FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Jan 29 2013, 9:33 am
court except for the purpose of
establishing the defense of res judicata,
CLERK
collateral estoppel, or the law of the case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL R. FISHER GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MADELYN SMITH, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1205-CR-408
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT, CRIMINAL DIVISION 3
The Honorable Sheila A. Carlisle, Judge
Cause No. 49G03-1102-FB-12274
January 29, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
In this case, appellant-defendant Madelyn Smith requested to care for her
eighteen-month-old granddaughter and the child’s six-month-old sister for a few days.
The mother of the two small children had a close relationship with Smith and agreed to
allow both children to spend several days with Smith, even though the six-month-old was
not Smith’s grandchild.
The children were left in Smith’s care on a Wednesday and between that time and
when they were picked up on Saturday, the six-month-old baby suffered an abrasion on
her ear, a torn lip, bruises on her abdomen and face, multiple fractures to her legs, a
bruised liver, and multiple lesions to the bottoms of her feet. Smith admitted to abusing
the baby by bending her forwards and backwards and throwing and swinging her when
she would not eat her food.
Smith was convicted of class B felony neglect of a dependent, two counts of class
B felony battery, and three counts of class D felony battery. Smith was sentenced to an
executed ten-year sentence, which she now appeals. More particularly, Smith argues that
the trial court erred by considering the fact that she was in a position of trust, insofar as
that is an element of the offense of neglect of a dependent. Additionally, Smith contends
that the trial court erred by imposing consecutive sentences when it concluded that the
aggravating factors only slightly outweighed the mitigating factors.
Smith further argues that her sentence is inappropriate in light of the nature of the
offenses and her character. Specifically, Smith points out that the incident was the
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product of physical and psychological ailments such as fibromyalgia and a recent
hysterectomy. Finding no error, we affirm the decision of the trial court.
FACTS
Alexis Berling has two daughters, C.B., born on June 12, 2009, and A.B., born on
August 22, 2010. Smith is C.B.’s paternal grandmother, and someone whom Alexis
considered one of her “best friends” and a “second mom.” Tr. p. 53. Alexis allowed her
daughters to stay with Smith on numerous occasions at Smith’s request. Alexis described
A.B. as a “happy baby.” Id. at 57-58.
During the afternoon of Wednesday, February 16, 2011, Smith called Alexis and
asked to have C.B. and A.B. stay with her for a few nights. Alexis brought C.B. and A.B.
over to Smith’s house around 9:00 p.m. When Alexis left the girls in Smith’s care, A.B.
did not have any injuries.
On Thursday and Friday, Alexis called Smith to check on the girls; Smith told
Alexis that everything was fine. On Friday, Alexis gave Smith permission to keep the
girls until Saturday.
On Saturday, Alexis called Smith, and C.B. answered the phone crying and
screaming, “Momma.” Tr. p. 65. As Alexis was trying to calm down C.B., Smith took
the phone and told Alexis that “C.B. had got a whooping for hitting her little sister in the
head with a bottle of lotion,” and that A.B. got “a little bruise on her head.” Id. at 66.
Smith also told Alexis that C.B. had “marked on the bottoms of [A.B.’s] feet with an ink
pen.” Id. Smith told Alexis that “everything was all right.” Id. at 66-67. Alexis, who
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could not drive, asked her grandmother, Gayle Engle, to pick up the girls and meet them
at a Kroger Grocery Store.
When Engle arrived at Smith’s house around 6:00 p.m., Smith was “surprised”
that it was Engle, rather than Alexis, and immediately started explaining to Engle that
C.B. had hit A.B. in the head with a bottle. Tr. p. 100-01. Engle picked up A.B., noticed
bruises on her forehead, and “right away” realized something was wrong. Id. at 102.
Smith, who appeared “nervous” to Engle, quickly took A.B. away. Id. at 104. Engle left
to get something from her vehicle and called Alexis’s mother and informed her that A.B.
needed to be taken to the emergency room.
Alexis’s sister, Rayna Engle, drove Alexis to Kroger, and as they were entering
the parking lot, Smith called Alexis and asked why Engle had picked up A.B. and why
they were going to the emergency room. Alexis was alarmed when she saw A.B.,
observing that the baby looked “real sad,” and “like she was there, but she wasn’t there.”
Tr. p. 70. A.B. was also vomiting profusely. Alexis noticed “bruises,” “knots,” and
“dents” on A.B.’s head. Id. at 71. When Alexis picked up A.B., she would not cry any
tears; instead, she just moaned and groaned. A.B. was rushed to the emergency room.
Rayna drove to Smith’s house to pick up C.B., and Smith repeated her story to
Rayna that C.B. had hit A.B. in the head with a lotion bottle. Smith also stated that C.B.
had pulled her younger sister off of the couch. Smith then began to cry what Rayna
observed to be “a fake movie cry.” Tr. p. 124. Rayna took C.B. back to Alexis’s
residence.
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A medical examination of A.B. indicated that A.B. suffered an abrasion on her ear,
a torn lip, bruises on her abdomen and face, multiple fractures to her legs, a bruised liver,
and multiple lesions to the bottoms of her feet. A.B. was in the hospital for four days and
three nights. The doctors sent A.B. home with splints on her legs, and she received liquid
hydrocodone for two months.
Detective Christopher Lawrence of the Indianapolis Metropolitan Police
Department (IMPD) spoke with Smith at her residence on February 21, 2011. Smith told
Detective Lawrence that C.B. had struck A.B. in the head with a bottle of lotion and had
drawn on her feet with a pen. Smith consented to a search and surrendered the bottle and
the pen.
The following day, Detective Lawrence returned to Smith’s residence and brought
her to his office to make a statement. Smith signed a Miranda1 waiver and gave a
recorded interview. Smith confessed that she had hurt the baby and that she had “bent,”
“hurt,” and “abused” A.B. the previous Friday. Ex. 17. Smith stated that she had become
frustrated with A.B. when she would not eat her food. Smith admitted that she held A.B.
by her legs, “bent her forwards and backwards,” and “threw” and “swung” her “hard.”
Id. Smith demonstrated how high and hard she threw and swung A.B. over her shoulder
and onto her bed. Smith confessed that she injured A.B.’s mouth, legs, stomach, and ear.
On February 25, 2011, the State charged Smith with Count I, neglect of a
dependent, a class B felony; Counts II to VI, battery, a class B felony; and Counts VII to
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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XI, battery, a class D felony. On August 22, 2011, the State amended Count I, dismissed
Counts II to XI and added Counts XII and XIII, battery, a class B felony; and Counts
XIV to XVI, battery, a class D felony.
At the one-day trial on March 19, 2012, Dr. Tara Harris testified that it was her
conclusion that A.B.’s “injuries were consistent with severe physical abuse.” Tr. p. 203.
The jury found Smith guilty on Count I and Counts XII to XVI.
A sentencing hearing was held on April 27, 2012, and the trial court entered a
judgment of conviction for neglect of a dependent as a class D felony rather than a class
B felony based on what it perceived to be double jeopardy issues. Additionally, the trial
court entered a judgment of conviction on four counts of battery, one as a class B felony
and the remaining as class D felonies. Rayna and Engle presented letters stating that
A.B., who was once a happy baby, now wakes up at night screaming and is afraid of
other people.
The trial court found the aggravating factors to be that Smith violated a position of
trust, she abused A.B. in front of another child, and the nature and circumstances of the
offenses, including A.B.’s tender age, her multiple injuries, and the length of time she
suffered. In mitigation, the court recognized that Smith suffered from medical and
emotional conditions and that she did not have any prior felony convictions.
The trial court concluded that the aggravating circumstances outweighed the
mitigating circumstances and sentenced Smith to ten years for class B felony battery and
to two years on the remaining Counts with Count I and Count XII to be served
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consecutively to each other. The trial court suspended two years to probation, for a total
executed sentence of ten years. Smith now appeals.
DISCUSSION AND DECISION
Smith challenges her sentence, attacking it in two related but separate ways. First,
Smith claims that the trial court erred by making Smith’s position of trust an aggravating
factor when this is an element of the offense of neglect of a dependent. Likewise, Smith
argues that the trial court erred by imposing consecutive sentences “when it did not cite a
specific aggravating factor to support it and found that aggravating circumstances only
slightly outweighed mitigating circumstances.” Appellant’s Br. p. 5. Smith next argues
that her ten-year executed sentence followed by two years in community corrections in
inappropriate in light of the nature of the offenses and her character.
I. Abuse of Discretion
Sentencing is a discretionary function of the trial court that warrants considerable
deference on appeal. Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). A court may
impose any sentence authorized by statute regardless of the presence or absence of
mitigating or aggravating circumstances. Ind. Code § 35-38-1-7.1(d).
When a trial court imposes a sentence, it must enter a statement which includes its
reasonably detailed reasons for imposing that particular sentence. Sanchez v. State, 938
N.E.2d 720, 722 (Ind. 2010). On appeal, the court reviews those reasons; however, under
the current advisory scheme, our Supreme Court has consistently stated that “[t]he
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relative weight or value assignable to reasons properly found or those which should have
been found is not subject to review for abuse.” Cardwell, 895 N.E.2d at 1223.
In Robinson v. State, Robinson argued that the trial court had improperly
considered the fact that she was in a position of having the care and custody of the victim
as an aggravating factor because that fact is an element of the crime of neglect of a
dependent. 894 N.E.2d 1038, 1042 (Ind. Ct. App. 2008). However, the Robinson Court
determined that the trial court went beyond merely relying upon an element of the crime
to consider the particularized circumstances of the crime, which included the fact that
Robinson was in a position of care over a completely defenseless and vulnerable
newborn. Id. at 1043.
Similarly, in this case, Smith was caring for a six-month-old baby who could not
speak or even sit up. The trial court emphasized that beyond that, Smith violated a
position of trust that she had with the child’s mother, Alexis, who viewed Smith as a
“second mom,” tr. p. 53, and trusted Smith to care for A.B. Consequently, the instant
case is analogous to Robinson, and the trial court did not err by considering Smith’s
position of trust as an aggravating factor.
Notwithstanding the above, Smith also contends that the trial court erred by
ordering consecutive sentences when it made “the specific finding that aggravating
factors only ‘slightly’ outweigh the mitigating” factors. Appellant’s Br. p. 11 (quoting tr.
p. 322). Smith argues that her case is analogous to Marcum v. State, 725 N.E.2d 852
(Ind. 2000). We cannot agree. In Marcum, our Supreme Court opined that “because the
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trial court found the aggravating and mitigating circumstances to be in balance, there is
no basis on which to impose consecutive terms.” Id. at 864.
Smith’s reliance on Marcum is misplaced for another reason. Marcum was
decided under the presumptive sentencing scheme. Under this system, the trial court had
to find at least one aggravating factor to impose consecutive sentences. Id. In 2005, the
General Assembly adopted an advisory sentencing scheme. Anglemyer v. State, 868
N.E.2d 482, 490 (Ind. 2007). Under the advisory system, at trial court “no longer has any
obligation to ‘weigh’ aggravating and mitigating factors against each other when
imposing a sentence.” Id. at 491. The trial court may impose any sentence authorized by
statute once it has entered a sentencing statement.2 Id.
Nevertheless, this does not mean that criminal defendants are without recourse to
challenge sentences which they believe are excessive. Indeed, the Indiana Constitution
provides such a mechanism, and Smith utilizes it to dispute the appropriateness of her
sentence.
Inappropriate Sentence
Smith maintains that her ten-year executed sentence is inappropriate in light of the
nature of the offenses and her character and requests that this Court revise it “to one that
is consistent with who she is and what she has done.” Appellant’s Br. p. 15.
2
For this reason, in some instances, opinions that have been decided since Anglemyer may be preferable
to those that were decided before.
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Article 7, Section 4 of the Indiana Constitution grants this Court the authority to
review and revise a trial court’s sentence in all criminal cases. This authority is
implemented through Indiana Appellate Rule 7(B), which provides that we will revise a
sentence if, after due consideration of the trial court’s decision, we are convinced that the
sentence is inappropriate in light of the nature of the offenses and the character of the
offender. When reviewing a sentence under Rule 7(B), our purpose is to “leaven the
outliers, and identify some guiding principles for the trial courts . . . but not to achieve a
perceived ‘correct’ result in each case.” Cardwell, 895 N.E.2d at 1225.
As for the nature of the offenses, Alexis, a young mother of two, left her children
in the care of Smith, who is a mother herself and someone whom Alexis considered a
“second mom.” Tr. p. 53. Smith betrayed this relationship in almost the worst way a
mother could imagine when she “beat,” “bent,” “threw,” “swung,” and “abused” Alexis’s
six-month-old baby. Ex. 17. Because of Smith’s actions, the infant sustained an abrasion
to her ear, a torn lip, bruises on her abdomen and face, multiple fractures to her legs, a
bruised liver, and multiple lesions to the bottoms of her feet. Ex. 1-12, 20-21. Smith also
inflicted these injuries in the presence of her own eighteen-month-old granddaughter,
Alexis’s oldest child. The helpless six-month-old suffered for almost thirty hours before
Smith lied to Alexis and her family about what she had done to the baby.
As for Smith’s character, she highlights her minimal contact with law
enforcement, pointing out that her prior offenses were alcohol-related misdemeanors.
Smith also expends considerable energy focusing on her own suffering and illnesses,
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including major depression, fibromyalgia, a hysterectomy resulting in premature
menopause, and diabetes. Smith is an adult and while she may suffer from these
ailments, we cannot and will not agree that this makes her ten-year executed sentence
inappropriate for acts that essentially entailed making a helpless six-month-old baby
needlessly suffer over such an extended period of time.
In short, Smith was convicted of class B felony neglect of a dependent, two counts
of class B felony battery, and three counts of class D felony battery, and her ten-year
executed sentence was not inappropriate in light of the nature of these offenses and her
character. Consequently, we decline her invitation to revise her sentence.
The judgment of the trial court is affirmed.
RILEY, J., and BARNES, J., concur.
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