Auralea Till v. State of Indiana (mem. dec.) ( 2019 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                         FILED
    regarded as precedent or cited before any                                Sep 20 2019, 9:24 am
    court except for the purpose of establishing                                  CLERK
    the defense of res judicata, collateral                                   Indiana Supreme Court
    Court of Appeals
    and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Stanley L. Campbell                                      Curtis T. Hill, Jr.
    Fort Wayne, Indiana                                      Attorney General
    Megan M. Smith
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Auralea Till,                                            September 20, 2019
    Appellant-Defendant,                                     Court of Appeals Case No.
    19A-CR-808
    v.                                               Appeal from the Allen Superior
    Court
    State of Indiana,                                        The Honorable Frances C. Gull,
    Appellee-Plaintiff                                       Judge
    Trial Court Cause No.
    02D05-1710-F3-54
    Crone, Judge.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019                 Page 1 of 12
    Case Summary
    [1]   Auralea Till appeals her conviction, following a jury trial, for level 3 felony
    neglect of a dependent. Till asserts that the trial court abused its discretion in
    admitting certain evidence and that the State presented insufficient evidence to
    support her conviction. She also claims that the twelve-year sentence imposed
    by the trial court is inappropriate in light of the nature of the offense and her
    character. We find no abuse of discretion, and we conclude that the State
    presented sufficient evidence. We further conclude that Till has not met her
    burden to demonstrate that her sentence is inappropriate. Accordingly, we
    affirm.
    Facts and Procedural History
    [2]   Till had two children with Daniel Lopresti. The first child, D.L., was born on
    May 15, 2015, and the second child, V.L., was born on October 6, 2016. On
    June 3, 2017, Till awoke to care for the two young children around 8:00 a.m.,
    and she began drinking alcohol before 10:30 a.m. Lopresti left the home after
    11:30 a.m. to go to run errands and to pick up some fast-food for the family.
    Sometime later that day after Lopresti returned, Till was outside with the
    children while Lopresti worked in the yard repairing a small swimming pool.
    [3]   At around 8:00 p.m., Lopresti asked Till to take the children inside because
    D.L. was interfering with his work on the pool. Till went inside with the
    children. She turned a movie on for D.L. in the living room, and she laid
    seven-month-old V.L. on the cluttered floor. Till went into the kitchen, poured
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 2 of 12
    a glass of juice, washed dishes, and pulled dinner out of the refrigerator. She
    then went outside to talk to Lopresti and to smoke a cigarette.
    [4]   When Till returned inside, she observed that V.L. had a blanket over his head.
    She removed the blanket and discovered that he had a plastic bag wrapped
    around his head. Till grabbed the baby and ran outside carrying him in her
    arms and screaming. Lopresti saw that V.L. was not breathing and that he had
    already turned blue. Till put V.L. down in the grass and began CPR while
    Lopresti called 911. Lopresti took over performing CPR because he realized
    that Till was just blowing air over V.L.’s face rather than blowing air into his
    mouth.
    [5]   Emergency personnel arrived on the scene and found Lopresti administering
    CPR. V.L. was still not breathing and had no heartbeat, so the paramedics
    began chest compressions and placed a bag and a mask over V.L.’s mouth to
    provide “positive-pressure ventilation.” Tr. Vol. 2 at 219. The paramedics were
    eventually able to resuscitate V.L., and he was transported by ambulance to the
    hospital. Lopresti accompanied V.L. in the ambulance while Till stayed home.
    [6]   Police officers and a Department of Child Services investigator arrived on the
    scene and observed that Till was exhibiting signs of intoxication and smelled of
    alcohol. Lopresti’s brother-in-law, Timothy Wolford, who had come to the
    home to pick up D.L., noticed that when he hugged Till that she “reeked” of
    alcohol. Tr. Vol. 3 at 93. Till was behaving frantically and told officers
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 3 of 12
    inconsistent stories about the circumstances surrounding what happened to
    V.L.
    [7]   V.L. spent several weeks in a local hospital before being transferred to Riley
    Children’s Hospital Rehabilitation. He had sustained a severe hypoxic brain
    injury caused by a “prolonged … low-oxygen” event. Tr. Vol. 2 at 240. He
    needed a feeding tube and he suffered from nerve storming.1 V.L. has
    permanent brain damage and was ultimately diagnosed with cerebral palsy,
    epilepsy, and numerous developmental delays.
    [8]   The State charged Till with level 3 felony neglect of a dependent. On
    November 27, 2017, the State filed its notice of intent to present Indiana
    Evidence Rule 404(b) evidence, to which Till responded with a written
    objection. The State sought to introduce evidence of Till’s alcohol use while
    pregnant with V.L. and her three older children, her alcohol use while caring
    for V.L. and her three older children, her inattentiveness to V.L., her
    unhappiness about being pregnant with V.L., and her desire to abort V.L. The
    trial court held a hearing and subsequently issued its order denying the State’s
    request to present evidence of Till’s “prior incidents of alcohol use resulting in
    her children being placed at risk and her alcohol use while pregnant … unless
    the door is opened” by defense counsel. Appellant’s App. Vol. 2 at 44.
    1
    Nerve storming or “neuro storm” is what happens after a “prolonged hypoxic event” when “nerves just
    start firing randomly[,]” causing agitated behavior, muscle twitches, and high fevers. Tr. Vol. 2 at 240-41.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019                  Page 4 of 12
    However, the trial court ruled that Till’s “alcohol use/inattention to the victim
    in this case after his birth is relevant and admissible.” 
    Id. [9] During
    trial, Lopresti testified, over Till’s objection, that Till became
    intoxicated regularly while caring for V.L. and D.L., requiring him to often take
    the children to his sister’s house so that his sister could care for them.
    Lopresti’s sister, Nichole Wolford, testified, over Till’s objection, that she
    observed Till leave V.L. unattended on numerous occasions and that she had
    discussed this dangerous behavior with Till. At the conclusion of the trial, the
    jury found Till guilty of level 3 felony neglect of a dependent. The trial court
    imposed a twelve-year aggregate sentence. This appeal ensued.
    Discussion and Decision
    Section 1 – The trial court did not abuse its discretion in
    admitting certain evidence.
    [10]   Till challenges the trial court’s admission of evidence. The appellate court
    affords the trial court wide discretion in ruling on the admissibility of evidence.
    Nicholson v. State, 
    963 N.E.2d 1096
    , 1099 (Ind. 2012). “We review evidentiary
    decisions for abuse of discretion and reverse only when the decision is clearly
    against the logic and effect of the facts and circumstances.” 
    Id. [11] Till
    claims that the trial court abused its discretion in admitting certain
    testimony that she was inattentive to V.L. while also using alcohol on prior
    occasions. Specifically, Till argues that the testimony was inadmissible
    character evidence pursuant to Indiana Evidence Rule 404(b). The State
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 5 of 12
    responds that the challenged evidence was admissible to prove Till’s intent and
    to also show that what happened to V.L. was not simply an accident.
    [12]   Indiana 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.
    However, such evidence may be admissible to prove “motive, opportunity,
    intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
    accident.” Ind. Evidence Rule 404(b)(2). In assessing the admissibility of Rule
    404(b) evidence, (1) 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, and (2) the court must balance the
    probative value of the evidence against its prejudicial effect pursuant to
    Evidence Rule 403. Whatley v. State, 
    908 N.E.2d 276
    , 281 (Ind. Ct. App. 2009),
    trans. denied.
    [13]   Here, the challenged testimony that Till often used alcohol while caring for
    V.L., that she had exhibited a pattern of leaving him unattended, and that she
    had been warned of the dangers of doing so, was relevant and admissible to
    show her intent and lack of accident. Indeed, the trial court held a full hearing
    prior to trial to consider the entirety of the State’s proposed 404(b) evidence and
    specifically limited the admissible evidence to the above-mentioned type of
    testimony based upon the court’s determination that such evidence was highly
    probative of Till’s intent. Moreover, Till concedes that her defense at trial was
    that what happened to V.L. was an accident, and it is well settled that lack of
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 6 of 12
    accident is a subset of intent. See Fairbanks v. State, 
    119 N.E.3d 564
    , 568 (Ind.
    2019) (the State may offer other-bad-acts evidence of lack of accident when an
    accident defense is raised or the defendant places accident at issue at trial).
    [14]   Nevertheless, Till maintains that the trial court should have excluded the
    testimony because its probative value was substantially outweighed by its
    prejudicial effect. The trial court has wide latitude in weighing the probative
    value of the evidence against the possible prejudice. Prairie v. State, 
    914 N.E.2d 294
    , 298 (Ind. Ct. App. 2009). Contrary to Till’s assertions, the prejudicial
    effect of the evidence of her prior alcohol use, inattentiveness to V.L., and
    warnings about the same, did not substantially outweigh its probative value.
    Although such evidence certainly did not paint Till in a good light, any
    prejudice was outweighed by the evidence’s highly probative value to show that
    V.L.’s injuries were not simply accidental as claimed by Till but the result of
    Till’s knowing behavior. The trial court did not abuse its discretion in
    admitting the challenged evidence.
    Section 2 – The State presented sufficient evidence to support
    Till’s conviction.
    [15]   Till next challenges the sufficiency of the evidence to support her conviction.
    When reviewing a claim of insufficient evidence, we neither reweigh the
    evidence nor assess witness credibility. Bell v. State, 
    31 N.E.3d 495
    , 499 (Ind.
    2015). We look to the evidence and reasonable inferences drawn therefrom that
    support the conviction, and will affirm if there is probative evidence from which
    a reasonable factfinder could have found the defendant guilty beyond a
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 7 of 12
    reasonable doubt. 
    Id. In short,
    if the testimony believed by the trier of fact is
    enough to support the conviction, then the reviewing court will not disturb it.
    
    Id. at 500.
    [16]   To convict Till of level 3 felony neglect of a dependent, the State was required
    to prove that Till, a person having the care of V.L., knowingly or intentionally
    placed V.L. in a situation that endangered his life or health, which resulted in
    serious bodily injury to V.L. Ind. Code § 35-46-1-4(b)(2). A “knowing” mens
    rea in this regard requires a subjective awareness of a high probability that a
    dependent had been placed in a dangerous situation. Villagrana v. State, 
    954 N.E.2d 466
    , 468 (Ind. Ct. App. 2011) (citing Ind. Code § 35-41-2-2(b)).
    [17]   Till concedes that, as V.L.’s mother, she was charged with his care. She also
    concedes that V.L. suffered serious bodily injury. She contends, however, that
    the State failed to establish that she knowingly placed V.L. in a situation
    endangering his life or health. That is, she argues that the State presented
    insufficient evidence that she was subjectively aware of a high probability that
    V.L. had been placed in a dangerous situation when she left him unattended on
    the cluttered living room floor.
    [18]   In most child neglect cases, a finding of a knowing mens rea requires the
    factfinder to infer the defendant’s mental state. Pierson v. State, 
    73 N.E.3d 737
    ,
    741 (Ind. Ct. App. 2017), trans. denied. Thus, this Court must look to all the
    surrounding circumstances of a case to determine if a guilty verdict is proper.
    
    Id. Here, the
    jury heard testimony from several witnesses that Till exhibited
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 8 of 12
    signs of intoxication when V.L. was injured, and that she gave inconsistent
    stories regarding why and for how long she left V.L. unattended. The medical
    evidence indicated that V.L. was left unattended for a prolonged period.
    Moreover, the jury saw multiple pictures of the area where Till discovered V.L.
    unresponsive. Those pictures showed an area completely covered with toys,
    clothes, cups, blankets, plastic bags, trash, and all sorts of debris that could
    undoubtedly be extremely dangerous to an unattended small child with even
    the slightest mobility.
    [19]   Till directs us only to her self-serving testimony that she did not see anything
    dangerous around the area where she left V.L. unattended. This is simply a
    request for us to reweigh the evidence, and we cannot. There was sufficient
    evidence from which a reasonable jury could infer that Till acted knowingly, as
    she was “aware of facts that would alert a reasonable parent, under the
    circumstances, to take affirmative action to protect the child.” Hastings v. State,
    
    560 N.E.2d 664
    , 667 (Ind. Ct. App. 1990). The State presented sufficient
    evidence to support Till’s conviction.
    Section 3 – Till has not met her burden to demonstrate that the
    trial court imposed an inappropriate sentence.
    [20]   Finally, Till requests that we reduce the twelve-year sentence imposed by the
    trial court pursuant to Indiana Appellate Rule 7(B), which provides that we
    may revise a sentence authorized by statute if, after due consideration of the
    trial court's decision, we find that the sentence “is inappropriate in light of the
    nature of the offense and the character of the offender.” The defendant bears
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 9 of 12
    the burden to persuade this Court that his or her sentence is inappropriate.
    Childress v. State, 
    848 N.E.2d 1073
    , 1080 (Ind. 2006). Indiana’s flexible
    sentencing scheme allows trial courts to tailor an appropriate sentence to the
    circumstances presented, and the trial court’s judgment “should receive
    considerable deference.” Cardwell v. State, 
    895 N.E.2d 1219
    , 1222 (Ind. 2008).
    The principal role of appellate review is to attempt to “leaven the outliers.” 
    Id. at 1225.
    Whether we regard a sentence as inappropriate at the end of the day
    turns on “our sense of the culpability of the defendant, the severity of the crime,
    the damage done to others, and myriad other facts that come to light in a given
    case.” 
    Id. at 1224.
    “The question under Appellate Rule 7(B) is not whether
    another sentence is more appropriate; rather, the question is whether the
    sentence imposed is inappropriate.” Fonner v. State, 
    876 N.E.2d 340
    , 344 (Ind.
    Ct. App. 2007).
    [21]   Regarding the nature of the offense, the advisory sentence is the starting point
    that the legislature has selected as an appropriate sentence for the crime
    committed. Fuller v. State, 
    9 N.E.3d 653
    , 657 (Ind. 2014). The sentencing range
    for a level 3 felony is between three and sixteen years, with an advisory
    sentence of nine years. Ind. Code § 35-50-2-5(b). The trial court here imposed
    a twelve-year sentence, which is above the advisory but well below the
    maximum allowable sentence.
    [22]   Till maintains that an enhanced sentence is inappropriate based upon the nature
    of her offense because “[t]he fact that the child sustained injuries as a result of
    what happened” is already contemplated by level 3 felony charge and that
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 10 of 12
    “[n]othing about the injury would be a cause for aggravating it beyond the
    advisory sentence[.]” Appellant’s Br. at 29. Till attempts to minimize the
    egregiousness of her behavior and ignores that V.L. did not just suffer serious
    bodily injury, he suffered extensive and lifelong brain damage. He has been
    diagnosed with cerebral palsy, epilepsy, and numerous developmental delays,
    and he currently spends twelve to fourteen hours per week in various therapies.
    The trial court noted the “extraordinary impact” Till’s neglect had on V.L. due
    to the seriousness of his injuries and the fact that he will “never have a normal
    life.” Tr. Vol. 4 at 173-74. Till has not persuaded us that the nature of the
    offense warrants a sentence reduction.
    [23]   Till fares no better when we consider her character. The character of the
    offender is found in what we learn of the offender’s life and conduct. Croy v.
    State, 
    953 N.E.2d 660
    , 664 (Ind. Ct. App. 2011). While we acknowledge that
    Till does not have a prior criminal history, the trial court found that Till has a
    long history of exhibiting several other negative character traits. She has a
    history of alcohol abuse and admits to drinking alcohol while pregnant. She
    lost custody of two of her older children after they were diagnosed with fetal
    alcohol syndrome. Even after that tragic outcome, she did not change her
    behavior, as her next two children were also diagnosed with fetal alcohol
    syndrome. As the trial court observed, despite the intervention of those
    involved in social services, Till has made “miserable efforts” toward recovery
    and reformation. Tr. Vol. 4 at 173. She currently does not have custody of any
    of her five children, and she is permitted only supervised visitation with three of
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 11 of 12
    them. Moreover, Till is more than $25,000 behind in her child support
    obligation. None of this reflects positively on her character.
    [24]   Till points to her recent attendance at Alcoholics Anonymous meetings to
    demonstrate her commitment to change. However, even after V.L. was
    injured, Till continued to abuse alcohol, reportedly frequenting bars and
    proudly posting her escapades on social media. As noted by the trial court,
    Till’s recent “efforts at recovery have been too little and far too late.” 
    Id. at 174.
    Under the circumstances, Till has not met her burden to demonstrate that a
    twelve-year sentence is inappropriate in light of the nature of the offense and
    her character. Therefore, we affirm the sentence imposed by the trial court.
    [25]   Affirmed.
    Baker, J., and Kirsch, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 12 of 12