] Here, the record shows that Williams failed to object to the inclusion of the
instruction. The following exchange took place when both parties were
discussing jury instructions with the trial court:
Trial Court: Okay, I want to give you an opportunity to look at those
[jury instructions].
State: And so we are using the alternate and no defendant can
be compelled to testify then?
Trial Court: Yes. We are going to pull the one . . . had Ms. Williams
testified . . . so we are going with no defendant may be
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compelled to testify. She did not testify. You must not
consider that in any way.
Defense: I would . . . I would prefer just taking out both of them if
the court is fine with that. . . . I don’t see the purpose of
[] either one of these.
Trial Court: Okay State’s position?
State: I will defer to the court.
Trial Court: The court is going to leave that instruction in.
Tr. p. 332-33.
[13] Although Williams contends that this statement constituted an objection, we
disagree. An objection to a jury instruction at trial must be “timely, clear, and
specific, to inform the trial court of the claimed error, to afford an opportunity
for timely correction and thus prevention of inadvertent error, and to facilitate
appellate review.” McGregor v. State, 725 N.E.2d 840, 842 (Ind. 2000).
[14] Here, although there was no error in the substance of the trial court’s
instruction, Williams had a Fifth Amendment right to have the instruction
excluded if she so desired. However, the objection needed to be stated clearly
to alert the trial court that Williams wished to exercise her right. Simply stating
that one “would prefer just taking both of them out if the court is fine with
that,” does not accomplish this. A mere indication of preference for one
outcome is not an objection to all other outcomes. Consequently, Williams has
waived her argument on appeal by failing to object.
[15] Moreover, we do not believe that Williams was prejudiced as a result of this
instruction. Errors in giving jury instructions are subject to a harmless error
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analysis. Randolph v. State, 802 N.E.2d 1008, 1011 (Ind. Ct. App. 2004).
“Errors in the giving or refusing of instructions are harmless where a conviction
is clearly sustained by the evidence and the instruction would not likely have
impacted the jury’s verdict.” Id. at 1013.
[16] Williams left her four young children, ages two and four, in the care of her
eleven-year-old daughter. The two two-year-old children were left locked in a
bedroom with a broken window. The lock was high enough that none of the
children could have reached it. Williams’s neighbor reported that she saw one
of the children hanging out of a window. Furthermore, the children were left
with no phone to contact anyone in case of emergency. Given this, we find that
the instruction on Williams’s decision not to testify was not likely to have
impacted the jury’s verdict.
[17] Williams next argues that the trial court erred in excluding three of her tendered
jury instructions. Williams submitted the following three instructions regarding
the elements of the offense:
1. The State must prove beyond a reasonable doubt that, Tamika
Williams had a subjective awareness that there was a high
probability the dependents were placed in actual and
appreciable danger. Any probability of danger is insufficient to
merit a conviction; there must be a high probability of danger.
Scruggs v. State, 883 N.E.2d 189, 191 (Ind. Ct. App. 2008); Gross
v. State, 817 N.E.2d 306, 309 (Ind. Ct. App. 2004).
2. The State must prove beyond a reasonable doubt that the
dependents were in actual or appreciable danger to life or
health that goes substantially beyond the normal risks inherent
in childhood. Gross v. State, 817 N.E.2d 306, 309 (Ind. Ct. App.
2004).
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3. Merely leaving a child home alone for any amount of time does
not constitute Neglect of a Dependent. Scruggs v. State, 883
N.E.2d 189, 191 (Ind. Ct. App. 2008).
Appellant’s App. p. 82-84.
[18] The trial court considered including these instructions, but concluded that they
were cumulative of other preliminary instructions. Preliminary Instruction No.
9 read as follows: A person engages in conduct “knowingly” if, when she
engages in this conduct, she is aware of a high probability that she is doing so.”
Appellant’s App. p. 70. And Preliminary Instruction No. 5 read as follows:
Before you convict the Defendant, the State must have proved each of
the following beyond a reasonable doubt:
1. The Defendant
2. Knowingly or intentionally
3. Placed [the child] in a situation that actually and appreciably
endangered [the child’s] life or health . . .
Appellant’s App. p. 66. The trial court believed that these instructions
contained essentially the same substance as Williams’s tendered instructions.
The trial court encouraged Williams to include the substance of the proposed
instructions in her closing argument. Tr. p. 339.
[19] We agree with the trial court that the substance of Williams’s tendered
instructions is covered by these preliminary instructions. Williams’s first
instruction merely restates the preliminary instructions—namely, that the
defendant is aware of a high probability that the child is in a situation that
actually and appreciably endangers the child’s health. Williams’s third
instruction is simply an incorrect statement of the law. This Court has never
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held that “[m]erely leaving a child home alone for any amount of time does not
constitute Neglect of a Dependent.” Appellant’s App. p. 84 (emphasis added).
If taken literally, this would mean that leaving a two-year-old child home alone
for a week, or even a month, would not constitute neglect of a dependent. This
instruction could only have misled the jury.
[20] While Williams’s second instruction clarifies that the appreciable danger must
go substantially beyond normal childhood risks, we do not believe that the trial
court’s decision to exclude this instruction amounted to an abuse of discretion.
On appeal, we ask whether the instructions, taken as a whole, misstate the law
or otherwise mislead the jury. Murray, 798 N.E.2d at 900. Although
Williams’s second instruction arguably had the potential to bolster the jury’s
understanding of the law, the instructions that were given did not misstate the
law and the exclusion of Williams’s second instruction did not render the
remaining instructions misleading.
[21] The judgment of the trial court is affirmed.
Vaidik, C.J., and Riley, J., concur.
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