PRICE v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Following a nine-day jury trial, Meghan E. Price was convicted of neglect of a dependent resulting in death, a Level 1 felony, for which she was sentenced to thirty-six years. Price's conviction was affirmed on direct appeal. See Price v. State, 119 N.E.3d 212 (Ind. Ct. App. 2019), trans. denied. Price later sought post conviction relief (PCR) based on allegations of ineffective assistance of trial counsel, which the PCR court rejected following a hearing. Price now appeals, claiming that her trial counsel provided ineffective assistance.

[2] We affirm.

Facts & Procedural History

[3] The facts and procedural history were set out by this court on direct appeal as follows:

Price's son, B.P., was ․ born in June 2011. As an infant, B.P. exhibited difficulties in gaining weight and had developmental delays. Subsequent genetic testing revealed that B.P.’s developmental delays were attributed to a condition called Fragile X chromosome. Fragile X is an indicator of autism, and it is associated with lack of impulse control, disruptive behavior, and aggressiveness. Significant developmental delays followed with B.P.’s speech being limited to single words until age four, followed by a limited vocabulary of approximately 25 words. B.P. also had a history of self-injurious behavior.

On July 14, 2014, an officer from the Morgan County Sheriff's Department was dispatched to Price's residence after receiving a report of a domestic dispute. Price informed the officer that B.P. had incurred some bruising while in the care of her boyfriend, Steven Ingalls (Ingalls). Ingalls was not present when the officer arrived. During the visit, the officer noted that B.P. had a scratch above his ear, a bruise to the right side of his forehead, and a purple bruise on his cheek. Price indicated that the domestic dispute resulted following a verbal altercation with Ingalls regarding B.P.’s injuries. After taking pictures of B.P.’s injuries, the officer left but reported the incident to the Department of Child Services (DCS). Price thereafter notified her family members and friends that Ingalls had moved out and she did not intend on dating him again. A few months later, Price and Ingalls resumed their relationship.

On November 18, 2015, Price called St. Vincent Hospital pediatric emergency department claiming that B.P. had ingested an unknown substance at a grocery store, had dilated eyes, and a low heart rate. Price stated that she was on her way to the hospital. Ingalls went with Price. While treating B.P., the attending nurse instructed Price to change B.P. into a gown. As the nurse was inquiring about B.P.’s medical history, she noticed that B.P. had “quite a bit of scratches on his face and neck and bruising all over his body.” Based on B.P.’s injuries, the attending nurse contacted a social worker, who in turn interviewed Ingalls and Price. During the interview, Ingalls was “dismissive,” and at “one point, he stormed out of the room” but later returned to finish the child abuse assessment.

On December 1, 2015, B.P. began preschool at Waverly Elementary School. On B.P.’s third day of school, Price informed the teacher that B.P. had injured his penis with his zipper. While changing B.P.’s diaper that day, the teacher observed the head of B.P.’s penis “was extremely bruised.” As the school year progressed, B.P. missed school with unexcused absences on twenty-five days. B.P. would return from those absences with new injuries, and Price would offer an explanation. The school nurse documented B.P.’s injuries as follows: multiple bruises on December 15, 2015; a large knot on his head on February 1, 2016; various bruises on his head including a “large green bruise on left forehead with a large knot” and eyelid bruising on February 11, 2016; bruises “all over [the] sides [of his] head” and other bruises all over his body “in various stages of healing” on March 3, 2016. In February 2016 and March 2016, the school contacted DCS about the injuries.

In the fall semester of 2016, B.P. had a total of nineteen absences. The school nurse continued to document B.P.’s injuries: Pinch marks all over his penis; pinch like “bruise on his left ear,” and “busted lip.” In September 2016, B.P. was treated for a broken arm and for a face laceration. The school bus driver also saw Price threaten “to pop [B.P.] right in the mouth” for using foul language. In October 2016, B.P. was withdrawn from the school. Price conveyed to a friend that she was homeschooling B.P. since she was “over the crap” of B.P.’s school reporting her to DCS regarding B.P.’s injuries.

On November 8, 2016, B.P. was seen at St. Vincent Hospital for a lip laceration and underwent surgery two days later. On November 15, 2016, Price took B.P to St. Vincent Hospital yet again since he was having trouble breathing. The treating physician did not observe breathing difficulties in B.P., but he noticed that B.P. had bruising underneath both eyes. During a follow up appointment on November 22, 2016, B.P. was diagnosed with asthma and a sinus infection.

On November 23, 2016, at approximately 10:00 a.m., an unidentified male voice called 911 and reported that there was an unconscious, unresponsive child that was not breathing at Price's apartment. Moments later, emergency trained technicians (EMTs), firefighters, and police arrived at Price's apartment building. Ingalls was observed “walking around” like a “complete bystander” with “no emotion” holding his infant son and B.P.’s younger brother. EMTs then heard someone yell for help inside the building. The EMTs found B.P. who was unconscious at the bottom of the common stairway. When the EMTs asked Price what had happened, Price said that B.P. went to bed at 8:30 p.m. the night before, and that shortly before 911 was called, she checked on him and found him unresponsive.

The EMTs attempted CPR but were unable to open B.P.’s jaw. After efforts to set up an airway failed, they placed an oxygen mask over B.P.’s mouth and nose. One of the EMTs then picked up B.P. and carried him to the ambulance. Inside the ambulance, the EMTs inserted an IV and gave B.P. one dose of “epinephrine,” and they arrived at the hospital shortly thereafter.

Detective Chad Richhart (Detective Richhart) of the Mooresville Police Department arrived as the ambulance was leaving with B.P. Because Price and Ingalls could not ride with B.P. in the ambulance, Detective Richhart and another officer transported them to the hospital. Price was barefoot, and she went back to the apartment to retrieve her shoes before going to the hospital. Price's neighbor, Tiffany Hall, Ingalls, and Detective Richhart followed Price to the apartment. Detective Richhart stood by the apartment's doorway. While waiting for Price to get ready, Detective Richhart “saw [Price] once or twice come up and down the hallway [and] into the living room” and ask Ingalls “where is the camera card, where is the camera card?” Detective Richhart rode with Ingalls, while Price rode with the other officer to the hospital.

At the hospital, Price and Ingalls made inconsistent statements regarding B.P.’s mouth injury and when B.P. was last seen in his normal state. For example, Price informed a family friend at the hospital that “when the EMTs tried to intubate [B.P] ․ they ripped his lip open.” Price later informed that same friend that she had found B.P. “unresponsive, hanging over the side of his bed,” and that she carried him to the living room and then “used a flathead screwdriver to pry his mouth open so she could” administer CPR on him.

As soon as Detective Richhart dropped Ingalls off at the hospital, he went back to the apartment. After briefly talking to another officer at the scene, Detective Richhart determined that Price's apartment was not secure. Also, Detective Richhart hoped that the walkthrough could be helpful to detect any apparent dangerous substances that B.P. might have ingested, and he intended to convey that information to the doctors who were treating B.P. During his walkthrough, Detective Richhart saw some blood on the bedding in B.P.’s bedroom, and on the bedroom floor carpet. Shortly thereafter, Detective Richhart and the other officer exited Price's apartment. At approximately 10:38 a.m., Detective Richhart received a call from the hospital that B.P. had died.

Detective Richhart instructed another officer to seek a search warrant for the apartment. After the warrant was issued, the officers began processing Price's apartment for evidence. In B.P.’s bedroom, the officers found a blood spot on the carpet, and inside the closet. They recovered a “green pillow that also had some blood and a greenish fluid” which seemed like vomit. The officers also found a flathead screwdriver on a table that had blood. The officers also documented the medications in the apartment and counted the pills.

At around 11:00 a.m., Ingalls and Price returned to the apartment, and Price was furious that the officers were conducting a search of her apartment and could not let her inside. While searching B.P.’s bedroom, the officers located a camera by B.P.’s bed. Detective Richhart went outside and asked Price how the camera worked, and Price said that it “sort of” ran “like a monitor” and that it recorded video footage and sent it to “an app” on Price's cellphone. Detective Richhart asked Price if he could have her phone, and Price indicated that it was in the house. Detective Richhart eventually found Price's cellphone in Price's bedroom, but it had no power. Detective Richhart took the phone to Price, who was sitting outside the apartment in a vehicle, to seek help.

After the phone had powered, Price informed Detective Richhart that she needed to check several things on her phone. Detective Richhart informed Price that he “didn't want her accessing the phone at that time.” After about “twenty or thirty seconds” of Price “actively ․ hitting the screen,” Detective Richhart reached into the car and grabbed the cellphone from Price. Detective Richhart then ordered another officer to obtain a warrant to search Price's cellphone.

B.P.’s autopsy revealed that he was a “very frail” five-year-old weighing about thirty-five pounds. B.P.’s cause of death was determined to be asphyxiation and the effects of elevated levels of several medications. The toxicology report revealed that B.P. had “very elevated levels” of two medications—Sertraline and Clonidine. Sertraline is an antidepressant which, in high doses, can cause “depression of the respiratory system.” Clonidine is a blood pressure medication which treats anxiety and it can cause the lowering of “blood pressure.” Also, the toxicology report showed that Risperidone, a prescribed drug that treats schizophrenia, was found in B.P.’s body. When the three drugs are used together, they can cause drowsiness, sleepiness, and low blood pressure.

By another search warrant, Price's phone was searched. There were several texts messages between Price and Ingalls. On November 12, 2016, two weeks before B.P. died, Price and Ingalls exchanged a long series of text messages that discussed B.P. Ingalls wrote to Price stating

I hate your son, he is nothing but a troublemaking worthless excuse for a retard[ ] down to his DNA core malnutritioned ugly should[’]ve been cum stain that needs to rot in a mental institution playing with his own feces and pissing on himself while the nursing staff beats him until he's deaf dumb and motionless. I want to buy a ticket to the moment he takes his last breath, so I can be the last thing he sees as I rip his jawbone off of his face and personally cut his brainstem in half just to make sure not one more stupid fucking thought processes in his two-celled fucking brain. He'll never have a dad bc no one in their right fucking mind will ever stay around more than 5 minutes around that fucked up kid that [can't] go 2 days without bashing his own face into [ ] whatever he can so mommy will love on him. Lol, kill him while he's young and do something with your life before he robs you of any chance of ever being happy or being anything other than a stay at home [retard] caretaker.

In response, Price wrote

He's not ruining my life, [I'll] run for the fucking hills before [I] stay stressed my entire life or kill him in such a violent way that the news can't even describe the scene without throwing up. I'm not going to prison over that little scrawny hand-flapper.

Two days after Price sent the above text to Ingalls, she conducted an internet search on her phone for information about Risperidone overdose. DNA testing also revealed that the blood spots found on the green pillow and carpet belonged to B.P. B.P.’s DNA was also found on the flathead screwdriver found inside Price's home.

On June 23, 2017, the State filed an Information, charging Price with Count I, conspiracy to commit murder, a Level 1 felony; Count II, neglect of a dependent resulting in death, a Level 1 felony; and Count III, neglect of a dependent resulting in bodily injury, a Class C felony. The State later amended the charges to Count I, conspiracy to commit murder, a Level 1 felony; Count II, neglect of a dependent resulting in death, a Level 1 felony; and Count III, neglect of a dependent resulting in serious bodily injury, a Level 3 felony. The State later dismissed the Level 1 felony conspiracy to commit murder.

On May 25, 2018, Price filed a motion to suppress evidence from the search of her apartment and the search of her cell phone. Price argued that the search warrant for the apartment was obtained based on information learned during an unlawful walk-through of the apartment. With regard to the phone, Price argued it was improperly seized and the search warrant was not supported by probable cause. On May 26, 2018, the State filed a responsive motion, and after an evidentiary hearing, the trial court denied Price's motion.

A jury trial was held on June 1 through June 12, 2018. At trial, Price renewed her motion to suppress but it was denied. At the close of the evidence, Price was found guilty of Level 1 felony neglect of a dependent resulting in death and Level 3 felony neglect of a dependent resulting in serious bodily injury. On June 26, 201[8], the trial court conducted a sentencing hearing, merged the Level 3 felony neglect of a dependent resulting in serious bodily injury into the Level 1 felony neglect of a dependent resulting in death. The trial court then sentenced Price to a term of thirty-six years in the Department of Correction.

Price, 119 N.E.3d at 215-19 (internal record citations and footnote omitted).

[4] On direct appeal, Price challenged whether the trial court abused its discretion by admitting evidence obtained from her apartment and her cell phone based on her claims that those searches violated her state and federal privacy rights. This court affirmed her conviction, finding that exigent circumstances supported the entry into her apartment and that the search of her phone was properly conducted pursuant to a search warrant. Our Supreme Court denied Price's request for further review.

[5] In addition to the above facts, other evidence from Price's trial is relevant to these proceedings, including more text messages that Price sent to Ingalls in which she referred to seeing Ingalls punch B.P, accused Ingalls of threatening to hurt B.P. or wanting him dead, and accused him of using heroin and stealing money from her. Less than two weeks before B.P.’s death, Price texted Ingall's sister that she had kicked out Ingalls after catching him hovering over B.P. while holding a long pipe that Ingalls admitted he planned to use on B.P.’s head.

[6] Also at trial, the jury was provided with two statements Price made to police in which she discussed her care of B.P., such as how she took him to doctor's appointments, gave him his medications, handled his tantrums, and did other things to keep him safe. Price's father testified that Price exhibited appropriate mothering skills in taking care of B.P. and that he never observed Price inappropriately punish B.P. Price's sister also testified that at one point she had been close with B.P. and that she had reported her suspicion that Ingalls was abusing B.P. to DCS. After Price learned that her sister had called DCS, Price refused to allow her sister to see B.P.

[7] The toxicology report admitted at trial is also relevant. It noted that the recommended therapeutic range for Clonidine is between 1.0 to 2.0 ng/mL, that the normal prescribed daily dosage ranges from 0.2 mg to a maximum of 2.4 mg with the high end “rarely employed,” and that “sedation and sleep” is caused by normal use. Direct Appeal Exhibit 137 (Exhibit Vol. 1 at 150). B.P. was prescribed 0.1 mg tablets to be taken up to three times a day as needed, and Price told police that she gave B.P. one pill daily, at night. B.P.’s post-mortem toxicology report showed B.P.’s Clonidine level was 7.8 ng/mL, or nearly four times the maximum therapeutic range. At trial, the pathologist explained that the high levels of Clonidine, along with elevated levels of other prescribed medications, “could” have caused B.P. to not resist the smothering because “somebody that's drowsy, sleepy, is less likely to defend themselves accurate[ly] and aggressively.” Direct Appeal Transcript Vol. V at 105.

[8] In her PCR Petition, Price raised the three claims of ineffective assistance of trial counsel. She argued that trial counsel was ineffective (1) by failing to present character evidence about how she acted as a mother toward her son, B.P., (2) by failing to tender a final instruction on mistake of fact and/or accident as a defense to whether she had knowingly overdosed B.P, and (3) by not tendering or requesting a more specific unanimity instruction. Price also argues that cumulative errors denied her the effective assistance of trial counsel. On January 29, 2024, the court held an evidentiary hearing on the PCR petition. At the hearing, Price submitted a copy of the direct appeal record, as well as testimony from her trial counsel Ryan Dillon, several family members, a childhood friend, and Ingall's sister. Aside from Dillon, the substance of the testimony from the witnesses was that Price was a good mother to B.P. On March 4, 2024, the court entered its order denying Price's request for PCR. Price now appeals. Additional facts will be provided as necessary.

Discussion & Decision

[9] Post-conviction proceedings are not a “super appeal.” Barber v. State, 141 N.E.3d 35, 41 (Ind. Ct. App. 2020), trans. denied. They provide a narrow remedy to raise issues that were not known at the time of trial or were unavailable on direct appeal. Id. The petitioner must establish her claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). A petitioner who has been denied relief faces a rigorous standard of review. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

To prevail, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. When reviewing the post-conviction court's order denying relief, we will not defer to the post-conviction court's legal conclusions, and the findings and judgment will be reversed only upon a showing of clear error—that which leaves us with a definite and firm conviction that a mistake has been made. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses.

Barber, 141 N.E.3d at 41 (internal quotations and citations omitted).

[10] To prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel's performance was deficient, and (2) counsel's performance prejudiced the defendant. Id. at 42. A showing of deficient performance “requires proof that legal representation lacked ‘an objective standard of reasonableness,’ effectively depriving the defendant of his Sixth Amendment right to counsel.” Gibson v. State, 133 N.E.3d 673, 682 (Ind. 2019) (quoting Overstreet v. State, 877 N.E.2d 144, 152 (Ind. 2007)). We strongly presume that counsel exercised “reasonable professional judgment” and “rendered adequate legal assistance.” Id. Defense counsel enjoys “considerable discretion” in developing legal strategies for a client. Id. This “discretion demands deferential judicial review.” Id. Finally, counsel's “[i]solated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Id. To meet the test for prejudice, the petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. Failure to satisfy either prong will cause the claim to fail. Conley v. State, 183 N.E.3d 276, 283 (Ind. 2022) (quotation omitted).

1. Failure to Call Character Witnesses

[11] Price first argues that trial counsel rendered ineffective assistance by failing to call witnesses who would have testified about positive aspects of her behavior towards B.P. A decision regarding what witnesses to call is a matter of trial strategy which courts will not second-guess. Brown v. State, 691 N.E.2d 438, 447 (Ind. 1998); see also Wrinkles v. State, 749 N.E.2d 1179, 1200 (Ind. 2001) (stating that the decision of which witnesses to call is “the epitome of a strategic decision”) (citation omitted).

[12] Price contends that her trial counsel rendered ineffective assistance by not calling as witnesses her mother, her grandparents, a childhood friend, and Ingall's sister to present positive evidence about her and her parenting of B.P. Each of these witnesses testified at the PCR hearing and the gist of their respective testimonies was that Price was “[v]ery tolerant” of B.P.’s behavioral issues and was the “most patient mother,” “never rais[ing] her voice” and doing everything she could to calm B.P. down when he was throwing a tantrum. PCR Transcript at 40, 32. Price maintains that this evidence would have been relevant at trial “to rebut the negative evidence the State presented.” PCR Appendix Vol. Two at 86.

[13] During the PCR hearing, Price questioned Attorney Dillon about his decision not to present positive evidence about her and her parenting of B.P. As the court found, Attorney Dillon “was quite cogent in his reasoning” as to why he did not call these potential character witnesses. Id. at 146. Dillon explained that at the time of trial, Price's “family relationship ․ was just a train wreck” and he believed “it was going to be a real struggle to get a lot of positive things out” about her parenting as her family did not seem to be in her corner. PCR Transcript at 26. As to Price's grandmother and Price's childhood friend, Attorney Dillon recalled that he decided not to call them as witnesses because they had had limited contact with Price around the time of B.P.’s death. Counsel also recalled that Price, through her statements to police, had adequately described for the jury her care of B.P.—i.e., how she would calm him down, what efforts she took to keep him safe, taking him to countless doctor appointments, and giving him his medications.

[14] The defense theory was to paint Ingalls as the bad actor and Attorney Dillon reasonably decided to not call the character witnesses as they had little or no knowledge of what occurred around the time of B.P.’s death or Ingall's interactions with B.P. Further, given the familial turmoil, it was reasonable for Dillon to not want to risk introducing that added component into the trial. Finally, as counsel noted, Price herself, in her statements to police, had detailed her care of B.P., and he did not believe that the testimony of these witnesses would have provided much more. Dillon clearly had a strong strategic basis for not calling these character witnesses. Accordingly, Price has not established that Dillon's performance in this regard fell below an objective standard of reasonableness.

2. Failure to Tender Mistake of Fact Instruction

[15] Price argues that trial counsel's performance was deficient because he did not tender an instruction on mistake of fact as a defense to the State's argument that she overdosed B.P. with his prescription medications, specifically, Clonidine. To prevail on this claim, Price must prove that she was entitled to the defense and that she was prejudiced when the jury was not instructed on the defense. See Potter v. State, 684 N.E.2d 1127, 1135 (Ind. 1997) (citing Smith v. State, 547 N.E.2d 817, 820 (Ind. 1989)). “A defendant is entitled to an instruction on any defense which has some foundation in the evidence.” Id. Indiana has long recognized that an honest and reasonable mistake concerning a fact excuses criminal conduct which would not be criminal if the fact had been as the defendant reasonably believed. Tyson v. State, 619 N.E.2d 276, 294 (Ind. Ct. App. 1993), trans. denied. For mistake of fact to be a valid defense, three elements must be satisfied: (1) that the mistake be honest and reasonable; (2) that the mistake be about a matter of fact; and (3) that the mistake negate the culpability required to commit the crime. Potter, 684 N.E.2d at 1135 (citing Smith v. State, 477 N.E.2d 857, 863 (Ind. 1985)).

[16] As the PCR court found, Price failed to identify any trial evidence “that the administration of B.P.’s medications was based upon a misunderstanding of dosages or any possible mistake on Price's part.” Appellant's Appendix Vol. Two at 149. Attorney Dillon testified that he did not believe a mistake of fact instruction would have been proper because Price “didn't really admit that she did anything wrong.” Transcript at 12. Indeed, the evidence at trial was that Price gave B.P. one Clonidine pill each night to help him sleep.

[17] Other testimony presented at trial included police recounting two recorded calls between Price and Ingalls where Price expressed concern that the toxicology report would show elevated levels of Clonidine.¹ Further, the number of pills remaining in B.P.’s prescription bottle was largely inconsistent with Price's post-conviction claim that she believed B.P. was to receive more than one pill a day. The search of Price's phone also showed that in the days before B.P.’s death, Price had researched Risperidone overdoses.² Additionally, the toxicology report showed that B.P. had nearly four times the therapeutic level of Clonidine in his system at the time of his death. Price's claim that counsel should have requested a mistake of fact instruction is wholly unsupported by the evidence that was presented at trial.

[18] We also reject Price's argument that her claimed mistake would negate her culpability. First, even accepting as true Price's post-conviction claim that she was not informed of the need to limit the administration of Clonidine or was misinformed of the proper manner in which to administer it to B.P., there is nothing in the trial record or PCR record showing that following the prescribed instructions of up to three Clonidine pills a day could have created the toxicological result, which, as noted above, showed what that B.P.’s Clonidine level was nearly four times the maximum therapeutic range. Any confusion as to dosage would not explain this result.

[19] Second, as Attorney Dillon noted, the elevated level of Clonidine in B.P.’s system was deemed only a contributing factor in B.P.’s death,³ and a mistake of fact instruction was not applicable as a defense to asphyxiation. Thus, he properly believed that Price would not have been entitled to a mistake of fact instruction as Price's now-claimed mistake would not have negated her culpability. Given the evidence, Attorney Dillon made reasonable strategic choices to otherwise address the Clonidine evidence ⁴ and to focus on distancing Price from the act of asphyxiation.

[20] In light of the foregoing, Price failed to meet her burden to show that competent representation required seeking a mistake of fact instruction concerning administration of B.P.’s Clonidine medication.

3. Failure to Request a More Specific Unanimity Instruction

[21] Price argues that her counsel was ineffective for failing to require a more specific jury instruction concerning the requirement of a unanimous jury verdict. In Indiana, a guilty verdict in a criminal case “must be unanimous.” Baker v. State, 948 N.E.2d 1169, 1173-74 (Ind. 2011). We require unanimity “as to the defendant's guilt,” but not as to the “theory of the defendant's 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 that 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).

[22] By contrast, “the State may allege alternative means or ‘theories of culpability’ when prosecuting the defendant for a single offense.” Vest v. State, 930 N.E.2d 1221, 1225 (Ind. Ct. App. 2010). “In essence the State is permitted to ‘present[ ] the jury with alternative ways to find the defendant guilty as to one element.’ ” Baker, 948 N.E.2d at 1175 (quoting Cliver v. State, 666 N.E.2d 59, 67 (Ind. 1996)); see also Taylor, 840 N.E.2d at 333-34 (“It is settled that as long as each juror is convinced beyond a reasonable doubt that the defendant is guilty of murder as that offense is defined by statute, it need not decide unanimously by which theory he is guilty.”) (citation omitted). In other words, although there must be jury unanimity “as to the defendant's guilt,” jury unanimity “is not required as to the theory of the defendant's culpability.” Taylor, 840 N.E.2d at 333; see also Benson v. State, 73 N.E.3d 198, 201 (Ind. Ct. App. 2017), trans. denied.

[23] Here, although the State did not designate a specific act of neglect in charging Price,⁵ no specific unanimity instruction was required because the State did not present evidence of “entirely separate criminal incidents.” See Baker, 223 N.E.3d at 1146. The ultimate question was whether Price's neglect, i.e., placing B.P. in a situation that endangered his life or health, resulted in B.P.’s death by asphyxiation. While the State presented several theories of culpability—whether by over-medicating B.P.,⁶ by failing to protect B.P. from Ingalls knowing his history of abuse, or by aiding Ingalls in the killing—the State did not present evidence of entirely separate criminal incidents such that a specific unanimity instruction was required. Trial counsel did not render deficient performance when he did not request a specific unanimity instruction. Moreover, there is overwhelming evidence that Price's neglect resulted in B.P.’s death and no reasonable probability that requesting a more specific juror unanimity instruction would have changed the outcome.

4. Cumulative Error

[24] Price was entitled to a fair trial, not a perfect trial.” Myers v. State, 887 N.E.2d 170, 175 (Ind. Ct. App. 2008), trans. denied. Herein, we rejected her claims that counsel provided deficient performance by not presenting character evidence showing her in a positive light, not requesting a mistake of fact instruction, and not requesting a more specific unanimity instruction. Price has therefore not shown she was denied her right to a fair trial or her right to complete justice based on trial counsel's representation. Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014). She is not entitled to reversal of her conviction based on cumulative error. See id.

[25] Judgment affirmed.

FOOTNOTES

1.   The toxicology report showed that B.P. also had Risperidone and elevated levels of Sertraline in his body at the time of his death.

2.   Risperidone has a synergistic effect that would have added to the effects of Clonidine and Sertraline.

3.   Attorney Dillon presented expert testimony that Risperidone overdoses were rare, and therefore, he was not as concerned with the toxicology report as he was with addressing asphyxiation as being the cause of death.

4.   Attorney Dillon presented expert testimony that it would be a rare occurrence for death to result from an overdose of Clonidine.

5.   The charging information alleged that Price “did knowingly place” B.P. “in a situation that endangered [his] life or health, which resulted in [his] death.” Direct Appeal Appendix Vol. 2 at 165.

6.   The gist of the State's argument was that Price's over-medication of B.P. made it easier to suffocate B.P. and not that B.P.’s death was caused directly by the overdose.

Altice, Chief Judge.

Bailey, J. and Mathias, J., concur.