MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 09 2020, 8:58 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leon J. Liggitt Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Tina L. Mann
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tearra Montgomery, December 9, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-946
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Plaintiff. Hurley, Judge
Trial Court Cause No.
71D08-1808-F1-17
Mathias, Judge.
[1] After a bench trial, the St. Joseph Superior Court found Tearra Montgomery
guilty of two counts of Level 1 felony neglect of a dependent causing death and
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one count of Level 2 felony battery resulting in death to a person less than
fourteen years old. To avoid double jeopardy concerns, the court ultimately
entered judgment of conviction on two counts of neglect of a dependent, one as
a Level 1 felony and one as a Level 6 felony. The trial court then imposed the
maximum sentence: consecutive terms of forty years for the Level 1 felony and
two-and-one-half years for the Level 6 felony. Montgomery appeals, arguing
that her aggregate forty-two-and-one-half-year sentence is inappropriate in light
of the nature of the offenses and her character.
[2] We affirm.
Facts and Procedural History
[3] Tearra Montgomery began dating Asia Harris sometime in early 2018. A few
months later, Montgomery moved into Harris’s two-bedroom apartment with
Harris and her nineteen-month-old son Z.H. That August, Harris worked
nights—cleaning two banks after-hours—and Montgomery was unemployed.
So, while Harris was at work, she often left her son in Montgomery’s care
[4] On August 10, Z.H. woke up not feeling well—due in part to an eye irritation—
and Montgomery and Harris both had toothaches. The three had a “lazy day at
home.” Tr. Vol. 2, p. 18. Z.H. “just wanted to sleep” throughout the day, but
the toddler was able to eat, drink, and use the bathroom as he normally would.
Id. at 17–18. Harris had to work later that night. Before leaving, she bathed
Z.H., gave him some medicine to help him sleep, and put him to bed. Harris
left for work around 11:00 p.m., and Montgomery stayed behind with Z.H.
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[5] Just before 1:30 a.m., Montgomery called 911 and reported that Z.H was
unresponsive. Officers and paramedics arrived within minutes, and Z.H. was
transported to a local hospital. The “main thing” one of the responding officers
remembered about Montgomery’s demeanor that night “was she was hesitant
to contact [Harris].” Id. at 48. But she eventually did, and Montgomery told
Harris that “she went in the room to do a check-up, and that [Z.H.] wasn’t
breathing.” Id. at 24. At the hospital, “after about 40 to 45 minutes,” id. at 43,
the medical staff was able to get a pulse from Z.H. But the toddler tragically
died later that morning.
[6] The same day, Montgomery was twice interviewed by homicide detectives.
During the first interview, which lasted several hours, there were “numerous
story changes” about what happened to Z.H. Tr. Vol. 3, p. 51. Montgomery
was then taken into custody because she had an outstanding bench warrant for
failing to appear for court on an unrelated traffic offense. A few hours later,
Montgomery “had somebody in the jail” contact one of the detectives because
“she hadn’t been a hundred percent honest” in the first interview. Id. at 47. In
the second interview, Montgomery again provided multiple versions of what
happened to Z.H. See Ex. Vol, State’s Ex. 43.1 But she eventually told the
detectives that Z.H. “was crying and wouldn’t stop crying, so she buried his
face into a robe until he stopped crying.” Tr. Vol. 3, pp. 48–49; see also Ex. Vol.,
1
State’s Exhibit 43, which has been thoroughly reviewed, is a video recording of Montgomery’s second
interview with law enforcement.
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State’s Ex. 43. As a result, the State charged Montgomery with three crimes:
two counts of Level 1 felony neglect of a dependent resulting in death and one
count of Level 2 felony battery resulting in death to a person less than fourteen
years old.
[7] In January 2020, Montgomery was tried in a bench trial during which several
witnesses were called. Dr. Darin Wolfe, who performed Z.H.’s autopsy,
explained that the toddler had an approximate three-inch-long skull fracture
that occurred “in close proximity to the death.” Tr. Vol. 2, p. 91. He further
explained that this type of fracture “typically involves significant force.” Id. at
88. Dr. Robert Yount, a neurosurgeon who reviewed the relevant medical and
police records, testified that Z.H.’s skull fracture is the type “you would see
after the child was thrown with force against a flat surface.” Tr. Vol. 3, p. 14.
Yet, Dr. Yount indicated that Z.H. “likely would have survived [this] injury,”
id. at 9, had he not also been suffocated. Dr. Yount also clarified that the “skull
fracture happened within an hour of the suffocation.” Id. at 16. The evidence
also included testimony and DNA evidence relating to a red bloodstain that
was discovered—about six feet high—on one of the apartment walls. Tr. Vol. 2,
pp. 109–12, 122; Ex. Vol., State’s Exs. 18–22. The stained area included “tiny
hair fibers,” Tr. Vol. 2, p. 111, and a subsequent DNA test confirmed the
presence of Z.H.’s blood, Ex. Vol., State’s Ex. 44.
[8] About a month after trial concluded, the court issued a detailed order finding
Montgomery guilty as charged. Appellant’s App., pp. 7–10. At the first of two
sentencing hearings, the court, to avoid double jeopardy concerns, merged the
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Level 2 felony battery with one count of Level 1 felony neglect, leaving two
counts of Level 1 felony neglect of a dependent resulting death. But prior to
entering judgment, the court expressed concern whether the two identified acts
that resulted in Z.H.’s death—causing the injury and failing to seek immediate
medical treatment—could serve as the basis for two Level 1 felony convictions.
Tr. Vol. 4, p. 14. Prior to the court making a determination, it “consider[ed]
aggravating factors and mitigating factors[.]” Id. at 20. The court observed that
Montgomery’s criminal record included only one prior offense and thus did not
give “much weight to [this] criminal history in aggravation.” Id. at 20. But, after
detailing several “facts and circumstances of this case,” the trial court found
“that the aggravating factors outweigh any factors in mitigation[.]” Id. at 20–21.
It then entered judgment of conviction on both Level 1 felonies and imposed an
aggregate seventy-year sentence.
[9] A few weeks later, the trial court held a second sentencing hearing after
confirming its initial concern that there could not be two convictions for Level 1
felony neglect in this case: “there aren’t two deaths here; there’s one death.” Id.
at 27. Thus, the court reduced one of the Level 1 felonies to a Level 6 felony
and entered judgment accordingly. It then concluded that the aggravating
factors justified consecutive sentences and that “the heinous nature of the
offenses” justified a maximum sentence on each count. Id. at 27–28. So, the
trial court imposed a maximum aggregate sentence of forty-two-and-one-half
years. Montgomery now appeals this sentence.
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Discussion and Decision
[10] Montgomery argues that her aggregate forty-two-and-one-half-year sentence is
inappropriate under Indiana Appellate Rule 7(B),2 which provides the standard
by which we exercise our constitutional authority to review and revise
sentences. Under this rule, we modify a sentence when we find that “the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” App. R. 7(B). Making this determination “turns on our sense
of the culpability of the defendant, the severity of the crime, the damage done to
others, and myriad other factors that come to light in a given case.” Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008). Yet, sentence modification under
Rule 7(B) is reserved for “a rare and exceptional case.” Livingston v. State, 113
N.E.3d 611, 612 (Ind. 2018) (per curiam).
[11] When conducting this review, we generally defer to the sentence imposed by
the trial court. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Indeed, our role
is to “leaven the outliers, and identify some guiding principles for trial courts
2
Notably, Montgomery does not challenge her aggregate sentence on the basis that it runs afoul of the
statutory cap on consecutive sentences prescribed by Indiana Code section 35-50-1-2(d). Except for crimes of
violence, the statute dictates that “the total of the consecutive terms of imprisonment to which the defendant
is sentenced for felony convictions arising out of an episode of criminal conduct may not exceed” forty-two
years when “the most serious crime for which the defendant is sentenced is a Level 1 felony.” Id. The statute
further instructs that “‘episode of criminal conduct’ means offenses or a connected series of offenses that are
closely related in time, place, and circumstance.” Id. § -2(b). Here, Montgomery’s most serious crime was a
Level 1 felony, and our legislature has not included neglect of a dependent as a “crime of violence.” Id. § -
2(a). Thus, if Montgomery’s offenses “arose out of an episode of criminal conduct,” then the total
consecutive term of imprisonment she could receive is forty two years—six months less than the sentence
imposed. But, because neither party has raised an argument under Section 35-50-1-2, we decline to address
the issue sua sponte. If the sentence is indeed erroneous, we trust that it will be corrected below. See I.C. § 35-
38-1-15.
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and those charged with improvement of the sentencing statutes, but not to
achieve a perceived ‘correct’ result in each case.” Cardwell, 895 N.E.2d at 1225.
Thus, deference to the sentence imposed by the trial court will prevail unless the
defendant produces compelling evidence portraying in a positive light the
nature of the offense—such as showing restraint or a lack of brutality—and the
defendant’s character—such as showing substantial virtuous traits or persistent
examples of positive attributes. Robinson v. State, 91 N.E.3d 574, 577 (Ind.
2018); Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).
[12] Before explaining why Montgomery has failed to make such a showing here,
we first acknowledge that the trial court imposed a maximum sentence:
consecutive terms of forty years for the Level 1 felony, and two-and-one-half
years for the Level 6 felony. Ind. Code §§ 35-50-2-4, -7. We have often said that
maximum sentences should generally be reserved for the worst offenders and
offenses. See, e.g., Payton v. State, 818 N.E.2d 493, 498 (Ind. Ct. App. 2004),
trans. denied. But determining which cases constitute “the worst of the worst” is
a task we entrust to our trial courts—they “will know them when they see
them.” Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011). While Montgomery
asserts that her maximum sentence is inappropriate because she did not commit
“the very worst offense” and she “is not the very worst offender,” Appellant’s
Br. at 9, the trial court found otherwise based on the evidence presented, Tr.
Vol. 4, pp. 27–28. And Montgomery has failed to show that the maximum
sentence imposed by the court is inappropriate based on the nature of the
offenses and her character.
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[13] Turning first to the nature of the offenses, Montgomery notes only that the trial
court “cited the age of the child and the pain experienced by the child,” which
she asserts is already an essential part of her Level 1 felony conviction.
Appellant’s Br. at 8. Though this may be true, Montgomery has not produced
any evidence, let alone “compelling evidence,” that portrays the heinous nature
of these offenses in a positive light. Stephenson, 29 N.E.3d at 122. In fact, quite
the opposite is true.
[14] The evidence produced at trial supports the court’s conclusion that
Montgomery threw nineteen-month-old Z.H. into a wall and suffocated the
toddler. Appellant’s App., p. 9; 3 see Tr. Vol. 2, pp. 82–83, 87–88, 91, 97, 109–
11; Vol. 3, pp. 8–9, 11–14, 16–17; Ex. Vol., State’s Exs. 18–22, 43–44. More
specifically, the record reveals that, while Z.H. was in Montgomery’s care, she
slammed the toddler up against a wall, fracturing his skull. Then, rather than
seek immediate medical treatment, Montgomery suffocated Z.H.—to stop his
crying—by holding the toddler facedown into his own bathrobe. We echo the
trial court’s observation that it is “hard to fathom that anyone could have done
that to a child.” Tr. Vol. 4, p. 21. Simply put, the heinous nature of these
offenses does not support revision of Montgomery’s maximum sentence. Cf.
Hamilton, 955 N.E.2d at 727 (recognizing that harsher sentences are supported
by “younger ages of victims” as well as “when a defendant has violated a
3
The trial court issued findings of fact and conclusions of law following Montgomery’s bench trial even
though it was not required to do so. Dozier v. State, 709 N.E.2d 27, 30 (Ind. Ct. App. 1999). We commend the
trial court, as its findings and conclusions—which are supported by the evidence—have aided our review.
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position of trust”). And she has also failed to show that her sentence is
inappropriate based on her character.
[15] Turning to Montgomery’s character, she merely asks us to consider her “lack of
criminal history.” Appellant’s Br. at 9. Though we acknowledge that
Montgomery has only one prior offense, a traffic-related misdemeanor, any
criminal offense reflects poorly on a defendant’s character. See, e.g., Prince v.
State, 148 N.E.3d 1171, 1174 (Ind. Ct. App. 2020). And the effect of this limited
criminal history on Montgomery’s character is exacerbated by the fact that she
had an outstanding bench warrant related to the traffic offense. Appellant’s
Conf. App., p. 27. Further, Montgomery does not point to any “substantial
virtuous traits” or “persistent examples of good character.” Stephenson, 29
N.E.3d at 122. Rather, the record reveals that she silenced a crying toddler by
holding him facedown into a bathrobe; she provided several different versions
of the events leading to Z.H.’s death; and she has a history of neglecting her
own biological children, Appellant’s Conf. App., p. 16. In short, Montgomery
has not shown that her sentence is inappropriate based on her character.
Conclusion
[16] Montgomery has not met her burden of demonstrating that her aggregate forty-
two-and-one-half-year maximum sentence is inappropriate in light of the nature
of the offenses and her character. We affirm.
Altice, J., and Weissmann, J., concur.
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