Saundra S. Wahl v. State of Indiana

Jun 30 2015, 9:59 am

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lawrence D. Newman Gregory F. Zoeller
Newman & Newman, P.C. Attorney General of Indiana
Noblesville, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Saundra S. Wahl, June 30, 2015

Appellant-Defendant, Court of Appeals Cause No.
29A04-1409-CR-418
v. Appeal from the Hamilton Superior
Court.

State of Indiana, The Honorable Gail Z. Bardach,
Judge.
Appellee-Plaintiff.
Cause No. 29D06-1309-FD-7824

Riley, Judge

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 STATEMENT OF THE CASE

[1] Appellant-Defendant, Saundra Wahl (Wahl), appeals her conviction for

involuntary manslaughter, a Class D felony, Ind. Code § 35-42-1-4 (2013).

[2] We affirm.

ISSUES

[3] Wahl raises four issues on appeal which we restate as:

(1) Whether the State presented sufficient evidence to sustain Wahl’s

involuntary manslaughter conviction;

(2) Whether the trial court abused its discretion in denying Wahl’s motion to

correct error regarding jury misconduct;

(3) Whether Wahl’s sentence is appropriate; and

(4) Whether the trial court abused its discretion by ordering Wahl to pay

restitution.

FACTS AND PROCEDURAL HISTORY

[4] In the spring of 2011, Danny (Danny) and Jocelyne DiRienzo (collectively, the

DiRienzos) began searching for a daycare for their minor children, D.D., and

A.D. The DiRienzos were referred to Wahl and her husband, Daniel Wahl

(Daniel) (collectively, the Wahls) who ran a State-licensed daycare facility out

of their home basement in Fishers, Indiana. After touring the daycare facility,

the DiRienzos selected the Wahls to provide child care services to both of their

children.

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[5] Prior to June of 2013, Wahl had been working as a child care provider for

approximately twenty-five years. In 2003, the Wahls built their home with the

primary intention of operating a daycare facility from their basement. Shortly

thereafter, the Wahls were licensed, and for ten years, they operated a daycare

business under the name, Home Away from Home Child Care. In establishing

their roles as child care providers, the Wahls determined that Wahl would be

responsible for toddlers ranging from five months to two years, while Daniel

would be responsible for the older children.

[6] In June of 2013, A.D. was a healthy, twenty-month-old toddler. On June 20,

2013, as usual for their day, Daniel had taken the older children to the backyard

to eat and play. While Daniel was outside with the older children, Wahl

remained inside with the toddlers for feeding. Due to the older children being

outside, Wahl removed a compression gate between the kitchen area and the

toddlers’ sleeping area in the basement so as to allow the small children to

move and play freely between the two rooms. In addition, Wahl also placed a

child in a highchair in the kitchen for feeding and walked back to the kitchen

sink to warm bottles.

[7] The record shows that in addition to the compression gate that divided the

toddlers’ sleeping area and a play area adjoining the kitchen, there was a white

metal security gate positioned in the basement hallway that was used to prevent

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 the children from accessing the stairway leading to the first floor.1 As Wahl was

standing in the kitchen, she heard the white metal security gate being “jingled.”

(Transcript p. 405). Immediately, Wahl walked over to inspect. There, she

found A.D. and another child playing with the gate. Wahl removed and placed

both children across the room, admonished them, and returned to the kitchen to

retrieve the child she had left in the highchair, and to grab a bottle.

[8] From the kitchen, only a portion of the white metal security gate was visible.

As Wahl was lifting the child from the highchair, she saw the child that A.D.

had been playing with had passed the white metal security gate. Wahl

immediately placed the baby she was carrying on the floor and rushed towards

the gate. Like the other toddler, A.D. had breached the white metal security

gate; however, as A.D. was returning to the play area adjoining the kitchen, his

head became trapped between the latch end of the gate and the wall. At first,

Wahl thought A.D. was okay since his eyes were open. Wahl freed A.D. from

the white metal security gate, and noticed that A.D. was unresponsive and not

1
The Wahls had placed several security gates in their home. From what we can decipher from the record,
there were about four security gates. On the first floor, there was a white metal gate closing off the stairway
leading to the second floor. In the basement hallway, there was a similar white metal security gate—at issue
in this cause—closing off the stairway leading to the first floor. In addition, there was a long plastic
compression gate dividing a large room in the basement into two sections. Lastly, there was a small plastic
compression gate diving the toddlers’ sleeping area and the kitchen area.

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 breathing. Promptly, Wahl began performing CPR on A.D. As she was doing

that, she saw two older children who had been out in the yard, and she

requested them to call Daniel. The children did not comprehend, so Wahl

momentarily left A.D. on the floor, rushed to the base of the stairway, and

yelled for assistance. Moments later, Daniel re-entered the basement,

intercepted the CPR process and asked Wahl to call 911. Within minutes, the

Fishers Police Department arrived followed by the paramedics. A.D. was then

transported to Community North Hospital, where he was pronounced dead at

12:59 p.m. The following day, the autopsy showed that A.D. had died from

asphyxiation.

[9] On September 19, 2013, the State filed an Information charging the Wahls 2

with involuntary manslaughter, a Class D felony, I.C. § 35-42-1-4 (2013). At

trial, Detective James Hawkins (Detective Hawkins), a criminal forensic

investigator testified that after he received a call from another officer, he

immediately drove the Wahls’ residence to investigate. He stated that the white

metal security gate situated in the Wahls’ basement hallway had been anchored

on the west wall. On the east wall, there were two independent anchors with

latches for the gate to lock into. The security gate had been installed in 2003

2
Daniel appeals separately.

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 and was maintained by Daniel. Detective Hawkins noted that the “top anchor”

on the west wall appeared as if it had “been ripped out and then re-anchored

back in.” (Tr. p. 335). On the east wall, he noted that there were a “bunch of

wear marks at the receiving end of the top latch” and applying minor pressure

“like a tap” would cause the gate to open. (Tr. p. 338). According to Detective

Hawkins, the white metal security gate would not come into contact with the

latches, and it caused the gate to swing north and south while open. He further

testified that he learned from Daniel that there was a “wooden rocking chair []

on the north side of the gate,” and a baby rocking swing on the south end. (Tr.

p. 379). He added that both had been used to “keep the gate from moving

when [the Wahls] wanted it shut.” (Tr. p. 379). The wooden rocking chair had

“a lot of wear marks on the [] vertical rail directly adjacent to where” it would

“make contact with the baby gate.” (Tr. p. 381).

[10] Danny described his son as a healthy and happy baby. He testified that

“approximately a month and a half to two months” prior to A.D.’s death, he

was in the Wahls’ home either to drop off or pick up his children. (Tr. p. 263).

Danny recalled that Wahl discussed A.D.’s progress with him, and he recalled

Wahl stating that A.D. “can even push his way through the baby gate

downstairs.” (Tr. p. 263).

[11] The forensic pathologist who conducted A.D.’s autopsy stated that while there

are many variables that are considered in determining how long it takes to

asphyxiate, for small children, he indicated that it may take “approximately 90

seconds to 120 seconds” for asphyxiation to ensue; and it would take “no more

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 than 5 minutes” for a child to die. (Tr. p. 437). At the close of the evidence,

the jury found the Wahls guilty as charged.

[12] Prior to sentencing, but after the jury returned a guilty verdict for the Wahls, the

trial court received an email from Juror #7, which stated in part:

At the start of deliberation the alternate juror started to take over
deliberation and at that point, I interjected and went to the part in our
paperwork that stated the alternate juror was not to have any part in
the deliberation. From that point I felt like there was tension in the
room between the other jurors. The reason that I feel that the alternate
juror influenced the other jurors is because he took items out of the
envelope and took the parts to the gate and operated the gate. I had
emphasized to the other jurors that what we were dealing with was a
very serious charge. I asked the other jurors if they had ever been
incarcerated before. I told the jurors that I had been incarcerated and
it is a life changing experience. After saying this, the alternate juror let
out a big sigh, rolled his eyes and shook his head as if he was
disgusted. Also, at one point, the alternate juror stood up and went to
the [DVD] player. When he was asked what he was doing, he said he
wanted to see a particular part in the video. He repeatedly played it
over and over and increased the volume each time until everyone was
watching it.

(Court’s Exh. 1). On June 6, 2014, the trial court scheduled a hearing to

determine the alleged jury misconduct. At the hearing, the Wahls moved for a

mistrial and after both parties had presented their arguments, the trial court

took the matter under advisement. On June 11, 2014, the trial court denied the

motion. Following a sentencing hearing held on June 30, 2014, the trial court

sentenced the Wahls to 1095 days in the Department of Correction (DOC) with

730 days executed and placed them both on probation for 365 days. In

addition, the trial court ordered the Wahls to jointly and severally pay the

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 DiRenzos $22,353.72 in restitution with $20,232.52 of that amount being

Danny’s lost wages. In light of the jury misconduct, on July 29, 2014, the

Wahls, through their appellate counsel, filed a motion to correct error and

attached an affidavit from Juror #7 requesting the trial court to grant them a

mistrial, or in the alternative, grant them a hearing to present evidence from

Juror #7. Consequently, the State responded to the Wahls’ motion on August

5, 2014, and on August 18, 2014, the trial court denied the Wahls’ motion.

[13] Wahl now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence

[14] Wahl first argues that the evidence is insufficient to sustain her conviction.

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 such that a reasonable trier of fact could have concluded the defendant

was guilty beyond a reasonable doubt. Id.

[15] The version of Indiana Code Section 35-42-1-4(e) in effect at the time Wahl

committed her crime provided that if: (1) a child care provider recklessly

supervises a child; and (2) the child dies as a result of the child care provider’s

reckless supervision; the child care provider commits class D felony involuntary

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 manslaughter. Conduct is reckless if the person engaged in that conduct “in

plain, conscious, and unjustifiable disregard of harm that might result and the

disregard involves a substantial deviation from acceptable standards of

conduct.” I.C. § 35-41-2-2(c). As charged, to convict Wahl of involuntary

manslaughter, the State was required to prove that Wahl recklessly supervised

A.D. and that A.D. died as a result thereof.

[16] Wahl argues that the evidence is insufficient to establish that she recklessly

supervised A.D. “given her close proximity to A.D. when he went back to the

gate moments after she had initially removed him from the gate.” (Appellant’s

App. p. 15). The State called Vicki Allen (Allen) of the Indiana Family and

Social Services Administration (FSSA) to testify regarding the standards

imposed on child care providers while caring for children. Allen testified that

according to Ind. Admin Code 3-1.1-36.5, children shall not be left unattended

and must be “within sight or sound at all times,”—that is, to be seen “without

obstruction and heard without obstruction.” (Tr. p. 448).

[17] Here, the unrefuted evidence presented at trial established that, on the day in

question, A.D. was not within Wahl’s sight or sound at all times. As stated

above, Wahl was first alarmed by A.D.’s and the other child’s presence by the

security gate when she heard it jingle. Wahl testified that she walked over to

the security gate, scolded the children for playing with the security gate, and

consequently removed them and placed them across the room. Shortly

thereafter, Wahl returned to the kitchen to grab a bottle and pick up the baby

she had left in the highchair. Unbeknownst to Wahl, A.D. and the other baby

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 had ventured back to the security gate. Moments later, Wahl returned to the

gate area only to find that the security gate had been released from its latch,

A.D. and the other baby were on the opposite end, and A.D. was wedged

between the gate’s latch and the wall.

[18] In addition, the State presented evidence that Wahl was aware that the gate did

not function properly and had “placed furniture on both sides of the gate to help

prevent the children from opening the gate.” (Appellee’s Br. p. 10). We note

that the purpose of having a baby gate is to ensure that children do not wander

off to unsupervised areas. Specifically, the State argues that failure to maintain

a properly functioning gate knowing that there would be small children in the

house capable of pushing through the gate, and the failure to make certain that

the gate was properly latched after A.D. and other child had attempted to open

it, is certainly an act committed in “plain, conscious, and unjustifiable

disregard” of the harm that might result, and is indeed a “substantial deviation

from acceptable standards of conduct,” Ind. Code section 35-41-2-2(c).

[19] In Philips v. State, No. 29A02-1407-CR-503,___N.E.3d___ (Ind. Ct. App. Feb.

20, 2015), we affirmed Phillips conviction for reckless homicide on the basis

that she was consciously aware of the potential harm of placing five-month-old

C.T. inside a broken crib with additional padding. Id. at 4. On the day C.T.

died, Phillips had fed C.T. and because it was naptime, she placed a folded

queen size blanket inside a broken portable crib and laid C.T. inside. Id.

Phillips left the residence at 12:20 p.m. Shortly after 3:00 p.m., Phillips’

mother, who operated the daycare, went to check on C.T. and found him

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 unresponsive. Id. Phillips’ mother called 911. Id. The paramedics and

firefighters who arrived on the scene found that C.T. had no pulse and was cold

to the touch. Id. C.T. was transported to the hospital where he was

pronounced dead. Id. This court was unpersuaded that the jury got it wrong

particularly because Phillips knew that the crib was broken, the crib had been

labeled with multiple warnings instructing Phillips that it should never be used

if there are any broken parts, and there were warnings stating that serious injury

or death could result if such instructions were disregarded. Id. Under the

circumstances presented, we found that a reasonable jury could infer that

Phillips was aware of the potential harm and that she acted in conscious

disregard of that harm when she placed C.T. for a nap in the broken crib with

additional padding. Id. at 5.

[20] As in Phillips, we reject Wahl’s argument that her conduct conformed to

acceptable standard of conduct while caring for A.D. on June 20, 2013. At

trial, Detective Hawkins pointed out that the gate did not lock into place, and it

took insignificant effort to thrust it open. He also stated that because the gate

did not latch properly, the Wahls had braced the gate with furniture to prevent

it from swaying open. Moreover, there was evidence presented at trial that the

Wahls knew that A.D. had become increasingly mobile, strong, and could

breach the security gate. At trial, Danny stated about two months before

A.D.’s death, Wahl admitted that A.D. could push his way through the baby

gate downstairs. Wahl’s claim that it was a different gate is nothing but an

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 invitation for this court to reweigh the evidence, which we will not do. See

Bailey, 907 N.E.2d at 1005.

[21] Lastly, the State argues that the child-to-staff ratio was beyond the required

limit and that it rose to the level of reckless supervision. We note that child-to-

staff ratio means “the maximum number of children permitted per direct child

care provider.” Ind. Admin. § Code 3-1.1-7.1. Pursuant to Ind. Admin. Code §

3-1.1-36.5, the Wahls were allowed to have no more than six children from

birth to 24 months; and at least two of the children should have been sixteen

months old and walking. Allen testified that based on her initial investigation,

Wahl was in charge of seven children instead of six. At a later interview, Wahl

withdrew her prior statement and indicated that she was supervising six

children on the day in question. Contrary to her latter statements, on appeal,

Wahl argues that having one child over the number required is not a substantial

deviation given her close proximity to A.D. the entire time on the day he died.

We strongly disagree.

[22] According to the Interpretative Guide for Child Care Home Rule (2013),

http://www.in.gov/fssa/files/BCC_Homes_Interpretative_Guide.pdf (last

visited May. 9, 2015), the intent of Ind. Admin. Code 3-1.1-36.5, is“[t]o provide

for the safety and developmental needs of the children. This rule recognizes

that ratios need to be lower for younger children and assumes that children

younger than 24 months place special demands on a caregiver due to their need

for individual care and attention.” We observe that the regulations were

promulgated to ensure the health and safety of children entrusted to the care of

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 child providers. In light of this regulations objective, we find that Wahl’s

assertion that caring for one extra child was not an excessive violation of the

regulations must fail. Also, pursuant to the reckless statute, we find that Wahl’s

aberration from the regulations should be considered as a substantial deviation

from acceptable standards of conduct. See I.C. § 35-41-2-2(c).

[23] Moreover, we note that child security gates are protective barricades designed

to prevent young children from accessing areas in the home that might be

unsafe. The risk of death might not be probable but it would be real and

substantial—something more than an abstract possibility. Although Wahl

heard A.D. by the security gate the first time, she was unaware of A.D.’s

presence by the gate the second time, and it placed A.D. in substantial danger

that lead to his death. The record shows that A.D. was past the security gate

and was crawling back to the play area when he got lodged in the gate. In

addition, we find that permitting a child to wander off and access a gate that

could easily be breached cannot be considered acceptable conduct. In light of

the foregoing, we find that: Wahl recklessly supervised A.D. and that A.D. died

as a result of Wahl’s reckless supervision.

II. Motion to Correct Error.

[24] Next, Wahl argues that the trial court abused its discretion by denying her

motion to correct error based on alleged jury misconduct. In general, a trial

court has broad discretion to determine whether to grant or deny a motion to

correct error. Volunteers of Am. v. Premier Auto Acceptance Corp., 755 N.E.2d 656,

658 (Ind. Ct. App. 2001). We will reverse only for an abuse of that discretion.
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 Id. An abuse of discretion occurs if the trial court’s decision was against the

logic and effect of the facts and circumstances before the court or if the court

misapplied the law. Id. The trial court’s decision comes to us cloaked in a

presumption of correctness, and the appellant has the burden of proving that the

trial court abused its discretion. Id. In making our determination, we may

neither reweigh the evidence nor judge the credibility of witnesses. Id. Instead,

we look at the record to determine if: (a) the trial court abused its judicial

discretion; (b) a flagrant injustice has been done to the appellant; or (c) a very

strong case for relief from the trial court’s [order] . . . has been made by the

appellant. Id.

[25] Wahl maintains that the interference by the alternate juror during jury

deliberations constituted impermissible extra-judicial communication. As

mentioned earlier, prior to sentencing and after the jury returned a guilty verdict

for the Wahls, the trial court received an email from Juror #7, who indicated

that the alternate juror had involved himself in the jury deliberations. A

hearing was conducted on June 6, 2014, and the Wahls moved for a mistrial.

Subsequently, on June 11, 2014, the trial court denied the Wahls’ motion and

stated in part:

There is no evidence of extrajudicial jury taint because the alternate
juror’s misconduct was in his unspoken handling of the items properly
admitted into evidence, properly in the jury room during deliberations
and properly able to be considered by the jury. Even if his actions may
be considered to be extrajudicial, they were harmless . . .

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 (Appellant’s App. p. 90). Shortly after sentencing, the Wahls filed a motion to

correct error exclusively supported by Juror #7’s affidavit reiterating the

statements made in the prior email.

[26] The State maintains that when a defendant seeks a new trial based on jury

misconduct, she must show that the misconduct was (1) gross and (2) she was

probably harmed. See Griffin, 754 N.E.2d at 901. We disagree that this is the

correct standard of review. Most recently, our supreme court in Ramirez v.

State, 7 N.E.3d 933, 938 (Ind. 2014), took into account the confusion involved

when determining jury taint and sought to clarify the existing precedents. In

particular, the court stated: “[F]ederal and Indiana precedent has narrowed the

presumption of prejudice to apply in cases where defendants show more than

just potential taint—but some Indiana precedent, including our own, has

applied that presumption inconsistently. We now clarify its precise scope, and

reiterate the proper process for trial courts to address jury taint in the

courtroom.” Id. at 935. In clarifying the law regarding the various standards

courts should apply on suspected jury taint, our supreme court stated:

Defendants seeking a mistrial for suspected jury taint are entitled to the
presumption of prejudice only after making two showings, by a
preponderance of the evidence: (1) extra-judicial contact or
communications between jurors and unauthorized persons occurred,
and (2) the contact or communications pertained to the matter before
the jury. The burden then shifts to the State to rebut this presumption
of prejudice by showing that any contact or communications were
harmless. If the State does not rebut the presumption, the trial court
must grant a new trial. On the other hand, if a defendant fails to make
the initial two-part showing, the presumption does not apply. Instead,
the trial court must apply the probable harm standard for juror

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 misconduct, granting a new trial only if the misconduct is “gross and
probably harmed” the defendant. Henri v. Curto, 908 N.E.2d 196, 202
(Ind. 2009) (internal quotation marks omitted). But in egregious cases
where juror conduct fundamentally compromises the appearance of
juror neutrality, trial courts should skip [the] two-part inquiry, find
irrebuttable prejudice, and immediately declare a mistrial. At all
times, trial courts have discretion to decide whether a defendant has
satisfied the initial two-part showing necessary to obtain the
presumption of prejudice or a finding of irrebuttable prejudice.

Id. at 939 (internal citations omitted). According to the test proponed in

Ramirez, Wahl is required to show by a preponderance of the evidence that: (1)

the alternate juror communicated with jurors without authorization; and (2)

about the matter before the jury. We will first establish whether Wahl has met

her initial two-part inquiry of prejudice.

A. Prejudice

[27] It is a long-established principle in Indiana jurisprudence that a jury’s verdict

may not be later impeached by the jurors who returned it. Ward v. St. Mary

Med. Ctr. of Gary, 658 N.E.2d 893, 894 (Ind. 1995). The policy reasons for this

are that “(1) there would be no reasonable end to litigation, (2) jurors would be

harassed by both sides of litigation, and (3) an unsettled state of affairs would

result.” Id. This principle is also set forth in Indiana Evidence Rule 606(b)

which provides:

Upon an inquiry into the validity of a verdict or indictment, a juror
may not testify as to any matter or statement occurring during the
course of the jury’s deliberations or to the effect of anything upon that
or any other juror’s mind or emotions as influencing the juror to assent
to or dissent from the verdict or indictment or concerning the juror’s

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 mental processes in connection therewith, except that a juror may
testify (1) to drug or alcohol use by any juror, (2) on the question of
whether extraneous prejudicial information was improperly brought to
the jury’s attention or (3) whether any outside influence was
improperly brought to bear upon any juror.

Thus, a rebuttable presumption of prejudice will arise if jurors engage in

misconduct by out-of-court communications with unauthorized persons. Spears

v. State, 811 N.E.2d 485, 488 (Ind. Ct. App. 2004). In Griffin, our supreme

court explained that an alternate juror is not a member of the jury, “and he or

she qualifies as an outside influence under Rule 606(b).” Griffin, 754 N.E.2d at

903. Lastly, we note that when evaluating jury misconduct, we consider juror

affidavits to the extent they assert the deliberations were tainted by improper

influence. Majors v. State, 773 N.E.2d 231, 234 n. 1 (Ind. 2002).

[28] Here, the jury was instructed that the “alternate will be with you in the room

but is not permitted in your deliberations or verdict.” (Appellant’s App. p. 66).

According to Juror #7’s affidavit, after the jury retired to the jury room and

contrary to the trial court’s instructions, the alternate began leading the jury in

the discussions. After been asked to withdraw, he proceeded to test and

experiment with the white metal security gate while discussions were ongoing.

In addition, the alternate juror repeatedly replayed a video which led the jurors

to interrupt their discussions and watch a particular portion of the video. From

the foregoing, it is clear that the alleged communication—both spoken and

unspoken—constituted impermissible communication barred under Rule

606(b), and it related to a matter before the jury. Having established that Wahl

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 met her burden pursuant to Ramirez, the burden now shifts to the State to show

that the alternate juror’s out-of-court communication was harmless.

B. Whether the Out-of-Court Communication by the Alternate Juror was
Harmless

[29] The State maintains that it rebutted the presumption of prejudice since the

evidence of the alleged misconduct amounts to “harmless childish behavior.”

(Appellee’s Br. p. 16). Specifically, the State argues that according to Juror #7

affidavit, “it appears that the alternate refrained from speaking with the other

jurors once it was pointed out to him that he was not to participate in the

deliberations. (Appellee’s Br. p. 17). In addition, the State argues that all the

“alternate juror allegedly did was play with properly admitted evidence during

the deliberations.” (Appellee’s Br. p. 14).

[30] We note that the test for harmless error is not whether there was substantial

evidence of the defendant’s guilt but whether the error contributed to the

verdict. Hall v. State, 796 N.E.2d 388, 396–97 (Ind. Ct. App. 2003), trans.

denied. As noted above, the jury was admonished before retiring and they were

well aware that the alternate juror was not to take part in the discussions. Also,

the trial court tendered an instruction, reminding the jurors that their verdict

must be based solely on the evidence presented at trial. We must presume that

the jury followed the trial court’s instructions. Harris v. State, 824 N.E.2d 432,

440 (Ind. Ct. App. 2005). See also Henriquez v. State, 973 N.E.2d 1154 (Ind. Ct.

App. 2012) (noting that juries tend to monitor themselves pretty well and that if

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 the alternate is trying to deliberate, the other jurors would stop him or bring it

to the court’s attention) trans. denied.

[31] Here, Juror #7 advised the alternate juror to cease and desist from discussions,

and we presume that the other jurors were attentive of that warning. Because

we find that the jury was obviously aware that the alternate juror was not meant

to participate in the discussions, any transient comments that the alternate juror

made at the commencement of the jury deliberations or his curiosity to

experiment with the exhibits admitted into evidence, did not introduce new

material into deliberations that was not already known by the jury from the trial

itself. On these facts, it is plain to us that, while Wahl may have met her initial

burden, the State rebutted the alleged misconduct, and without more, we

cannot say that the trial court abused its discretion in denying Wahl’s motion to

correct error.

III. Inappropriate Sentence

[32] Next, Wahl argues that her sentence was inappropriate in light of the nature of

the offense and her character. 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.” 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).

“Ultimately the length of the aggregate sentence and how it is to be served are

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 the issues that matter.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

Whether we regard a sentence as appropriate at the end of the day turns on our

sense of the culpability of the defendant, the severity of the crime, the damage

done to others, and a myriad of other considerations that come to light in a

given case. Id.

[33] The advisory sentence is the starting point the legislature has selected as an

appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

1019 (Ind. 2012). At the time of his sentencing, the advisory sentence for a

Class D felony was one-and-one-half years, with a minimum of six months and

a maximum of three years. Here, the trial court imposed the maximum

sentence but suspended one year to probation. In arriving at this sentence, the

trial court found as mitigating circumstance the fact that Wahl had no criminal

history at the time. However, the trial court found the nature of the offense and

the fact that the victim was “less than 12 years of age” to be an aggravating

circumstance. (Tr. p. 852). See Kile v. State, 729 N.E.2d 211, 214 (Ind. Ct. App.

2000) (holding that the trial court did not err in using the particularized factual

circumstances of the case—namely the victim’s age—as an aggravating factor).

[34] As for the nature of the offense, Wahl argues that she “was not asleep or on

another floor of the house; she was [a mere] 8-10 feet away from A.D.”

(Appellant’s Br. p. 23). She further argues that a portion of the security gate

was “visible from the [] kitchen” and she had just been able to overhear A.D.

and another child jingle the gate minutes before. To her defense, she argues

that the moment she observed A.D. stuck in the gate, she quickly removed him

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 from danger and began performing CPR. We are not persuaded by Wahl’s

arguments. At trial, the forensic pathologist testified that for young children

such as A.D., it may take “approximately 90 seconds to 120 seconds” for

asphyxiation to ensue; and it would take “no more than 5 minutes” for a child

to die. (Tr. p. 437). Moreover, as discussed in the foregoing, as a child care

provider, Wahl was to keep A.D. within sight or sound at all times. The record

reveals that the security gate did not latch properly and A.D. had successfully

breached the gate. As such, Wahl’s argument that A.D. was just 8-10 feet

away, does not alter the fact that A.D. wandered off to an unsupervised area,

and within minutes, his neck got stuck in a defective gate that triggered his

death.

[35] Turning to Wahl’s character, we note that she has led a law-abiding life prior to

the events of June 20, 2013. At her sentencing hearing, Wahl presented twenty

-three letters from friends and families who attested that she was a generous and

loving person as well a good Christian. Though we find that her good character

is indeed redeeming, it does not alter the seriousness of the charged offense.

Wahl recklessly supervised A.D., and he died under her care. After due

consideration of the evidence presented at trial, we cannot say that the sentence

imposed by the trial court is inappropriate.

IV. Restitution

[36] Finally, Wahl contends that the trial court abused its discretion in ordering that

she jointly and severally pay $20,237.52 in restitution to the DiRenzos for

Dannny’s lost wages. At the sentencing hearing, Danny stated that he had
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 missed a total of 53 days of work due to A.D.’s death. We reverse a trial court’s

order to pay restitution only for an abuse of discretion. Gil v. State, 988 N.E.2d

1231, 1234 (Ind. Ct. App. 2013). A trial court abuses its discretion if its

“decision is clearly against the logic and effects of the facts and circumstances

before it” or if it “misinterprets or misapplies the law.” Id.

[37] Indiana Code section 35-50-5-3(a) provides, in relevant part, that “in addition to

any sentence imposed under this article for a felony or misdemeanor, the court

may . . . order the person to make restitution to the victim of the crime[.]”

When such an order is entered, it must be based upon a consideration of:

(1) property damages of the victim incurred as a result of the crime,
based on the actual cost of repair (or replacement if repair is
inappropriate);
(2) medical and hospital costs incurred by the victim (before the date of
sentencing) as a result of the crime;
(3) the cost of medical laboratory tests to determine if the crime has
caused the victim to contract a disease or other medical condition;
(4) earnings lost by the victim (before the date of sentencing) as a result
of the crime including earnings lost while the victim was hospitalized
or participating in the investigation or trial of the crime; and
(5) funeral, burial, or cremation costs incurred by the family or estate
of a homicide victim as a result of the crime.

Id. An order of restitution is as much a part of a criminal sentence as a fine or

other penalty. Kotsopoulos v. State, 654 N.E.2d 44, 46 (Ind. Ct. App. 1995). It is

well established that the restitution order must reflect the actual loss sustained

by the victim. Smith v. State, 471 N.E.2d 1245, 1248 (Ind. Ct. App. 1984), trans.

denied. The amount of actual loss is a factual matter, which can be determined
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 only upon presentation of evidence. Id. A restitution order must reflect a loss

sustained by the victim as a direct and immediate result of the defendant’s

criminal acts, and the trial court may consider only expenses incurred by the

victim prior to the date of sentencing. Rich v. State, 890 N.E.2d 44 (Ind. Ct.

App. 2008), trans. denied.

[38] Here, Wahl argues that although Danny “presented documentation for his

requested loss of wages” none of them explained why he missed work for a

total of 53 days. (Appellant’s Br. p. 28). In response, the State maintains that

Wahl failed to lodge an objection to that amount. After reviewing the

transcript, we agree with the State that Wahl did not specifically object to the

payment of Danny’s loss of wages. Also, our review of the record reveals that

Wahl did not lodge any objection at the sentencing hearing or the trial court’s

consideration of the documents that Danny submitted for his loss of wages

before the sentencing hearing.

[39] “Generally, failure to object to an award of restitution constitutes waiver of a

challenge to the award on appeal, unless a defendant argues that the award was

fundamentally erroneous and in excess of statutory authority.” Morris v. State, 2

N.E.3d 7, 9 (Ind. Ct. App. 2013), opinion on reh’g. “[A] defendant’s failure to

make a specific and timely objection to the trial court’s receipt of evidence

concerning the amount of restitution constitutes waiver of the issue on appeal.”

Id. Waiver notwithstanding, we recognize the vast weight of case law in this

state indicates that appellate courts will review a trial court’s restitution order

even where the defendant did not object based on the rationale that “a

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 restitution order is part of the sentence, and ‘it is the duty of the appellate courts

to bring illegal sentences into compliance.’” Cherry v. State, 772 N.E.2d 433,

440 (Ind. Ct. App. 2002) (quoting Golden v. State, 553 N.E.2d 1219, 1223–24

(Ind. Ct. App. 1990), trans. denied)).

[40] A.D. died on June 20, 2013, and Danny took time off work to grieve the loss of

his son. According to the pre-sentence investigation report, Danny missed

work from June 21 through August 30, 2013. He was also absent for two days

from May 13-14, 2014, to attend the Wahls’ trial. Lastly, Danny missed a day

of work on June 12, 2014, to attend the sentencing hearing. At the sentencing

hearing, Danny testified that even though he was compensated while on leave,

given that he used up his leave days meant that he lost income of $ 20,237.52

which he would have netted upon retirement. Danny is a federal employee and

has been for the past sixteen years. Under 5 U.S.C. § 5551(a), federal

employees who are separated from service are entitled to receive a lump sum

payment for the annual leave that they have accrued but not taken. We note

that had Danny not been forced to expend his annual leave, he would have

been entitled to a lump-sum cash payment for any unused leave in the event of

retirement as federal employee pursuant to 5 U.S.C. § 5551. In light of the

foregoing, the trial court properly ordered restitution for loss of wages.

CONCLUSION

[41] Based on the foregoing, we conclude that (1) there was sufficient evidence to

support Wahl’s conviction for involuntary manslaughter; (2) the trial court did

not abuse its discretion in denying Wahl’s motion to correct error based on jury
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 misconduct; (3) Wahl’s sentence is appropriate; and (4) the trial court did not

abuse its discretion in ordering restitution.

[42] Affirmed.

[43] Barnes, J. concurs

[44] Bailey, J. dissents with separate opinion

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 IN THE
COURT OF APPEALS OF INDIANA

Saundra S. Wahl,
Appellant-Defendant,

v. Court of Appeals Case No.
29A04-1409-CR-418
State of Indiana,
Appellee-Plaintiff.

Bailey, Judge, dissenting.

[45] I respectfully dissent, because cumulative error denied Wahl a fair trial. I am

convinced that the alternate juror crossed a line in his persistent efforts to

influence the duly-selected jurors. Even more egregious, Wahl’s Involuntary

Manslaughter conviction was achieved by merging regulatory concepts into the

definition of recklessness as set forth by our Legislature in the Criminal Code.

Administrative code provisions, State’s Exhibit 65, were submitted as

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 “evidence.”3 The practical effect, however, was that the provisions were used

to supplement the trial court’s instruction on the law and the jury was, in

essence, invited to impose a form of strict criminal liability for a child care

provider’s non-compliance with provisions of an administrative code. In light

of the very tragic events, the jury complied.

[46] A criminal conviction absent proof beyond a reasonable doubt on each element

of the charged crime amounts to fundamental error. In re Winship, 397 U.S.

358, 361, 90 S.Ct. 1068 (1970). The State charged that Wahl recklessly

supervised A.D. and thereby violated Indiana Code Section 35-42-1-4(e), which

at that time provided: “If: (1) a child care provider recklessly supervises a

child; and (2) the child dies as a result of the child care provider’s reckless

supervision; the child care provider commits involuntary manslaughter, a Class

D felony.” Indiana’s Criminal Code provides that one acts recklessly “if he

engages in the conduct in plain, conscious, and unjustifiable disregard of harm

that might result and the disregard involves a substantial deviation from

acceptable standards of conduct.” I.C. § 35-41-2-2(c).

3
Pursuant to Indiana Evidence Rule 401, relevant evidence is that which “has any tendency to make a fact,
more or less probable than it would be without the evidence, and the fact is of consequence in determining the
action. (emphasis added.)

Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015 Page 27 of 30
[47] The theory of prosecution was that non-conformance with regulatory standards

(one too many children or improper maintenance) is necessarily “a substantial

deviation from acceptable standards of conduct” as an element of the charged

crime. The State offered as an exhibit the language of Indiana Administrative

Code Section 3-1.1-36.5 (setting forth the child to staff ratio and stating that

children are to be supervised at all times) and asked Vicki Allen to explain or

define “supervision” within the meaning of the regulatory provision. When

asked “what does that mean,” she responded: “The children need to be within

sight or sound at all times.” (Tr. 448.)

[48] Subsequently, in closing argument, the State invited the jurors to convict Wahl

on this basis:

Twenty month old [A.D.] died on June 20, 2013 because of the
reckless supervision of Saundra and Daniel Wahl. He was playing
outside of the sight or hearing of Saundra Wahl when Saundra was
supervising too many infants in addition to [A.D.]. And he and
another child breeched the gate – this gate – that was maintained by
Daniel Wahl, and he died in that gate.

(Tr. 675.) (emphasis added.) In discussing the elements of the crime, the

Prosecutor read the statutory definition of “recklessness” (including its

reference to acceptable standards of conduct), and then supplemented the

definition with reference to Allen’s testimony:

First, what were the acceptable standards of conduct? Well, Vicki
Allen described what the minimum State standards were. You can
exceed those standards, but that’s the minimum. . . . They would
round up [child ages]. Their supervision they felt was good enough.
The gate was good enough. Well, it’s not good enough. It’s not
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 sufficient. And it wasn’t just in one area. . . . We know what the
standards are for supervision. We have two of those. There’s in sight or
hearing, and there’s the child-to-staff ratio. The Wahls didn’t meet either
of those.

(Tr. 678-79.) (emphasis added.)

[49] In short, the State engrafted language from a regulatory scheme into the

Criminal Code, such that “a substantial deviation from acceptable standards of

conduct” became “a substantial deviation from child care provider standards.”

This invaded the province of the jury whose duty it was to determine whether

conduct was so substantial in its deviance that it amounted to criminal reckless

conduct.

[50] The State should indeed insist upon high standards for child care providers.

That said, it is perplexing that the Prosecution – and the State on appeal –

appear satisfied that any failing to provide the best possible care amounts to

criminal conduct. The State’s brief urges: “When it comes to the care of

children in a for-profit day care facility, any deviation from the required

regulations should be considered a substantial deviation from acceptable

standards of conduct.” (State’s Br. at 10.) This may well be true in a civil

context, but we are here concerned with a criminal substantial deviation from

acceptable standards of conduct. It is also troubling that the State urges

affirmance of a criminal conviction because of the “child-to-staff ratio” and

“fail[ure] to insure that the child gate functioned properly and safely.” (State’s

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 Br. at 10.) I feel compelled to observe that such “criminal” conduct was not

specifically charged in the Involuntary Manslaughter charging information.

[51] In all conduct subject to regulation by this State, such as the operation of a

business or profession, there is potential for negligence, gross negligence, or

criminality. Individuals frequently fall short of the standards set by regulatory

schemes. This can, and should, result in penalties such as warnings, revocation

of licenses, fines, or other penalties of a civil nature. Egregious conduct can,

and should, result in the bringing of criminal charges. However, in those

situations, the conduct proscribed is that defined by our Legislature in the

Criminal Code and the jury is the arbiter of community standards. A jury of

one’s peers is entrusted with the determination of whether the accused acted in

a manner that is so removed from acceptable community standards that he or

she should be convicted of a felony and locked away from society.

[52] In my opinion, Wahl’s conviction was not a product of constitutionally

adequate proceedings and amounts to fundamental error. Accordingly, I

respectfully dissent.

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