FILED
May 18 2023, 8:52 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas C. Buchanan Theodore E. Rokita
Buchanan & Bruggenschmidt, P.C. Attorney General
Zionsville, Indiana Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Elijah Mills, May 18, 2023
Appellant-Defendant, Court of Appeals Case No.
22A-CR-1392
v. Appeal from the
Hamilton Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff Paul A. Felix, Judge
Trial Court Cause No.
29C01-1911-F1-9633
Opinion by Judge Vaidik
Judges Tavitas and Foley concur.
Court of Appeals of Indiana | Opinion 22A-CR-1392 | May 18, 2023 Page 1 of 25
Vaidik, Judge.
Case Summary
[1] In 2020, our Supreme Court issued Wadle v. State, 151 N.E.3d 227 (Ind. 2020),
and Powell v. State, 151 N.E.3d 256 (Ind. 2020), overhauling Indiana double-
jeopardy law and eliminating the constitutional and common-law analyses
through which we previously determined substantive double jeopardy. In place
of these analyses, the Court articulated new tests focused on statutory intent. In
Wadle, the court addressed cases when a defendant’s single act or transaction
implicates multiple criminal statutes. The Wadle test requires courts to first
determine whether the statutes allow multiple punishments for the charged
offenses. If so, there is no double jeopardy, but if not, the courts then look to
our included-offense statutes to determine whether one of the offenses is
included—either inherently or as charged—in another. If not, there is no double
jeopardy. Neither of these steps allows us to look at the evidence presented at
trial. Only if the court has determined that an offense is included in another—
inherently or as charged—should the court go on to look at the evidence
presented to determine whether the defendant’s actions constitute a single
transaction or separate and distinct crimes.
[2] Here, after the death of his son L.M., Elijah Mills was found guilty of Level 1
felony neglect of a dependent resulting in catastrophic injury or death and Level
3 felony battery resulting in serious bodily injury. The statutes of these offenses
do not expressly permit multiple punishments, but Mills does not assert the
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offenses are included inherently or as charged. Instead, he argues the offenses
are included because the facts established at trial show the State used the same
act—his battery of L.M.—to prove both offenses. But Wadle does not permit us
to look to the evidence presented at trial to determine whether an offense is
included in another for purposes of substantive double jeopardy. As such, we
find no double-jeopardy violation here and affirm on this and all other issues.
Facts and Procedural History
[3] L.M., born in January 2015, was the biological son of Mills and Brittany
Pearson. In 2018, L.M. lived with Mills and his girlfriend, Taylor Abrams, with
Pearson exercising parenting time. In March of that year, Pearson noticed
bruises on L.M.’s back, buttocks, and thighs and took him to the hospital. The
Department of Child Services (DCS) was notified, and Ne’Cole Whyde, a DCS
case manager, investigated. Whyde spoke with Mills, who admitted he
“whooped” L.M. with a belt for saying “damn.” Tr. Vol. II p. 14. Whyde
concluded Mills caused the bruising, substantiated the claim of physical abuse,
and removed L.M. from the home. A few days later, Mills retracted his
statements and told Whyde that the bruising was caused by a “fall down the
stairs.” Tr. Vol. III p. 149. L.M. was returned to Mills’s care in April.
[4] In September, Pearson noticed bruises on L.M.’s lower abdomen and thighs.
The next month, DCS Family Case Manager (FCM) Thomas Brown
investigated, but Mills initially refused to speak with him without an attorney.
Based on the timing of the injuries, Brown determined L.M. received them
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while in Mills’s care. Mills later suggested to Brown that this bruising may have
occurred when L.M. was playing with another child. Nonetheless, Brown had
“severe concerns with [L.M.’s] safety in the care of [Mills] and [Abrams]” and
made a formal report raising claims of physical abuse against them. Id. at 173.
However, the claims were never substantiated, and the matter was closed a few
weeks later.
[5] In the summer and fall of 2019, Pearson again began noticing bruises on L.M.
and that he was getting “skinnier.” Id. at 113. Around this time, several other
people expressed concern about L.M. Rumer Beck, Mills’s friend, was asked to
babysit L.M., and when she arrived Abrams said that L.M. was being punished
and had to stand in the corner with his arms raised. When Beck expressed
concern about the punishment, she was told “that was what they wanted for
their child.” Tr. Vol. IV p. 127. Later that night, Mills returned home “angry”
and “[f]rustrated” and took L.M. into a bedroom, where Beck heard
“swat[ting]” and “smacking” sounds and L.M. “crying out for his mother” for
about “25 minutes.” Id. at 115-16, 213.
[6] In August, law enforcement conducted a welfare check at Mills’s apartment
after Austin Murrell, who lived in the apartment below Mills, reported hearing
“a kid screaming for help” from Mills’s apartment and a male voice “yelling
[L.M.’s] name” several times. Id. at 168, 169. Officers noted nothing of concern
during the check. In October, Tamara Hodgkin, another friend of Mills, became
so concerned about L.M. that she made a report to DCS. She reported that
Mills and Abrams withheld food and water from L.M. as punishment and
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would taunt him with food and that L.M. had bruises on his face and was
limping. DCS attempted to investigate these claims, but Mills was
uncooperative and would not allow photographs or for L.M. to talk to DCS.
[7] Around 7:00 a.m. on November 12, the Noblesville Police Department received
a call regarding a child who was in cardiac arrest at Mills’s home. Officers
arrived to find Mills performing chest compressions on L.M., who was
unresponsive and lying on his back on the living-room floor. Abrams was also
in the home and had called 911. When medical personnel arrived, they noted
L.M. had bruising across his face, torso, and inner thighs, all at various stages
of healing, as well as abrasions to his knees and scarring “all over his body.” Tr.
Vol. III p. 73. L.M., who was nearly five years old, appeared severely
malnourished and weighed only twenty-nine pounds, approximately the size of
a two-year-old.
[8] L.M. was taken to Riverview Hospital, where he was placed on a breathing
tube and then quickly transferred to Riley Hospital for Children due to the
severity of his injuries. After “extensive” testing, doctors determined he suffered
“subdural hematomas overlying both hemispheres of his brain,” bleeding
outside the spinal cord, retinal hemorrhages, heterotopic ossification on his
thighs and back,1 and a “healing injury” of the left forearm. Id. at 236-37.
Doctors determined he was “critically ill,” his likelihood of “meaningful
1
Heterotopic ossification refers to “bone growth or bone development . . . in areas of the body it shouldn’t
be” such as in soft tissue or muscle. Tr. Vol. III p. 237.
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neurological and developmental recovery was very low,” and it was “unlikely
that he would survive.” Tr. Vol. IV pp. 4-5.
[9] Mills gave various explanations for L.M.’s injuries. He told medical personnel
who first responded to the home that L.M. had not experienced any trauma or
accidents that could explain his injuries. He told FCM Holly McCombs, who
went to Riley Hospital after a report was filed with DCS, that he had spanked
L.M. that morning for wetting himself and that—as forms of discipline—he
“pinch[ed]” L.M. on the thigh and forced him to exercise. Id. at 230. When
interviewed by police at the hospital, he claimed L.M. had been experiencing
headaches and had recently fallen in the home and at the park. The next day,
Mills called Detective Michael Haskett of the Noblesville Police Department
and gave more information about the time leading up to the 911 call. He stated
that morning he forced L.M. to run as a punishment, that L.M. fell while
running and hit his head, that this happened several times, and that Mills made
L.M. continue to run even after the falls. He also stated he “popped” L.M. on
the head when he refused to run anymore. Ex. 86, 2:38. Later in the call, the
two discussed what could have caused the injuries, and Detective Haskett told
Mills to let him know if he could think of anything else. Mills then reiterated
that L.M. fell “on his face” while running. Id. at 8:09.
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[10] The State charged Mills with Level 1 felony neglect of a dependent resulting in
catastrophic injury or death and Level 3 felony battery resulting in serious
bodily injury to a person less than fourteen years old.2
[11] L.M. spent almost two months at Riley Hospital, and his condition improved
enough that he could breathe on his own. In January 2020, he was released
from the hospital and placed in foster care. However, he never regained the
ability to walk, talk, or eat, his neurological function did not improve, and he
suffered from seizures and often struggled to breathe on his own. In November,
L.M. contracted pneumonia and was placed on a ventilator. He continued to
deteriorate, and doctors at Riley Hospital determined aggressive medical care
would not be in L.M.’s best interests, given his poor quality of life and limited
life span. L.M.’s breathing tube was removed on December 13, 2020, and soon
after he died. L.M.’s cause of death was listed as respiratory failure with
traumatic brain injury as an underlying condition. Thereafter, the State
amended the charging information to add a count of Level 2 felony battery
resulting in death to a person less than fourteen years old.
[12] In September 2021, the State filed notice of its intention to present evidence of
the 2018 DCS investigations. Mills objected under Indiana Evidence Rule
404(b). Both parties submitted briefs on the issue, and a hearing was held. In
2
The State charged Abrams with Level 1 felony neglect of a dependent resulting in catastrophic injury or
death and Class B misdemeanor failure to make a report. These charges were still pending at the time of
Mills’s trial. Abrams later pled guilty to Level 3 felony neglect of a dependent resulting in serious bodily
injury and received a nine-year sentence.
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part, the State argued that the evidence was relevant to show that L.M.’s
injuries were not the result of an accident. The trial court then issued an order
permitting the introduction of the evidence to disprove Mills’s contentions that
L.M. “accidentally was injured.” Appellant’s App. Vol. II p. 158.
[13] A jury trial was held in April 2022. Over Mills’s objections, multiple witnesses
testified about the March and October 2018 DCS investigations. Dr. Ralph
Hicks, a pediatrician specializing in child abuse at Riley Hospital, testified that
he was asked by DCS in March 2018 to opine on the cause of the bruising on
L.M.’s buttocks, thighs, and lower back. Dr. Hicks testified that Mills’s
explanation for the bruising—that L.M. had fallen down the stairs—was not
consistent with the injuries and that the bruising appeared to have been caused
by trauma with an object and was consistent with “inflicted injury.” Tr. Vol. III
p. 222. He also testified that in October 2018 he was asked to consult on L.M.’s
case and again opined that the amount of bruising and its location did not
match Mills’s explanation.
[14] Finally, Dr. Hicks testified about the injuries sustained by L.M. in November
2019. He noted the injuries to L.M.’s thighs and back were caused by
“significant or repeated trauma” and that these injuries and the forearm injury
were likely older as they had partially healed. Tr. Vol. IV p. 3. As for the
bleeding in L.M.’s brain, spine, and eyes, Dr. Hicks stated these injuries were
caused by “forceful” blunt trauma and could not be explained by L.M. falling.
Tr. Vol. III p. 247. Dr. Hicks also testified that when admitted to Riley Hospital
L.M. had “chronic, ongoing malnutrition.” Id. at 238. Ultimately, Dr. Hicks
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opined that L.M.’s injuries “were characteristic of nonaccidental inflicted
trauma.” Tr. Vol. IV p. 7.
[15] Several witnesses also testified about their interactions with Mills on November
11 and 12. Beck testified that Mills, Abrams, and L.M. ate at the restaurant
where she worked on the evening of November 11 and that L.M. seemed fine.
She further testified that she called Mills around 2:00 a.m. the next morning, he
said he was punishing L.M. for “soil[ing] himself,” and she could hear L.M.
“running” and “whimper[ing]” in the background. Id. at 120. Murrell, Mills’s
downstairs neighbor, testified that around 2:00 a.m. that morning he heard “a
kid running back and forth” while “crying and screaming” in Mills’s apartment.
Id. at 173. He then heard a male voice telling the child to “shut the f*ck up.” Id.
at 174.
[16] The State also presented the phone call between Mills and Detective Haskett in
which Mills admitted that he punished L.M. in the early morning of November
12 by making him run laps in his soiled clothing and that he hit L.M. on the
head. Finally, the State played a jail call between Mills and a friend in which
Mills talked about the case and stated, “I’m not totally innocent here.” Ex. 78,
0:32-0:34.
[17] The jury found Mills guilty of all three counts. At sentencing, Mills asked the
court to enter judgment only on Level 1 felony neglect of a dependent resulting
in catastrophic injury or death, arguing that double jeopardy precluded
convictions for all three offenses because Level 2 felony battery resulting in
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death and Level 3 felony battery resulting in serious bodily injury are “lesser
included[s]” of the Level 1 felony. Tr. Vol. V p. 136. The State agreed that the
Level 2 felony battery should merge into the Level 1 felony neglect but
contended that both the Level 1 felony neglect and Level 3 felony battery could
stand. The court agreed and entered judgment only as to Level 1 felony neglect
of a dependent resulting in catastrophic injury or death and Level 3 felony
battery resulting in serious bodily injury.
[18] In his statement of allocution, Mills denied abusing L.M., contended he was
being unfairly prosecuted “as a black male,” and said L.M. was “murdered” by
DCS. Id. at 149. The trial court found as mitigating circumstances that Mills
“lived thirty-two years of [his] life as seemingly a good person” and “seemingly
cared for [L.M.].” Id. at 154, 155. The trial court also found two aggravating
factors: L.M.’s “tender age” and that Mills violated a protective order by
contacting L.M. while he was hospitalized. Id. at 157.
[19] A key issue at sentencing was whether Mills’s sentences should be run
concurrently or consecutively. The probation department recommended Mills
receive enhanced sentences—thirty-five years for the Level 1 felony and twelve
years for the Level 3 felony—but that they run concurrently. Mills asked for
minimum sentences (twenty years and three years) and that any sentences be
served concurrently, arguing consecutive sentences were inappropriate because
the neglect and battery convictions stemmed from one “episode of criminal
conduct.” Id. at 151. The State asked for maximum sentences on both
convictions (forty years and sixteen years) and that they be served
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consecutively, for a total sentence of fifty-six years. The State acknowledged
“the battery itself that resulted in the serious bodily injury and catastrophic
injury, the death, was that instance when [L.M.] received the brain injury” but
argued that because the neglect conviction was based on other actions besides
the battery (the partially healed injuries and the malnutrition), the sentences
should run consecutively. Id. at 140.
[20] The court stated it “wouldn’t be fair to sentence someone for . . . an exact same
offense.” Id. at 153. However, the court found the neglect “occurred over
multiple months” and that this plus the aggravating factors warranted
consecutive sentences. Id. at 155. The court sentenced Mills to thirty years for
the Level 1 felony and nine years for the Level 3 felony, to be served
consecutively, for a total sentence of thirty-nine years.
[21] Mills now appeals.
Discussion and Decision
I. Admission of Evidence
[22] Mills contends the trial court erred in admitting evidence about the March and
October 2018 DCS investigations in violation of Evidence Rule 404(b). A trial
court has broad discretion in ruling on the admissibility of evidence, and we
will disturb its ruling only on a showing of abuse of discretion. Corbett v. State,
179 N.E.3d 475, 489 (Ind. Ct. App. 2021), trans. denied. When reviewing a
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decision under an abuse-of-discretion standard, we will affirm if there is any
evidence supporting the decision. Id.
[23] Evidence Rule 404(b) provides that evidence of a crime, wrong, or other act “is
not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character,” but it
“may be admissible for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” The law governing the admissibility of other-acts evidence for “other
purposes” requires a trial court to make three findings. D.R.C. v. State, 908
N.E.2d 215, 223 (Ind. 2009). First, the court must “determine that the evidence
of other crimes, wrongs, or acts is relevant to a matter at issue other than the
defendant’s propensity to commit the charged act.” Id. (citation omitted).
Second, the court must determine that the proponent has sufficient proof that
the person who allegedly committed the act did, in fact, commit the act. Id. And
third, the court must balance the probative value of the evidence against its
prejudicial effect pursuant to Evidence Rule 403. Id. Mills challenges all three of
these findings.
[24] Mills first argues evidence of the 2018 DCS investigations should not have been
admitted to show “lack of accident” because he claimed L.M.’s injuries were
caused by an accident resulting from “L.M.’s conduct, not Mills’ conduct.”
Appellant’s Br. p. 26. In other words, Mills argues that Rule 404(b) evidence
can be admitted only to show lack of accident when the defendant is alleging
the charged harm was an accident caused by his own conduct (such as swinging
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his arm and accidentally striking the victim), rather than by some other source
(such as the victim falling). But the State argues Rule 404(b) evidence may be
admitted to show lack of accident whenever a defendant asserts that the
charged harm was caused accidentally, regardless of who caused the accident.
We need not determine that issue here, because the record sufficiently shows
that Mills made statements giving the State reliable assurance that he would
place accident at issue, and that the alleged accident occurred at least in part
due to his actions.
[25] The State may admit evidence to prove lack of accident under Rule 404(b) only
where (1) the State has “reliable assurance that an accident defense will be
raised” or (2) after the defendant places accident at issue at trial. Fairbanks v.
State, 119 N.E.3d 564, 568 (Ind. 2019). Here, a day after L.M. was taken to
Riley Hospital, Mills called Detective Haskett, and the two discussed Mills’s
actions on November 12 and possible causes of L.M.’s injuries. In this call,
Mills admits he “popped” L.M. on the head shortly before L.M. collapsed and
medical personnel were called. He also stated that on the morning of November
12 he forced L.M. to run laps and that L.M. fell several times while running
and hit his head, but each time Mills forced him to get up and continue
running. Each of these actions—hitting L.M. in the head and forcing him to run
even after he had fallen and hit his head—was performed by Mills. And given
these statements and the context of the conversation, the State had reliable
assurance that Mills would place accident at issue.
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[26] Mills also argues there is insufficient proof he caused the injuries described in
the 2018 DCS investigations. There must be sufficient proof from which a
reasonable jury could find the uncharged conduct proven by a preponderance of
the evidence. Caldwell v. State, 43 N.E.3d 258, 264 (Ind. Ct. App. 2015), trans.
denied. Direct evidence that the defendant perpetrated the uncharged act is not
required; rather, substantial circumstantial evidence of probative value is
sufficient. Id. The injuries noted in the March 2018 investigation were bruises
down L.M.’s back, buttocks, and legs. During that time, Mills was L.M.’s
primary caretaker and admitted to a DCS employee that he spanked L.M. with
a belt. Later, however, he claimed the injuries resulted from a fall. Dr. Hicks
testified the pattern of the bruises suggested non-accidental injuries, and DCS
substantiated abuse against Mills. The October 2018 investigation involved
bruises to L.M.’s abdomen. Based on the timeline, these injuries were sustained
while L.M. was in Mills’s care. Mills explained these injuries, but Dr. Hicks
testified these explanations were not consistent with the bruising. FCM Brown
testified that, after investigating the issue, he felt compelled to make a formal
report of child abuse. This is sufficient circumstantial evidence from which a
jury could find Mills committed these acts by a preponderance of the evidence.
[27] Finally, Mills argues the evidence should have been excluded under Evidence
Rule 403, which permits the trial court to exclude relevant evidence “if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, or needlessly presenting cumulative evidence.” The trial court is afforded
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wide latitude in weighing probative value against prejudice under Rule 403.
Freed v. State, 954 N.E.2d 526, 531 (Ind. Ct. App. 2011). We will reverse the
court’s decision to admit only upon a showing of an abuse of discretion. Id.
Trial courts may consider a broad range of factors in balancing probative value
against the risk of unfair prejudice, including the similarity between the past
crime and the charged crime. Id.
[28] Mills argues this evidence has low probative value because the injuries occurred
over a year before the charged incident and were relatively minor. We disagree.
The key issue in the case was whether L.M.’s injuries were caused by Mills or
by some other source. Therefore, evidence that Mills had previously injured
L.M. and claimed the injuries were caused by accidents is highly probative. He
also argues that evidence of the prior uncharged conduct may have misled or
confused the jury, and that such evidence “inflamed the jurors’ passions.”
Appellant’s Br. p. 28. Again, we cannot agree. As Mills points out, the injuries
involved in the 2018 investigations were relatively minor compared to those
sustained in November 2019; thus, any chance of confusing the issues or unfair
prejudice is low. We cannot say the trial court erred in determining the
probative value of the evidence is not substantially outweighed by the dangers
enumerated in Rule 403. See Ceaser v. State, 964 N.E.2d 911, 917-18 (Ind. Ct.
App. 2012) (court did not err in admitting evidence of prior abuse against child
where it was highly probative, given the defendant was being accused of
battering the same child in a similar way within a year timespan and was not
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substantially outweighed by the threat of unfair prejudice associated with
violence against a child), trans. denied.
[29] The trial court did not abuse its discretion in admitting evidence of the 2018
DCS investigations.
II. Sufficiency of Evidence
[30] Mills next argues the evidence is insufficient to support his convictions. When
reviewing sufficiency-of-the-evidence claims, we neither reweigh the evidence
nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind.
2015). We only consider the evidence supporting the verdict and any reasonable
inferences that can be drawn from the evidence. Id. A conviction will be
affirmed if there is substantial evidence of probative value to support each
element of the offense such that a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt. Id.
[31] To convict Mills of Level 1 felony neglect, the State had to prove beyond a
reasonable doubt that Mills, being at least eighteen years old and having the
care of L.M., a dependent less than fourteen, knowingly placed L.M. in a
situation that endangered his life or health, and which resulted in catastrophic
injury or death. Ind. Code § 35-46-1-4; Appellant’s App. Vol. II p. 24. To
convict Mills of Level 3 felony battery, the State had to prove beyond a
reasonable doubt that Mills, a person at least eighteen, knowingly or
intentionally touched L.M., a person under fourteen, in a rude, insolent, or
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angry manner, resulting in serious bodily injury. I.C. § 35-42-2-1; Appellant’s
App. Vol. II p. 24.
[32] Mills argues the State did not prove that he placed L.M. in a dangerous
situation or touched him in a rude, insolent, or angry manner because “[n]o
witness observed Mills inflict such trauma.” Appellant’s Br. p. 30. But such
direct evidence is not required, as “a conviction may be sustained based on
circumstantial evidence alone.” Lindhorst v. State, 90 N.E.3d 695, 701 (Ind. Ct.
App. 2017). And here, there is plenty of circumstantial evidence that Mills
endangered and battered L.M. L.M. sustained serious injuries, including
bilateral subdural hematomas, which Dr. Hicks testified were caused by blunt
force trauma and were intentionally inflicted. L.M. received these injuries while
in the sole care of Mills and his girlfriend, and two witnesses—Beck and
Murrell—heard Mills punishing L.M. in the early morning of November 12.
Mills gave inconsistent statements about how L.M. received these injuries,
including falling at their home and at the park, but according to Dr. Hicks these
explanations would not account for the severity of L.M.’s injuries. Mills later
admitted to punishing L.M. in various ways on the morning of November 12,
including “popping” L.M. on the head, and acknowledged in a jail call that he
was “not totally innocent.” This is sufficient circumstantial evidence linking
him to L.M.’s injuries. See Rohr v. State, 866 N.E.2d 242, 249 (Ind. 2007)
(evidence sufficient to show father battered son where son was in father’s sole
custody when the injuries occurred, the severity of the injuries did not match
father’s explanation, and father made incriminating statements).
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[33] The evidence is sufficient to support Mills’s convictions.
III. Double Jeopardy
[34] Mills also argues that his convictions constitute double jeopardy. Specifically,
he contends his Level 3 felony battery offense is “factually included” in his
Level 1 felony neglect-of-a-dependent offense because “the State presented the
same evidence”—namely, that Mills battered L.M.—to prove both convictions.
Appellant’s Reply Br. pp. 5, 6. The State responds that, pursuant to our
Supreme Court’s overhaul of double-jeopardy law laid out in Wadle v. State, 151
N.E.3d 227 (Ind. 2020), courts do not look to the evidence presented at trial to
determine whether an offense is included in another. We agree.
[35] In Wadle, the Court set forth a new test for evaluating whether convictions
under multiple statutes amount to double jeopardy. The first step is to
determine whether “either statute clearly permits multiple punishment, whether
expressly or by unmistakable implication.” Id. at 253. If so, there is no double
jeopardy. Id. Here, the parties do not dispute that neither the neglect-of-a-
dependent statute nor the battery statute clearly permits multiple punishment.
[36] As such, we proceed to the next step, which requires that we “apply our
included-offense statutes to determine whether the charged offenses are the
same.” Id. Indiana Code section 35-38-1-6 provides: “Whenever: (1) a
defendant is charged with an offense and an included offense in separate
counts; and (2) the defendant is found guilty of both counts; judgment and
sentence may not be entered against the defendant for the included offense.”
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Indiana Code section 35-31.5-2-168 defines “included offense” as an offense
that:
(1) is established by proof of the same material elements or less
than all the material elements required to establish the
commission of the offense charged;
(2) consists of an attempt to commit the offense charged or an
offense otherwise included therein; or
(3) differs from the offense charged only in the respect that a less
serious harm or risk of harm to the same person, property, or
public interest, or a lesser kind of culpability, is required to
establish its commission.
“If neither offense is included in the other (either inherently or as charged),
there is no violation of double jeopardy.” Wadle, 151 N.E.3d at 253. “But if one
offense is included in the other (either inherently or as charged), then the court
must examine the facts underlying those offenses, as presented in the charging
instrument and as adduced at trial.” Id.
[37] An offense is “inherently included” if it “may be established by proof of the
same material elements or less than all the material elements defining the crime
charged” or if “the only feature distinguishing the two offenses is that a lesser
culpability is required to establish the commission of the lesser offense.” Id. at
251 n.30 (citation omitted). Mills does not claim that Level 3 battery is an
inherently included offense of Level 1 neglect of a dependent. Nor does he
claim that it is an included offense “as charged,” that is, based on the way the
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two offenses were set forth in the charging information. As such, there is no
double-jeopardy violation, and our analysis ends here.
[38] Mills urges us to look beyond the statutory elements and charging information
and determine whether the offenses are included “as adduced at trial.”
Appellant’s Reply Br. p. 8. Specifically, he contends that at trial the only
evidence of both “serious bodily injury” (required for the Level 3 felony battery)
and “catastrophic injury or death” (required for the Level 1 felony neglect) was
“the battery to L.M. via blunt force trauma” and thus the State used evidence of
the same act to secure both convictions. Appellant’s Br. p. 35.
[39] This argument requires us to look at the evidence presented at trial to determine
whether the same evidence was used to support two different convictions. But
Wadle does not permit us to do so. Again, Wadle states,
If neither offense is an included offense of the other (either
inherently or as charged), there is no violation of double
jeopardy. If, however, one offense is included in the other (either
inherently or as charged), the court must then look at the facts of
the two crimes to determine whether the offenses are the same.
151 N.E.3d at 248 (emphasis added). Thus, once a court has determined an
offense is not included inherently or “as charged” in another offense, there is no
need to look at the evidence presented at trial. And here, because Mills does not
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argue that based on the statutes or charging information the offenses are
included, there is no double-jeopardy violation.3
[40] We acknowledge that this analysis may produce harsh results.4 Had a defendant
made Mills’s argument just a few years ago, we likely would have found these
convictions constituted double jeopardy. See Bradley v. State, 113 N.E.3d 742,
751 (Ind. Ct. App. 2018) (explaining that the common-law “very same act test”
prohibits “[c]onviction and punishment for a crime which consists of the very
same act as another crime for which the defendant has been convicted and
punished” (citation omitted)), trans. denied. But we note that, perhaps
contemplating the Wadle analysis would produce such scenarios, our Supreme
Court suggested other avenues by which a defendant like Mills may seek
3
Other panels of this Court have looked at the evidence presented at trial when determining whether an
offense is “included” in another under Wadle. See Phillips v. State, 174 N.E.3d 635 (Ind. Ct. App. 2021), trans.
not sought; Harris v. State, 186 N.E.3d 604 (Ind. Ct. App. 2022), trans. not sought; A.W. v. State, 192 N.E.3d 227
(Ind. Ct. App. 2022), trans. granted, opinion vacated, 205 N.E.3d 190 (Ind. 2023). For the reasons stated herein,
we respectfully disagree. And, as noted, our Supreme Court has granted transfer in A.W.
4
One particularly troubling consequence of Wadle’s emphasis on the charging information is it can create a
scenario where whether the defendant’s convictions constitute double jeopardy depends on the State’s factual
inclusions or omissions in the charging information. For example, in Demby v. State, 203 N.E.3d 1035 (Ind.
Ct. App. 2021), trans. denied, we found the defendant’s convictions for attempted murder and aggravated
battery amounted to double jeopardy under Wadle because the offenses were included “as charged,”
evidenced by the State’s factual allegations in the information that both offenses were committed by shooting
the victim with a firearm. As we noted there, Demby benefited from the State’s inclusion of these facts in the
information, and had the State not done so, there likely would have been no double-jeopardy violation under
Wadle. See id. at 1045 n.12. One potential solution to this problem may be found, as our Supreme Court
mentioned in Wadle, in Article 1, Section 13 of the Indiana Constitution, which guarantees the defendant’s
right, in “all criminal prosecutions,” to “demand the nature and cause of the accusation against him.”
Currently, criminal defendants are not entitled to specific factual allegations in the charging information. See
Gutenstein v. State, 59 N.E.3d 984, 995 (Ind. Ct. App. 2016) (“The State is not required to include detailed
factual allegations in a charging information.”), trans. denied. But perhaps, in light of Wadle, this case law
should be revamped to increase protections against double jeopardy.
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protection from multiple overlapping convictions, such as state constitutional
protections against excessive sentences, as explained more fully below.
[41] The trial court did not err in determining there is no double-jeopardy violation.
IV. Sentence
[42] Finally, Mills argues his sentence is inappropriate and asks us to reduce it under
Indiana Appellate Rule 7(B), which provides that an appellate court “may
revise a sentence authorized by statute if, after due consideration of the trial
court’s decision, the Court finds that the sentence is inappropriate in light of the
nature of the offense and the character of the offender.” The court’s role under
Rule 7(B) is to “leaven the outliers,” and “we reserve our 7(B) authority for
exceptional cases.” Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019). “Whether a
sentence is inappropriate ultimately turns on the culpability of the defendant,
the severity of the crime, the damage done to others, and a myriad of other
factors that come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391
(Ind. Ct. App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.
2008)). Because we generally defer to the judgment of trial courts in sentencing
matters, defendants must persuade us that their sentences are inappropriate.
Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).
[43] The sentencing range for a Level 1 felony is twenty to forty years, with an
advisory sentence of thirty years. I.C. § 35-50-2-4. The sentencing range for a
Level 3 felony is three to sixteen years, with an advisory sentence of nine years.
I.C. § 35-50-2-5. Here, the trial court sentenced Mills to the advisory sentence
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for each conviction and ordered them to run consecutively, for a total sentence
of thirty-nine years.
[44] As to the nature of the offenses, Mills admits L.M.’s injuries were severe but
claims that his actions on November 12 were simply discipline that got out of
hand. The record does not support this contention and instead shows prolonged
abuse starting as early as March 2018, when Mills beat three-year-old L.M.
with a belt, leaving severe bruising. Numerous witnesses testified that such
physical “discipline” continued throughout 2018 and 2019. Mills also withheld
food and drink from L.M.—to the point that L.M. was severely malnourished
and approximately the size of a two-year-old despite being almost five years
old. This abuse culminated in Mills’s actions on November 12. When L.M.
soiled himself, Mills forced him to run around the apartment in his soiled
clothes in the middle of the night and “popped” him on the head. When L.M.
was taken to Riley Hospital the next day, his injuries were severe, and many
were in various stages of healing, suggesting ongoing abuse. This occurred
despite two formal DCS investigations, a visit by law enforcement to do a
welfare check on L.M., and voiced concern from friends—all of which surely
alerted Mills that his actions were wrong. In short, the evidence doesn’t support
Mills’s contention that his actions were a one-off and instead supports the
State’s contention that L.M. was essentially tortured for months by Mills, the
person who was charged with caring for him, eventually leading to his death.
[45] As for his character, Mills argues that he has little criminal history. While his
criminal history consists of just a few driving offenses, he did violate a
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protective order by speaking to L.M. while he was hospitalized. Furthermore,
Mills showed no remorse or responsibility for his actions, instead contending he
was merely disciplining his four-year-old son, that DCS killed his son, and he
was being unfairly prosecuted due to his race. None of this shows particularly
good character.
[46] Mills argues that the sentences should be run concurrently given that both
convictions involved his battery of L.M. As our Supreme Court noted in Wadle,
even if not double jeopardy, “multiple punishments in a single trial raise
concerns over excessiveness.” 151 N.E.3d at 245. One way for trial courts to
combat this “multiple punishment” issue is to take this into consideration
during sentencing. See id. at 250-53 (noting Article 1, Section 16 and Article 7,
Sections 4 and 6 of the Indiana Constitution—all of which involve protections
in sentencing—provide protection from “multiple punishments in a single
prosecution”). Often, this will take the form of concurrent sentences. But it does
not have to. Here, instead of enhanced sentences—which were requested by the
State, recommended by the probation department, and certainly supported by
the facts of the case—the court imposed advisory sentences and ran them
consecutively. It is clear from the record that in doing so the trial court took
into consideration that the two convictions stemmed from the same underlying
battery. Mills faced a maximum sentence of fifty-six years but received only
thirty-nine. This shows proper consideration of the multiple-punishment issue
by the trial court.
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[47] Mills has failed to show this is an exceptional case requiring us to use our Rule
7(B) authority.
[48] Affirmed.
Tavitas, J., and Foley, J., concur.
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