SCHONABAUM v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] A jury convicted David Schonabaum of one count of Level 3 felony neglect of a dependent resulting in serious bodily injury,¹ and two counts of Level 6 felony neglect of a dependent.² He appeals the trial court's refusal to instruct the jury on a lesser-included offense of the Level 3 felony charge. We affirm.

Facts and Procedural History

[2] Schonabaum lived in a two-bedroom home with his wife Angel; their son, six-month-old T.S.; Angel's two other children from a prior relationship, six-year-old R.W. and four-year-old A.L.; and Angel's adult sister and her two minor children, five-year-old A.F. and two-year-old J.H. T.S. slept in a bassinet in the primary bedroom. Schonabaum called emergency services on the morning of September 13, 2023, when he found T.S. covered in blood with his fingers “chewed up.” Tr. Vol. 2 at 53. When first responders arrived, they found T.S. “completely exhausted ․ in shock ․ like he was cried out at that point.” Id. at 72. Schonabaum informed first responders he had a rat problem at the property. T.S.’s injuries were extensive and consistent with rodent bites.

[3] He had bite marks on his forehead, cheeks, and mouth, in addition to lacerations on his head, legs, and feet. Rodents partially separated the tip of one of his left-hand fingers. His right-hand was especially “gruesome,” “recognizable as a hand only after a few seconds of orientation.” Id. at 103; 166. Several of his fingertips were missing, at least one of which had an exposed bone. T.S. suffered significant blood loss and paramedics found him in “compensated shock,” a potentially life-threatening condition which interferes with blood flow to core organs. Id. at 78–79. He was transported to multiple medical facilities and had to undergo surgery. He suffered permanent loss of functionality to his right hand.

[4] A Department of Child Services (“DCS”) employee arrived at the Schonabaum home on September 13. Schonabaum admitted to struggling with a rat problem at his home. He explained that, outside of the basement, the primary bedroom closet is where he had the most problem with rats. The DCS employee noted the room was cluttered and had trash on the floor. The rest of the house was littered with trash, and there were rat feces all over, but especially in the basement. Because of the severity of T.S.’s injuries and poor sanitary conditions, DCS removed all children from the home.

[5] The State charged Schonabaum with Level 3 felony neglect of a dependent resulting in serious bodily injury to T.S. The State also charged him with two counts of Level 6 felony neglect of R.W. and A.L. During trial, the State presented evidence of living conditions in Schonabaum's home before the rodent attack on T.S.

[6] DCS had been involved with the family since December 2022. DCS arranged for the company Maglinger to provide the Schonabaum family with services aimed at improving their home conditions. A former Maglinger employee testified she visited the house once per week and, alongside DCS staff, held regular meetings with Schonabaum where he was counseled regarding ways to keep the house clean. Schonabaum seemed open to doing so. But the witness testified improvements would often be followed by regression. She described the floors as sticky, dirty, and often cluttered. She observed cockroaches, garbage lying around, and animal feces from two family dogs inside the home. She saw at least two mice in the house. The Maglinger employee helped buy cleaning supplies and clean the home on one occasion, but Schonabaum rejected most offers to help with cleaning.

[7] In March 2023, Schonabaum hired Terminix, a pest control company, to address the cockroach infestation. Employees quickly noticed and began dealing with the rodent infestation at the property. Schonabaum told Terminix employees rodents were especially a problem in the basement. A Terminix employee testified she saw animal feces on the floors and trash lying around. She visited the home every month and often discussed with Schonabaum the importance of cleaning to rid the house of pests. She provided traps and bait to Schonabaum to target the rodents because cluttered conditions prevented her from doing so herself. Schonabaum never allowed Terminix employees access to the primary bedroom. Schonabaum ended services with Terminix in August 2023.

[8] Schonabaum's eldest son testified he saw rats during his visits to the home. The manager of R.W.’s and A.F.’s after-school program testified that on September 1, less than two weeks before the rodent attack on T.S., both children complained of pain while walking. The children said mice were eating their toes. The witness observed their feet, which she described as red and dirty, with dried blood on them. She testified a “chunk” or “something was missing from one of R.W.’s toes” and she sent the children to the school nurse. Id. at 232.

[9] After both parties rested their cases-in-chief, Schonabaum asked the trial court to instruct the jury on Level 6 felony neglect of a dependent as a lesser-included offense of Level 3 felony neglect of a dependent resulting in serious bodily injury.³ He did not submit a written instruction for the court to consider. The State argued all the evidence demonstrated T.S. suffered serious bodily injury with no evidence presented to the contrary. The trial court declined to give the lesser-included instruction:

THE COURT: Okay. So the Court ․ will decline to give an included offense on Count 1. Do not feel there is a serious evidentiary dispute on that issue, and so the Court will not instruct on the lesser-included offense. Do we need any other further record before we begin? State?

[PROSECUTOR]: Not from the State, Your Honor.

THE COURT: Defense?

[DEFENSE COUNSEL]: No, Your Honor.

Id. at 248.

[10] The jury found Schonabaum guilty of all counts.

Schonabaum waived review of his claim.

[11] “We review a trial court's manner of instructing the jury for an abuse of discretion.” Owen v. State, 210 N.E.3d 256, 267 (Ind. 2023). When reviewing whether a trial court abused its discretion in declining to give a requested instruction, we consider “(1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given.” Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015) (quoting Guyton v. State, 771 N.E.2d 1141, 1144 (Ind. 2002)). When a defendant asserts error for failure to give an instruction, a “tendered instruction is necessary to preserve error because, without the substance of an instruction upon which to rule, the trial court has not been given a reasonable opportunity to consider and implement the request.” Ortiz v. State, 766 N.E.2d 370, 375 (Ind. 2002) (quoting Mitchell v. State, 742 N.E.2d 953, 955 (Ind. 2001)); see also Ind. Trial Rule 51(C) (“At close of the evidence and before argument each party may file written requests that the court instruct the jury on the law as set forth in the requests.”). When a defendant fails to tender an instruction, he waives review of the issue. See Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011) (citing Ortiz, 766 N.E.2d at 375).

[12] Schonabaum argues the trial court erred in rejecting a lesser-included instruction because there was an evidentiary dispute over whether he committed the offense of neglect of a dependent resulting in serious bodily injury. The State contends he has waived his claim of error because he failed to tender a written instruction on the lesser-included offense for the trial court's consideration. We agree with the State. Schonabaum waived any error in the jury instruction because “without the substance of an instruction” he did not provide the trial court with a “reasonable opportunity to consider and implement the request.” Coy v. State, 999 N.E.2d 937, 943 (Ind. Ct. App. 2013).

[13] A panel of this Court examined a similar question in Garrett v. State, where the defendant was charged with dealing methamphetamine and asserted the trial court erred by declining to instruct the jury on the lesser-included offense of possession of methamphetamine. 964 N.E.2d 855, 856 (Ind. Ct. App. 2012), trans. denied. The State argued the defendant waived her challenge to the trial court's decision not to instruct on the lesser-included offense because the defendant did not submit a written lesser-included instruction for the trial court to review. Id. The panel declined to find waiver because following a “lengthy conversation” between the defendant, the court, and the prosecutor about the request for a lesser-included instruction, it was “apparent from the record the trial court understood the request and was able to consider it fully.” Id. at 857.

[14] Unlike Garrett, the record here shows Schonabaum did not articulate substantive reasons why the trial court needed to instruct the jury on the lesser-included offense of neglect of a dependent. When given the opportunity to respond to the State's argument that the instruction request should be refused, Schonabaum offered no rebuttal. Coupled with the absence of a written instruction, he failed to preserve any error.⁴ Schonabaum argues tendering an instruction was “unnecessary” because the trial court issued the same instruction for the Level 6 felony charges. Appellant's Br. at 18. Even so, Schonabaum's failure to tender a written instruction prevented the court from deliberating on the need for it. The trial court did not have the opportunity to consider and implement Schonabaum's request. See Coy, 999 N.E.2d at 943.

[15] Waiver notwithstanding, the trial court also did not err when it refused Schonabaum's verbal request to instruct the jury on Level 6 felony neglect of a dependent as a lesser-included offense of Level 3 felony neglect of a dependent resulting in serious bodily injury. Following a party's request to instruct the jury on an alleged lesser-included offense of the crime charged, the trial court must “conduct a three-part analysis to determine whether the instruction is appropriate.” Watts v. State, 885 N.E.2d 1228, 1231 (Ind. 2008) (citing Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995)). Only the third part of the analysis ⁵ appears at issue: whether the evidence presented by both parties shows a serious evidentiary dispute about the element or elements distinguishing the greater offense from the lesser one.⁶ Wright, 658 N.E.2d at 567.

[16] Schonabaum's conviction for Level 3 felony neglect of a dependent child resulting in serious bodily injury implicates proximate causation. See Patel v. State, 60 N.E.3d 1041, 1052 (Ind. Ct. App. 2016) (interpreting the similarly phrased “results in the death of a dependent”), trans denied. The thrust of his argument is that the rodent attack on T.S. was an unforeseen event and so he was not the proximate cause of the harm T.S. suffered.⁷ Not so.

[17] The rodent attack on T.S. was foreseeable. The State presented evidence of the unsanitary environment at the Schonabaum house. At least eight people inhabited the two-bedroom property. Employees of DCS, Maglinger, and Terminix all testified to seeing dirty floors, garbage lying around, dog feces on the floors, mice, and cockroaches during their visits. Schonabaum knew he had a rat problem; he told first responders and the Terminix pest technician he did. He received traps and assistance to rid the home of pests but failed to make substantial progress. His eldest son testified to seeing rats during visits, and R.W. and A.F. suffered injuries consistent with rodent bites before the incident on September 13. And Schonabaum kept pest control experts from accessing and treating the primary bedroom, where T.S. regularly slept. Because we cannot agree the rodent attack on T.S. was unforeseeable, the trial court appropriately declined to give the lesser-included instruction. See Cannon v. State, 142 N.E.3d 1039, 1043 (Ind. Ct. App. 2020) (observing a result is foreseeable when it is the “natural and probable consequence” of defendant's act) (citation omitted).

Conclusion

[18] Schonabaum waived review of his claim by failing to tender a written instruction for the trial court's consideration. Waiver notwithstanding, there was no serious evidentiary dispute T.S. suffered neglect resulting in serious bodily injury.

[19] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-46-1-4(a)(1) & (b)(2) (2021).

2.   I.C. § 35-46-1-4(a)(1) (2021).

3.   Under Indiana Code Section 35-46-1-4(a)(1), a person is guilty of Level 6 felony neglect of a dependent if he “places the dependent in a situation that endangers the dependent's life or health,” but guilty of a Level 3 felony if the neglect “results in serious bodily injury.” I.C. § 35-46-1-4(b)(2).

4.   Fundamental error is a narrow exception to waiver. See Greer v. State, 115 N.E.3d 1287, 1289 (Ind. Ct. App. 2018) (discussing fundamental error in prosecutorial misconduct claim). Schonabaum does not argue fundamental error.

5.   “In the first step, the court must compare the statute defining the crime charged and the statute defining the alleged lesser-included offense” to determine if the “alleged lesser-included offense is inherently included in the crime charged.” Id. “In the second step, if the trial court determines that the alleged lesser-included offense is not inherently included in the charged crime, it must compare the statute defining the alleged lesser-included offense with the charging instrument in the case” to determine if the “alleged lesser-included offense is factually included in the charged crime.” Id. “If the trial court has determined that the alleged lesser-included offense is either inherently or factually included in the charged crime,” then in the third step “the trial court must examine the evidence presented by each party and determine whether there is a serious evidentiary dispute over the element or elements that distinguish the crime charged and the lesser-included offense.” Id. at 1232.

6.   The State posits had Schonabaum proposed a written instruction the trial court “would still have properly refused to provide it to the jury because there was no serious evidentiary dispute about the element that distinguishes the greater offense from the lesser.” Appellee's Br. at 14–15.

7.   Schonabaum acknowledges T.S. was seriously injured. Appellant's Br. at 15. Even if he had not, the record shows T.S. suffered extensive injuries: bites to his fingers, lacerations, loss of blood and compensated shock, plus permanent loss of functionality to his right hand. See I.C. § 35-31.5-2-292 (2012) (defining serious bodily injury).

Kenworthy, Judge.

Bradford, J., and Pyle, J., concur.