*1 may cally, A court consider evidence evidence showed S.D.’s cleanli- ongoing neglect in deter and significantly improved molestation manners happier. 296, interests of the child mining appeared the best and that R. at 318-20, § in using outlined I.C. 31-17-2-8. 335-37. factors We conclude that this admissible, half- Evidence of molestation S.D.’s evidence was under Joe v. Le- bow, continuing prove brother after the change October that a in custody was change a substantial in in hearing constitutes best S.D.’s interests. interrelationship” S.D.’s “interaction 17-2-8(4)(B).
with I.C. siblings. Sufficiency C. the Evidence 31 - however, custody, In the court modifying Wiggins’s final contention change must find a in one of substantial there was insufficient evidence to warrant in statutory change factors and that a custody light In modification. of our custody would the best interests of discussion above with along evidence es regarding the child. We address evidence tablishing ongoing neglect, molestation and S.D.’s best interests below. say we cannot that the trial court erred awarding custody of S.D. Davis. B. Postdating Evidence May Emergency Custody Order CONCLUSION Wiggins next contends that the trial conclusion, we determine that in allowing evidence of S.D.’s 1) admitted evidence of improved health physical and emotional occurring events before October 1998 under custody. Specifically, Davis’s she 2) custody proceeding, admitted evidence argues admitting evidence of S.D.’s improved of S.D.’s subsequent condition improved custody condition under Davis’s 3) May custody, 1999 transfer of “ way is a ‘back re-litigating door’ found sufficient on which evidence to base custody Appellant’s initial determination.” custody modification. brief at 14. Judgment affirmed. Lebow,
In Joe v. we determined condi improving evidence of a child’s SHARPNACK, C.J., VAIDIK, J., tion, while the temporary emergen under concur.
cy custody parent, noncustodial (Ind.Ct.App.
admissible. 670 N.E.2d
1996). A improving child’s condition is
part of a trial of the court’s consideration However,
child’s best interests. evi
dence of improving a child’s condition can
not fall within court’s consider ation of change” in one of “substantial CRAIG, Appellant-Defendant, Santana words, the statutory factors. In other independent without evidence of a substan home, tial change parent’s in the custodial Indiana, Appellee-Plaintiff. STATE of evidence of a improving child’s condition No. 49A02-9908-CR-538. parent not by noncustodial will custody
itself modification. See of Appeals Court of Indiana. id. Oct.
Here, Davis evidence and general S.D.’s condition well-be ing improved had May since the custody
transfer specifi- to him. More *2 Stevens, County L. Public Marion
Janice Indiana, Defender, Indianapolis, Attorney Appellant. Freeman-Wilson, Attorney Karen M. Hines, Indiana, Gasper Barbara General General, Attorney Indianapolis, Deputy Indiana, Attorneys Appellee. OPINION BROOK, Judge Summary Case Appellant-defendant Santana aggra- his convictions for (“Craig”) appeals B battery, felony, trajectory vated a Class and six of the bullet. The State called counts of criminal Class C French as witness its case-in-chief but We affirm. felonies. precluded questioning from him about opinion that the bullet hole in the back
Issues *3 window of the van could not have been appeal, on Craig raises two issues which caused a During ricochet. his direct we restate as: examination, “I Craig testified still had I. trial court whether erred in gun my So, in hand at time. at that allowing expert an undisclosed wit- time, me, past when the came van I took testify; ness to and my gun my I had in hand and I it held II. whether in erred that, downwards like and I fired gun. Craig. sentencing Only to in scare the the van.” On addition, sponte the dissent raises sua rebuttal, French testified that he did not third issue: whether the six convictions of in believe the bullet hole the van’s back criminal recklessness lesser included of- window was caused ricochet. fenses of proper. were History Craig Facts and Procedural was aware of French’s opinions day before French testified as of a During neighborhood the course a rebuttal Even if witness. French had squabble April on Craig began witness, been an undisclosed the proper arguing Wingo (“Wingo”). with Debra remedy for to list a failure witness usu Craig pulled gun and it at pointed Win- ally a or an adjournment continuance “leave, go, telling get her to out of here.” allow the to depose defendant the witness. He then shot air. Wingo into the Davis v. (Ind. into a van people got seven other and left denied. A Ct.App.1999), trans. pulled away, the scene. As Wingo she defendant yelled calling police. that she was given who is opportunity depose began shooting then at the back of surprise witness, so, but declines to do the van. His first shot toward the cannot claim prejudice when the court al missed, said, tires. When he “if I can’t Id. Craig did lows the testify. witness to tires, hit them I’m something in not ask for a continuance depose French that damned van.” then shot into expert. or to find his own times, the van three his second shot hitting Craig also asserts he did open not thirteen-year-old in DeMerr Lee the head. the door on cross-examination to French’s eight State testimony. He contends that “defense trial, counts of murder.1 At counsel had no reason to believe the wit- Craig submitted and the court read to the ness would testify be allowed to on rebut- jury an criminal instruction on reckless- tal. None of the evidence he ness. The verdict returned of not opened any the door in way changed the counts, on guilty one of the verdict of facts that testimony made the inadmissi- another, guilty aggravated ble.” Craig misunderstands the nature of of criminal guilty verdicts of reckless- “opening the door” to evidence. Even if ness on the six remaining counts. the evidence was inadmissible in the Discussion and Decision case, State’s it became relevant on rebuttal Expert L Witness once as to testified his actions. Tes- timony or evidence once ruled inadmissible claims that does not allowing Mickey always witness remain French inadmissible. We (“French”) testify to his belief as to the find no error in the trial court’s actions. §§ 35-41-5-1 35-42-1-1. Sentencing hanced for aggravated
II.
sentence
battery.
court sentenced
The trial
III. Criminal Recklessness
battery.
years
twenty
Convictions
that the trial court consid
Craig argues
Believing
criminal
circumstances
reckless
improper aggravating
ered
inherently
an
nor
proper mitigating cir
is neither
not consider
and did
murder,
enhancing
sentence.
cumstances
dissent would
six convic
reverse
rest within
Sentencing decisions
tions
remand
of the trial court.
sound discretion
proceedings.
for further
717 N.E.2d
*4
Ellison
acknowledge
criminal
We
that
reckless-
When en
s.
denied.
tran
an inherently
ness is not
lesser-included
sentence, a
court must state
hancing a
trial
of
murder. See Wilson
offense
State,
v.
doing so. Jones
reasons for
its
(Ind.1998);
State,
466,
v.
697
477
N.E.2d
(Ind.1999).
452,
partic
N.E.2d
454
705
State,
54,
Goolsby v.
517
see also
N.E.2d
(1)
ular,
must:
sentencing
the
statement
(Ind.1987) (“Since
clearly
62
have
held
we
and miti
identify
aggravating
significant
attempt
applica-
that our
statute can have
(2)
circumstances;
specific
state
gating
crimes,
only
specific
tion
to
intent
aggrava
is
circumstance
why
reason
each
specific
there
no element
intent in the
is
of
(3) evaluate and
ting
mitigating;
or
hold
we
that the
offense
mitigating against
aggra
balance
in-
of recklessness is not
lesser
offense
if the
to determine
vating circumstances
cluded offense of the crime of
the aggra
offset
mitigating circumstances
and, further,
there can
no
that
be
vating circumstances.
”)
‘attempted
(citing
crime of
recklessness.’
Craig’s prior
found that
The trial court
State,
(Ind.
v.
tran attempted murder. Other than differing vacated, tion must that the convictions victims, in the names of the Counts II in that charging information case al leged through touching, alleged an actual which constituted VIII that: There, battery. upheld offense of we CRAIG, SANTANA on or April about the trial court’s refusal tender an in attempt did to commit the struction on criminal recklessness because Murder, crime of knowingly which is: to nothing there was in those indicat *5 or intentionally kill another human be- the ing disregard consequences for [victim], ing, namely: by engaging in part the of the defendant. at 1305. conduct, that is: at and toward Inasmuch as was with at [victim], person the of with the intent to murder, tempted jury could have the [victim], kill by of a deadly means weap- recklessly that Craig acted and held a on, that is: a handgun, which constituted disregard consequences for the even a substantial step toward the commis- though the evidence failed to show that sion of said crime of Murder. Craig intended to kill the victims. See (R. 33-36.) at Beeman v. Ind. 115 (1953) (noting that to be jury The was instructed that to convict guilty disregard of reckless the safe murder, attempted of the State had others, ty necessary of it is not that one “1) prove to that Craig acting was with the it). intend the harm which results from 2) kill, specific intent to knowingly or where, here, especially This is true 3) intentionally, shooting a deadly weapon, the trial requested and court read a is, 4) a handgun, at and [eight toward criminal recklessness instruction. Au Cf. 5) different people], which was conduct (Ind. trey v. 700 N.E.2d constituting step a substantial the toward 1998) (discussing nothing” “all or the strat (Id. commission of said crime of murder.” egy used counsel when defense he or 154.) at request she decides not to instructions on jury The was also instructed that Aggra- offenses, lesser concluding included Battery, vated B felony, Class as to strategy that such trial could not be the I, claim). Recklessness, Count basis for an Criminal ineffective assistance I, II, III, Consequently, Craig’s felony, IV, we do not reverse Class C Counts as to V, six VI, VIII, convictions of criminal recklessness. VII and were included of- (Id. 156.) fenses of murder.4 at Affirmed. jury was instructed that in order to DARDEN, J., concurs. find Craig guilty of criminal any 4. A review does not object. of the record reveal staled: "State would I think the specific objection the State to go from instruct- would crim[inal] reck[lessness] to the oth- ing as to criminal er seven recklessness. in the car that were not hit in There a colloquy between counsel with the head I with a bullet. think respect giving certainly a criminal recklessness in- count that is the lesser eight attempt prosecutor struction on all counts. The included of the murder of DeMerr handgun “at and toward” indi- ing a those prove have to would the State intentionally, handgun, with a with the “1) viduals intent recklessly, knowingly or 2) charges Shoup, a sub- kill Like the an act that created each. performed 3) bodily injury, [eight recognition assert of these risk stantial 4) per- knowledge probable consequences the Defendant people] different deadly while with a act armed and cannot be read to “indicate present formed the 158.) (Id. consequences.” at weapon.” [Craig’s] disregard in in- Further, I at trial testimony believe estab- jury that criminal reckless- structing the kill intent someone. lished at- included offense of was a lesser began shooting first at back majority correctly tempted van, murder. The he tires. When toward created conduct missed, tires, *6 v. Shoup that in order we noted criminal recklessness to for and Barbara Richard BURKETT (there, of an intent crime Burkett, Appellants- to. battery), instrument had Plaintiffs, touching that showed that allege facts of the harm disregard done with was There, might FAMILY INSURANCE occur. AMERICAN Shoup knowingly Family alleged GROUP, In- instrument American Mutual rude, angry Marilyn Greer, Company a child in a insolent or touched surance We he struck the child. Appellees-Defendants, manner when on criminal instruction requested refused because recklessness Prewitt, Jr., Terrance Terrance nothing charges in these which is “[t]here Sr., Prewitt, Defendants. disregard the conse- indicated] imply contrary, they To the quences .... No. 49A02-0004-CV-260. knowledge probable or recognition Appeals Indiana. Court present.” Id. consequences was Oct. I, mur- Except for Count against Craig alleged each der in- knowingly fir- persons by
tentionally kill each of Craig was convicted Lee. I think he’s entitled a criminal don’t 789.) (R. I. Count It at recklessness instruction.” objecting only appears that the State thus "at I is that he fired giving 5. The in Count to the assertion against”. import, as I. no struction Count This of notes “if I can’t hit them said necessary bodily harm” risk “substantial in that damned shooting something I’m convic- a criminal recklessness (R. 266.) I at believe criminal reck- van.” 35-42-2-2(b). However, tion. not, in the case lessness thus could before cannot conclusion agree I its us, factually in- was a charges against eight counts offense of the cluded lesser trial court erred in so murder, Craig with I va- structing jury. would therefore informations because the State’s Craig’s six convictions of criminal cate not presented at trial do and the evidence recklessness. Craig acted with the inference that permit his ac- consequences for the disregard tions.