Barbara Jo Woolley v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 25 2017, 9:22 am
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.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Barbara Jo Woolley, May 25, 2017
Appellant-Defendant, Court of Appeals Case No.
83A05-1612-CR-2765
v. Appeal from the Vermillion Circuit
Court
State of Indiana, The Honorable Bruce V. Stengel,
Appellee-Plaintiff Judge
Trial Court Cause No.
83C01-1510-F3-6
Baker, Judge.
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[1] Barbara Jo Woolley appeals the sentence imposed by the trial court after
Woolley pleaded guilty to four counts of Level 3 Felony Neglect of a
Dependent. Woolley argues that the trial court erred in ordering consecutive
sentences and by finding an improper aggravating factor. Finding no error, we
affirm.
Facts
[2] In September 2013, Woolley lost her job as a licensed practical nurse at a
nursing home. Because of the loss of income, she and her ex-husband, Gordon,
moved in with her son, John; John’s wife, Danielle; and John and Danielle’s
four children—J.W. (age eight), C.W. (age five), S.W. (age four), and A.W.
(age two).
[3] On October 16, 2015, the Department of Child Services (DCS) received a report
alleging that the Woolley home was dirty. When DCS workers and law
enforcement entered the residence, they encountered a scene that was described
as “the worst neglect case” they had ever seen. Sent. Tr. p. 32-43, 54. Police
officers documenting the scene required respirators, disposable foot covers, and
gloves for their safety, especially in the upstairs of the home.
[4] The home had a strong odor of urine and feces. S.W. and A.W. were found
upstairs in cribs in the master bedroom. The room was cluttered, dark, and
dirty. Feces were smeared on the wall behind S.W.’s crib. A.W. appeared
dirty. Four-year-old S.W. had wrist bones as small as an infant’s and his skin
had a yellow tint. Five-year-old C.W. was in the adjacent room, which
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contained only a toddler mattress on the floor. She appeared to be very
malnourished. Eight-year-old J.W. was found in another room that was locked
from the outside. He slept in a wooden bed frame with no mattress, box spring,
or pillows. Everything in the room—including every wall, the ceiling, the
“bed,” the blankets, and the floor—was smeared with feces. The feces on the
floor had been there so long that they were smoothed over from being walked
on over time. Even the items that J.W. used to eat—his bowl, plate, and sippy
cup—were covered in feces. The room had no toys, and the windows were
boarded up with plywood.
[5] All four children lacked proper hygiene and were suffering from varying degrees
of malnutrition and dehydration. None of the children were potty-trained,
none of them could communicate, and none of them even recognized one
another. Their physical condition was appalling: J.W. had fecal matter on his
legs, under his fingernails, and under his toenails; S.W. had fleas and fecal
matter on his body; C.W. had head lice and fleas on her; and J.W. and A.W.
had bug bites on their bodies. All the children were pale, had yellow-tinted
skin, and would not eat normal food for their ages. Only J.W. could eat solid
food; the other children ate only baby food because they did not know how to
chew or swallow solids. S.W. was so emaciated that his ribs and hip bones
were visible. At the age of four years, he weighed only 22.3 pounds.
[6] None of the children had seen a doctor since they were born except for J.W.,
who had been to a doctor once when he was three years old. None of the
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children had been outside in over a year. Some of the neighbors did not even
know that children lived at that residence.
[7] The children’s guardian ad litem, an attorney who had been serving as a
guardian ad litem for twenty-two years, later described C.W. and S.W. as
looking “like Holocaust survivors” and said that the children “were all like no
other children that [she] had ever seen.” Sent. Tr. p. 17-19. The guardian ad
litem summarized their condition as follows:
All the children suffer from health issues along with indescribable
mental and functional impairments . . . . These children never
saw the sunshine, the grass, felt the snow, experienced the
warmth of loving arms. Instead they were kept in rooms and
cribs like caged animals. Diapers, sewage and filth was
throughout the house. The children didn’t even have the
consolation of each other. None expressed any recognition of
their siblings. They were deprived of food, health care, love and
stimulation. They don’t even cry when upset, likely because it
has never elicited a response so why bother.
Appellant’s App. Vol. II p. 203.
[8] While Woolley’s grandchildren were confined upstairs, she regularly left the
home to attend classes at Ivy Tech Community College, where she was enrolled
in the education program. As part of her coursework, she learned about child
and adolescent development and the duty to report child abuse and neglect.
Woolley went upstairs daily to see the children and babysat the children more
than once. She admitted that the children had been downstairs only two or
three times in the two years she had lived in the residence.
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[9] On October 30, 2015, the State charged Woolley with four counts of Level 3
felony neglect of a dependent. She pleaded guilty as charged on July 20, 2016.
On August 11, 2016, the trial court sentenced Woolley to consecutive terms of
sixteen years for the neglect of J.W. and nine years each for the neglect of the
other three children—an aggregate term of forty-three years imprisonment. She
now appeals.
Discussion and Decision
I. Consecutive Sentences
[10] Woolley first argues that the trial court erred by imposing consecutive
sentences. Trial courts may only impose consecutive sentences within the
bounds of the statutory sentencing scheme. Ind. Code § 35-50-1-2; Wilson v.
State, 5 N.E.3d 759, 762 (Ind. 2014). Because neglect of a dependent is not
listed as a “crime of violence,” Woolley’s offenses are subject to a statutory cap
if they arise from a single episode of criminal conduct. I.C. § 35-50-1-2.
Whether multiple offenses constitute a single episode of criminal conduct is a
factually sensitive inquiry to be made by the trial court. Schlichter v. State, 779
N.E.2d 1155, 1157 (Ind. 2002). In conducting this analysis, the focus is on the
timing of the offenses and the simultaneous and contemporaneous nature of the
crimes. Reed v. State, 856 N.E.2d 1189, 1200-01 (Ind. 2006).
[11] Woolley’s offenses do not constitute a single episode of criminal conduct. First,
her crimes involve four separate children. See, e.g., Pittman v. State, 885 N.E.2d
1246, 1259 (Ind. 2008) (holding that “[c]onsecutive sentences reflect the
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significance of multiple victims”). Furthermore, the children each suffered
daily neglect over a period of two years. In other words, an individual crime
was committed against each child victim every day for two years. It is readily
apparent that these crimes do not constitute a single episode of criminal
conduct.
[12] The trial court articulately explained its reasons for imposing consecutive
sentences:
[Woolley] was in the household for a little over two years, about
25 months. This conduct was not closely related in time. It was
not closely related in circumstances. This was an individual
crime committed each day and repeated each day such that the
episode of criminal conduct just not—does not apply. This is not
a single episode. The probable cause and plea—or probable
cause and charging information encompass evidence of multiple
acts of neglect, depravity, cruelty and confinement that occurred
over multiple years. This did not occur in one single incident
over two hours, four hours, six hours, but, in fact, occurred for
the vast majority of the childrens’ lifetime and for the [entire]
lifetime of the youngest child, [A.W.]. So the Court does not feel
that . . . our legislature[] intended this [to] apply and there are
several cases . . . that indicate this is not considered to be an
episode of criminal conduct.
Sent. Tr. p. 79-80. We agree, and find no error with respect to the imposition of
consecutive sentences.
II. Aggravating Factor
[13] Woolley also argues that the trial court found an improper aggravating factor.
One of the ways in which a trial court can err in the sentencing process is by
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finding aggravators or mitigators that are unsupported by the record or
improper as a matter of law. E.g., Laster v. State, 956 N.E.2d 187, 193 (Ind. Ct.
App. 2011).
[14] Woolley was a licensed practical nurse during the years she lived with the
children. The trial court found this to be an aggravating factor, explaining its
reasoning as follows:
All nurses, registered nurses, your licensed practical nurses, at the
time they are pinned, when they get their authority to practice
take a pledge and that pledge is known as the Florence
Nightingale Pledge. I had told the attorneys that I was going to
take judicial notice that she was a practical nurse and that pledge
is as follows: “I solemnly pledge myself before God and in the
presence of this assembly to pass my life in purity and to practice
my profession faithfully. I will abstain from whatever is
deleterious and mischievous and will not take or knowingly
administer any harmful drug. I will do all in my power to
maintain and elevate the standard of my profession and will hold
in confidence all personal matters committed to my keeping and
all my family affairs coming into my knowledge in the practice of
my calling. With loyalty I will endeavor to aid the physician in
his work and to devote myself to the welfare of those committed
to my care.” I want to emphasize and repeat the last phrase of
the Florence Nightingale Pledge which nurses in Indiana, and I
think, in fact, all nurses across the country take. The last phrase
is “Devote myself to the welfare of those committed to my care.”
That does not say to the patients committed to my care but it just
says to the welfare of those committed to my care. I think that is
an aggravating factor that she’s a nurse, that she’s taken a pledge
to devote herself to those committed to—to devote herself to the
welfare of those committed to her care. Also as a nurse she has a
legal duty to report evidence of suspected abuse to law
enforcement officers. Also as a nurse she has received
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specialized training to recognize the situations, to know how
devastating it is on youngsters to not have a proper diet, to not
get exercise, to not be in the sunlight, to not have cleanliness.
She knows all those and she’s received special training, although
it doesn’t take any special training. I once again have to look at
these pictures, pictures that have been introduced 1 through 11 to
see those to know that this is just a horrible situation, particularly
the pictures from 4 through 11 that depict the children.
Sent. Tr. p. 82-83. Woolley argues that this aggravator was inappropriate
because the nurse’s pledge was evidence outside the record and because her
nursing background was irrelevant, inasmuch as “no special training was
necessary to detect the inappropriate conditions of the children.” Appellant’s
Br. p. 13.
[15] Initially, we note that Woolley did not object to this aggravating factor, either at
the beginning of the sentencing hearing when the trial court indicated its
intention to take judicial notice of her nursing background and the pledge or at
the end in the passage set forth above. Consequently, she has waived this
argument. Angleton v. State, 714 N.E.2d 156, 158 (Ind. 1999).
[16] Waiver notwithstanding, we note that Woolley’s nursing background is
supported by the record. Appellant’s App. Vol. II p. 173. Furthermore, we
cannot say that the trial court erred by finding that her nursing background is
particularly aggravating given the nature of these offenses. Woolley is correct
that even a lay person would have recognized that the conditions these four
children were forced to live in were unconscionable. Appellant’s Br. p. 23-24.
Therefore, it is even more egregious when a nurse—a person trained in an
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occupation that focuses solely on the health and well-being of other people—
takes no action to help her four obviously suffering grandchildren. She had a
greater awareness than an average lay person of the physical, mental, and
developmental needs of children, but did nothing.
[17] As for the trial court’s acknowledgement of the nurse’s pledge, it is apparent
that the trial court was merely using the pledge to emphasize its point that
nurses are in the business of caring for others and, as a nurse, Woolley fell
woefully short of what is commonly expected of those in her profession. In
other words, the trial court used the pledge to highlight the reason that
Woolley’s training and experience in the nursing profession was aggravating.
We find no error in this regard or in any regard with respect to this aggravating
factor.1
[18] The judgment of the trial court is affirmed.
Barnes, J., and Crone, J., concur.
1
Even if we did find error in the recitation of the nurse’s pledge, it would not render the aggravator itself
improper. We are confident that the trial court would still have found Woolley’s nursing background to be
an aggravator even if it had not been aware of or recited the nurse’s pledge.
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