MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Dec 02 2016, 9:03 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott L. Barnhart Gregory F. Zoeller
Brooke Smith Attorney General of Indiana
Keffer Barnhart LLP
Michael Gene Worden
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Beth Montgomery, December 2, 2016
Appellant-Defendant, Court of Appeals Case No.
82A01-1603-CR-568
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Robert J. Pigman,
Appellee-Plaintiff Judge
Trial Court Cause No.
82D03-1410-F1-3805
Baker, Judge.
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[1] Beth Montgomery was convicted of Neglect of a Dependent Resulting in
Death,1 a Level 1 Felony, and Neglect of a Dependent,2 a Level 6 Felony. She
appeals her Level 1 Felony conviction, arguing that her statement to law
enforcement officers should not have been admitted as evidence and that there
was insufficient evidence to sustain the conviction. Finding no error and
sufficient evidence, we affirm.
Facts
[2] Montgomery suffers from depression, chronic migraine headaches, and chronic
back pain. She took anti-depressant and pain medications during and after her
pregnancy with B.B. On August 27, 2014, Montgomery was admitted to the
hospital and delivered B.B. During and following the delivery, Montgomery
suffered from complications that required emergency medical treatment. B.B.
also required medical attention because he had respiratory distress and
withdrawal symptoms, but he was released from the hospital seven days later in
a healthy condition. Upon B.B.’s discharge, Montgomery and John Bivens,
Montgomery’s fiancé and B.B.’s father, were provided with information about
how to care for B.B. This information included instructions that the baby was
to sleep on his back in a crib by himself.
1
Ind. Code § 35-46-1-4(b)(3).
2
I.C. § 35-46-1-4(a).
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[3] On September 29, 2014, Bivens returned home from work and cared for B.B.
and his older sibling, K.B., while Montgomery slept for a few hours. Before he
and K.B. went to sleep in the master bedroom, Bivens made sure that
Montgomery was awake and coherent so that she could care for B.B. At some
point that night, Montgomery fell asleep on the couch.
[4] Around two a.m. on September 30, Montgomery woke Bivens up because B.B.
was next to her and not moving. Montgomery called 911, and the 911
dispatcher instructed Bivens to perform CPR on the baby. When the fire
department personnel arrived at the home, one of the first responders observed
that B.B. was so pale that he matched the color of his diaper and that he was
stiff and cold. The first responder took over CPR, and after about ten or fifteen
minutes, the baby was transported to the hospital, by which time he was
already deceased. The cause of death was suffocation.
[5] The same first responder decided to call the Sheriff’s Department because of the
poor condition of Montgomery’s trailer home. Among other things, it was
dirty, it contained at least ten dogs and cats, it smelled strongly of animal urine,
and it was covered with dog droppings.
[6] Montgomery and Bivens voluntarily went to the Vanderburgh County
Command Post for questioning. While there, Montgomery was advised of her
Miranda3 rights, which she waived by signing a written waiver form.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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Montgomery initially told the detectives that she woke up in the middle of the
night, that B.B. was in his bassinet, that she discovered that he was cold, and
that he must have rolled over onto his stomach. When the detectives said that
B.B. was too young to roll over, Montgomery insisted that she had seen him
roll over twice before and that he had been holding his head up since he came
home from the hospital.
[7] At one point, Montgomery asked the detectives whether she needed an
attorney, but the interview continued. Eventually, she told them that she
wanted an attorney and asked whether she was free to leave. When told that
she was not free to leave, she asked whether she was under arrest, and the
detectives told her that she was. The detectives left the room. Montgomery
then opened the door and asked, “Can I speak with you?” Tr. p. 331. She
asked what she was under arrest for, and one detective said that the condition
of the house was enough to substantiate a charge of neglect. Shortly thereafter,
Montgomery started talking about what happened to B.B., explaining that
when she woke up, the baby was lying face down on the couch next to her, that
he was not breathing, and that he was cold.
[8] On October 2, 2014, the State charged Montgomery with Level 1 felony neglect
of a dependent resulting in death and Level 6 felony neglect of a dependent. On
March 6, 2015, the trial court held a hearing on Montgomery’s motion to
suppress evidence related to her statement to the detectives, and on March 27,
2015, the trial court denied the motion. On December 1-3, 2015, a jury trial
took place, and the jury found Montgomery guilty as charged. The trial court
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sentenced her to twenty years incarceration for the Level 1 felony and one year
incarceration for the Level 6 felony, with the sentences running consecutively.
Discussion and Decision
I. Statement to Law Enforcement Officers
[9] Montgomery argues that the trial court erred when it allowed her videotaped
interview with law enforcement officers to be admitted into evidence. A trial
court has broad leeway regarding the admission of evidence. Smith v. State, 889
N.E.2d 836, 839 (Ind. Ct. App. 2008). We will reverse only if the decision is
clearly against the logic and effect of the facts before the trial court. Figures v.
State, 920 N.E.2d 267, 271 (Ind. Ct. App. 2010).
[10] Montgomery first contends that the trial court should not have admitted her
statement because the detectives violated her Miranda rights when they
continued questioning her after she expressed interest in getting an attorney.
“To invoke the right to counsel, it is not enough that the defendant might be
invoking his rights; the request must be unambiguous.” Bailey v. State, 763
N.E.2d 998, 1103 (Ind. 2002) (quotation marks and citation omitted) (emphasis
original). An officer does not need to stop questioning when an accused makes
an equivocal statement requesting counsel, nor does the officer have to ask
clarifying questions to determine whether the accused wants counsel. Id.
Further, when an individual who is being interrogated invokes her right to
counsel but “initiates ‘further communication, exchanges, or conversations’
with law enforcement, then the individual may be further interrogated without
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counsel present.” Hartman v. State, 988 N.E.2d 785, 788 (Ind. 2013) (quoting
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)).
[11] The record shows that the detectives advised Montgomery of her Miranda rights
before questioning her and that Montgomery understood her rights before she
signed the waiver form. During questioning, when Montgomery asked whether
she needed an attorney, the detectives lawfully continued the conversation. In
the first instance, Montgomery asked, “Do I need an attorney cause I feel . . .”
and said “I’m feeling like I’m being . . . .” Tr. p. 320. These statements
constitute an equivocal request, and the detectives were not obligated to stop
questioning her at that point. See King v. State, 991 N.E.2d 612, 618 (Ind. Ct.
App. 2013) (finding that defendant’s question of “Am I going to need an
attorney?” did not constitute an unequivocal request for counsel); Collins v.
State, 873 N.E.2d 149, 156 (Ind. Ct. App. 2007) (finding that defendant’s
statement, “I probably need an attorney,” was an observation rendered
equivocal by the use of the word “probably”).
[12] In the second instance, Montgomery stated, “I think I need an Attorney is what
I think. Yeah I want an Attorney. I’m free to leave right?” Tr. p. 330. The
detectives told her that she was not free to leave. Montgomery asked, “So am I
under arrest?” Id. at 331. At that point, the detectives left the interview room,
but Montgomery opened the door and said, “Can I speak with you?” Id. She
asked why she was under arrest, and one detective told her that the condition of
her house warranted a charge of neglect for both of her children. One detective
said, “I mean you want to talk to us, if you’re wanting to talk to us I’ll be glad
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to talk to you and let you know what’s going on. But if your [sic] gonna come
to the door do you want to talk to us?” Id. at 331-32. Montgomery said, “Yeah
I, I wanted to know what I was . . . .” Id. at 332. Detective Chapman said,
“Did you not come to the door and say, can I talk to you?” Id. Montgomery
replied, “Yeah but first I want know what I’m being arrested for or what I’m
going to be charged with?” Id. The detectives then resumed questioning her.
[13] When Montgomery opened the door and asked whether she could speak with
the detectives, she initiated further communication with them, thereby allowing
the detectives to continue to question her. Montgomery claims that she did not
reinitiate the interrogation but merely asked the detectives an administrative
question about why she was being arrested. She points to no authority to justify
such a distinction, and we find that her question was properly considered to be
a communication that allowed the detectives to resume questioning her. See
Owens v. State, 732 N.E.2d 161, 164 (Ind. 2000) (finding that the defendant
initiated further communication with the detective such that his rights were not
violated when, after the detective ceased questioning after the defendant
requested a lawyer, the defendant inquired about his mother and asked, “What
could happen to somebody that did this?”). Montgomery also claims that the
detectives did not scrupulously honor her right to counsel; we note, however,
that before the detectives resumed questioning her, they twice confirmed that
she wanted to talk with them and that she was the one who initiated the
conversation after they stopped it.
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[14] Montgomery next contends that the trial court should not have admitted her
statement because it was involuntarily given. Specifically, she asserts that “[i]t
is questionable whether Beth’s statement is a product of rational intellect in
light of the timing of the interrogation and the fact that it occurred mere hours
after the death of her infant son, and while she was in a fragile emotional and
mental state.” Appellant’s Br. p. 15.
[15] “A statement is voluntary if, in the light of the totality of the circumstances, the
confession is the product of a rational intellect and not the result of physical
abuse, psychological intimidation, or deceptive interrogation tactics that have
overcome the defendant's free will.” State v. Keller, 845 N.E.2d 154, 165 (Ind.
Ct. App. 2006) (quotation marks and citation omitted). Factors that may be
considered when reviewing the totality of the circumstances for whether a
waiver of rights was voluntary include police coercion; the length, location, or
continuity of the interrogation; and the defendant’s maturity, education,
physical condition, and mental health. Id.
[16] Montgomery does not allege that she suffered physical abuse, psychological
intimidation, or deceptive interrogation tactics, nor does the record support the
idea that Montgomery was mistreated while at the command post. Although
she was emotionally upset by the death of her son, we cannot say that such
feelings negate the voluntariness of her statement.
[17] Because Montgomery’s rights were not violated when the detectives obtained
her statement, we find no error in the trial court’s admitting it into evidence.
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However, even if we found that the trial court had committed an error in
admitting her statement, it would have been harmless because, as discussed
below, the conviction is supported by other substantial independent evidence of
guilt. E.g., Headlee v. State, 678 N.E.2d 823 (Ind. Ct. App. 1997).
II. Sufficiency of the Evidence
[18] Montgomery argues that there is insufficient evidence supporting her conviction
for neglect of a dependent resulting in death because she did not knowingly fall
asleep with B.B. in her arms. When reviewing a claim of insufficient evidence,
we will consider only the evidence and reasonable inferences that support the
conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if,
based on the evidence and inferences, a reasonable jury could have found the
defendant guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003,
1005 (Ind. 2009). Circumstantial evidence alone is sufficient if inferences may
reasonably be drawn that enable the factfinder to find the defendant guilty
beyond a reasonable doubt. Pratt v. State, 744 N.E.2d 434, 437 (Ind. 2001).
[19] To convict Montgomery of Level 1 felony neglect of a dependent resulting in
death, the State was required to prove beyond a reasonable doubt that she was
“[a] person having the care of a dependent, whether assumed voluntarily or
because of a legal obligation, who knowingly or intentionally . . . place[d] the
dependent in a situation that endanger[ed] the dependent’s life or health,” that
she was at least eighteen years old, and that the care “result[ed] in the death of a
dependent who is less than fourteen (14) years of age.” Ind. Code § 35-46-1-
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4(a)(1), (b)(3). To establish that Montgomery acted “knowingly,” the State was
required to prove that she was “aware of a high probability” that she was
engaging in that conduct. Ind. Code § 35-41-2-2(b).
[20] Montgomery argues that she was unaware of and had no conscious control
over her behavior. The record, however, indicates that Montgomery was well
aware of her decisions, which included taking medications that affected her
ability to adequately care for her children and home. The evidence shows that
the hospital staff informed Montgomery on how to care for B.B. and instructed
her on how B.B. was to sleep alone on his back in his crib. Montgomery was
aware that it was important for B.B. to sleep on his back—when the detectives
questioned her, she emphasized that B.B. always slept on his back. Bivens
testified that Montgomery was awake and coherent before he went to bed on
the night that B.B. died. The evidence shows that Montgomery knew that she
had taken medication that day and was tired that night. The forensic medical
evidence established that B.B. died from suffocation as a result of being on his
stomach and on a surface that was not flat. Finally, in her statement to the
detectives, Montgomery admitted that when she woke up, B.B. was lying face-
down on a couch cushion next to her.
[21] Although Montgomery argues that she was unaware of what she was doing, the
jury was free to disbelieve her and infer from the surrounding circumstances
that she took B.B. out of his bassinet and held him while she was sitting on the
couch, thereby placing her baby in a situation in which he could fall asleep in a
physically dangerous position. We will not second-guess the jury in its
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assessment of her credibility. The evidence is sufficient to support her
conviction for neglect of a dependent resulting in death.
[22] The judgment of the trial court is affirmed.
Vaidik, C.J., and Najam, J., concur.
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