Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res
Mar 13 2013, 8:46 am
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN C. BOHDAN GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL A. COMBS, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1209-CR-393
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D06-1109-FB-210
March 13, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Michael Combs appeals his conviction for Class B felony neglect of a dependent
and his sentence for Class A felony child molesting, two counts of Class B felony neglect
of a dependent, and Class D felony battery. We affirm.
Issues
Combs raises two issues, which we restate as:
I. whether the evidence is sufficient to sustain his conviction
for Class B felony neglect of a dependent related to D.D.;
and
II. whether his sentence is inappropriate in light of the nature
of the offense and the character of the offender.
Facts
In August 2010, Shanna Vorndran and her children, two-year-old M.D. and one-
year-old D.D., moved into a house in Fort Wayne with Combs, his sister, Anna Hogan,
and Hogan’s four children. M.D. had a speech delay and rarely talked. Vorndran worked
at a Wendy’s restaurant, but Combs and Hogan were not working. Combs and Hogan
watched the children while Vorndran worked. After moving into the house, Vorndran
started noticing more bruises on M.D. and D.D. and noticed that M.D. had a rash around
his anus and injuries to his anus and penis. Vorndran, Hogan, and a neighbor had also
seen Combs hit M.D.
On September, 14, 2010, Vorndran worked from approximately 11:45 a.m. until
5:00 p.m. Vorndran did not recall having contact with her children before she left for
work. Combs and Hogan watched the children while Vorndran was working. When
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Vorndran got home from work, she found D.D. on a bed, in pain, and with a swollen leg.
Hogan said that D.D. had fallen out of his playpen. At approximately 10:00 p.m.,
Vorndran took D.D. to the hospital. Vorndran learned that D.D. had a spiral fracture of
his femur, and he had surgery that night. The spiral fracture was inconsistent with a fall,
and the Department of Child Services (“DCS”) was contacted.
On September 15, 2010, Lanita Holder, a DCS family case manager, talked with
Vorndran. Vorndran initially claimed that she and the children were living with her
mother. However, Vorndran’s mother reported that she had not seen Vorndran in
months. When DCS family case managers and police officers arrived at Vorndran’s
house, they discovered that M.D. was filthy, covered with bruises, and had blood in his
diaper. Combs claimed that M.D. had fallen out of the bathtub when he was watching
him. DCS removed M.D. and Hogan’s children from the residence. M.D. was examined
at a sexual assault treatment center and at the hospital emergency room. The sexual
assault nurse documented seventy-five injuries on M.D., including numerous bruises and
abrasions on his body. M.D. had bruises and abrasions on his genitals and several tears
to his anus, including one fresh tear. The anal injuries were consistent with more than
one episode of anal intercourse or penetration by a blunt object. Hogan later reported to
police that, on September 15, 2010, while Vorndran was at the hospital, she saw Combs
having what appeared to be anal intercourse with M.D.
The State charged Combs with Class A felony child molesting of M.D., Class B
felony neglect of dependent D.D., Class B felony neglect of dependent M.D., and Class D
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felony battery of M.D.1 After a jury trial, Combs was found guilty as charged. At the
sentencing hearing, the trial court found Combs’s lack of criminal history to be a
mitigating factor. The trial court found the following aggravating factors: the fact that
Combs was a caretaker for the children and in a position of trust, the children’s young
age, the fact that there were multiple victims, and the nature and circumstances of the
offenses. The trial court sentenced Combs to forty years for the Class A felony child
molesting conviction, ten years for each of the Class B felony neglect of a dependent
convictions, and one and one-half years for the Class D felony battery conviction. The
trial court ordered the sentences to be served consecutively for an aggregate sentence of
sixty-one and one-half years in the Department of Correction. Combs now appeals.
Analysis
I. Sufficiency of the Evidence
Combs argues that the evidence is insufficient to sustain his conviction for Class B
felony neglect of dependent D.D.2 When reviewing the sufficiency of the evidence
needed to support a criminal conviction, we neither reweigh evidence nor judge witness
credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the
evidence supporting the judgment and any reasonable inferences that can be drawn from
such evidence.” Id. We will affirm if there is substantial evidence of probative value
1
Vorndran pled guilty to two counts of Class B felony neglect of a dependent, and Hogan pled guilty to
two counts of Class C felony neglect of a dependent.
2
Combs does not appeal his remaining convictions.
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such that a reasonable trier of fact could have concluded the defendant was guilty beyond
a reasonable doubt. Id.
The offense of neglect of a dependent is governed by Indiana Code Section 35-46-
1-4(a)(1), which provides that “[a] person having the care of a dependent, whether
assumed voluntarily or because of a legal obligation, who knowingly or intentionally . . .
places the dependent in a situation that endangers the dependent’s life or health . . .
commits neglect of a dependent.” The offense is a Class B felony if it results in serious
bodily injury. Ind. Code § 35-46-1-4(b)(2). Combs argues the evidence is insufficient to
show that he was caring for D.D. or that he knew of D.D.’s injury.
The State presented evidence that Combs was present in the home on September
14, 2010, and that Combs was the only adult present in the home for part of the day.
D.D.’s injury would have been extremely painful during any movement, and Combs
admitted to placing D.D. on the bed. Despite D.D.’s obvious injury, Combs did not seek
medical treatment for him. In fact, Combs and Hogan took Vorndran’s vehicle for
approximately ninety minutes after she returned home from work, leaving her with no
vehicle to transport D.D. to the hospital.
The evidence is sufficient to sustain Combs’s conviction for the neglect of D.D.
Combs’s argument to the contrary is merely a request that we reweigh the evidence and
judge the credibility of the witnesses, which we cannot do. See Bailey, 907 N.E.2d at
1005.
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II. Sentence
Next, Combs argues that his sixty-one and one-half year sentence is inappropriate
in light of the nature of the offense and the character of the offender.3 Indiana Appellate
Rule 7(B) provides that we may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, we find that the sentence is inappropriate in
light of the nature of the offense and the character of the offender. When considering
whether a sentence is inappropriate, we need not be “extremely” deferential to a trial
court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.
2007). Still, we must give due consideration to that decision. Id. We also understand
and recognize the unique perspective a trial court brings to its sentencing decisions. Id.
Under this rule, the burden is on the defendant to persuade the appellate court that his or
her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—
the aggregate sentence—rather than the trees—consecutive or concurrent, number of
counts, or length of the sentence on any individual count.” Id. When reviewing the
appropriateness of a sentence under Rule 7(B), we may consider all aspects of the penal
consequences imposed by the trial court in sentencing the defendant, including whether a
3
The State argues that Combs waived this issue by failing to make an argument regarding the nature of
the offense and the character of the offender. However, Combs does argue that his sentence is
inappropriate under Indiana Appellate Rule 7(B). Thus, we will address the issue.
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portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.
2010).
The nature of the offense is horrific and disturbing. At the sentencing hearing, the
investigating detective described this case as the most horrific that he had worked on
because of the “savage brutality” that M.D. endured. Sentencing Tr. p. 9. Despite his
knowledge of D.D.’s injury, Combs left one-year-old D.D. in agony for hours and failed
to get medical attention for him. Combs brutally beat and sexually assaulted two-year-
old M.D., leaving M.D. with possibly permanent physical damage. Although M.D. had
seventy-five injuries, Combs did not seek medical attention for him.
As for the character of the offender, although Combs has no prior criminal record,
we see no redeeming qualities that would warrant a reduction in his sentence. Combs
completely abused his position as caregiver for the two small boys, but he argues that the
trial court improperly used his position of trust or caregiver as an aggravator because it
was an element of the offense for neglect. To the extent Combs is arguing that the
aggravator was improper, we note that our supreme court held in Pedraza v. State, 887
N.E.2d 77, 80 (Ind. 2008), that, following the 2005 statutory sentencing changes, the use
of a material element of a crime as an aggravating factor is “no longer inappropriate in
light of the nature of the offense and the character of the offender double enhancement.”
Thus, Combs’s argument fails.4 At the sentencing hearing, the investigating detective
testified that Combs displayed “nothin[g] but pure arrogance.” Id.
4
The State also properly notes that only the sentence for the child molesting conviction was enhanced,
and Combs’s position as a caregiver was not an element of that offense.
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Combs argues that his sentence should be reduced based on Buchanan v. State,
767 N.E.2d 967 (Ind. 2002), in which our supreme court reduced a fifty-year-sentence for
child molesting to forty years. We must disagree with Combs’s assertion that the facts of
Buchanan are similar to those here. Buchanan involved one molestation of a five-year-
old child. Here, Combs was convicted of child molestation, battery, and the neglect of
two young children with horrific injuries. Given the nature of the offenses and the
character of the offender, we conclude that the sixty-one and one-half year sentence is not
inappropriate.5
Conclusion
The evidence is sufficient to sustain Combs’s conviction for Class B felony
neglect of D.D., and his sentence is not inappropriate in light of the nature of the offense
and the character of the offender. We affirm.
Affirmed.
BAKER, J., and RILEY, J., concur.
5
According to Combs, we should revise the consecutive sentences to concurrent sentences for the
convictions related to M.D., i.e., the neglect, battery, and child molestation convictions, because there was
“factual overlay” between the offenses. Appellant’s Br. p. 19. To the extent this argument implicates a
double jeopardy issue, we find the argument waived for failure to make a cogent argument. See, e.g.,
Shane v. State, 716 N.E.2d 391, 398 (Ind. 1999) (“The failure to develop an argument results in a waiver
of that argument.”).
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