Clarissa Brewer v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
Jul 25 2013, 6:15 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARY SPEARS GREGORY F. ZOELLER
Kammen Maryan & Moudy Attorney General of Indiana
Indianapolis, Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

CLARISSA BREWER, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1212-CR-633
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kimberly J. Brown, Judge
Cause No. 49G16-1204-FD-27886

July 25, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
 STATEMENT OF THE CASE

Appellant-Defendant, Clarissa Brewer (Brewer), appeals her conviction for Counts

I and II, neglect of a dependent, Class D felonies, Ind. Code § 35-46-1-4.

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

ISSUES

Brewer raises eight issues for our review, which we consolidate and restate as the

following six issues:

(1) Whether the trial court abused its discretion by limiting Brewer from

questioning the venire and denying her for cause challenges;

(2) Whether the trial court abused its discretion by admitting witness testimony,

photographic evidence, and opinion testimony;

(3) Whether the trial court abused its discretion by permitting the State’s witnesses

to testify after an alleged separation order violation;

(4) Whether the State established beyond a reasonable doubt that Brewer

committed neglect of a dependent;

(5) Whether the trial court abused its discretion by rejecting Brewer’s proposed

jury instruction; and

(6) Whether the trial court abused its discretion by sentencing Brewer.

FACTS AND PROCEDURAL HISTORY

Brewer and her brother lived in a two-floor apartment in Indianapolis along with

Brewer’s two children, three-month-old H.B., and sixteen-month-old A.D. On the

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morning of April 26, 2012, the children were in their bedroom asleep in separate

playpens. Brewer along with Bruce Daniels (Daniels), the children’s father who was

visiting from South Carolina, left the children alone in the apartment to go to a Wal-Mart

store, located approximately one mile away from the apartment. The walk to Wal-Mart

was approximately fifteen minutes each way, but Brewer had estimated that the trip

would take “no more than twenty minutes.” (Transcript p. 235). H.B. was in an elevated

section of his playpen with a Boppy pillow around his head and a blanket. A.D., who had

just started to walk, was asleep in her playpen, which was within three feet of a window

and blinds.

Later that morning, Lisa Comei (Comei), a manager at Brewer’s apartment

complex along with Andrew McMullan (McMullan) and his co-worker, inspection

company employees, arrived at Brewer’s apartment to conduct routine inspection and

maintenance of which residents had received prior notice. Comei opened the door of

Brewer’s apartment and was overcome by the smell of dirty diapers. McMullan saw that

the apartment was dark, messy, and smelled of trash and urine. As McMullan began his

work downstairs, Comei and the other inspector searched for the source of the smell.

Comei opened a bedroom door and found H.B. and A.D. in their playpens. Dirty diapers

were on the bedroom floor and the smell was overpowering, causing Comei to dry heave.

Comei quickly shut the door and A.D. began crying. McMullan came up to the room and

found the smell overpowering. McMullan entered the room and picked up A.D. who was

standing up and screaming. McMullan handed A.D. to Comei and A.D. calmed down.

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McMullan also saw H.B. “[lying] on his back” in a “horseshoe shaped pillow” known as

a “Boppy” pillow. (Tr. p. 113). McMullan saw that H.B.’s head was “[i]n the middle of

[the] horseshoe.” (Tr. p. 113). After no adult was found in the apartment, Comei called

the Cumberland Police Department.

Officer James Riddle of the Cumberland Police Department (Officer Riddle)

responded to the call and arrived at Brewer’s apartment. Officer Riddle entered the

bedroom, detected a very bad odor, and found H.B. awake. A few minutes later, Officer

Suzanne Woodland (Officer Woodland) arrived, but could not retrieve H.B. because of

the odor. Eventually, McMullan entered the bedroom and picked up H.B. whose soiled

clothes had adhered to the bedding. Officer Riddle contacted the Department of Child

Services (DCS).

Brewer and Daniels returned to the apartment with grocery bags, some thirty

minutes after Officer Riddle had been dispatched. Brewer told Officer Riddle that she

resided in the apartment and had left around 9 a.m. DCS family case manager Eric

Woods (FCM Woods) arrived and began his investigation. FCM Woods saw the Boppy

pillow, the playpens and the window and blinds nearby. He noticed electrical outlets in

the apartment, an open toilet, and chemicals left in the bathroom. In a second upstairs

bedroom, FCM Woods found plastic trash bags and a cigarette butt. A double stroller

and a shopping cart were also found in the apartment.

That same day, the State filed an Information charging Brewer with two Counts of

neglect of a dependent, Class D felonies, I.C. § 35-46-1-4(a). On October 11, 2012, a

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jury trial was held. Both sides were given fifteen minutes to question potential jurors.

Brewer asked potential jurors whether they could distinguish between actual dangers and

hypothetical ones. Just as one potential juror, later identified as Mr. Whitaker

(Whitaker), responded that “just because the law says I can go down the street for ten

minutes,” the trial court informed Brewer’s counsel that time was up and asked if the

State would pass for cause, which it did. (Tr. p. 53). Brewer’s counsel argued that

Whitaker was biased. The trial court refused to excuse Whitaker for cause, but permitted

one minute of additional questioning. Brewer’s counsel asked, “[i]f I tell you it has to be

actual would you be able to abide by that?” and Whitaker replied, “[p]robably not.” (Tr.

p. 55). Brewer’s counsel then asked the entire panel, “[d]oes anyone else agree with

that?” but the trial court announced that time was up. (Tr. p. 55). Brewer’s counsel

requested time for additional questioning, alleging that three additional potential jurors

“just said they agree” with Whitaker. (Tr. p. 56). In denying the request, the trial court

pointed out that Whitaker’s response was a result of the way Brewer’s counsel posed the

question and refused to remove potential jurors for cause. Thereafter, Brewer made

peremptory challenges to two of the four jurors. After the jury was sworn, however,

Brewer’s counsel indicated on the record that she had exhausted her peremptory

challenges.

Subsequently, the trial court issued a separation order, instructing the parties to

inform their witnesses. Following a recess, Brewer informed the trial court that the

State’s witnesses were in a group discussing their testimony and moved for a mistrial.

5
Although the State admitted that questions about a picture were asked, it argued that

while witnesses may not discuss their testimony, they can discuss the facts of the case.

Brewer responded that even though no misconduct occurred, the witnesses were

“basically agreeing on what set of facts.” (Tr. 68). The trial court denied Brewer’s

motion for a mistrial.

Beginning with Comei, the State’s witnesses testified about the condition of the

apartment. McMullan and FCM Woods testified about infant sleep safety. FCM Woods

also testified about whether an infant can escape from a playpen. At the close of

evidence, Brewer tendered a proposed instruction on actual and appreciable injury, which

the trial court rejected and instead issued its instructions to the jury. Brewer was found

guilty as charged.

On November 27, 2012, a sentencing hearing was held. The trial court sentenced

Brewer to concurrent sentences of 545 days on each Count with all but four days

suspended to probation. After assessing fines and costs, the trial court ordered the

probation department to determine whether Brewer was indigent. In the event that she

was, the trial court ordered Brewer to complete community service to pay for the costs

and fines.

Brewer now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Sufficiency

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 Brewer first argues that there is insufficient evidence to support her conviction

beyond a reasonable doubt. In reviewing a challenge to the sufficiency of the evidence,

this court neither reweighs the evidence nor judges the credibility of witnesses. McHenry

v. State, 820 N.E.2d 124, 126 (Ind. 2005). Rather, we will consider only the evidence

that is favorable to the verdict and the reasonable inferences to be drawn therefrom. Id.

If there is substantial evidence of probative value to support the conviction, it will not be

set aside. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003).

Indiana Code section 35-46-1-4(a) provides, in relevant part, that a person having

the care of a dependent who knowingly or intentionally places the dependent in a

situation that endangers the dependent’s life or health commits neglect of a dependent as

a Class D felony. Here, the information alleged that Brewer knowingly placed her

children in a situation that endangered their life or health, by leaving them unsupervised.

Brewer first argues that the State failed to prove that she knowingly left her

children in danger. A person engages in conduct knowingly if, “when he engages in the

conduct, he is aware of a high probability that he is doing so.” I.C. § 35-41-2-2(b). Under

the child neglect statute, a “knowing” mens rea requires a subjective awareness of a

“high probability” that a dependent has been placed in a dangerous situation. Villagrana

v. State, 954 N.E.2d 466, 468 (Ind. Ct. App. 2011). Because, in most cases, such a

finding requires the fact finder to infer the defendant’s mental state, this court must look

to all the surrounding circumstances of a case to determine if a guilty verdict is proper.

Id.

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 Here, the State presented evidence that Brewer left her infant children alone in a

closed and smelly room while she and Daniels went on a thirty minute journey on foot to

Wal-Mart. Brewer admitted to doing so and that it was a “stupid decision.” (Tr. p. 254).

This admission supports the jury’s conclusion that Brewer knowingly placed her children

in a situation that endangered their life or health by leaving them unsupervised.

Brewer also argues that the State failed to establish that the children were in actual

and appreciable danger. Instead, she contends that the State’s proof sufficed only to

show hypothetical harm to the children. In essence, Brewer argues that as no harm befell

her children while she and Daniels went shopping, no actual and appreciable danger

existed. In rejecting a similar argument, this court stated in Johnson v. State, 555 N.E.2d

1362, 1366 (Ind. Ct. App. 1990):

To accept Johnson’s argument would require us to conclude that the
legislature intended to engage in a roulette game whereby conduct or
inaction with respect to the care of a child, albeit heedless or neglectful,
could continue unchecked so long as it did not happen to harm the child.
This we will not do.

Here, Brewer abandoned two infants, leaving them helpless until her return from

Wal-Mart. The children were left in their bedroom that had electrical outlets and cords.

H.B. was left in his playpen, resting on a pillow and covered by a blanket. A.D., who

could stand and walk, was left in her playpen close to a window with blinds and cords.

That one or a multitude of hypothetical mishaps could have occurred misses the point.

“Danger is the state of being exposed to harm. To endanger is to bring into danger.”

State v. Downey, 476 N.E.2d 121, 123 (Ind. 1985), reh’g denied. The actual and

8
appreciable danger here stems from the children’s infancy and the inherent inability to

respond to whatever harm may befall them. See White v. State, 547 N.E.2d 831, 836

(Ind. 1989). Thus, by leaving the infant children unsupervised, Brewer placed them in

actual and appreciable danger. Accordingly, we affirm Brewer’s convictions for neglect

of dependents.

II. Admission of Evidence

Next, Brewer argues that the trial court abused its discretion by admitting evidence

regarding the condition of her apartment as well as opinion testimony from McMullan

and FCM Woods regarding the safety of the Boppy pillow in which H.B. was found

sleeping and whether the children could escape from their playpens. She argues that such

evidence was either irrelevant, prejudicial, or constituted impermissible opinion

testimony.

A trial court possesses broad discretion in ruling on the admissibility of evidence.

Julian v. State, 811 N.E.2d 392, 398 (Ind. Ct. App. 2004), trans. denied. Pursuant to Ind.

Evidence Rule 401, evidence is relevant if it has any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence. Id. “All relevant evidence is

admissible,” except as provided by statute or rule; “[e]vidence which is not relevant is not

admissible.” Evid.R. 402. Pursuant to Evid.R. 403, the trial court may exclude relevant

evidence if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

9
delay, or needless presentation of cumulative evidence. Julian, 811 N.E.2d at 398-99.

Id. The trial court has wide latitude in weighing the probative value of evidence against

the potentially prejudicial effects of its admission. Id.

A. Condition of the Apartment

Brewer first challenges the admission of witness testimony regarding the smell of

her apartment. Four witnesses testified to the odor of Brewer’s apartment: Comei,

McMullan, Officer Riddle, and Officer Woodland. Each witness, with varying intensity,

described the odor and their reactions thereto. For example, Comei said that she had

“never smelled anything that bad;” McMullan described it as “a mixture of trash and

urine;” Officer Riddle said “[i]t smelled like boiling urine on the stove;” Officer

Woodland described it as a “very foul stench” that caused her to gag. (Tr. pp. 106, 110,

152, 175). Brewer failed to object to these responses.

The failure to make a contemporaneous objection to the admission of evidence at

trial results in waiver of the error upon appeal. Jackson v. State, 735 N.E.2d 1146, 1152

(Ind. 2000). Thus, Brewer’s failure to object precludes appellate review unless its

admission constitutes fundamental error. See id. Here, Brewer does not allege

fundamental error, “an error so prejudicial to the rights of the defendant as to make a fair

trial impossible.” Id. at 27 n.1. Accordingly, we decline to review Brewer’s challenge to

the admissibility of the odor evidence.

Brewer also challenges the admission of various photographs depicting the

condition of her apartment. At trial, the State moved to admit Exhibits 2-8 and 14-19,

10
depicting the entry way of the apartment, the stairs connecting the first and second floors

of Brewer’s apartment, the downstairs living room, containing video cords, the upstairs

bathroom, containing a cigarette butt and debris; and the upstairs bedroom adjacent to the

children’s bedroom, which had trash and other debris scattered about the floor. Brewer

contends that these photographs were irrelevant and prejudicial.

Here, the photographs depict areas separate from the children’s bedroom.

Although the State presented evidence establishing the conditions of the living room,

bathroom, and the downstairs, there is no evidence that the children left their bedroom.

However, even if these photographs were irrelevant and prejudicial, we conclude that the

admission of this evidence was harmless. The improper admission of evidence is

harmless error when the conviction is supported by such substantial independent

evidence of guilt as to satisfy the reviewing court that there is no substantial likelihood

that the questioned evidence contributed to the conviction. Lafayette v. State, 917 N.E.2d

660, 666 (Ind. 2009). While the photographs depict a cluttered apartment, we do not find

them to be exceptional. Moreover, the likelihood that these photographs contributed to

the jury verdict is minimal; the State presented separate photographs depicting the

children’s bedroom and playpens. We therefore do not find a substantial likelihood that

the evidence contributed to Brewer’s conviction.

B. Opinion Testimony

Brewer also contends that the trial court abused its discretion by allowing certain

testimony from McMullan and FCM Woods. Both witnesses testified about safe sleeping

11
conditions for an infant and FCM Woods also testified on the ability of an infant to

escape from her playpen. Brewer argues that their testimony should have been excluded

because both offered improper layperson opinions and neither qualified as an expert or a

skilled witness. The State argues that the trial court properly admitted their testimonies

pursuant to the skilled witness rule under Evid.R. 701.

A “skilled witness” is a person with a degree of knowledge short of that sufficient

to be declared an expert under Evid.R. 702, but somewhat beyond that possessed by the

ordinary jurors. Linton v. Davis, 887 N.E.2d 960, 975 (Ind. Ct. App. 2007), trans.

denied. Skilled witnesses not only can testify about their observations, they can also

testify to opinions or inferences that are based solely on facts within their own personal

knowledge. Id. In order to be admissible under Evid.R. 701, opinion testimony of a

skilled witness or lay observer must be “(a) rationally based on the perception of the

witness and (b) helpful to a clear understanding of the witness’s testimony or the

determination of a fact in issue.” Id.

McMullan observed H.B. with his head propped up by and sleeping in the Boppy

pillow and explained that “when they’re that small, if their [sic] unable to rollover on

their own, they can suffocate on it. So, their [sic] . . . you’re not supposed to, you’re not

supposed to leave them unattended with a pillow.” (Tr. p. 113). McMullan is an office

worker for an inspection company; the purported ground for his qualification to testify as

a skilled witness was based on him being a parent with a six week old child. We do not

12
agree with the State that McMullan possessed a degree of knowledge to qualify him as a

skilled witness.

Nevertheless, we find no error because McMullan’s opinion qualified as

permissible lay opinion testimony under Evid.R. 701. Lay opinion testimony is

permissible when based on the witnesses’ personal observations and is helpful to a clear

understanding of their testimony. See id. Here, McMullan opined that a three month old

can suffocate on a pillow based upon the child’s inability to move. This opinion was

helpful to understand his testimony on the position of the child. See Tolliver v. State, 922

N.E.2d 1272, 1279 (Ind. Ct. App. 2010), trans. denied. Furthermore, even if McMullan’s

lay opinion testimony was impermissible, its admission was harmless. Error is harmless

if the conviction is supported by substantial independent evidence of guilt such that there

is no substantial likelihood that the questioned evidence contributed to the conviction.

See id. Here, Brewer’s admission that she left the children unattended and other

witnesses’ testimony about discovering the children was sufficient to support Brewer’s

conviction, even without McMullan’s disputed testimony.

Brewer also objected to FCM Woods’ testimony that it was unsafe to allow H.B.

to sleep in the Boppy pillow and that A.D. could have escaped from her playpen. The

State sought to offer FCM Woods’ opinion as a skilled witness under Evid.R. 701.

Brewer contends FCM Woods’ opinions are impermissible since FCM Woods did not see

H.B. and A.D. in their playpens nor possessed the necessary qualifications in child

sleeping or materials construction. However, FCM Woods testified that he possessed

13
training about “safe sleep when it comes to infants, and especially children three months

old, sleeping in cribs with materials in the bed and that is an unsafe environment for a

child to be sleeping.” (Tr. pp. 191-92). FCM Woods personally observed H.B.’s crib as

well as the blanket and pillows left inside. As a result, FCM Woods deemed H.B.’s

sleeping condition unsafe because “if a blanket, a pillow, or something covers their face

or mouth, they’re not able to move that obstruction.” (Tr. p. 192) FCM Woods also gave

his opinion on whether A.D. could escape from her playpen. FCM Woods testified that

he observed A.D.’s playpen and offered his opinion that a toddler could get out of that

crib “based upon [his] training and [his] experience of toddlers.” (Tr. p. 195). We

conclude that FCM Woods’ opinion suffices under Evid.R. 701 and the trial court did not

abuse its discretion.

III. Jury Selection

Next, Brewer asserts that the trial court abused its discretion by refusing to grant

additional time to question those veniremen who Brewer claims demonstrated that they

would not follow the law and by denying Brewer’s challenge for cause as to those

veniremen. The State argues that Brewer did not ask for additional time and that Brewer

has waived her argument that the trial court erred by not excusing jurors for cause.

“Although trial courts have broad discretionary power in regulating the form and

substance of voir dire … the conduct of voir dire examinations is now governed by

Indiana Trial Rule 47(D).” Cliver v. State, 666 N.E.2d 59, 65 (Ind. 1996). T.R. 47(D)

14
permits the trial court to “impose an advance time limitation” on voir dire. However, the

trial court:

shall liberally grant additional reasonable time upon a showing of good
cause related to the following: the nature of the case, the quantity of
prospective jurors examined and juror vacancies remaining, and the manner
and content of the inquiries and responses given by the prospective jurors.

T.R. 47(D). The decision of the trial court will be reversed upon appeal only if there is a

showing of a manifest abuse of discretion and a denial of a fair trial. Cliver, 666 N.E.2d

at 65. This will usually require a showing by the defendant that he was in some way

prejudiced by the voir dire. Id.

Here, the trial court limited voir dire to fifteen minutes. Brewer questioned the

venire by soliciting their views on hypothetical dangers. Brewer asked Whitaker whether

he would “be able to abide by the law.” (Tr. p. 53). Whitaker responded that “just

because the law says I can go down the street for ten minutes, or whatever no.” (Tr. p.

53). After the trial court called time, Brewer’s counsel requested an additional minute to

question Whitaker because he “was starting to say that he thought the law was wrong.”

(Tr. p. 54). The trial court granted Brewer an additional minute to continue pursuing her

line of inquiry, yet Brewer’s counsel continued to ask about hypothetical and actual

dangers. Given that the trial court granted Brewer additional time and Brewer does not

argue on appeal that the trial court’s denial rendered a fair trial impossible, we find no

abuse of discretion. See Rutledge v. State, 525 N.E.2d 326, 328 (Ind. 1988).

Next, Brewer argues that her right to a fair and impartial jury was compromised

because the trial court denied her for cause challenges to the venire. The trial court has
15
discretion to grant or deny challenges for cause. Weinberger v. Boyer, 956 N.E.2d 1095,

1103 (Ind. Ct. App. 2011), trans. denied. We will sustain the decision on appeal unless it

is illogical or arbitrary. Id. However, when a juror serves who should have been

removed for cause, the complaining party is entitled to a new trial, absent waiver. Id.

“[T]o preserve any error the defendant bears the burden of demonstrating that at

the time she challenged the jurors for cause, she had exhausted her peremptory

challenges.” Robinson v. State, 453 N.E.2d 280, 282 (Ind. 1983). The rationale for this

approach is that “where a trial court may have erred in denying a party’s challenge for

cause, and the party can cure such error by peremptorily removing the apparently biased

venire person, the party should do so in order to ensure a fair trial and an efficient

resolution of the case.” Id. To obtain appellate review of trial court error for denying

challenges for cause, a defendant:

must use any available peremptories to correct erroneous denials of
challenges for cause. If on appeal you then prove both the erroneous denial
and that you were unable to strike another objectionable juror because you
exhausted your peremptories, you are entitled to a new trial, full stop.

Merritt v. Evansville-Vanderburgh School Corp., 765 N.E.2d 1232, 1237 (Ind. 2002).

The exhaustion requirement is fatal to Brewer’s claim. Prior to voir dire, the trial

court gave each side “five [peremptory] challenges.” (Tr. p. 20). After Brewer received

additional time to question Whitaker, she suggested that not only could Whitaker not

abide by the law, but three other jurors also indicated they could not. The trial court

denied Brewer’s challenge for cause and thereafter each side exercised its peremptory

challenges. Although Brewer peremptorily struck two of the four jurors she perceived to
16
be biased, she could have removed the other two by exercising two of her three remaining

peremptory challenges. She did not do so, and therefore her claim is waived. See

Weinberger, 956 N.E.2d at 1104.

IV. Jury Instructions

Brewer contends that the trial court committed reversible error by rejecting her

proposed instruction on actual and appreciable danger. The State argues that Brewer’s

proposed instruction was covered by the trial court instructions. Instructing the jury is

within the sole discretion of the trial court. VanWanzeele v. State, 910 N.E.2d 240, 246

(Ind. Ct. App. 2009), trans. denied. As such, we will reverse a trial court’s decision

regarding jury instructions only for an abuse of discretion. Id. Before a defendant is

entitled to a reversal, she must affirmatively show that the instructional error prejudiced

her substantial rights. Glenn v. State, 884 N.E.2d 347, 357 (Ind. Ct. App. 2008), trans.

denied. Jury instructions serve to inform the jury of the law applicable to the facts

presented at trial, enabling it to comprehend the case sufficiently to arrive at a just and

correct verdict. Hamilton v. Hamilton, 858 N.E.2d 1032, 1035 (Ind. Ct. App. 2006),

reh’g denied, trans. denied. In evaluating the propriety of a given instruction, we

consider: (1) whether the instruction correctly states the law, (2) whether there is

evidence in the record supporting the instruction, and (3) whether the substance of the

instruction is covered by other instructions. Id.

Brewer offered a proposed jury instruction stating:

The neglect of a dependent statute is to be regarded as applying to
situations that endanger the life or health of a dependent. The placement
17
 must itself expose the dependent to a danger which is actual and
appreciable.

(Appellant’s App. p. 50). The trial court’s instruction provided in relevant part:

Before you may convict the Defendant, the State must have proved
each of the following beyond a reasonable doubt:

1. The Defendant, [Brewer]
2. knowingly or intentionally
3. placed H.B., and A.D., in a situation that actually and
appreciably endangered H.B., and A.D.’s life or health, that
is: left [her] children unsupervised.
4. when H.B., and A.D. were dependent and when [Brewer] had
the care, custody, or control of H.B. and A.D., whether
assumed voluntarily or because of a legal obligation.

(Appellant’s App. p. 85).

We conclude that Brewer’s proposed instruction was covered by the trial court’s

instruction. Brewer now argues that her proposed instruction comes from State v.

Downey, 476 N.E.2d 121, 123 (Ind. 1985), reh’g denied, where our supreme court

addressed constitutional infirmities of the prior version of the neglect statute by

instructing that the danger must be “actual and appreciable.” However, the trial court is

not bound to give an instruction, although it may be a correct statement of the law and

applicable to the evidence, if the substance thereof is covered by other instructions which

are given. Cobb v. State, 412 N.E.2d 728, 741 (Ind. 1980). Accordingly, the trial court

did not err in refusing to tender Brewer’s proposed jury instruction.

V. Witness Separation

Brewer argues that the trial court abused its discretion by permitting the State to

call its witnesses in violation of the trial court’s separation order. Brewer alleges that
18
several of the State’s witnesses discussed the case with a prosecutor and among each

other prior to testifying. Indiana Evid. Rule 615, “Separation of Witnesses,” provides for

the exclusion of witnesses “so that they cannot hear the testimony of or discuss testimony

with other witnesses.”

The purpose of a witness separation order is to prevent the testimony of one
witness from influencing another. In the absence of connivance or collusion
by the prosecutor, the court has discretion in allowing a witness to testify
after the violation of a separation order. We will not disturb that exercise of
discretion unless there is a showing of prejudice tantamount to an abuse of
discretion.

Corley v. State, 663 N.E.2d 175, (Ind. Ct. App. 1996) (citations omitted).

The trial court granted Brewer’s motion for separation of witnesses following voir

dire. During a recess and prior to the State’s case-in-chief, Brewer’s counsel overheard

the State discussing features of Brewer’s apartment with police officer witnesses as well

as other State’s witnesses discussing “what [Brewer’s] refrigerator looked like.” (Tr. p.

67). However, “[t]he primary reason for a separation of witnesses order is to prevent

witnesses from gaining knowledge of questions actually posed to, and answers actually

given, by prior witnesses, and adjusting their own testimony as a result thereof.” Clark

v. State, 480 N.E.2d 555, 558 (Ind. 1985). Here, any discussion between the State’s

witnesses occurred prior to their testimony. As a result, we conclude that no abuse of

discretion occurred.

VI. Sentencing

Finally, Brewer challenges the imposition of community service in lieu of costs

and fines. In addition to sentencing Brewer to probation, the trial court imposed sixteen
19
hours of community service as well as costs and fines amounting to $316. However, the

record reflects that the trial court imposed additional community service in lieu of fines

and costs in the event that the probation department concluded that Brewer was indigent.

The State agrees that the trial court erred; however, it argues only that the trial court

improperly delegated the determination of Brewer’s indigency to the probation

department.

In Vaughn v. State, 982 N.E.2d 1071, 1076 (Ind. Ct. App. 2013), we reversed the

trial court’s imposition of community service in lieu of costs and fines. We reasoned that

the trial court’s ability to impose community service in lieu of costs and fines depended

upon statutory authority to do so. Id. at 1075. Lacking such authority, the trial court

could not impose community service in lieu of fees. Id. at 1076. The same result follows

here. The trial court was without statutory authority to order Brewer to perform

community service in the event of indigency. Furthermore, I.C. § 33-34-2-3 vests

determination of a defendant’s indigency with the trial court, requiring it to hold an

indigency hearing before determining whether and how to impose costs. Here, the trial

court delegated the determination of Brewer’s indigency. We therefore reverse and

remand for the trial court to address the imposition of fines and costs and Brewer’s

indigency.

CONCLUSION

Based upon the foregoing, we conclude that (1) the trial court did not abuse its

discretion by limiting Brewer from questioning the venire and denying her for cause

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challenges; (2) Brewer waived her challenge to testimony regarding the apartment’s odor;

the admission of photographs depicting the apartment outside the children’s bedroom

amounted to harmless error; and opinion testimony regarding infant sleep safety and

A.D.’s playpen was admissible; (3) the trial court did not abuse its discretion by

permitting the State’s witnesses to testify following a separation order; (4) the State

established beyond a reasonable doubt that Brewer committed neglect of a dependent;

and (5) the trial court did not abuse its discretion by rejecting Brewer’s jury instruction.

However, we conclude that the trial court abused its discretion by imposing community

service in lieu of fines and costs and by improperly delegating Brewer’s ability to pay

fines and costs to the probation department.

Affirmed in part, reversed in part, and remanded with instructions.

BRADFORD, J. and BROWN, J. concur

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