NAJAM, Judge.
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:
We affirm.
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.
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:
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.
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:
Williams v. State, 891 N.E.2d 621, 630 (Ind.Ct.App.2008). Further:
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:
Wright v. State, 658 N.E.2d 563, 566-67 (Ind.1995) (emphasis added; footnotes omitted).
According to Indiana Code Section 35-46-1-4:
Here, the trial court instructed the jury on the Class A and Class B felony versions of neglect of a dependent. The court denied Johnson's proffered instructions on the Class C and Class D felony versions of that crime. There is no dispute that Johnson's proffered instructions are lesser-included offenses of the charged crime.
Thus, this issue centers on whether there was a serious evidentiary dispute about the element that distinguishes the greater offense from the lesser. For our purposes, the only distinguishing element between the different levels of the offense is the harm caused to the dependent. A Class A felony requires death; a Class B felony requires serious bodily injury; and a Class C felony requires bodily injury. I.C. § 35-46-1-4. A Class D felony does not require the dependent to have been physically injured. Id.
There is no serious evidentiary dispute that Johnson's neglect resulted in at least serious bodily injury to A.J. "Serious bodily injury" includes broken bones, a point Johnson concedes, see Appellant's Br. at 14, and Johnson's own medical experts testified that A.J. had suffered broken bones and that those injuries were the result of abuse. At trial, Johnson's theory of defense "was ... that, while A.J. had been abused, her abuse did not result in death." Id. at 13. That defense would not support
Johnson also contends that the trial court abused its discretion when it admitted into evidence his January 2009 statements on the mental health assessment. Our standard of review of a trial court's findings as to the admissibility of evidence is an abuse of discretion. Roush v. State, 875 N.E.2d 801, 808 (Ind.Ct.App. 2008). An abuse of discretion occurs if a trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id. The trial court's ruling will be upheld if it is sustainable on any legal theory supported by the record. Rush v. State, 881 N.E.2d 46, 50 (Ind.Ct.App.2008).
Johnson claims that the following testimony of the social worker he met with in January of 2009 was inadmissible under Indiana Evidence Rules 401, 402, 403, and 404:
Transcript at 399-400.
The social worker's testimony was relevant and, therefore, admissible under Indiana Evidence Rules 401 and 402. "`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of an action more probable or less probable than it would be without the evidence," Ind. Evidence Rule 401, and, generally speaking, "[a]ll relevant evidence is admissible," Evid. R. 402. The social worker's testimony demonstrated Johnson's anger issues and how those issues might affect A.J. As such, its admission made the determination of Johnson's guilt more probable. The testimony was admissible under Rules 401 and 402.
The social worker's testimony was also admissible under Rule 403. That rule provides that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...." Evid. R. 403. In Berry v. State, our supreme court stated as follows:
704 N.E.2d 462, 464 (Ind.1998).
We hold that our supreme court's analysis in Berry controls our analysis here. Similar to the testimony in Berry, here the social worker testified that Johnson had anger issues and that he was concerned those issues might cause him to physically harm his daughter, A.J. That testimony indicated that Johnson had a violent family relationship. And, as in Berry, to the extent that Johnson contends that his statements were conditional or equivocal, that was a matter of weight for the jury to decide. As such, the trial court did not abuse its discretion when it concluded that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.
Finally, the social worker's testimony was admissible under Rule 404(a).
Oldham is inapposite here. As we stated in that case, the State's evidence sought "to paint Oldham as a dangerous criminal" and "was obviously inadmissible" under Rule 404. Oldham, 779 N.E.2d at 1172. Here, the social worker's testimony was not offered as evidence of Johnson's poor character. Rather, the testimony tended to prove that Johnson was the person that harmed A.J. As the State notes, "Johnson's statement was not a character statement, but a factual admission. . . . Johnson warned that he would commit the underlying offense, then he committed [it]." Appellee's Br. at 13-14. Accordingly, the trial court did not abuse its discretion when it admitted the social worker's testimony under Rule 404(a).
Last, Johnson asserts that the State's addition of Count II in its amended indictment constituted prosecutorial vindictiveness. Johnson acknowledges that the re-filed indictment is a pre-trial action, that "[t]he State's pre-trial action [is] presumptively valid," Penley v. State, 506 N.E.2d 806, 811 (Ind.1987), and that to establish a successful claim in this circumstance Johnson "must . . . show actual vindictiveness," Appellant's Br. at 28 (citing State v. Selva, 444 N.E.2d 329, 331 (Ind.Ct. App.1983)). Actual vindictiveness occurs when "`the prosecutor's charging decision was motivated by a desire to punish [the defendant] for doing something that the law plainly allowed him to do.'" Selva, 444 N.E.2d at 331 (quoting United States v. Goodwin, 457 U.S. 368, 384, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)).
The trial court overruled Johnson's objection to the State's addition of Count II following an evidentiary hearing. We will reverse such a ruling only upon a showing of an abuse of discretion. See Penley, 506 N.E.2d at 811-12. An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court. Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App. 2003). We will not reweigh the evidence, and we consider conflicting evidence in the light most favorable to the trial court's ruling. Cole v. State, 878 N.E.2d 882, 885 (Ind.Ct.App.2007).
On June 9, 2010, Johnson moved to dismiss the State's indictment 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. That same day, the trial court both rejected Johnson's plea agreement and granted his motion to dismiss the indictment. However, the court permitted the State to amend the indictment. The State filed its amended indictment later that day, and the State added Count II for the first time. The crux of Johnson's argument on appeal is that the timing of the State's inclusion of Count II in its amended indictment can only be explained by
We cannot agree. As the trial court expressly found, "Count II was not filed earlier because of the plea agreement [having been] filed. When the Court rejected the plea agreement, the State felt entitled to go forward [with] filing Count II." Appellant's App. at 259. The trial court's finding is supported by the testimony of the deputy prosecuting attorney and, in turn, the court's finding supports its conclusion that the State's addition of Count II was not based on a desire to punish Johnson for his motion to dismiss. Hence, we affirm the trial court's judgment on this issue.
In sum, the trial court did not abuse its discretion when it denied Johnson's tendered jury instructions on two lesser-included offenses of neglect of a dependent. The trial court also did not abuse its discretion when it permitted the State to introduce into evidence the social worker's testimony. And the trial court's conclusion that the State did not act out of vindictiveness when it included Count II in the amended indictment is not clearly erroneous. Thus, we affirm Johnson's conviction.
Affirmed.
ROBB, C.J., and VAIDIK, J., concur.
