ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
Jill M. Denman Steve Carter
John W. Bailey Attorney General of Indiana
Matheny, Michael, Hahn
& Bailey, LLP ADAM M. DULIK
Huntington, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
APRIL M. BROWN, )
)
Appellant (Defendant), )
)
v. ) Cause No. 35S00-0010-CR-
599
)
STATE OF INDIANA, )
)
Appellee (Plaintiff). )
APPEAL FROM THE HUNTINGTON CIRCUIT COURT
The Honorable Mark A. McIntosh, Judge
Cause No. 35C01-0002-CF-00009
June 17, 2002
SHEPARD, Chief Justice
While appellant April M. Brown sat and watched, her husband Levohn
(Lee) Brown struck their three-year-old daughter with a blow that proved
fatal because the parents let her go for a week without any medical
attention. A jury found April Brown guilty of aiding in murder and neglect
of a dependent causing serious bodily injury. We affirm the latter, and
remand for a new trial on the former.
Facts & Procedural History
On February 4, 2000, Lee Brown struck his three-year-old daughter
MicKenzie in the back of the head with a large wooden paddle as she stood
with her nose against a wall. The blow caused a four-and-one-half-inch
skull fracture. April Brown, MicKenzie’s stepmother, witnessed the blow.
Though April saw no serious signs of injury immediately after the attack,
over the following week she watched MicKenzie’s health deteriorate
significantly. April did not seek medical treatment for MicKenzie until
February 11, when she called 911. MicKenzie died from the untreated skull
fracture shortly after arriving at the emergency room.
April was charged with aiding MicKenzie’s murder[1] and with neglect
of a dependent causing serious bodily injury.[2] A jury found her guilty
on both counts, and the trial court sentenced her to maximum consecutive
terms totaling eighty-five years.
I. Was April an Accomplice?
Because it is so pivotal to April’s claim of trial error, we begin by
considering the sufficiency of the evidence that she aided in MicKenzie’s
murder.
To convict April of aiding in murder, the State had to prove beyond a
reasonable doubt that she (1) knowingly or intentionally (2) aided,
induced, or caused Lee (3) to murder MicKenzie. See Ind. Code Ann. §§ 35-
41-2-4, 35-42-1-1(1) (West 1998).
The particular facts and circumstances of each case must be
considered in determining whether a person participated in the commission
of an offense as an accomplice. Peterson v. State, 699 N.E.2d 701 (Ind.
Ct. App. 1998). Certain factors have long been considered probative in
that determination, including: (1) presence at the scene of the crime; (2)
companionship with another engaged in criminal activity; (3) failure to
oppose the commission of the crime; and (4) a defendant’s course of conduct
before, during, and after the occurrence of the crime. Johnson v. State,
490 N.E.2d 333, 334 (Ind. 1986).
April does not dispute her presence at the scene of the crime, and her
marriage to Lee clearly constituted “companionship.” This companionship
continued for a period of time even after MicKenzie’s death.
The facts most favorable to the verdict indicate that April heard Lee
tell MicKenzie, “you’re going to listen to me or I’m going to beat it into
you” just prior to the beating. (R. at 491-92.) She also heard Lee ask
MicKenzie, “Do you want me to put you through this wall[?]” (Id.)
After hearing these threats, April joined Lee in the bedroom to find
him holding MicKenzie against a wall by her pajamas. (Id.) He again was
threatening “to put her through the wall.” (Id.) April sat down and
watched Lee strike MicKenzie in the back of the head with a large wooden
paddle.
Lee then asked April, “[H]ave I gone too far?” (R. at 632.) She
replied, “[Y]ou are too easy on her, she was – she is – she will be fine.”
(Id.) She also said that “she was sick of [Lee] treating MicKenzie like a
porcelain doll.” (R. at 632-33.) April made similar comments to Lee
before the day of this incident. (Id.)
After the attack, April cleaned up MicKenzie’s blood that had
splattered on surrounding objects for fear that someone would realize what
had occurred. (R. at 361, 377.) Over the next few days, April realized
MicKenzie was having trouble standing, walking, moving her left arm,
focusing her eyes, and controlling her bowels. (R. at 517.) MicKenzie
also suffered numerous bruises to her entire body. (R. at 339-40, 517.)
During this time, April would watch as Lee knocked MicKenzie on her head
and slapped her in the face. (R. at 518.) Two days after the beating,
April saw Lee slap MicKenzie “hard enough that [her] head would jolt back”
and cause her to fall to the ground. (R. at 519.)
From Monday until Thursday, the four days preceding MicKenzie’s death,
April was the sole parent in the home, (R. at 637), and she recognized the
need for medical treatment, (R. at 339-40, 343-45, 347, 517). She
requested the advice of a friend, who upon seeing MicKenzie was so alarmed
at the child’s condition that he offered to take them to the hospital. (R.
at 347, 615-17, 621.) April declined and instead did nothing. (Id.)
On the morning of February 11, MicKenzie stopped breathing. Only
after speaking with Lee did April call 911. The fireman who first
responded to the emergency call testified about MicKenzie’s visibly
protruding forehead and the bruises that covered her body. He also
described MicKenzie’s rigid and swollen torso, which was the result of
massive bleeding in her stomach.
While doctors and emergency technicians attempted to save MicKenzie’s
life, April frustrated their efforts. She concocted stories of MicKenzie
suffering from the flu, experiencing respiratory problems, and taking adult
doses of medication.
Even after MicKenzie’s death, April continued to cover up the crime by
lying to the authorities on numerous occasions. (R. at 300, 305-07, 314,
324, 328-31, 337-38, 354-55, 376.) It was only after Lee admitted striking
MicKenzie with the paddle that April told authorities about the
circumstances surrounding the incident. (R. at 356-66.)
April’s failure to oppose MicKenzie’s continued abuse and to seek
medical treatment is particularly probative because she owed a parental
duty to protect. See Mobley v. State, 227 Ind. 335, 85 N.E.2d 489 (1949).
In Mobley, this Court confronted an eerily similar case of child abuse.
Three-year-old Alice Mobley died from cerebral injuries caused by repeated
acts of violence committed by her mother’s boyfriend. 227 Ind. at 340-41,
85 N.E.2d at 491.
Although it was unclear whether any of Alice’s mother’s acts caused
the brain injuries, it was undisputed that the child was in the exclusive
control of the mother and her boyfriend for the weeks preceding her death.
Id. In discussing the possibility that none of the mother’s acts
contributed to the child’s death, Justice Young wrote:
While it is true that the mere presence of a person at the scene of a
crime is insufficient to constitute him a principal therein, in the
absence of anything in his conduct showing a design to encourage,
incite, aid, abet or assist in the crime, the trier of the facts may
consider failure of such person to oppose the commission of the crime
in connection with other circumstances and conclude therefrom that he
assented to the commission of the crime, lent his countenance and
approval thereto and thereby aided and abetted it. This, it seems to
us, is particularly true when the person who fails to interfere owes a
duty to protect as a parent owes to a child.
Mobley, 85 N.E.2d at 492, 227 Ind. at 344 (internal citations omitted).
This rationale is particularly pertinent to the instant case.
Our review of these multiple factors, including April’s presence at
the scene of the crime, her continued companionship with Lee, her
statements of encouragement for harsher punishment both before and after
the skull-fracturing blow, her failure to render or seek medical treatment
despite its obvious necessity, her status as the sole caregiver for much of
the week prior to MicKenzie’s death, her failure to oppose continued abuse
after the initial injury, her repeated lies to medical personnel and
authorities about the cause of MicKenzie’s death, and especially her duty
to protect the child, all lead us to conclude that she “assented to the
commission of the crime, lent h[er] countenance and approval thereto and
thereby aided and abetted it.” Id.
The State presented sufficient evidence to convict April of aiding in
MicKenzie’s murder.
II. Claims of Error
Still, this is not a standard set of facts constituting accomplice
liability. April lent her encouragement to these abhorrent acts and was a
significant cause of MicKenzie’s death, but she did not participate in the
physical act of landing the blow. With the evidence supporting accomplice
liability as close as it is, we turn to April’s two claims of trial error.
A. Exclusion of Lee’s Testimony. The defense called Lee to the
stand during its case-in-chief and asked him what his intent was in
administering the blow to MicKenzie’s head. The State objected, arguing
that Lee’s intent was irrelevant. The trial court did not allow Lee to
answer. The defense subsequently made an offer of proof that Lee would
have testified that he did not intend to cause MicKenzie’s death and that
the strike to the head was an accident. (R. at 666.)
Claims of error in the exclusion or admission of evidence are reviewed
for an abuse of discretion. McCarthy v. State, 749 N.E.2d 528 (Ind. 2001).
An error is harmless if its probable impact on the jury, in light of all
of the evidence in the case, is sufficiently minor so as not to affect a
party’s substantial rights. Stewart v. State, 754 N.E.2d 492 (Ind. 2001).
The evidence in question bore directly on Lee’s state of mind in
striking MicKenzie. Without the finding of a knowing or intentional
killing by Lee, the State could not have proven that April aided him in the
murder. See Johnson v. State, 687 N.E.2d 345, 350 (Ind. 1997) (citation
omitted) (“An accomplice may be tried and convicted when the proof of the
underlying crime is sufficient.”). While it is true, as the State has
argued, that it could obtain a conviction without proving that Lee intended
to cause death (by showing that he “knowingly” caused the death), his level
of intentionality was an important element of proof in April’s crime as
charged.
Our review of the record convinces us that this error was not
harmless. The defense did elicit testimony from Lee that he was going to
spank MicKenzie for her defiance, (R. at 627, 629), but Lee was not
otherwise allowed to explain his intent in striking MicKenzie. Given a
different set of facts on the issue of accomplice liability, we might rule
this error harmless. But considering the closeness of the evidence on this
charge, the exclusion of this evidence requires reversal.
B. Lesser Included Instructions. April also argues that the trial
court erred by refusing a jury instruction on the lesser included offenses
of aiding in reckless homicide and aiding in voluntary manslaughter.
To determine whether to instruct the jury on a lesser included offense
of a charged crime, the court must employ the analysis outlined in Wright
v. State, 658 N.E.2d 563 (Ind. 1995). First, the court must compare the
statute defining the charged crime with the statute defining the lesser
included offense to determine whether the lesser included offense is
"inherently included" in the crime charged. Id. at 566.
Where the only element distinguishing the crimes is the degree of
culpability, as is the case between reckless homicide and murder, the
lesser included offense is inherently included. See Miller v. State, 720
N.E.2d 696, 702-03 (Ind. 1999); accord Taylor v. State, 587 N.E.2d 1293,
1303-04 (Ind. 1992). Therefore, aiding in a reckless homicide is an
inherently included lesser offense of aiding in a murder.
Having satisfied the first requirement, the trial court must then
evaluate the evidence presented by both parties. Wright, 658 N.E.2d at
567. If there is a serious evidentiary dispute about the elements
distinguishing the greater offense from the lesser offense and “a jury
could conclude that the lesser offense was committed but not the greater,
then it is reversible error for a trial court not to give an instruction,
when requested, on the inherently or factually included lesser offense."
Id. If, on the other hand, there is no meaningful evidence from which the
jury could properly find the lesser offense was committed, the court should
not give the lesser included offense instruction. Id.
Our analysis of this requirement is complicated by the trial court’s
exclusion of Lee’s testimony regarding his intent in striking MicKenzie.
Had the trial court properly allowed the testimony, he would have testified
that he accidentally struck MicKenzie in the head and that he did not
intend to kill her. (R. at 665-66.) In support of this statement, Lee
testified that prior to striking MicKenzie, he told April that he was going
to give MicKenzie “a couple swats on the behind.” (R. at 629.)
This evidence would have created a serious evidentiary dispute as to
whether Lee committed murder, reckless homicide or voluntary manslaughter.
Had the jury believed this assertion, it could not have properly convicted
April of aiding in murder because conviction of an accomplice requires
sufficient proof of the underlying crime. See Sanquenetti v. State, 727
N.E.2d 437, 441 (Ind. 2000). As such, the trial court’s refusal to
instruct the jury on the lesser included offenses of aiding in reckless
homicide or in voluntary manslaughter was reversible error.
There Was Evidence of Neglect
April next contends that insufficient evidence supported her
conviction for neglect of a dependent causing serious bodily injury. On
this claim, some additional details about MicKenzie’s horrific death are
telling.
After recognizing MicKenzie’s dire medical condition, April and Lee,
rather than taking their three-year-old to a doctor, attempted “therapy.”
They bathed MicKenzie in an Epsom salt bath only to watch as her head
repeatedly rolled to the side, filling her mouth with water. (R. at 349.)
When this “therapy” failed, April watched as Lee attempted to make
MicKenzie stand on her own. (R. at 350.) Each time he would release
MicKenzie, she would fall to the ground, sometimes hitting her head. (R.
at 350-51.)
Furthermore, the State presented testimony from Dr. Scott Wagner, who
said that children are resilient to head injuries and that MicKenzie’s
chances for survival were good had she received prompt medical treatment.
(R. at 422.) Though Dr. Wagner could not pinpoint when MicKenzie became
untreatable, he testified that her medical condition would have worsened
with each passing day and the sooner the treatment, the better chance
MicKenzie would have had to live. (R. at 419-22.) Dr. Wagner further
testified that MicKenzie would not have appeared normal just after the
blow, would have frequently been unconscious, and would have continued to
get worse before her eventual death. (R. at 419-21.)
This tale of maternal neglect is so shocking that the customary words
of legal analysis seem inadequate to the task. Simply put, overwhelming
evidence proves April knew MicKenzie desperately needed medical treatment
and that MicKenzie would still be alive had she received it promptly. We
affirm April’s conviction of neglect of a dependent causing serious bodily
injury.
III. Sentencing
Finally, April challenges her twenty-year sentence for neglect of a
dependent as both erroneous and manifestly unreasonable.
A. Aggravating and Mitigating Factors. The trial court found five
aggravators: (1) April’s lack of remorse; (2) her need for correctional or
rehabilitative treatment; (3) imposition of a reduced sentence or
suspension of the sentence would depreciate the seriousness of the crime;
(4) the victim’s age; and (5) the nature and circumstances of the crime.
The trial court found one mitigator, April’s lack of criminal history.
April first argues that her need for rehabilitation best served by
incarceration was not supported by the record. The State concedes that
this aggravating factor was improper. The remaining aggravators, however,
may serve to enhance April’s sentence.
April also contends that the trial court erred in failing to consider
two mitigating factors: (1) the likelihood that the offense would never re-
occur because April and Lee subsequently divorced; and (2) that the need
for supervision is low. Though the trial court must identify all
“significant” mitigating factors, it is not required to accord them the
weight defendant requests. Bonds v. State, 721 N.E.2d 1238, 1243 (Ind.
1999).
April claimed she did not seek medical treatment for MicKenzie because
she feared reprisal from Lee. (R. at 347, 355-56, 520-21.) Though April
was no longer married to Lee by the time of her sentencing, her trial
testimony revealed a history of abusive relationships. (R. at 441-68.) In
light of this evidence, the trial court did not abuse its discretion in
rejecting April’s contention that she was unlikely to neglect a dependent
again.
It was also within the court’s discretion to reject as a significant
mitigating factor April’s claim that she needed little supervision. Though
April correctly points out that the risk assessment instrument prepared for
the pre-sentence report indicates relatively low risk, April’s own
contributions to the report could rightly have given Judge McIntosh pause
on this point. Asked what type of sentence she thought she should receive,
April replied, “I don’t feel I deserve anything [f]or a crime I didn’t
commit. [Seven] months has already been taken from my children, my family,
and myself unjustly.” (Appellant’s App. at 49.)
B. Manifestly Unreasonable. April also argues that her sentence is
manifestly unreasonable. In light of the nature of Brown’s neglect and her
stunning lack of remorse following the incident, a twenty-year sentence is
hardly unreasonable.
Conclusion
We reverse the conviction for aiding in murder and remand for retrial.
We affirm the conviction and sentence for neglect of a dependent.
Dickson, Sullivan, and Rucker, JJ., concur.
Boehm, J., concurs in part and dissents in part with separate opinion.
BOEHM, Justice, concurring in part, dissenting in part.
I concur in the part of the opinion affirming Brown’s conviction for
neglect of a dependent causing severe bodily injury. Although this three-
year-old child was the victim of a horrible and disgusting crime, I
respectfully dissent from the portion finding sufficient evidence to
convict Brown of aiding murder.
The majority does not address what seems to me to be a critical gap in
the State’s evidence. Brown was charged with being an accomplice to
murder. Accordingly, as the majority opinion reflects, if there was a
murder in the facts, it is the blow Lee struck, not the subsequent events
as to which Brown was a principal, not an accomplice. I cannot find
evidence that supports the notion that Brown either “knowingly” or
“intentionally” assisted Lee in causing MicKenzie’s death. Accomplice
liability requires a person “knowingly and intentionally” aid the
principal. Ind. Code § 35-41-2-4 (1998). This requires proof beyond
reasonable doubt that either (1) Brown knew Lee was about to deliver a
fatal blow or (2) Brown intended to encourage Lee to kill the child.
In most crimes, the acts of assistance also supply awareness of the
principal’s purpose to commit the crime. Here, however, all Brown did was
tell Lee he was “going too easy” on the victim and fail to intervene in
Lee’s clearly expressed intent to punish the child. I cannot infer from
this evidence that at the time immediately before the fatal blow was struck
by Lee, Brown had any basis to conclude that death would result.
Certainly, I cannot find evidence of her knowledge of a high degree of
probability that death would result or a “conscious objective” that the
child be killed. I.C. § 35-41-2-2. To be sure, Brown’s actions after the
fatal blow was delivered fully support the neglect of a dependent
conviction. I would affirm the conviction of neglect of a dependent,
reverse the murder conviction, and impose the trial court’s maximum
sentence of twenty years.
-----------------------
[1] Ind. Code Ann. §§ 35-42-1-1(1), 35-41-2-4 (West 1998).
[2] Id. at § 35-46-1-4.