COA reverses felony neglect conviction

The Indiana Court of Appeals has reversed a man’s felony neglect conviction after finding there was insufficient evidence to prove the man knew he was placing a dependent in danger by leaving the scene of a car accident.

In Billy J. Burden v. State of Indiana, 66A03-1706-CR-1298, Billy Burden and his girlfriend, Christina, were in a car with Christina’s children, including K.E., who is possibly Burden’s daughter. Christina sat in the back seat holding a car seat in her lap, with K.E. buckled into the car seat.

Burden’s sister, Tiffany, was driving and began to accelerate to more than 100 miles per hour. She lost control of the vehicle, which ran off the road and rolled over multiple times before landing on the roof. Both of Christina’s children, as well as Tiffany’s child, were ejected from the car, with K.E. landing still in her car seat.

Burden freed himself from the vehicle and checked to see if everyone was OK. He then found another motorist to take him to get help, even though a passing motorist, Dewain Davis, had told Burden that he had called 911. However, deputies later learned that Burden never called anyone for help after he left the scene.

Meanwhile, K.E. was airlifted from the accident to a trauma center. Burden was eventually charged and convicted of Level 6 felony neglect of a dependent because of his decision to leave the scene, which the state alleged placed K.E. in a situation that endangered her life or health.

But the Indiana Court of Appeals reversed that conviction Thursday. Judge James Kirsch wrote that Burden repeatedly inquired into K.E.’s whereabouts and well-being immediately after the accident. Additionally, Christina testified that she did not allow anyone else to care for K.E., which limited Burden’s ability to help the child at the scene of the accident, Kirsch said.

“Moreover, K.E. and the other occupants of the car, with the exception of B.E., appeared uninjured and, in fact, did ‘not have any serious injuries,’” Kirsch wrote. “Finding no evidence to support the element that Burden had a subjective awareness of a high probability that, by leaving the scene, he had placed K.E. in a situation that endangered her life or health, we reverse Burden’s conviction for Level 6 felony neglect of a dependent.”

Further, in a footnote, Kirsch wrote the state’s assertion that Burden left the scene because of a pending warrant was “irrelevant where that evidence is insufficient for a jury to find beyond a reasonable doubt that Burden was subjectively aware of a high probability that by leaving the scene, he had placed … K.E. in a situation that created an actual and appreciable danger to her.”