ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KATHERINE A. CORNELIUS JEFFREY A. MODISETT
Marion County Public Defenders Agency Attorney General of Indiana
RANDI E. FROUG
Deputy Attorney General
SUPREME COURT OF INDIANA
KRISTA CLINE, )
) Supreme Court Cause Number
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9707-CF-098582
ON DIRECT APPEAL
April 19, 2000
Krista Cline was charged with the murder of her two-month-old daughter Alexis.
At trial Cline sought to shift responsibility for the crime to her boyfriend
Lamar Jenkins. The jury returned a verdict of guilty, and the trial
court sentenced Cline to sixty-five years imprisonment. In this direct appeal Cline
raises four issues for our review which we rephrase as: (1) did the
trial court err by excluding evidence of Jenkins gang affiliation and evidence of
his propensity for violence, (2) did the trial court err by allowing into
evidence Jenkins pre-trial hearsay statement, (3) did the trial court err by allowing
into evidence the testimony of a counselor that statements made by Cline seemed
strange and odd, and (4) did the trial court err by refusing to
instruct the jury on the offense of neglect of a dependent.
Finding no reversible error, we affirm.
The record shows that when Cline was sixteen years old she became pregnant.
As a result, Alexis was born on March 8, 1997. Cline
and Alexis lived with Cline's father and stepmother. While Cline attended school
half-days, a neighbor babysat Alexis. Cline would return home around noon, retrieve
Alexis and stay with her until Cline went to work at a part-time
job. During that time, Clines father and stepmother usually cared for Alexis.
On Friday, May 9, 1997, the neighbor babysat Alexis as usual, and
according to the neighbor Alexis seemed healthy that day. Cline, however, had
become frazzled and was not sure she could cope with raising a child.
R. at 483. Although Cline had previously spoken to the neighbor
about the possibility of placing Alexis for adoption, Cline became upset when the
neighbor suggested that Clines father and stepmother could obtain custody of Alexis.
The following Saturday and Sunday Clines father and stepmother babysat Alexis. They
found her to be healthy and saw nothing unusual about the child.
On Monday, May 12, 1997, Cline decided to stay home from school.
She telephoned her boyfriend Lamar Jenkins to let him know that she would
be home all day. Jenkins, who is not Alexis father, came over
sometime around 9:30 a.m. or 10:00 a.m. The couple spent the morning
smoking marijuana, having sex, and watching television. What happened immediately thereafter is
a matter of dispute. Cline testified at trial that while Jenkins was
present she took a shower lasting approximately twenty minutes. During that time,
according to Cline, Jenkins was alone with Alexis. Cline also testified that
when she got out of the shower Alexis was crying loudly and Jenkins
then left the house. On the other hand Jenkins acknowledged that the
baby was crying just before he left around 2:00 p.m. However he
testified that he was in the living room with Cline when that event
occurred and the baby was in another room. According to Jenkins, when
Cline refused to get the baby, he got her, gave her to Cline,
and left shortly thereafter. Jenkins denied that Cline took a shower while
he was present. The record shows that Clines father arrived home around
5:00 p.m. and found Cline lying on the couch with Alexis lying across
Clines chest. According to her father, Cline appeared to have just gotten
out of the shower. At her fathers suggestion, Cline placed Alexis in
her crib. Clines father then went to the garage. Sometime shortly
thereafter Cline saw that Alexis was not breathing, and Cline began screaming.
Her father returned from the garage, checked Alexis, and found blood coming from
her nose. He called 911. Emergency medical technicians arrived on the
scene and transported Alexis to the hospital where she was placed on a
life support system. The following day a medical and family decision was
made to remove the life support. Alexis died shortly thereafter.
An autopsy revealed that Alexis had suffered numerous injuries all inflicted at approximately
the same time. The cause of death was a tear to Alexis
transverse colon due to blunt force impact to the childs abdomen. In
addition, there were vaginal and anal injuries that appeared to be caused by
a heated object, perhaps a curling iron. Also, there were four areas
of blunt force trauma to the childs head.
After giving several statements to the police, Cline was ultimately arrested and charged
with murder. While in custody awaiting trial, Cline was held in the
Marion County Jail. Two inmates who were also in custody at the
jail testified at trial that they overheard a conversation between Cline and her
cellmate. According to the inmate witnesses, Cline stated that after Jenkins left
the house, she became stressed out because she could not get Alexis to
stop crying. R. at 782, 804. As a result, she punched
Alexis in the stomach. One of the witnesses later spoke with Cline
and asked about a report that Alexis had shown signs of injury to
her head. According to the witness, Cline demonstrated how that happened indicating
that she applied force to Alexis head using the heel of her hand.
A pathologist testified at trial that the blunt force injuries to Alexis
head were consistent with someone using the heel of a hand.
Cline was convicted of murder. This appeal followed. Additional facts are
set forth below where relevant.
I. Gang Affiliation and Prior Bad Acts
Cline's theory of defense at trial was that her boyfriend Jenkins caused Alexis
death. According to Cline, Jenkins inflicted injuries on Alexis during his morning
visit when he was alone with the child while Cline took a shower.
In an attempt to bolster this theory, Cline sought to introduce evidence
that Jenkins was a member of a street gang, and that he had
been involved in two physical altercations with other juveniles in the week before
Alexis was killed. In response to the States relevancy objection, the trial
court precluded Cline from cross-examining Jenkins on this point and would not allow
Cline to introduce a police arrest report concerning Jenkins.
Cline contends the trial court erred in sustaining the States objection because the
evidence was relevant for a number of reasons: (a) to show that Cline
was afraid of Jenkins thus explaining why when first questioned by police Cline
did not inform them that Jenkins had been present at her home the
day Alexis was injured, (b) to show that Jenkins was intelligent enough to
commit a violent act thus addressing evidence that Jenkins suffered from a learning
disability, (c) to complete the story surrounding the circumstances of the crime, and
(d) to show that Jenkins was Alexis attacker.
Although the trial court did not allow Cline to introduce the proffered evidence
based on the States relevancy objection, there is a more fundamental reason supporting
the trial courts decision. Under Ind. Evidence Rule 404(b) evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. Spencer v. State,
703 N.E.2d 1053, 1055 (Ind. 1999). In this appeal, Cline advances the
above-mentioned reasons to support her claim that evidence of Jenkins gang membership and
violent conduct were admissible. Regardless of the propriety of these claims, at
trial Clines argument in support of admitting the evidence was that [Jenkins] was
in the proximity of the alleged victim, Alexis Cline, on May 12, 1997,
the day she allegedly received her fatal injuries . . . He
had the opportunity and the ability to perform the alleged violent act, to-wit:
blunt force trauma, which resulted in her death. Additionally, he had demonstrated
the propensity to commit such a violent act. R. at 299-300.
Essentially, Cline sought to introduce evidence of Jenkins prior acts for the sole
purpose of demonstrating that because Jenkins had acted violently in the past, he
likely acted in conformity with those acts and harmed Alexis. This is
the forbidden inference that Ind. Evidence Rule 404(b) specifically proscribes. Byers v.
State, 709 N.E.2d 1024, 1026-27 (Ind. 1999) ([R]ule [404(b)] is designed to prevent
the jury from making the forbidden inference that prior wrongful conduct suggests present
guilt.). The trial court properly excluded evidence of Jenkins gang affiliation and
prior violent conduct. There is no error on this issue.
II. Evidence of Prior Consistent Statement
Cline contends the trial court erred in allowing a police officer to testify
concerning the contents of Jenkins out of court statement. The facts surrounding
this contention follow. The State called Jenkins to testify concerning the events
of May 12, 1997. Among other things Jenkins testified that on the
morning in question he arrived at Clines house around 9:30 a.m. or 10:00
a.m., he and Cline had sex and smoked marijuana, and he left the
house as school was letting out, around 2:00 p.m. R. at 424-50.
Jenkins also testified that for most of the time he was in
the home the baby was asleep; however just before he left, the baby
started crying, and he picked her up and handed her to Cline.
R. at 450. Jenkins also testified that Cline did not take a
shower while he was present in the home. R. at 553.
On cross-examination, Cline challenged Jenkins veracity and his ability to correctly remember the
events of the day in question. In rebuttal, the State called to
the stand Officer Larry Smith who had taken Jenkins statement on July 15,
1997. Through Officer Smith, the State sought to offer the statement as
evidence of a prior consistent statement. Over Clines hearsay objection, Officer Smith
testified that Jenkins told him Cline called Jenkins on the morning of May
12, 1997, and told him to come to the house between 10:30 and
11:00 a.m.; the two smoked marijuana; Alexis awoke one time and was fine
while he was in the home; and that he left Clines house just
as school was letting out. R. at 764-75. Cline contends Officer
Smiths testimony was not admissible under the prior consistent statement rule because (a)
the statement was not consistent and (b) at the time Jenkins made the
statement he had a motive to lie.
Hearsay is an out of court statement offered to prove the truth of
the matter asserted. Ind. Evidence Rule 801(c). Under Indiana Evidence Rule
801(d)(1)(B), an out- -of-court statement is not hearsay if the declarant testifies at
the trial or hearing and is subject to cross examination concerning the statement,
and the statement is consistent with the declarants testimony, offered to rebut an
express or implied charge against the declarant of recent fabrication or improper influence
or motive, and made before the motive to fabricate arose . . .
. Ind. Evid. R. 801(d)(1)(B). A ruling on the admissibility of
arguably hearsay statements is within the sound discretion of the trial court.
Taylor v. State, 587 N.E.2d 1293, 1302 (Ind. 1992).
Although minor discrepancies exist between Jenkins out-of-court statement and his trial testimony, the
statement and testimony nonetheless are essentially the same. A prior statement need
not be completely consistent to meet the requirements of 801(d)(1)(B). Rather, the
statement only needs to be sufficiently consistent. Willoughby v. State, 660 N.E.2d
570, 579 (Ind. 1996). Here, Jenkinss out-of-court statement and trial testimony satisfy
the requirements of the rule.
As for the timing of a motive to fabricate, we recently addressed this
issue in Sturgeon v. State, 719 N.E.2d 1173 (Ind. 1999). In that
case, the trial court admitted a prior statement of States witness Gregory Anderson
implicating the defendant in a murder. The statement was offered to rebut
the defendants inference that Andersons testimony was influenced by favorable treatment from the
State. Id. at 1177. The defendant objected to the statement arguing
that Anderson made it when he had a motive to fabricate. The
evidence at trial showed Anderson sold drugs to the victim on the evening
of the murder and later assisted the defendant in disposing of the body.
Id. at 1179. The evidence also showed that before giving his
statement, Anderson was informed by the police that he could be charged in
connection with the murder. Id. We found no error in the
admission of the statement. In so doing we noted:
We acknowledge the possibility of a motive to fabricate on Andersons part since
he knew he could be charged in connection with the murder and since
he participated in certain criminal acts surrounding the murder. However, there is
no evidence tending to implicate Anderson in Coffmans murder and therefore no evidence
that he had a motive to lie about Sturgeons involvement when questioned.
Without concrete evidence to that effect, we cannot conclude the trial court abused
its discretion in admitting Andersons prior consistent statement.
Id. at 1180. The facts pointing to Jenkins motive to fabricate in
this case are even less compelling than the facts pointing to Andersons motive
in Sturgeon. Here, although Jenkins talked to the police on July 5th
as well as on July 15th, nothing in the record shows that he
was ever advised that he could or would be charged with Alexis murder;
nor is there any evidence that Jenkins participated in any criminal acts surrounding
See footnote In like fashion, other than Jenkins presence in Clines house
on the day Alexis was injured there is no evidence tending to implicate
Jenkins in her murder. We conclude that the record does not support
Clines contention that Jenkins had a motive to lie when he spoke with
Officer Smith. Accordingly, the trial court did not abuse its discretion in
admitting Jenkins prior consistent statement.
III. Counselors Testimony
Cline next contends the trial court erred by admitting certain testimony of a
police Crisis Counselor. We agree, but find the error harmless. The
facts are these. The State called as a witness Maureen Ward who
was employed by the Indianapolis Police Department as a Crisis Counselor and had
worked in that capacity for ten years. Ward explained that her duties
required her to respond to any situation where someone would be in crisis;
homicide, sex crimes, robberies and that type of thing. R. at 735.
On May 12, 1997, Ward arrived at Clines home in response to
a report of a baby that was not breathing. When Ward heard
the age of the child, she assumed it was a case of crib
death. R. at 737. As paramedics were transporting Alexis to the
hospital, Ward drove Cline to the hospital. Ward testified that while in
route Cline asserted three different times that she would never do anything to
hurt her baby. R. at 737. After further questioning the following
[Prosecutor]: Okay. Did you have occasion to talk to the police yourself
after this encounter with the defendant that night?
[Ward]: I did mention to Detective Jones that I thought her statements
were - - -
[Defense Counsel]: Judge, Im going to object to what this witness thought
about the statements. Drawing conclusions.
[Prosecutor]: Judge, I believe the witness can testify [about] her impression of what
[Court]: I believe the question was, what did she tell Detective Jones
and she may answer that question.
[Defense Counsel]: Judge, I object based on relevancy along the lines of what
her answer was.
[Court]: Objection overruled. You may respond.
[Ward]: I found it odd because Ive been on a lot of
crib deaths. The parents never say anything about hurting their child because
they know they didnt hurt them.
R. at 738-39. The examination continued:
[Prosecutor]: What did you tell [Detective Jones]?
[Ward]: I told him that I felt it was strange
[Defense Counsel]: Judge, I object to relevancy.
[Court]: Note your objection and show it overruled You may answer
[Ward]: I told him I felt it was strange that she said
that three (3) times in the car. I just thought it was
something that he should know.
R. at 739. Cline contends the trial court erred in allowing Ward
to testify as to what she thought about Clines statements. Cline argues
that Ward was not an expert witness and thus her opinion was not
relevant. The State concedes that Ward was not qualified as an expert
witness under Ind. Evidence Rule 702. However, the State argues that Ward
was not testifying as an expert, but rather as a skilled lay witness
and was thus qualified to give her opinion under the provision of Ind.
Evidence Rule 701.
IV. Instruction on Neglect of a Dependent
The parties argument over whether Ward was a lay or expert witness misses
the mark. Taken in context the above colloquy shows that Ward was
not giving opinion testimony as such. That is to say, she was
not asked to give the jury her opinion about the statements Cline made.
Rather, Ward was asked about what she told a police officer concerning
Clines statements. The question here is whether Wards statements given to the
police officer were relevant to any issue in this case. Relevant evidence
means evidence having 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. Ind. Evidence Rule 401.
We conclude that Wards statement to a police officer did not make
more or less probable any issue before the jury. At most, Wards
statements may have had a bearing on the focus of the officers subsequent
investigation. However, the officer did not testify regarding Wards statement, and the
focus of his investigation was not at issue. In sum, Wards statement
was not relevant and its admission into evidence was erroneous.See footnote
Nonetheless, the admission of irrelevant evidence will result in reversal only if it
can be shown that the testimony substantially influenced the jurys verdict.
v. State, 677 N.E.2d 499, 505 (Ind. 1997). Here, the evidence showed
that Clines two-month-old child died as a result of blunt force injury to
the abdomen. Although Cline attempted at trial to blame her boyfriend, two
witnesses testified they overheard Cline tell her cellmate that she became stressed out
when the child would not stop crying and as a result she punched
the child in the stomach. Both witness were inmates with Cline at
the Marion County Jail when they overheard the conversation. However, the record
does not show that either witness was in any way compensated for or
received favorable treatment for her testimony. Essentially, the credibility of the witnesses
was not substantially shaken on cross-examination. Further, Clines father testified that when
he arrived home around 5:00 p.m. on May 12, Cline appeared as though
she had just got out of the shower. R. at 392.
This testimony contradicts Clines assertion that she took a shower some three hours
or so earlier when Jenkins was present. As a result, Clines contention
that Jenkins was alone with Alexis for twenty minutes during the time she
showered was rebutted. In sum, given the other evidence presented at trial,
it is unlikely that Wards inadmissible testimony substantially influenced the jurys verdict.
Hence, although the trial court erred in admitting the testimony, the error was
Cline last contends the trial court erred by refusing her instruction on the
lesser offense of neglect of a dependent. Cline concedes that neglect of
a dependent is neither an inherently included nor a factually included lesser offense
of murder. See Wright v. State, 685 N.E.2d 563 (Ind. 1995) (establishing
three part test for determining whether an instruction on a lesser included offense
should be given). However, pointing to evidence that she left her child
alone with Jenkins thereby putting her at substantial risk for serious bodily injury,
Cline argues that neglect of a dependent was her defense at trial.
As such, the argument continues, she was entitled to have the jury instructed
on that theory of defense.
See Clemens v. State, 610 N.E.2d 236,
241 (Ind. 1993) (a defendant is entitled to an instruction on any defense
which has some foundation in the evidence).
First, we reject Clines contention that she was entitled to an instruction on
neglect of a dependent as a theory of defense. Neglect of a
dependent is not a defense to murder. Rather, a defendant may be tried
on charges of both murder and neglect of a dependent. See, e.g.,
Pendergrass v. State, 702 N.E.2d 716 (Ind. 1998); Clemens v. State, 610 N.E.2d
236 (Ind. 1993); Jones v. State, 701 N.E.2d 863 (Ind. Ct.
App. 1998); Baker v. State, 569 N.E.2d 369 (Ind. Ct. App. 1991).
On this ground alone, the trial court properly rejected Clines tendered instruction.
Second, the manner of instructing a jury lies largely within the sound discretion
of the trial court, and we review the trial courts decision only
for abuse of that discretion. Edgecomb v. State, 673 N.E.2d 1185, 1196
(Ind. 1996). The test for reviewing the propriety of the trial courts
decision to refuse a tendered instruction is: (1) whether the instruction correctly states
the law; (2) whether there was evidence in the record to support the
giving of the instruction; and (3) whether the substance of the instruction is
covered by other instructions given by the court. Hartman v. State, 669
N.E.2d 959, 961 (Ind. 1996).
Our examination of Clines proposed instruction shows that it fails the first prong
of the test. Specifically, the first sentence of the instruction reads: Included
in the charge of murder in this case is the crime of neglect
of a dependent. R. at 321. As Cline now concedes neglect
of a dependent is not an inherently included lesser offense of murder nor,
as charged in this case, is it a factually included lesser offense of
See footnote Clines tendered instruction is an incorrect statement of the law.
On this additional ground the trial court properly refused to give the instruction.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.
BOEHM, J., concurs as to Parts I, II, and IV and concurs in
result as to Part III with separate opinion.
ATTORNEY FOR APPELLANT
Katherine A. Cornelius
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Randi E. Froug
Deputy Attorney General
SUPREME COURT OF INDIANA
KRISTA CLINE, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-9810-CR-594
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9707-CF-098582
ON DIRECT APPEAL
April 19, 2000
BOEHM, Justice, concurring.
I concur in Parts I, II, and IV. I concur in
result in Part III because I agree the error in admitting Wards testimony
was harmless. It seems to me that in the testimony quoted by
the majority Ward did express an opinion, and that, although not directly stated,
her opinion was that Cline was guilty of the crime. If Ward
is an expert, this opinion is relevant, but inadmissible under Evidence Rule 704(b)
because it is an expression of opinion as to guilt. Because Wards
opinion was derived not from rational inferences from her perceptions but rather from
her experience, she was not a lay witness under Evidence Rule 701, and
needed to be qualified as an expert. If Ward is not an
expert, I agree with the majority that her opinion may be viewed as
irrelevant, but is specifically rendered inadmissible by Rule 701 and also by Rule
Jenkins possession of marijuana on the morning Alexis was injured is
a criminal offense.
See Ind. Code § 35-48-4-11. However, unlike Sturgeon
where the related criminal act involved disposing of the body, the offense here
was unrelated to Alexis murder.
Ind. Evidence Rule 701 provides: If the witness is not testifying
as an expert, the witnesss testimony in the form of opinion or inferences
is limited to those opinions or inferences which are (a) rationally based on
the perception of the witness and (b) helpful to a clear understanding of
the witnesss testimony or the determination of a fact in issue.
Footnote: We also note that Wards testimony that Clines statements seemed odd
and strange was premised on Wards assumption that the child had died as
a result of crib death. However, there was no evidence before Ward
to support that assumption. The absence of evidence on this point lends
further support to our conclusion that Wards testimony was not relevant.
Footnote: The neglect of a dependent offense is codified at Ind.
Code § 35-46-1-4, which provides in part:
(a) A person having the care of a dependent, whether assumed voluntarily
or because of a legal obligation, who knowingly or intentionally:
(1) places the dependent in a situation that endangers the dependent's life or
(2) abandons or cruelly confines the dependent;
(3) deprives the dependent of necessary support; or
(4) deprives the dependent of education as required by law;
commits neglect of a dependent, a Class D felony.
Clines argument actually implicates the doctrine of lesser related offenses.
Broadly stated, the related offense doctrine holds that
if the evidence demonstrates the
defendant may have committed a lesser offense in the course of acts that
led to the greater charge, even if such offense is not inherently included
in the greater charge nor in the prosecutors factual allegations of the means
by which the greater crime charged was committed, and if the defendant so
requests, the trier of fact should be given the opportunity to consider the
related lesser offense.
Mahla v. State, 496 N.E.2d 568, 573-74 (Ind. 1986) (emphasis in the original).
Cline does not make this argument and thus it is waived for
review. In any event, although recognized in some jurisdictions, this state has
never applied the doctrine of lesser related offenses. See id. (commenting that
the doctrine goes beyond the principles of inherently and factually included offenses which
are well-established by our case law); see also Wells v. State, 555 N.E.2d
1366, 1371 (Ind. Ct. App. 1990) (finding it unnecessary to decide whether the
doctrine of related offenses should be adopted in Indiana).