Opinion
24A-CR-242
08-19-2024
Ifrica Almalik, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Denise L. Turner DTurner Legal LLC Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hamilton Superior Court The Honorable Michael A. Casati, Judge Trial Court Cause No. 29D01-2204-F1-2872
ATTORNEY FOR APPELLANT Denise L. Turner DTurner Legal LLC Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
CRONE, JUDGE.
Case Summary
[¶1] Following a jury trial, Ifrica Al Malik was convicted of neglect of a dependent resulting in catastrophic injury, a level 1 felony. On appeal, Al Malik claims that the State presented insufficient evidence to sustain her conviction and that the trial court's responses to juror questions during deliberations amounted to fundamental error. We affirm.
The trial court's docket and orders spell the appellant's surname "Almalik"; however, in a letter addressed to the trial court containing her signature, she spells her name "Al Malik." Appellant's App. Vol. 2 at 156. We spell her name herein to match her signature, but we maintain the spelling from the trial court's caption in our caption.
Facts and Procedural History
[¶2] In 2021, twenty-three-year-old Al Malik had been dating her boyfriend Herman Bland for approximately one year. They lived together in an apartment in Noblesville, along with Al Malik's three-year-old daughter from a previous relationship, H.A. Al Malik was pregnant with the only child that the couple shared. On August 21, 2021, Al Malik gave birth to a son, S.B., who was born healthy but six weeks premature. As a precautionary measure, S.B. spent approximately one week in the newborn intensive care unit (NICU).
Bland has three older children, none of whom lived with him and Al Malik.
[¶3] S.B. was discharged from the NICU and returned home to his parents. Bland watched S.B. during the day while Al Malik attended school from around 9 a.m. until 2:30 p.m. Sometimes, Al Malik would come home on her breaks to breastfeed S.B. H.A. attended a pre-kindergarten daycare. Bland worked the night shift, from around 7 p.m. until 6 a.m., at a production warehouse, so Al Malik watched S.B. in the evenings and overnight. During S.B.'s first two weeks at home, he was "extremely fussy and cried a lot." Tr. Vol. 2 at 52. Then S.B. "calmed down a lot" and "just chilled out." Tr. Vol. 3 at 76.
[¶4] Dr. Alicia Leedy was S.B.'s pediatrician. S.B.'s first visit with Dr. Leedy occurred on August 31, three days after his discharge from the NICU. Both parents attended the visit. The doctor observed that S.B. had "no issues[.]" Tr. Vol. 2 at 157. Around that time, Al Malik had been breastfeeding S.B. but, at the pediatrician's suggestion, began fortifying the breast milk with a formula supplement. However, Al Malik and Bland became concerned because when S.B.'s diet changed, he "suddenly became very quiet" and "almost never cried." Id. at 52, 53. The parents needed to wake S.B. to feed him, which they thought was "unusual." Id. at 53.
[¶5] On September 7, Al Malik took S.B. to his next appointment with Dr. Leedy. Bland did not attend the appointment. At that time, S.B. appeared to be a healthy two-week-old baby. Dr. Leedy observed that S.B. was "meeting all of the criteria and standards that [she] expect[ed S.B.] to be at two weeks." Id. at 160. The doctor did not notice any abnormalities regarding S.B.'s eyes or the size of his head.
[¶6] Sometime in September, Al Malik kicked S.B. in the head while engaging in horseplay with Bland. Around September 15, Al Malik and Bland noticed that S.B. had developed a red spot in the white of his eye. Al Malik told Bland that she had taken S.B. to the pediatrician to have the spot examined, but she had not done so.
[¶7] S.B.'s next appointment with Dr. Leedy occurred on September 23. Both parents attended the appointment. By that time, the spot in S.B.'s eye had disappeared. Dr. Leedy expressed concern about S.B.'s weight and scheduled a follow-up appointment for the next week. At the next appointment, on September 30, Dr. Leedy noted that S.B. had "good weight gain." Tr. Vol. 2 at 168. She did not notice any abnormalities with S.B.'s eyes or the size of his head. The doctor scheduled the next appointment for October 26. However, S.B. was hospitalized before the October visit could occur.
[¶8] On October 15, Al Malik and Bland left their apartment for about two hours to see a movie. Bland's mother babysat S.B. Two of Bland's children and Bland's father, sister, and aunts were also present. That was the only time that S.B. was in the care of anyone other than his parents.
[¶9] Also on October 15, Al Malik noticed that S.B.'s eyes were "looking down." Tr. Vol. 3 at 79. Later, it would be learned that S.B. was exhibiting signs of "sundowning[.]" Id. at 32. When a child has sundowning eyes, the "eyes are inappropriately down[-]facing when they should be midline or looking up[,]" and the white part of the eye above the pupil can be seen when ordinarily it is not visible. Id. at 32-33. Sundowning is caused by a high level of "pressure inside of the skull[.]" Id. at 33. To a layperson, sundowning eyes would appear "very abnormal." Tr. Vol. 2 at 61. Al Malik did not tell anyone about S.B.'s downcast eyes because she "didn't know that that meant something could be wrong[.]" Tr. Vol. 3 at 79.
[¶10] By October 18, the size of S.B.'s head was "gradually gaining . . . [Al Malik's and Bland's] attention." Tr. Vol. 2 at 114. On October 19, Al Malik sent a text message to Bland that included a photo of S.B., three laughing face emojis, and a message that said, "[T]hat mf head bruh[.]" Ex. Vol. 4 at 158.
[¶11] On October 21, Bland and Al Malik exchanged text messages regarding S.B.'s well-being. Al Malik texted, "[I]f I move him a tiny bit he crying like I did some[.]" Id. at 211. Bland replied, "[T]his [expletive] been quiet allllll day[.]" Id. Al Malik responded, "[Y]eah idk lol I'm like do you feel ok what's wrong[?]" Id. at 212. Bland texted that S.B. might have an upset stomach, to which Al Malik replied, "[M]aybe don't seem like his stomach hurts tho he wanna be babied lol[.]" Id. at 213. Al Malik did not seek medical attention for S.B.
[¶12] On the evening of October 22, Al Malik was breastfeeding S.B. and using FaceTime to talk with Jannie Dates, the woman who "helped raise" Al Malik. Tr. Vol. 3 at 80. While the two were talking, S.B. "pulled his head back . . . and his leg started jerking." Id. at 81. Al Malik ended the call with Dates and used FaceTime to call Bland at his job. She told him that she thought S.B. was having a seizure. Al Malik and Bland spoke briefly, then Al Malik ended the call and immediately called 911.
[¶13] The paramedics who responded to the dispatch examined S.B. and determined that S.B. "most likely had a seizure." Tr. Vol. 2 at 40. They recommended that S.B. be transported to a children's hospital in Indianapolis. Al Malik agreed and rode to the hospital in the ambulance with S.B. During the ride, Al Malik was calm and used her cell phone to call her mother.
[¶14] After arriving at the hospital, S.B. eventually underwent surgery because a CT scan indicated that he had "a lot of blood" in his brain "on both sides of his head." Id. at 56. He also had "some areas of damage to the brain," and the damage was "similar to a stroke." Tr. Vol. 3 at 45, 53. The attending physicians discovered that S.B. was healing from fractured ribs near the backbone and a fractured wrist, both likely having occurred two weeks prior. S.B. was bleeding in the lining of his spine near his hips, and he had "severe bilateral retinal hemorrhages in both eyes," which is "bleeding into the .. . lining of the eyeball[.]" Id. at 46. Severe bilateral retinal hemorrhages are caused by "pretty severe trauma" and "[i]n this case" was "consistent with" an abusive head trauma diagnosis. Id. at 51.
[¶15] A neurosurgeon placed a drain in S.B.'s head, which allowed accumulated blood and other fluids to drain. S.B. had at least four seizures while he was at the hospital. S.B.'s injuries were life-threatening, and he could have died if he had not gone to the hospital on October 22. Dr. Cortney Demetris, the pediatric hospitalist/child abuse pediatrician who treated S.B., determined that "[i]t [was] possible that .. . some of the injury to [S.B.'s brain] was worsened or more because there was more time between when he first had the symptoms of the big head and the eyes and the altered mental status[,] and when he sought care." Id. at 63.
[¶16] While S.B. underwent medical treatment, Al Malik exchanged text messages with an individual she identified as "[D]easia[.]" Ex. Vol. 4 at 183. Shortly after midnight, on October 23, Al Malik told Deasia, "I been knew some was wrong with my baby I felt I just didn't kno for sure plus his doctor been saying he was fine . . . it's just a lot that I've been peeping about him that I wish I would've reacted way sooner b4 it go to this[.]" Id. Al Malik added, "& we been saying his head was big that why I keep a hat on he barely smiles &his eyes go down he don't look straight at you just little stuff I've noticed[.]" Id. at 184.
[¶17] Later in the day on October 23, S.B. was examined by Kristen Morris, a pediatric nurse practitioner and a member of the hospital's child abuse pediatrics team. Based on Morris's findings, hospital staff contacted the Indiana Department of Child Services (DCS) regarding S.B. possibly having been abused, and DCS contacted the police. Al Malik did not tell anyone at the hospital that she had kicked S.B. in the head.
[¶18] On October 24, DCS interviewed Al Malik and Bland at the hospital, separately but with police officers present. On October 29, Al Malik and Bland agreed to be interviewed by Noblesville Police Department detectives. Al Malik and Bland were interviewed separately, and the interviews took place at the police station. Al Malik did not tell DCS or the detectives that she had kicked S.B. in the head.
[¶19] On November 17, S.B. was discharged from the hospital and was placed with a foster family. S.B. was subsequently diagnosed with abusive head trauma, shaken baby syndrome, a form of diabetes, and a seizure disorder. He had to be fed through a tube for around eighteen months following his hospitalization because he was having trouble swallowing as a result of his injuries. S.B. suffered irreversible brain damage and later was diagnosed with cerebral palsy. S.B. also experienced developmental delays in his speech, cognition, fine motor skills, and gross motor skills.
[¶20] On November 29, Al Malik used a popular search engine to pose the following queries: "[h]ow much force does it take to cause shaken baby syndrome" and "[c]an a kick to the head cause hematoma in a newborn." Tr. Vol. 3 at 93. She claimed she had conducted the searches "[b]ecause the doctors said that [S.B.] had baby shaken syndrome and [she] wanted to see what all it consists of. [She] was trying to figure out what happened." Id. at 92.
[¶21] On April 26, 2022, the State charged Al Malik with level 1 felony neglect of a dependent resulting in catastrophic injury. The State alleged that Al Malik, "being at least 18 years of age and having the care of [S.B.], a dependent less than 14 years old, did knowingly place said dependent in a situation that endangered the dependent's life or health, and which resulted in catastrophic injury to [S.B.]" Appellant's App. Vol. 2 at 15. The State also charged Bland with level 1 felony neglect of a dependent resulting in catastrophic injury. Bland entered into a plea agreement and ultimately pled guilty to level 6 felony neglect of a dependent. In exchange, he agreed to testify against Al Malik.
[¶22] Al Malik's four-day jury trial was held December 11 through 14, 2023. After the jury began deliberating, it sent questions to the trial court regarding the "knowingly" element of the charged offense. Tr. Vol. 3 at 172. The trial court conferred with the parties' counsel and proposed two responses. Ultimately, the parties' counsel agreed to the responses that the trial court provided to the jury.
[¶23] The jury found Al Malik guilty as charged. At sentencing, the trial court imposed an aggregate term of thirty-five years, ordering Al Malik to serve twenty-two years executed and thirteen years suspended. Of the twenty-two years executed, the trial court ordered Al Malik to serve eighteen years in the DOC and four years in community corrections. After serving the executed portion of her sentence, Al Malik was to be placed on probation for three years. Al Malik now appeals.
Discussion and Decision
[¶24] Al Malik argues that the State presented insufficient evidence to sustain her conviction for neglect of a dependent resulting in catastrophic injury. When reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor reassess the credibility of the witnesses. Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). Rather, we consider the evidence most favorable to the verdict and any reasonable inferences that can be drawn therefrom. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). We will affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. New v. State, 135 N.E.3d 619, 625 (Ind.Ct.App. 2019). We further note that the evidence need not exclude every reasonable hypothesis of innocence. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007). Instead, "the evidence is sufficient if an inference may reasonably be drawn from it to support the verdict." Id.
Section 1 - The State presented sufficient evidence to sustain Al Malik's conviction for level 1 felony neglect of a dependent resulting in catastrophic injury.
[¶25] To convict Al Malik of level 1 felony neglect of a dependent resulting in catastrophic injury, the State was required to prove beyond a reasonable doubt that Al Malik, an adult, had the care of S.B., a child under the age of fourteen, and knowingly placed S.B. in a situation that endangered his life or health and that resulted in his catastrophic injury. See Ind. Code § 35-46-1-4(a)(1), -(b)(3). As noted previously, the State's charging information alleged, consistent with Indiana Code Section 35-46-1-4(a)(1), that Al Malik "knowingly place[d] [S.B.] in a situation that endangered [S.B.'s] life or health, and which resulted in catastrophic injury to [S.B.]" Appellant's App. Vol. 2 at 15.
[¶26] "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." Ind. Code § 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) (citing Scruggs v. State, 883 N.E.2d 189, 191 (Ind.Ct.App. 2008), trans. denied). To amount to neglect, however, the danger in which the dependent is placed must be "actual and appreciable." White v. State, 547 N.E.2d 831, 835 (Ind. 1989). Further, because a finding that the defendant "knowingly" placed the dependent in a dangerous situation "requires the factfinder 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." Villagrana, 954 N.E.2d 466.
[¶27] Here, however, the charging information did not include any specific factual allegations, such as that Al Malik physically injured S.B. or that she committed neglect by placing S.B. in Bland's care. Instead, the State's theory, as demonstrated by its opening and closing arguments and the evidence it presented at trial, was that Al Malik failed to seek prompt medical attention for S.B. after she noticed his enlarged head and sundowning eyes. The State also presented evidence that a kick to an infant's head could cause the types of injuries that S.B. suffered.
See Tr. Vol. 2 at 26-27 (State's opening argument) ("What the evidence is going to show is that for weeks [Al Malik] saw the sunsetting eyes, she saw the head growing larger. [S.B.] wasn't crying. And [Al Malik] did nothing. If not for the medical intervention, he would have died."); see also Tr. Vol. 3 at 142, 153-54 (State's closing argument) ("She knew her son was in trouble and that something was wrong with him. She knew that she should have taken him to the doctor sooner. ... For two weeks she saw the sundowning eyes, the head getting bigger, noticed the lack of crying, and she did nothing.").
[¶28] On appeal, Al Malik challenges the sufficiency of the evidence on two fronts: (1) "the State failed to show the need for medical care was actual and apparent and [Al Malik] was actually and subjectively aware of that need"; and (2) "the State presented no evidence that failing to seek medical attention sooner proximately caused [S.B.'s] injuries or exacerbated his existing injuries[.]" Appellant's Br. at 12, 15.
Section 1.1 - The State presented sufficient evidence for the jury to find that Al Malik was actually and subjectively aware that S.B. needed medical attention.
[¶29] "When the allegation of neglect is the failure to provide medical care, the State must show that the need for medical care was actual and apparent and the accused was actually and subjectively aware of that need." C.T. v. State, 28 N.E.3d 304, 307 (Ind.Ct.App. 2015) (citing Fout v. State, 619 N.E.2d 311, 313 (Ind.Ct.App. 1993)), trans. denied. "'When there are symptoms from which the average layperson would have detected a serious problem necessitating medical attention, it is reasonable for the jury to infer that the defendant knowingly neglected the dependent.'" Patel v. State, 60 N.E.3d 1041, 1051-52 (Ind.Ct.App. 2016) (quoting Mitchell v. State, 726 N.E.2d 1228, 1240 (Ind. 2000), abrogated on other grounds by Beattie v. State, 924 N.E.2d 643 (Ind. 2010)).
[¶30] To support her argument that the State failed to present sufficient evidence to prove beyond a reasonable doubt that she was subjectively aware of S.B.'s need for medical attention, Al Malik relies on C. T., 28 N.E.3d 304, where we reversed the mother's conviction for neglect of her infant son on grounds of insufficient evidence. Id. at 309. The facts of the case were that while C.T. was at work, her live-in boyfriend beat the infant repeatedly, causing fatal injuries. Id. C.T., ignorant of what her boyfriend had done, came home late in the evening and went to bed after only glancing into her son's bedroom to check on him. Id. Around noon the next day, C.T. found the infant dead in his bedroom. Id.
[¶31] The State obtained C.T.'s conviction on the theory that she knowingly withheld medical care from her son. Id. at 308. We reversed, finding that the State presented "no evidence" that C.T. subjectively became aware that her sleeping one-year-old son needed medical care before he died. Id. at 307. We concluded:
[T]he jury simply was not provided evidence that [C.T.] inflicted an injury, was present when injury was inflicted, heard the infliction of injury, or saw manifestations of an injury necessitating medical care.... The inference-stacking [required to find the mens rea ] without establishment of a predicate fact ... is not constitutionally adequate [proof beyond a reasonable doubt].Id. at 309.
[¶32] Al Malik's reliance on C.T., however, is misplaced. Here, unlike in C.T., the State presented sufficient evidence to support a finding that Al Malik had actual awareness that S.B. needed medical attention. The evidence most favorable to the jury's verdict establishes that Al Malik admitted that sometime in September 2021, she kicked S.B. in the head while engaging in horseplay with Bland. Around September 15, Al Malik noticed that S.B. had developed a red spot in the white of his eye, but she did not take the child to the pediatrician to have the spot examined.
[¶33] In mid-October, Al Malik noticed that S.B.'s eyes were "looking down" but did not bring the condition to anyone's attention. Tr. Vol. 3 at 79. Morris, the pediatric nurse practitioner who examined S.B. after he was admitted to the hospital for the seizure, testified that to a layperson, the sundowning eyes would have appeared "very abnormal." Tr. Vol. 2 at 61. By October 18, S.B.'s enlarged head was "gradually gaining" Al Malik's attention, and the following day, Al Malik sent a text message to Bland, joking about the size of S.B.'s head. Id. at 114. One day before S.B. seized, Al Malik exchanged text messages with Bland expressing her concern regarding S.B.'s troubling behavior. Yet, she did not seek medical attention for the child. Two days later, after S.B. had been hospitalized and undergone surgery for his severe injuries, Al Malik sent text messages admitting that she was aware of S.B.'s enlarged head and sundowning eyes, that she "knew some[thing] was wrong" with S.B., and that she "wish[ed that she] would've reacted way sooner[.]" Ex. Vol. 4 at 183. This evidence was sufficient for the jury to find that S.B.'s need for medical care was actual and apparent such that Al Malik was subjectively aware of the need.
Section 1.2 - The State presented sufficient evidence to prove beyond a reasonable doubt that Al Malik's kick to S.B.'s head and her failure to seek medical attention for S.B. resulted in the child's catastrophic injuries.
[¶34] Al Malik also contends that the State presented insufficient evidence to prove causation as to S.B.'s catastrophic injuries. According to Al Malik, the State offered no evidence that her failure to seek medical attention for S.B. "the day she noticed the sundowning eyes" resulted in the child's injuries or that failure "to seek medical attention sooner proximately caused [S.B.'s] injuries or exacerbated his existing injuries." Appellant's Br. at 15. Al Malik argues that the "sundowning eyes were the result of trauma [that had] already [been] inflicted." Id. And Al Malik maintains that "[n]owhere in the State's evidence .. . did it ever show that [S.B.] would not have been injured or [would have] been injured to a lesser degree if [Al Malik had] sought medical attention sooner." Id.
[¶35] As noted previously, to convict Al Malik of level 1 felony neglect of a dependent, the State was required to prove that the neglect resulted in catastrophic injury. See Ind. Code § 35-46-1-4(a)(1), -(b)(3). "Catastrophic injury" is defined as a bodily injury "so severe that a person's ability to live independently is significantly impaired for a period of at least one (1) year." Ind. Code § 35-31.52-34.5. Catastrophic injury includes an "intellectual disability." Id. The "results in" language of the neglect statute "implicates proximate causation." Patel, 60 N.E.3d at 1052. "Proximate cause requires, at a minimum, that the harm would not have occurred but for the defendant's conduct." Hamilton v. Ashton, 846 N.E.2d 309, 316 (Ind.Ct.App. 2006) (citation omitted), clarified on reh'g, 850 N.E.2d 466, trans. denied. Thus, the State was required to prove beyond a reasonable doubt that S.B.'s catastrophic injuries would not have occurred but for Al Malik's actions or inactions.
[¶36] At trial, Al Malik admitted that she kicked S.B. in the head, although she claimed that it was accidental and "[n]ot hard." Tr. Vol. 3 at 94. And she testified that she had used a popular search engine to pose the following query: "[c]an a kick to the head cause hematoma in a newborn." Id. at 93.
[¶37] Dr. Demetris testified that the pressure inside of S.B.'s skull and the "resulting fluid and brain injury" was "caused by ... trauma[.]" Id. at 33. She answered in the affirmative when asked if S.B.'s "pattern of injuries fit within the spectrum of child abuse[.]" Id. at 49. She testified that she had diagnosed S.B. with abusive head trauma and that "[a]busive head trauma is a form of nonaccidental trauma." Id. at 58. And regarding the bleeding that S.B. suffered in the lining of his brain, the subdural hematomas, Dr. Demetris explained:
[S]o working from the fact that my diagnosis was abusive head trauma, ... the mechanisms that cause subdural hematomas, specifically in abusive cases, include a lot of things, specifically [a]n impact to the head and potentially acceleration, deceleration forces applied about the head. Something could be a combination of those things, it could be more than one incident, it could be multiple incidents. But essentially it's forces, severe forces applied about the head that result in tearing of the blood vessels that are running through that dura, that lining of the brain, that then causes the bleeding to occur and to create that space that we call subdural hematomas.Id. at 50-51. When asked if it was "possible that kicking an infant in the head could cause hematomas of this nature[,]" Dr. Demetris answered, "Yes." Id. at 51.
[¶38] Dr. Demetris further testified that she could not "say for sure" that the "trauma [that S.B. suffered] caused [the] brain damage and that possibly some delay in healthcare caused more brain damage than would have been present if [S.B.] had just had the trauma." Id. at 63. However, it was the role of the factfinder to weigh evidence and evaluate witness credibility. See Drane, 867 N.E.2d at 146 ("It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction."). Here, based upon the medical testimony, the nature of S.B.'s injuries, and Al Malik's admissions, the jury could reasonably conclude beyond a reasonable doubt that but for Al Malik's actions, the kick to the head, and inactions, her failure to seek medical attention for S.B., S.B. would not have suffered catastrophic injuries. In sum, the State presented sufficient evidence to sustain Al Malik's conviction.
Section 2 - The trial court did not commit fundamental error in responding to the jurors' questions because Al Malik expressly agreed to the responses, and thus any error was invited.
[¶39] Al Malik contends that the trial court erred by not further instructing the jury in response to the two questions submitted during deliberations. The trial court has discretion in instructing the jury, and we will reverse only when the instructions amount to an abuse of discretion. O'Connell v. State, 970 N.E.2d 168, 172 (Ind.Ct.App. 2012). To constitute an abuse of discretion, the instructions given must be erroneous, and the instructions taken as a whole must misstate the law or otherwise mislead the jury. Id.
[¶40] On appeal, Al Malik acknowledges that she did not object at trial to the court's responses. Thus, her claim on appeal is waived. See Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011) (noting that a defendant who fails to object to an instruction at trial waives any challenge to that instruction on appeal). Al Malik attempts to avoid the effect of her waiver by arguing that the trial court's responses constituted fundamental error. As explained by our supreme court in Baker:
The fundamental error doctrine provides a vehicle for the review of error not properly preserved for appeal. In order to be fundamental, the error must represent a blatant violation of basic principles rendering the trial unfair to the defendant and thereby depriving the defendant of fundamental due process. The error must be so prejudicial to the defendant's rights as to make a fair trial impossible. In considering whether a claimed error denied the defendant a fair trial, we determine whether the resulting harm or potential for harm is substantial. Harm is not shown by the fact that the defendant was ultimately convicted. Rather, harm is determined by whether the defendant's right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he would have been entitled.Id. at 1178-79 (citations omitted).
[¶41] After the jury retired to deliberate, the trial court received two questions from the jury. First, the jury asked, "[C]an we base whether someone ['knowingly'] did something based on [what] a ['reasonable'] person would know?" Tr. Vol. 3 at 171. And second, the jury asked, "[W]hen determining the knowingly threshold do we need to believe the Defendant knew that by delaying the care there would be negative health outcome or a high probability of a negative health outcome?" Id. at 172. The trial court conferred with counsel for both parties and then proposed two responses. Both parties' counsel ultimately agreed to the following response to the first question: "[N]o, please re-read your instructions and consider all of your instructions together, specifically re-read Instructions 4 and 5." Id. at 176. Final instruction 4 set forth the elements the State had to prove before the jury could convict Al Malik of level 1 felony neglect of a dependent resulting in catastrophic injury. Appellant's App. Vol. 2 at 113. Final instruction 5 defined the term "knowingly[.]" Id. at 114. Both counsel agreed to the following response to the second question: "[P]lease reread your instructions and consider all of your instructions together, period." Tr. Vol. 3 at 176. The trial court gave the responses to the jury, which subsequently returned its verdict.
[¶42] As the State points out, Al Malik did not just fail to object to the trial court's responses to the jury's questions; Al Malik's counsel affirmatively approved the responses. When the failure to object is accompanied by an affirmative request, it becomes invited error. Batchelor v. State, 119 N.E.3d 550, 556 (Ind. 2019). Under the doctrine of invited error, which is grounded in estoppel, "a party may not take advantage of an error that she commits, invites, or which is the natural consequence of her own neglect or misconduct." Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005) (quotation and citation omitted). Thus, unlike waiver resulting only from a failure to object, "invited error typically forecloses appellate review altogether." Batchelor, 119 N.E.3d at 556. Therefore, we affirm Al Malik's conviction.
[¶43] Affirmed.
Bradford, J., and Tavitas, J., concur.