MEMORANDUM DECISION
Kenworthy, Judge.
Case Summary 1
[1] Blossum Nicole Kirby appeals her convictions for two counts of Level 6 felony neglect of a dependent,
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raising three issues for our review:
1. Does sufficient evidence support Kirbys convictions?
2. Was there fundamental error due to the trial courts failure to give a specific unanimity instruction?
3. Was there fundamental error due to alleged prosecutorial misconduct?
[2] Concluding sufficient evidence supports Kirbys convictions and discerning no fundamental error, we affirm.
Facts and Procedural History
[3] Kirby is the mother of fraternal twins, N.M. and M.M. When Kirby gave birth to the twins in April 2022, she was homeless. Kirby did not have a car. Instead, she relied on a bicycle as her primary method of transportation.
[4] On June 24, 2022—a hot, sunny, summer day with temperatures reaching over 90 degrees Fahrenheit—Kirby left her mothers house with her infants to go to a friends house. Kirbys destination was about five miles away and took around thirty minutes by bicycle. Kirby placed her two-month-old infants in a wrapping-paper-lined milk crate strapped to the front of her bicycle with bungee cords. The infants wore nothing but diapers. Kirby also brought a bag containing baby items—milk bottles, baby wipes, spare diapers, baby formula, and childrens books.
[5] Sometime during her ride, Kirby passed a restaurant located by a busy intersection. Suezann Lynch—an employee at the restaurant—looked out a window and saw Kirby across the street “wrecking her bike.” Tr. Vol. 3 at 138. According to Lynch, Kirbys bicycle was “falling” and the milk crate holding N.M. and M.M. “was turning over to the left.” Id. Lynch did not see the infants fall out of the crate, although she thought they were going to. Concerned for the infants’ safety, Lynch ran out of the restaurant and across “very busy” traffic. Id. at 150. Lynch made it across the street and told Kirby to come to the restaurants parking lot, which Kirby did. One of Lynchs coworkers recorded part of the interaction on a cell phone.
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As this happened, one baby cried loudly while the other was “real lethargic.” Id. at 140. Lynch then took N.M. and M.M. inside the restaurant and called the police.
[6] While inside, Lynch noticed both infants were “sunburnt real[ly] bad.” Id. at 141. One infant had “probably the worst” diaper rash Lynch had ever seen and the other had a bleeding cut on the inside of their finger. Id. Kirby sat in the restaurants lobby. Lynch observed Kirby with “her eyes closed, like leaning back and forth, like she was nodding off.” Id. at 144–45. Kirby was “rambling” and “saying things that didnt make a lot of sense.” Id. Lynch thought Kirby “was out of it.” Id. at 144. EMTs arrived and took N.M. and M.M. to the hospital. The Department of Child Services (“DCS”) initiated Child in Need of Services (“CHINS”) proceedings soon after.
[7] The State charged Kirby with two counts of Level 6 felony neglect of a dependent. A jury found Kirby guilty as charged. Additional facts are provided when necessary.
1. Sufficient Evidence Supports Kirbys Convictions
[8] Kirby first claims insufficient evidence supports her convictions. A sufficiency-of-the-evidence claim warrants a “deferential standard of appellate review, in which we ‘neither reweigh the evidence nor judge witness credibility[.]’ ” Owen v. State, 210 N.E.3d 256, 264 (Ind. 2023) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Instead, we respect the fact-finders exclusive province to weigh conflicting evidence, Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018), and consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact, Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). “It is not necessary that the evidence ‘overcome every reasonable hypothesis of innocence.’ ” Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).
[9] To convict Kirby of Level 6 felony neglect of a dependent as charged, the State was required to prove beyond a reasonable doubt Kirby: (1) had the care of dependents N.M. and M.M.; and (2) knowingly; (3) placed them in a situation that endangered their life or health. See I.C. § 35-46-1-4(a)(1). Kirby does not dispute N.M. and M.M. were dependents in her care. Rather, Kirby focuses her challenge on whether the State presented sufficient evidence to show her subjective awareness of a high probability she placed N.M. and M.M. in actual and appreciable danger.
A. Subjective Awareness
[10] Kirby acknowledges “[p]lacing the babies in the milk crate was undisputedly unwise and something no parent would condone as more than a temporary resting place.” Appellants Br. at 14. Even so, Kirby argues the State failed to present sufficient evidence Kirby knew there was a high probability she put her children in danger by placing them in the milk crate bungee-corded to her bicycle as she rode near a busy street.
[11] “Knowingly” is a statutorily defined term. “A person engages in conduct ‘knowingly’ if, when [s]he engages in the conduct, [s]he is aware of a high probability that [s]he is doing so.” I.C. § 35-41-2-2(b). The mens rea requirement of the neglect statute requires proof that a defendant had “a subjective awareness of a ‘high probability’ that a dependent had been placed in a dangerous situation.” Marksberry v. State, 185 N.E.3d 437, 442 (Ind. Ct. App. 2022) (quoting Shultz v. State, 115 N.E.3d 1280, 1286 (Ind. Ct. App. 2018)), trans. denied; see also Villagrana v. State, 954 N.E.2d 466, 469 (Ind. Ct. App. 2011) (noting Indiana does not criminally penalize those who negligently neglect a dependent). To make this showing, the State “need only prove the accused was aware of facts that would alert a reasonable caregiver under the circumstances to take affirmative action to protect the child.” Dexter v. State, 945 N.E.2d 220, 224 (Ind. Ct. App. 2011), summarily affd in relevant part, 959 N.E.2d 235, 237 (Ind. 2012). Absent a confession, such a finding normally requires the fact finder to resort to inferential reasoning to determine the defendants mental state. See Becklehimer v. State, 190 N.E.3d 975, 978 (Ind. Ct. App. 2022). Thus, appellate courts “must look to all the surrounding circumstances of a case to determine if a guilty verdict is proper.” Id. (quoting McMichael v. State, 471 N.E.2d 726, 731 (Ind. Ct. App. 1984), trans. denied).
[12] The State presented sufficient evidence from which a jury could reasonably infer Kirby was aware of facts that would alert a reasonable caregiver to take affirmative action to protect the infants. Kirby rode her bicycle near a busy intersection as her two-month-old infants lay unrestrained, visibly sunburnt, and mostly unclothed in the milk crate bungee-corded to the front of her bicycle. Additionally, Kirby would have been aware of the hot and sunny conditions on that summer day. Considering all the surrounding circumstances, the State presented sufficient evidence Kirby was subjectively aware of a high probability she placed her infants in a dangerous situation.
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See Dexter, 945 N.E.2d at 224–25 (concluding tossing a wet child in the air over a bathtub after two people had warned the defendant not to do so because they were afraid the child would get hurt was sufficient to show the defendant was subjectively aware of a high probability he placed the child in a dangerous situation).
B. Actual and Appreciable Danger
[13] Next, Kirby contends the State failed to present sufficient evidence she placed N.M. and M.M. in actual and appreciable danger. Panels of this Court have repeatedly held the neglect statute “must be read as applying only to situations that expose a dependent to an ‘actual and appreciable’ danger to life or health.” Becklehimer, 190 N.E.3d at 978 (quoting Scruggs v. State, 883 N.E.2d 189, 191 (Ind. Ct. App. 2008), trans. denied). To be in “actual and appreciable” danger, the child “must be exposed to some risk of physical or mental harm that goes substantially beyond the normal risk of bumps, bruises, or even worse that accompany the activities of the average child.” Id. (quoting Scruggs, 883 N.E.2d at 191). But the State does not have to wait for the harm to come to fruition before it may intervene. See id. at 979 (explaining the purpose of the neglect statute is to “ ‘authorize the intervention of the police power to prevent harmful consequences and injury to dependents’ without having to wait for actual loss of life or limb”) (quoting Gross v. State, 817 N.E.2d 306, 309 (Ind. Ct. App. 2004)). In the end, there is “a fine line between properly exercising the police power to protect dependents and improperly subjecting every mistake a parent may make in raising his or her child to prosecutorial scrutiny.” Id. at 981 (quoting Gross, 817 N.E.2d at 311).
[14] The State presented sufficient evidence Kirby put N.M. and M.M. in actual and appreciable danger by placing them in a wrapping-paper-lined milk crate attached to her bicycle by bungee cords while she rode near a street with “very busy” traffic. Tr. Vol. 3 at 150. Plus, Lynch saw Kirby “wrecking her bike” such that the milk crate holding N.M. and M.M. “was turning over.” Id. at 138. The State did not have to wait for the unrestrained infants to be harmed before it could intervene. See Becklehimer, 190 N.E.3d at 978. Said another way, the State presented sufficient evidence Kirby exposed N.M. and M.M. to risk of physical harm substantially beyond the normal risks that accompany the activities of the average child.
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2. No Fundamental Error Due to Failure to Give Specific Unanimity Instruction
[15] Kirby next asserts the trial court committed fundamental error when it failed to give a specific jury instruction on unanimity “after the State proposed different acts on which the jurors could base their verdict.” Appellants Br. at 19. Because Kirby neither objected to the trial courts instructions nor tendered her own instruction, we will review her claim only for fundamental error. See Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011).
[16] The “fundamental error” exception to waiver is “extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). An error is fundamental “if it made a fair trial impossible or amounted to a clear violation of basic due-process principles.” Tate v. State, 161 N.E.3d 1225, 1229 (Ind. 2021). This “formidable standard ․ applies only where the error is so flagrant that the trial judge should have corrected the error on [their] own, without prompting by defense counsel.” Id.
[17] In Indiana, a guilty verdict in a criminal case “must be unanimous.” Baker, 948 N.E.2d at 1174 (quoting Fisher v. State, 291 N.E.2d 76, 82 (Ind. 1973)). We require unanimity “as to the defendants guilt,” but not as to the “theory of the defendants culpability.” Taylor v. State, 840 N.E.2d 324, 333 (Ind. 2006). To address problems that sometimes arise regarding jury unanimity, our Supreme Court in Baker held where “evidence is presented of a greater number of separate criminal offenses than the defendant is charged with,” and the State does not “designate a specific act (or acts) on which it relies to prove a particular charge,” the jurors “should be instructed that in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged.” 948 N.E.2d at 1175–77. The phrase “a greater number of separate criminal offenses than the defendant is charged with” refers to situations where evidence “is presented of entirely separate criminal incidents, each of which could be used to support a conviction.” Baker v. State, 223 N.E.3d 1142, 1146 (Ind. Ct. App. 2023).
[18] Although the State did not designate a specific act in charging Kirby,
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no specific unanimity instruction was required because the State did not present evidence of “entirely separate criminal incidents.” Baker, 223 N.E.3d at 1146. Rather, Kirbys acts were “so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Id. (quoting Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct. App. 2010)). As Kirby rode her bicycle with her infants in the strapped-on milk crate, she nearly crashed along a road with busy traffic. While this was happening, the infants were wearing just diapers, exposing them to the hot summer sun. And N.M. had a bleeding cut on the inside of her finger, suggesting it happened recently. The State therefore did not present evidence of entirely separate criminal incidents such that it was error, let alone fundamental error, for the trial court to not give a specific unanimity instruction.
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See, e.g., Benson v. State, 73 N.E.3d 198, 203 (Ind. Ct. App. 2017) (holding no specific unanimity instruction was required when the jury heard evidence the defendant shot a gun at police on two separate occasions during a brief, continuous pursuit), trans. denied.
3. No Fundamental Error Due to Alleged Prosecutorial Misconduct
[19] Kirby also claims fundamental error occurred due to prosecutorial misconduct during the States closing argument. The issue of prosecutorial misconduct implicates a two-part determination: “(1) whether the prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected.” Isom v. State, 31 N.E.3d 469, 490 (Ind. 2015) (quoting Baer v. State, 866 N.E.2d 752, 756 (Ind. 2007), cert. denied), cert. denied. Because a prosecutor has a duty to present a persuasive argument, placing a defendant in grave peril, by itself, is not misconduct. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). We measure whether a prosecutors argument constitutes misconduct by reference to case law and the Rules of Professional Conduct. Id. And the gravity of peril is measured “by the probable persuasive effect of the misconduct on the jurys decision rather than the degree of impropriety of the conduct.” Id. (quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)).
[20] Where a defendant fails to properly preserve a claim of prosecutorial misconduct, our standard of review is different from that of a properly preserved claim.
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Under these circumstances, a defendant must establish “not only the grounds for the misconduct but also the additional grounds for fundamental error.” Isom, 31 N.E.3d at 490 (quoting Cooper, 854 N.E.2d at 835). Fundamental error is “intended to place a heavy burden on the defendant.” Castillo v. State, 974 N.E.2d 458, 468 (Ind. 2012). Thus, our task is to “look at the alleged misconduct in the context of all that happened and all relevant information given to the jury—including evidence admitted at trial, closing argument, and jury instructions—to determine whether the misconduct had such an undeniable and substantial effect on the jurys decision that a fair trial was impossible.” Ryan, 9 N.E.3d at 668.
[21] The State began its closing argument with the following statement:
Ladies and gentlemen of the jury, today we stand to seek justice for the most vulnerable among us. Two defenseless babies, N.M. and M.M. We, as the Prosecution, have presented a case that paints a picture of neglect for the lives of these innocent babies. It is our duty to prove beyond a reasonable doubt that Ms. Kirby is guilty of two counts of neglect of a dependent. And I ask you to carefully consider the events that we presented to you at trial.
Tr. Vol. 3 at 194–95. Later in its closing statement, the State observed, “[w]itnesses have testified to the heartbreaking encounter that they observed that day.” Id. at 197. Kirby objected, claiming the prosecutor was “playing on the sympathy of the jury by saying the heartbreaking encounter.” Id. The trial court overruled Kirbys objection. In its rebuttal closing statement, the State argued: “[Kirbys] riding a bike with these kids unsecured in a milk crate while, apparently, under the influence.” Id. at 201. Kirby claims these arguments “unfairly played to the jurys sympathy, invited the jury to convict for reasons other than guilt, and presented facts not in evidence.” Appellants Br. at 23.
[22] Kirby first argues the prosecutor committed misconduct by invoking sympathy for the infants as a basis for Kirbys guilt. It is misconduct for a prosecutor to request the jury to convict a defendant for any reason other than her guilt. See Ryan, 9 N.E.3d at 671. For example, it is improper for a prosecutor to invoke sympathy for a victim as a basis for a conviction, Thornton v. State, 25 N.E.3d 800, 806 (Ind. Ct. App. 2015), or to phrase a closing argument “in a manner calculated to inflame the passions or prejudice of a jury,” Jerden v. State, 37 N.E.3d 494, 499 (Ind. Ct. App. 2015). Still, prosecutors may make arguments that invite the jury to make a reasonable inference from the evidence presented at trial. See Booher v. State, 773 N.E.2d 814, 819 (Ind. 2002). And fair characterizations of the evidence are not misconduct. See Wrinkles v. State, 749 N.E.2d 1179, 1197 (Ind. 2001), cert. denied.
[23] The prosecutors statements referring to N.M. and M.M. as “innocent babies,” “defenseless babies,” and “the most vulnerable among us” related to an element of Kirbys charged offenses: that N.M. and M.M. were dependents in Kirbys care. See I.C. § 35-46-1-4(a)(1). Plus, the statements were fair characterizations of the evidence presented at trial concerning that element. After all, N.M. and M.M. were two months old when Kirby placed them in the milk crate. Said differently, the prosecutors comments accurately reflected the status of the infants during the incident underlying this case and did not amount to prosecutorial misconduct.
[24] Next, Kirby claims the prosecutors assertion Kirby “appeared to be under the influence” was not supported by the evidence. See Appellants Br. at 24. Indiana Professional Conduct Rule 3.4(e) prohibits a lawyer in trial from “allud[ing] to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence[.]” Still, as mentioned above, prosecutors may make arguments that invite the jury to make a reasonable inference from the evidence presented at trial. See Booher, 773 N.E.2d at 819; see also Fouts v. State, 207 N.E.3d 1257, 1267 (Ind. Ct. App. 2023) (noting a prosecutor may argue both law and facts and offer conclusions based on their analysis of the evidence), trans. denied.
[25] The prosecutors statement about Kirby being “apparently, under the influence” was based on evidence presented in the record. Tr. Vol. 3 at 201. At Kirbys trial, Lynch testified Kirby had “her eyes closed” and was “leaning back and forth, like she was nodding off” while sitting in the restaurant. Id. at 144–45. Lynch further noted Kirby was “rambling” and “saying things that didnt make a lot of sense.” Id. Lynch thought Kirby “was out of it.” Id. at 144. Although there could have been another reason for Kirbys behavior besides her being under the influence, it was not misconduct for the prosecutor to make an argument based on a reasonable inference from the evidence presented at trial. See Booher, 773 N.E.2d at 819.
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Conclusion
[26] Concluding sufficient evidence supports Kirbys convictions and discerning no fundamental error, we affirm.
[27] Affirmed.
FOOTNOTES
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. Ind. Code § 35-46-1-4(a)(1) (2021).
3
. The recording shows Kirby wearing what she called a “mobile carrier.” Id. at 169; States Ex. 1. The “mobile carrier” appears to be a baby wrap—a long piece of fabric used to strap an infant to a parents chest or back. Although Kirby was wearing the baby wrap, there is no indication she used it to transport either of the infants during the underlying incident.
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. Kirby also directs us to the recorded interaction she had with Lynch and another restaurant employee. Although the audio is far from clear, Kirby seems to indicate police told her to transport her infants in her baby wrap. See States Ex. 1. Officer Rachel Goetz testified at Kirbys trial concerning information Kirby shared with her regarding a discussion with an unidentified law enforcement officer. According to Officer Goetzs testimony, Kirby relayed that the unidentified officer informed her she needed to place her infants in the baby wrap. Officer Goetz was unable to confirm Kirby had spoken to another law enforcement officer. Even if we were to accept Kirbys account of the interaction, it would further support the jurys conclusion Kirby subjectively knew she endangered N.M. and M.M. because she had previously been warned placing them in the milkcrate subjected them to a substantial risk of harm. Ultimately, however, we are not permitted to reweigh evidence. See Owen, 210 N.E.3d at 264.
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. Kirby points to her participation with DCS before her criminal charges were filed and claims “[t]his was a matter that could have and should have been left to DCS without involving the criminal justice system.” Appellants Br. at 18. The decision to prosecute “lies within the prosecutors discretion so long as the prosecutor has probable cause to believe that the accused committed an offense.” Neeley v. State, 457 N.E.2d 532, 534 (Ind. 1983). Kirby does not argue the prosecutor lacked probable cause she committed an offense. Although we are sensitive to Kirbys struggles with poverty, it is not our role to override the prosecutors discretion.
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. The amended charging information read:On or about June 24, 2022, BLOSSUM NICOLE KIRBY, having the care of N.M., a dependent, did knowingly place said dependent in a situation that endangered the dependents life or health[.]Appellants App. Vol. 2 at 114. Kirbys charges were identical besides the name of the dependent.
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. Even if it was error to not give a specific unanimity instruction, such error would not be fundamental. Put simply, Kirby has not shown the alleged error made a “fair trial impossible or amounted to a clear violation of basic due-process principles.” Tate, 161 N.E.3d at 1229. For example, the jury was instructed that its verdict must be unanimous. Tr. Vol. 3 at 192 (instructing the jury they must “all agree” on the verdict); see also Appellants App. Vol. 2 at 169 (instructing the foreperson, “Do not sign any verdict form for which there is not unanimous agreement.”); see also Tr. Vol. 3 at 48 (“The verdict must also be unanimous.”).
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. In her Brief, Kirby notes she objected to only one instance of alleged improper argument. Thus, on appeal, her claim is reviewable only for fundamental error. See id. (indicating a defendant fails to preserve a claim of prosecutorial misconduct if, at the time the alleged misconduct occurs, the defendant does not request an admonishment of the jury, and if further relief is desired, move for a mistrial).
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. Even if we were to determine the prosecutor committed misconduct, we do not believe such misconduct, under these circumstances, would rise to the level of fundamental error. Interspersed among the alleged improper statements, the prosecutor reiterated the States burden of proof—beyond a reasonable doubt. See Tr. Vol. 3 at 194. And the trial court instructed the jury the attorneys’ statements are not evidence, see id. at 126, and “[n]either sympathy nor prejudice for or against either the complaining witness or the Defendant in this case shall be allowed to influence you in whatever verdict you may find,” Id. at 191. Considering all the circumstances, we can comfortably say the prosecutors statements, even if considered misconduct, did not have “an undeniable and substantial effect on the jurys decision” such that a fair trial was impossible. Ryan, 9 N.E.3d at 668 (emphasis omitted).
Memorandum Decision by Judge Kenworthy
Chief Judge Altice and Judge Felix concur.
Altice, C.J., and Felix, J., concur.