MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                        Aug 04 2017, 9:10 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
Jane H. Ruemmele                                         Curtis T. Hill, Jr.
Hayes Ruemmele, LLC                                      Attorney General of Indiana
Indianapolis, Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jackie Lynn Rolston,                                     August 4, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A04-1701-CR-54
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Teresa L. Cataldo,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         20D03-1503-F2-2



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017       Page 1 of 18
                                       Statement of the Case
[1]   Jackie Lynn Rolston appeals her conviction, following a jury trial, for battery,

      as a Level 2 felony, and her sentence. Rolston raises the following three issues

      for our review:

              1.       Whether the trial court erred when it admitted certain
                       photographs into evidence.


              2.       Whether the State presented sufficient evidence to support
                       her conviction.


              3.       Whether her sentence is inappropriate in light of the
                       nature of the offense and her character.


[2]   We affirm.


                                 Facts and Procedural History
[3]   K.C. was born on March 17, 2013, to Anissa Garza and her boyfriend, Cody

      Coleman. Throughout the majority of K.C.’s life, he and Anissa lived with

      Anissa’s parents, Tony Garza and Angie Garza. In December of 2013, Anissa

      hired Rolston to babysit K.C.


[4]   In September of 2014, Angie picked up K.C. from Rolston’s home and

      observed that K.C. had a bloody mouth and a bruise on the middle of his

      forehead. Rolston stated that K.C. had run into a wall while carrying a sippy

      cup. The next month, K.C. came home with a bruise on his “whole” right

      cheekbone. Tr. Vol. IV at 108. Rolston stated that K.C. had been hit with a toy


      Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017   Page 2 of 18
      firetruck by one of the other children. On Monday, October 27, Angie observed

      K.C. “limping” after having been in Rolston’s care. Tr. Vol. III at 227-28. The

      next day while in Rolston’s care, K.C. vomited for no apparent reason and

      soiled his clothes, which was highly abnormal for K.C. That evening, Angie

      observed that K.C. was abnormally tired after he had come home from being in

      Rolston’s care. Similar events did not happen to K.C. while he was in the care

      of Anissa, Angie, or Tony.


[5]   Around 5:30 the next morning, Wednesday, October 29, Anissa dropped K.C.

      off with Rolston while on the way to work. K.C.’s behavior that morning was

      normal. His coordination was normal, he was verbalizing normally, and he

      had no notable injuries. As Tony described K.C. that morning, “he was fine.”

      Tr. Vol. IV at 83.


[6]   At approximately 11:30 that morning, about six hours after Anissa had dropped

      off K.C., Rolston gave K.C. some scrambled eggs for lunch and had K.C. feed

      himself. But, almost immediately after, she called 9-1-1 and reported that K.C.

      was choking. Rolston’s husband, Richard, a local volunteer firefighter, heard

      the call over the radio and his address. He was the first to arrive on the scene.

      When he arrived, K.C. was lying unresponsive on the floor. Richard observed

      that K.C. had no blockage of his airway or other indication of choking.

      Nonetheless, Richard, and, later, numerous other responders, attempted

      without success to resuscitate K.C.




      Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017   Page 3 of 18
[7]   Paramedics transported K.C. to Goshen Hospital, where he was pronounced

      dead. Dr. Andre Hischler observed K.C. as K.C. was brought into the

      emergency room. Dr. Hischler did not observe bruises or other indicia of

      trauma at that time. However, later that day when Anissa, Angie, and Tony

      were allowed to view K.C.’s body, scratches, “bumps[,] and bruises . . . were

      visually noticeable” on K.C.’s face and hands. Id. at 84. Tony immediately

      thought something “was amiss” and that K.C.’s death had not been “a freak

      accident” based on “the way [K.C.] looked.” Id. at 83-84. Dr. Hischler later

      suggested that the appearance of trauma on K.C.’s face and hands after Dr.

      Hischler had observed K.C. in the emergency room would have been consistent

      with trauma that had been caused at a time very near K.C. being transported to

      the emergency room. See id. at 59-61.


[8]   Dr. Joseph Prahlow, a forensic pathologist, performed K.C.’s autopsy. Dr.

      Prahlow has performed more than 5,000 autopsies and has more than 100 peer-

      reviewed publications. Dr. Prahlow immediately observed multiple bruises and

      “excoriations of [K.C.’s] face” and lips, some of which had begun healing,

      which suggested multiple injuries at different times. Id. at 215. Dr. Prahlow

      then observed numerous abrasions to the back of K.C.’s head. Dr. Prahlow

      concluded that, based on their severity, those particular injuries were related to

      K.C.’s internal head injuries, which are described below, and “weren’t

      incidental” or “little boy toddler type” injuries. Id. at 222.


[9]   Dr. Prahlow then performed the internal examination of K.C.’s skull and brain.

      That examination revealed subscapular hemorrhages. It also revealed “a great

      Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017   Page 4 of 18
       deal of . . . fresh subdural blood, liquid[,] runny blood,” on K.C.’s brain as well

       as contusions on K.C.’s brain. Id. at 242. As Dr. Prahlow described: “much of

       [what is on K.C.’s brain] is liquid blood. . . . This is not normal. This should

       not be here at all. . . . This is evidence of trauma . . . .” Id. at 239. Dr. Prahlow

       described that trauma as “significant” and the cause of K.C.’s death. Id. at 243-

       44. During the course of the autopsy, Dr. Prahlow also discovered evidence of

       prior brain bruising and blood on K.C.’s brain, which injuries Dr. Prahlow

       concluded K.C. had suffered at least two to three days prior to the fatal injury.


[10]   The victim of such head injuries, according to Dr. Prahlow, would have likely

       demonstrated symptoms of neurological malfunction nearly immediately after

       the injuries. Such symptoms could have included vomiting, sleepiness, and

       disorientation. Given the severity of K.C.’s fatal injury, Dr. Prahlow concluded

       that, within minutes of having received that injury, K.C. would not have been

       able to exercise the fine motor control necessary to feed himself. See Tr. Vol. V

       at 4.


[11]   Finally, Dr. Prahlow’s examination revealed a substance consistent with

       scrambled eggs in K.C.’s stomach, but Dr. Prahlow discovered no evidence of

       injury or blockage to K.C.’s ability to breathe. In light of his examination and

       the circumstances surrounding K.C.’s death, Dr. Prahlow concluded that K.C.

       had died of blunt force trauma to the head, and that K.C.’s fatal injury had

       occurred “minutes” prior to his death. Id. at 7.




       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017   Page 5 of 18
[12]   On March 20, 2015, the State charged Rolston with battery, as a Level 2 felony.

       Angie, Tony, Anissa, Richard, Dr. Hischler, and Dr. Prahlow all testified at

       Rolston’s ensuing jury trial. During his testimony, Dr. Hischler stated that,

       after he had pronounced K.C. dead at Goshen Hospital, he decided to review

       K.C.’s medical history. Dr. Hischler did so because, in his experience, a child

       who is choking will regain the ability to breathe once the child’s airway is clear,

       which was not consistent with Rolston’s report that K.C. had been choking and

       the first responders’ reports that K.C.’s airway showed no blockage.


[13]   In the course of his testimony, Dr. Prahlow referenced numerous autopsy

       photographs, which were admitted into the record without objection by

       Rolston. And, in describing the force necessary to create an injury of the

       severity K.C. incurred, Dr. Prahlow testified as follows:

               Q      How would you describe the force necessary to inflict this
               type of an injury on K.C.’s brain?


               A     Well, I can’t put it in, like, pounds per square inch or
               anything like that. I would say significant, more than just
               incidental bumps or falls.


               Q     Okay. Something that maybe a two-and-a-half or three-
               year-old could do to another child?


               A      It depends on what you’re talking about. Pushing
               someone off of a balcony, I think a three-year-old could do that
               to a nineteen-month-old and the person would land on their head
               so, yes—



       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017   Page 6 of 18
               Q        Okay.


               A        —within the realm of possibilities.


               Q        What about just maybe a hit by a three-year-old?


               A      One of the things we are taught is to never say never. So is
               it within the realm of possibilities? I suppose, but I’ve never seen
               such a case.


       Id. at 6. The State also sought to have admitted, over Rolston’s objection, a

       photograph of K.C. that showed him three days before his death. The trial

       court admitted that photograph after expressly finding that its probative value

       was not substantially outweighed by the danger of unfair prejudice to Rolston.


[14]   A jury found Rolston guilty as charged. The trial court entered its judgment of

       conviction and, thereafter, imposed a sentence of thirty years, with two years

       suspended to probation. In sentencing Rolston, the court stated:

               the court notes aggravating circumstance[s] in that the victim of
               the offense was less than 12 years of age at the time [Rolston]
               committed the offense; the child was 18 months old and
               entrusted to [Rolston’s] care; [Rolston] has a history of criminal
               behavior in that [she] had another child [who] was harmed while
               in her care; not an isolated incident but a pattern and a pattern
               that culminated in the death of a child. However, the court finds
               that the aggravating circumstances in this case were extremely
               egregiious [sic] and make[s] a record; the pathologist who very
               skillfully and painstakingly went through the evidence that was
               found on the victim’s body and through scientific methods
               determined that the injuries sustained by the victim were less
               than two hours old; and in his opinion it could have happened

       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017   Page 7 of 18
               immediately after the injury was sustained. Uncontroverted
               evidence in this case shows that the only adult who was with the
               victim in the immediate two hours prior to this incident was
               [Rolston]. That due to the evidence that was presented, the idea
               that the victim was choking was not substantiated in any way by
               that evidence presented at trial as being the cause of his death.
               The pathologist indicated that the force of the effect of the blunt
               force trauma to his head resulted in a loss of electrical impulses
               emitting through the child’s brain; the result of which
               periodically shut down all his physical functions and organs. In
               rending this sentence the court does not in any way make a
               judgment as [to Rolston’s] character or her loving nature; but the
               court is tasked with examining all evidence and deciding who’s
               actions resulted in the death of the child.


       Appellant’s App. Vol. II at 6. This appeal ensued.


                                      Discussion and Decision
                                  Issue One: Admission of Photographs

[15]   On appeal, Rolston first asserts that the trial court erred both when it admitted

       the photograph of K.C. from three days before his death and when it admitted

       certain autopsy photographs. We address each challenge in turn.


                                 Photograph of K.C. Prior to His Death


[16]   The trial court admitted, over Rolston’s objection, a photograph of K.C. that

       showed him three days before his death. The trial court has “inherent

       discretionary power on the admission of evidence, and its decisions are

       reviewed only for an abuse of that discretion.” McManus v. State, 814 N.E.2d

       253, 264 (Ind. 2004) (internal quotation marks omitted). An abuse of discretion

       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017   Page 8 of 18
       occurs when the trial court’s judgment “is clearly against the logic and effect of

       the facts and circumstances and the error affects a party’s substantial rights.”

       Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014).


[17]   According to Rolston, the trial court erred when it found that the probative

       value of the photograph was not substantially outweighed by the danger of

       unfair prejudice to Rolston. Indiana Evidence Rule 403 states that a trial court

       “may exclude relevant evidence if its probative value is substantially

       outweighed by a danger of . . . unfair prejudice . . . .” In a recent opinion, the

       Indiana Supreme Court explained the trial court’s broad discretion to apply

       Rule 403:

               “Trial judges are called trial judges for a reason. The reason is
               that they conduct trials. Admitting or excluding evidence is what
               they do.” United States v. Hall, 858 F.3d 254, 288 (4th Cir. 2017)
               (Wilkinson, J., dissenting). That’s why trial judges have
               discretion in making evidentiary decisions. This discretion
               means that, in many cases, trial judges have options. They can
               admit or exclude evidence, and we won’t meddle with that
               decision on appeal. See Smoote v. State, 708 N.E.2d 1, 3 (Ind.
               1999). There are good reasons for this. “Our instincts are less
               practiced than those of the trial bench and our sense for the
               rhythms of a trial less sure.” Hall, 858 F.3d at 289. And trial
               courts are far better at weighing evidence and assessing witness
               credibility. Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014).
               In sum, our vantage point—in a “far corner of the upper deck”—
               does not provide as clear a view. State v. Keck, 4 N.E.3d 1180,
               1185 (Ind. 2014).


                                                       ***


       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017   Page 9 of 18
                The unfair prejudice from [the challenged evidence] . . . was not
                so high that it overrode the trial court’s wide discretion. See
                Dunlap[ v. State], 761 N.E.2d [837, 842 (Ind. 2002)]. We thus
                decline to second-guess the trial court’s determination that the
                [evidence’s] relevance . . . was not substantially outweighed by
                the danger of unfair prejudice. The trial court could have
                admitted or excluded the [evidence]. The trial court chose
                admission . . . .


       Snow v. State, ___ N.E.3d ___, 2017 WL 2687410, at *4, *6 (Ind. June 22,

       2017).


[18]   Contrary to Rolston’s assertions on appeal, the photograph was relevant to

       show K.C. in a recent and uninjured condition prior to his death by blunt force

       trauma to the head. Moreover, any danger of unfair prejudice from that

       relevant evidence was not so high that it overrode the trial court’s discretion

       under Rule 403. See id. Accordingly, the trial court acted within its discretion

       when it admitted the photograph, and we will not second-guess the court’s

       exercise of that discretion.


                                            Autopsy Photographs


[19]   Rolston also asserts that the trial court erred when it admitted numerous

       photographs of K.C.’s body during the autopsy. As Rolston did not object to

       the admission of those photographs during her trial, on appeal she must show

       that the admission of those photographs was fundamental error, which is an

       “extremely narrow” basis for appellate review that requires Rolston to bear “the

       heavy burden of showing that a fair trial was [made] impossible” by the


       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017   Page 10 of 18
       purportedly erroneous admissions. Harris v. State, 76 N.E.3d 137, 139 (Ind.

       2017).


[20]   As an initial matter, Rolston’s claim of fundamental error is not available to

       her. She did not merely fail to object to the admission of the now-challenged

       autopsy photographs; rather, she affirmatively declared that she had “no

       objection” to them. E.g., Tr. Vol. IV at 205-06. As the Indiana Supreme Court

       has explained:


                The appellant cannot on the one hand state at trial that he has no
                objection to the admission of evidence and thereafter in this
                Court claim such admission to be erroneous. . . . [T]he doctrine
                of fundamental error is inapplicable to the circumstances
                presented here. The doctrine presupposes the trial judge erred in
                performing some duty that the law had charged the judge with
                performing sua sponte. Presumably a trial judge is aware of her
                own sua sponte duties. But upon an express declaration of “no
                objection” a trial judge has no duty to determine which exhibits a
                party decides, for whatever strategic reasons, to allow into
                evidence. Only the interested party himself can really know
                whether the introduction or exclusion of a particular piece of
                evidence is in his own best interests.


       Halliburton v. State, 1 N.E.3d 670, 677 (Ind. 2013) (internal quotation marks,

       alterations, and citations omitted). Accordingly, Rolston’s claim of

       fundamental error must fail.


[21]   In any event, Rolston has not met her burden to show any error, let alone

       fundamental error, in the admission of the autopsy photographs. Rolston

       generally asserts that the autopsy photographs were “gruesome” and

       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017   Page 11 of 18
       “unnecessary.” Appellant’s Br. at 17. Rolston also notes that “autopsy

       photographs are generally inadmissible if they show the body in an altered

       condition.” Allen v. State, 686 N.E.2d 760, 776 (Ind. 1997).


[22]   However, the Indiana Supreme Court has acknowledged that “there are

       situations where some alteration of the body is allowed where necessary to

       demonstrate the testimony being given.” Halliburton, 1 N.E.3d at 677 (internal

       quotation marks omitted). Indeed, the court has expressly held that autopsy

       photographs that showed “the victim’s skull with the hair and skin pulled away

       from it” were admissible “[b]ecause the pathologist had explained what he had

       done and the alteration was necessary to determine the extent of the victim’s

       injuries.” Id. (discussing Fentress v. State, 702 N.E.2d 721, 722 (Ind. 1998)).


[23]   The same is true here. The autopsy photographs of K.C.’s altered body were

       necessary to demonstrate Dr. Prahlow’s testimony, in which he explained what

       he had done during the autopsy and that the alterations were necessary to

       determine the extent of K.C.’s injuries. As such, Rolston has not shown any

       error in the admission of the autopsy photographs, let alone fundamental error.

       See id.


                                 Issue Two: Sufficiency of the Evidence

[24]   Rolston next challenges the sufficiency of the evidence underlying her

       conviction for battery, as a Level 2 felony. Our standard of review is clear: in

       reviewing such claims, we will consider only the evidence most favorable to the

       verdict and the reasonable inferences to be drawn therefrom. Leonard v. State,


       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017   Page 12 of 18
       73 N.E.3d 155, 160 (Ind. 2017). We will affirm the conviction if there is

       probative evidence from which a reasonable jury could have found the

       defendant guilty beyond a reasonable doubt. Id. We will neither reweigh the

       evidence nor reassess the credibility of witnesses. Id.


[25]   To show that Rolston committed battery, as a Level 2 felony, the State was

       required to prove beyond a reasonable doubt that Rolston was at least eighteen

       years of age when she knowingly or intentionally touched K.C., who was less

       than fourteen years of age, in a rude, insolent, or angry manner, which resulted

       in K.C.’s death. Ind. Code § 35-42-2-1(j)(1) (2014). Rolston contends that the

       State’s evidence against her amounts to showing only that she was in the

       presence of K.C. when he died. Rolston asserts that “[t]he timing of the child’s

       fatal injury . . . was not clearly established”; “[n]o one testified that the child

       was ever injured by them or in their presence”; “there was no affirmative proof

       of an act committed by anyone”; “the State never proved that Rolston

       committed a battery on the child”; and “[t]he State never even proved that the

       injuries were the result of a battery.” Appellant’s Br. at 20-21. Rolston further

       avers that “[t]he State failed to rule out the possibility that K.C. was . . . injured

       . . . by one of the other children . . . .” Id. at 27. We reject Rolston’s reading of

       the record.


[26]   The evidence most favorable to the verdict supports Rolston’s conviction.

       Rolston admitted that she was the only adult with K.C. at the time of his death.

       She further admitted that she had given K.C. scrambled eggs to feed himself

       shortly before his death. Dr. Prahlow unambiguously testified that, based on

       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017   Page 13 of 18
       the severity of K.C.’s injuries, K.C.’s death most likely happened within

       minutes of the injury having been inflicted. Dr. Prahlow further explained that

       almost immediately after suffering the injury K.C. would have lost the fine

       motor skills necessary to feed himself. Yet, Dr. Prahlow discovered scrambled

       eggs in K.C.’s stomach during the autopsy. The State’s evidence unmistakably

       puts K.C.’s time of death after he had already fed himself some of his scrambled

       eggs, which was only minutes before Rolston called 9-1-1.


[27]   Dr. Prahlow further testified that the fatal injuries were significant traumas,

       were not incidental injuries, and were not consistent with injuries that result

       from normal toddler behavior. He expressly testified that a two- or three-year

       old child, such as those with K.C. at the time of his death, would not have been

       likely to inflict such injuries absent perhaps pushing the victim off of a balcony.

       Thus, the State’s evidence puts the force necessary to inflict the fatal injuries in

       the range of that possible only by an adult, and, again, Rolston was the only

       adult present.


[28]   The State’s evidence goes further. The State demonstrated that K.C. suffered

       numerous injuries while in Rolston’s care the like of which he did not suffer

       while in the care of other adults. The only adult who ever seemed to witness

       those other injuries was Rolston. Indeed, the State demonstrated that K.C. had

       suffered a prior brain contusion and brain bleed and that, in a timeframe

       consistent with those injuries—namely, two days prior to his death—K.C.

       began to display symptoms consistent with those injuries. In particular, K.C.

       walked with a limp, he vomited for no apparent reason, he abnormally soiled

       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017   Page 14 of 18
       himself, and he was abnormally tired. However, the morning of his death, K.C.

       was again acting normally when Anissa left him in Rolston’s care.


[29]   Further still, the State’s evidence negated Rolston’s claim at the time of K.C.’s

       death that K.C. had choked to death. Richard, the initial first responder on the

       scene and Rolston’s husband, confirmed that, upon his arrival, K.C. had no

       blockage of his airway. Dr. Hischler testified that, in his experience, a child

       who is choking will begin breathing again upon the removal of the blockage

       from his airway. Yet, despite a clear airway, responders were unable to

       resuscitate K.C. And Dr. Prahlow confirmed that his autopsy of K.C. did not

       reveal blockage or damage to K.C.’s airway. The jury was free to conclude

       from the State’s evidence that Rolston fabricated her claim that K.C. had

       choked.


[30]   Rolston’s reading of the record on appeal attempts to piecemeal the evidence

       and testimony in a way that constructs a narrative most favorable to her rather

       than one that is most favorable to the verdict, which is contrary to our standard

       of review. We reject Rolston’s suggestions to reweigh the evidence or reassess

       the witnesses. The State met its burden to prove, beyond a reasonable doubt,

       that Rolston committed a battery on K.C. that resulted in K.C.’s death. We

       affirm her conviction.




       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017   Page 15 of 18
                                             Issue Three: Sentencing

[31]   Finally, Rolston contends that her thirty-year sentence, with two years

       suspended to probation, is inappropriate in light of the nature of the offense and

       her character.1 As we have explained:


                Indiana Appellate Rule 7(B) permits an Indiana appellate court
                to “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.” We assess the trial court’s
                recognition or nonrecognition of aggravators and mitigators as an
                initial guide to determining whether the sentence imposed was
                inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct.
                App. 2006). The principal role of appellate review is to “leaven
                the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
                2008). A defendant must persuade the appellate court that his or
                her sentence has met the inappropriateness standard of review.
                Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007).


       Robinson v. State, 61 N.E.3d 1226, 1228 (Ind. Ct. App. 2016).


[32]   Here, the trial court identified the following aggravating factors when it

       imposed its sentence: (1) K.C.’s young age; (2) Rolston’s position of trust over

       him at the time of his death; (3) Rolston’s criminal history, which consisted of a

       Class A misdemeanor for neglect of a dependent; and (4) the nature and

       circumstances of the offense, which the court recognized as extremely



       1
         The State responds to Rolston’s argument by stating that the trial court did not abuse its discretion when it
       sentenced her. We do not read Rolston’s argument to be a challenge to the court’s exercise of its discretion in
       sentencing but, rather, as a challenge to the appropriateness of her sentence under Indiana Appellate Rule
       7(B).

       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017              Page 16 of 18
       egregious. The court did not identify any significant mitigating circumstances.

       An executed sentence of thirty years is the maximum sentence for a Level 2

       felony. I.C. § 35-50-2-4.5.


[33]   Rolston asserts that her sentence is inappropriate in light of the nature of the

       offense because the trial court “erroneously concluded that the injuries inflicted

       were . . . ‘less than two hours old,’ and Rolston was the only adult who could

       have inflicted injury on the child . . . .” Appellant’s Br. at 30. Rolston also

       generally asserts that the trial court’s assessment of the nature and

       circumstances of the offense “was merely an endorsement of the jury’s

       verdict . . . .” Id. at 30-31. We cannot agree. As explained in Issue Two, the

       evidence most favorable to the verdict demonstrates K.C.’s time of death and

       places Rolston as the only adult with K.C. at the time. And it is well

       established that the trial court may consider the nature and circumstances of the

       offense as an aggravator. E.g., Gomilla v. State, 13 N.E.3d 846, 853 (Ind. 2014).

       Moreover, we agree with the trial court’s assessment that the nature and

       circumstances of Rolston’s offense were extremely egregious.


[34]   With respect to her character, Rolston asserts that her sentence is inappropriate

       because, given her age of sixty years old, “[s]erving seventy-five percent of her

       [executed] sentence . . . means she will most likely die in prison.” Appellant’s

       Br. at 30. Rolston also argues that numerous letters and other evidence Rolston

       had presented on her own behalf demonstrates her good character. But Rolston

       disregards the fact that she has a prior conviction for neglect of a dependent and

       that her battery of K.C. occurred while she was in a position of trust over him.

       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017   Page 17 of 18
       And, in any event, we are not persuaded that the character evidence Rolston

       relies on was significant, especially in light of the extremely egregious nature of

       the offense. Accordingly, we cannot say that Rolston’s sentence is

       inappropriate in light of the nature of the offense and her character.


                                                   Conclusion

[35]   In sum, we affirm Rolston’s conviction and sentence.


[36]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A04-1701-CR-54 | August 4, 2017   Page 18 of 18
