We acknowledge our traditionally deferential standard of review….doc

FOR PUBLICATIONATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:AMY K. NOE STEVE CARTERAllen Wellman McNew Attorney General of IndianaRichmond, Indiana NICOLE M. SCHUSTERDeputy Attorney GeneralIndianapolis, IndianaIN THECOURT OF APPEALS OF INDIANAGARY C. GROSS, )ANGEL HARTMAN, ))Appellants-Defendants, ))vs. ) Nos. 33A05-0402-CR-100) 33A01-0402-CR-79STATE OF INDIANA, ))Appellee-Plaintiff. )APPEAL FROM THE HENRY CIRCUIT COURTThe Honorable Mary G. Willis, JudgeCause No. 33C01-0308-FD-50 and 33C01-0308-FD-51 November 12, 2004OPINION - FOR PUBLICATIONBARNES, Judge2Case SummaryGary Gross and Angel Hartman appeal their two convictions each for Class D felony neglect of a dependent. We reverse.1IssueThe sole restated issue is whether there is sufficient evidence to support Gross’ and Hartman’s convictions.FactsThere is no meaningful conflict in the evidence in this case. During the spring and summer of 2003, Gross and Hartman lived together as roommates. On a day at the end of April, Hartman had custody of her children, C.H., age five, and B.H., age three (and who turned four at the beginning of June 2003). Hartman shared custody of the children with their father. Also present that day were Gross’ brother, Tom, and Gross’ children, a boy age thirteen and two girls ages nine and six. Tom decided to play a game with the older children that Hartman referred to as “hostage,” where their wrists and ankles were taped together with light construction tape2 and the children competed to see who could break free first. The children had fun playing the game. B.H., who was sitting in a stroller on the porch, indicated that he too wanted to play. Gross taped B.H. into the stroller by wrapping the tape around his shoulders and waist. While Hartman was cutting the tape 1 Gross and Hartman were tried together, with essentially identical evidence presented as to both of them, and both were represented at trial by the same counsel, as they are on appeal. They also make identical arguments on appeal. Although no party has moved to consolidate Gross’ and Hartman’s appeals, we have consolidated them on our own motion pursuant to Indiana Appellate Rule 38(B).2 A piece of tape similar to that used in the game is included in the exhibits. The tape is wider and somewhat thicker than ordinary scotch tape, but also somewhat thinner than duct tape.3from behind the stroller with a pocketknife a few minutes later, B.H. reared back and sustained a superficial cut from the knife. After Gross treated the cut with ointment and a band-aid, B.H. returned to playing. However, Hartman indicated to the other children that the “hostage” game was over and disposed of the tape. After B.H.’s father noticed the cut and Hartman explained what had happened, the father expressed his disapproval of the “hostage” game. Sometime in July, C.H. was again staying with Hartman and Gross. Gross’ children were there also, as were Tom’s two children, ages seven and twelve. The children again were taking turns having their wrists and ankles taped and were hopping about the house “like little rabbits.” Tr. p. 127. C.H. asked to be taped, but was unable to free herself from the tape around her wrists, so Hartman cut her loose with a pair of scissors. When C.H.’s father picked her up, he noticed tape residue on her wrists, which was pointed out to a doctor and led to an official child abuse investigation.The State charged Hartman and Gross with two counts each of Class D felony neglect of a dependent, one with respect to the April incident involving B.H. and one with respect to the July incident involving C.H. No charges were filed against Tom Gross, nor were any filed with respect to any other children with whom Hartman and Gross played the taping “game.” On December 8-9, 2003, a jury trial was conducted and Hartman and Gross were convicted as charged. They now appeal.AnalysisWe employ a deferential standard of review when considering questions of the sufficiency of the evidence to support a conviction. 4In reviewing a sufficiency claim, we neither reweigh the evidence nor assess the credibility of the witnesses. We look to the evidence most favorable to the verdict and reasonable inferences drawn therefrom. We will affirm the conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Nevertheless, evidence of guilt of substantial and probative value, as required to affirm a conviction, requires more than a mere scintilla of evidence. Evidence that only tends to support a conclusion of guilt is insufficient to sustain a conviction, as evidence must support the conclusion of guilt beyond a reasonable doubt.Whitaker v. State, 778 N.E.2d 423, 425 (Ind. Ct. App. 2002), (citations omitted) trans. denied. The State charged Hartman and Gross under Indiana Code Section 35-46-1-4(a)(1), which provides: “A person having the care of a dependent, whether。