MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any
court except for the purpose of establishing May 02 2017, 6:46 am
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Frederick Vaiana Curtis T. Hill, Jr.
Voyles Zahn & Paul Attorney General of Indiana
Indianapolis, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Diamond Miller, May 2, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1610-CR-2364
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G06-1411-F1-52295
Baker, Judge.
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[1] Diamond Miller appeals her conviction for Level 1 Felony Neglect of a
Dependent Resulting in Death,1 arguing that the evidence is insufficient.
Finding the evidence sufficient, we affirm.
Facts
[2] Miller’s son, E.P., was born on February 5, 2013. In December 2013, Miller
and E.P. moved in with Miller’s boyfriend, Frank Larkins. Miller’s father,
William Miller, regularly helped with childcare while Miller was at work.
Between December 2013 and October 2014, William frequently observed
bruises on E.P.’s legs, hips, and face.
[3] On October 24, 2014, Miller took E.P. and her other child to William so that he
could babysit while she worked over the weekend. During the weekend, E.P.
ate normally, played with other children, and showed no signs of illness. On
October 27, 2014, around 4:30 p.m., Miller and Larkins retrieved E.P. and his
sibling. William observed Larkins look back at E.P. in the backseat and E.P.
was visibly “spooked” and looked “like he seen [sic] a ghost.” Tr. Vol. III p.
18-19. Larkins left with E.P. in his vehicle while William took Miller to work.
Miller believed that E.P. was fine when she left him with Larkins for the day.
[4] Miller returned home that evening at approximately 10:00 p.m. She called
William around 11:00 p.m. to ask what E.P. had eaten over the weekend,
1
Ind. Code § 35-46-1-4.
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telling William that E.P. had been complaining of stomach pain and did not
want to eat.
[5] E.P.’s symptoms worsened throughout the night of October 27 and the day of
October 28. He had severe stomach pain and vomited repeatedly; he could not
keep down any liquids. E.P. was in such pain that he attempted to avoid any
type of movement and could not sleep because of the pain. Miller heard him
groaning as he attempted to sleep; she fell asleep to the sound of her child
moaning in pain. Miller did not seek any medical treatment, hoping the
symptoms would subside by Wednesday.
[6] Around 7:30 a.m. the morning of Wednesday, October 29, Miller awoke to find
E.P. cold and limp. Emergency officials were called and a paramedic arrived to
find Larkins administering chest compressions on the child. The paramedic
discovered that E.P.’s body was cold and stiff, consistent with rigor mortis; the
child was dead. The paramedic testified that the extent of the child’s rigor
mortis led him to believe that E.P. had been dead for an extended period of
time.
[7] Dr. Thomas Sozio performed an autopsy on E.P.’s body. He noticed that
E.P.’s left cheek was swollen, he had a small abrasion around his chin, a bruise
on his right forearm, and a scratch on his chest. When Dr. Sozio conducted his
internal examination, he discovered that E.P.’s duodenum—the passage tube
leading from his stomach to his small intestine—had been severed. E.P.’s
pancreas had also suffered damage. As a result of the severing of the
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duodenum, bacteria from the intestines leaked into E.P.’s abdominal cavity,
causing an infection called peritonitis. E.P.’s abdominal lymph nodes were
enlarged and Dr. Sozio found blood in his abdominal cavity. The infection
eventually turned into sepsis, causing the toddler’s death.
[8] Dr. Sozio and Dr. Tara Harris—a board certified child abuse pediatrician for
Riley Hospital for Children—testified as to the cause of E.P.’s internal injuries.
Dr. Sozio stated that this type of injury is consistent with those suffered by
patients in high speed car accidents. Dr. Harris testified that a “really high
force trauma” to E.P.’s abdomen pushed his internal organs all the way back to
his spinal vertebrae, lacerating the connection between E.P.’s stomach and
intestines. Tr. Vol. II p. 84-85. Dr. Harris stated that this injury could not have
been caused by E.P. falling or engaging in normal toddler activities.
[9] Dr. Harris testified regarding the likely progression of E.P.’s symptoms after
suffering this trauma. Immediately after the impact, E.P. would have been
crying and indicating pain in his abdomen. The injury would have caused
increasing abdominal pain that would be amplified with any movement,
causing the child to try to be still to avoid any movement. E.P. would not have
been able to digest any substances, forcing vomiting, which would have caused
intensifying pain. The building infection would have caused his stomach to
increasingly bloat until it was very tense. Both Dr. Harris and Dr. Sozio
testified that if E.P. had received timely medical care, he could have had
surgery to repair his injuries and treat the infection. Dr. Harris testified that
E.P. should have received medical attention because his symptoms kept
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“getting worse, not better, that he was very thirsty but then couldn’t keep
anything down and progressively having abdominal distention, moaning,
becoming less engaged.” Tr. Vol. III p. 129-30.
[10] On November 20, 2014, the State charged Miller with two counts of Level 1
felony neglect of a dependent resulting in death and two counts of Level 5
felony neglect of a dependent resulting in serious bodily injury. The State later
dismissed the two Level 5 felony charges. Following a jury trial, the jury found
Miller guilty of one of the Level 1 felony charges and not guilty of the other.
On September 23, 2016, the trial court sentenced Miller to twenty years
imprisonment, with fifteen years to be served in the Department of Correction
and five years to be served on work release. Miller now appeals.
Discussion and Decision
[11] Miller’s sole argument on appeal is that the evidence is insufficient to support
the conviction. 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).
[12] To convict Miller of Level 1 felony neglect of a dependent resulting in death,
the State was required to prove beyond a reasonable doubt that she knowingly
or intentionally placed E.P. in a situation that endangered his life or health,
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resulting in E.P.’s death. I.C. §§ 35-46-1-4(a), -4(b)(3). The jury found that
Miller’s failure to seek medical care for E.P. endangered his life and caused his
death. Miller contends that the evidence in the record does not establish that
she acted knowingly. In the context of a neglect conviction resulting from the
alleged failure to provide timely medical care, it has been established that
“[w]hen there are symptoms from which the average layperson would have
detected a serious problem necessitating medical attention, it is reasonable for
the jury to infer that the defendant knowingly neglected the dependent.”
Mitchell v. State, 726 N.E.2d 1228, 1240 (Ind. 2000), abrogated on other grounds,
924 N.E.2d 643 (Ind. 2010).
[13] Miller insists that the evidence establishes only that her child was vomiting and
feeling unwell, and that a reasonable parent would not necessarily have sought
medical attention within the first twenty-four hours of such symptoms. The
record readily reveals symptoms far beyond vomiting, however:
Monday night, E.P. did not want to eat, was complaining of stomach
pain, and was lethargic and sleepy.
Throughout the day on Tuesday, E.P.’s pain worsened. He was thirsty
and attempted to drink fluids, but vomited up everything he took in.
Dr. Harris testified that throughout this time, E.P.’s pain and discomfort
would have escalated, causing him to cry and try to be as still as possible,
which Miller testified that, in fact, he did.
Tuesday night, Miller observed that E.P. could not sleep because of his
pain and heard him groaning as he remained motionless to control the
pain. She fell asleep that night to the sound of his moans.
Dr. Harris testified that throughout this period, E.P.’s abdomen would
have become more and more bloated until it was visibly bloated and very
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tense. That was, in fact, the state of his abdomen when the paramedic
found the child dead on Wednesday morning.
We agree with Miller that, if vomiting had been E.P.’s only symptom, a
conviction for neglect would likely be unwarranted. Here, however, the jury
reasonably rejected that argument, concluding that E.P. had many other
troubling symptoms that would have caused an average layperson to seek
medical treatment for the child.
[14] In McMichael v. State, we considered a very similar situation. 471 N.E.2d 726,
728-29 (Ind. Ct. App. 1984). In that case, a toddler died after exhibiting
symptoms of peritonitis—the same infection E.P. suffered—and the defendant
had failed to secure medical treatment. The child in that case exhibited nearly
identical symptoms to E.P.—consistent vomiting, no desire to eat, swelling
abdomen, and extraordinary stomach pain. Id. at 729. This Court held that,
given those symptoms, the defendant “was aware of a high probability that by
failing to obtain medical care, he was placing [his child] in a dangerous
situation.” Id. at 731. Here, likewise, the jury reasonably reached the same
conclusion.
[15] Ultimately, whether a parent’s failure to provide medical care for an ailing child
constitutes criminal neglect is a question for the jury to answer. Lush v. State,
783 N.E.2d 1191, 1198 (Ind. Ct. App. 2003). We must simply determine
whether their answer was reasonable. Given the evidence in the record here
regarding E.P.’s serious symptoms, we find that a reasonable jury could have
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found that Miller knowingly placed E.P. in a situation that endangered his life,
resulting in his death. The evidence is sufficient.
[16] The judgment of the trial court is affirmed and remanded with instructions to
ensure that the records in both Miller’s and Larkins’s cases are complete. 2
Barnes, J., and Crone, J., concur.
2
The State explains that Larkins and Miller were tried jointly (Larkins faced charges of murder, aggravated
battery, battery resulting in death to a person less than fourteen, and two counts of neglect of a dependent
resulting in death). In Miller’s case, the trial court admitted statements made by both Miller and Larkins, but
the exhibit volume contains only the recording of Larkins’s statement. In the exhibit volume where Miller’s
statement should have been placed is a notation indicating that the disk containing the statement was placed
in the record of Larkins’s appeal, which is currently pending. Counsel for the State was able to obtain both
statements for this appeal, but suggested that we remand the two exhibit volumes—from both cases—to the
trial court so that it can ensure that both statements are present in the records of both cases. We agree, and
so remand.
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Diamond Miller v. State of Indiana (mem. dec.)
Combined Opinion