MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                Oct 14 2015, 9:41 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                       Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brittney Massey,                                         October 14, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1503-CR-92
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G04-1312-MR-76611



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-92 | October 14, 2015   Page 1 of 7
[1]   Brittney Massey (Massey) appeals her conviction for Murder,1 arguing that

      there is insufficient evidence supporting the conviction. Finding the evidence

      sufficient, we affirm.


                                                     Facts
[2]   On the morning of November 27, 2013, two-year-old Destinee Massey

      (Destinee) was taken to the emergency room at Riley Children’s Hospital in

      Indianapolis by her mother, Massey, and Massey’s husband, Michael Miles.

      When Destinee arrived at Riley, she was nonresponsive. Massey told the

      emergency room doctor that she had taken Destinee to the hospital because of

      changes in Destinee’s breathing and her low body temperature. Shortly after

      her arrival, Destinee stopped breathing and her heart stopped beating. Multiple

      attempts to revive her were unsuccessful and she was pronounced dead less

      than two hours after her arrival at the hospital.


[3]   Destinee had injuries and trauma to her body that hospital personnel found to

      be suspicious; therefore, they reported her death to law enforcement.

      Indianapolis Police Detectives Delbert Shelton and Craig Converse responded

      to the hospital and spoke with the treating physician, Massey, and Miles.

      Massey told Detective Converse that the previous day had been a normal one.

      Miles had gone to work around 2:00 p.m., she and the children had eaten

      dinner around 8:00 p.m., and then Massey gave Destinee a bath and put her to




      1
          Ind. Code § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-92 | October 14, 2015   Page 2 of 7
      bed around 9:00 p.m. Miles returned home around 12:30 a.m. and, around

      1:00 a.m., Miles carried Destinee in to Massey, concerned about her condition.

      Destinee was making strange moaning noises, bubbles were coming out of her

      mouth, her head was limp, and she was very cold. Miles wanted to take

      Destinee to the hospital but Massey did not want to do so. The next morning,

      at 8:30 a.m., Miles told Massey that they were taking Destinee to the hospital.

      At that point, Destinee was gasping for breath. They took her to the hospital

      around 10:00 a.m.


[4]   On November 29, 2013, Doctor Randy Tashjian performed an autopsy on

      Destinee. Doctor Miranda Geller, a forensic pathologist with the Marion

      County Coroner’s Office, testified about the results of the autopsy. The autopsy

      revealed multiple blunt force trauma injuries to Destinee’s head, chest,

      abdomen, arms, and legs. She also had multiple contusions and abrasions to

      her face, head, and forehead. Some of the injuries were older and healing but

      others were more recent and had occurred within a couple of days of her death.

      Her body bore multiple scars from older injuries. Destinee also had multiple

      hemorrhages in her skull and brain. Dr. Geller testified that the cause of

      Destinee’s death was a combination of blunt force trauma injuries and a

      catastrophic lack of oxygen to the brain2 causing brain injury and the slow death

      of brain cells. Tr. p. 72. Signs of severe anoxic brain injury include an altered



      2
        Dr. Geller and the treating physician referred to the lack of oxygen to the brain using multiple terms,
      including “anoxic brain injury,” “diffuse global anoxic injury of the brain,” “diffuse severe anoxic brain
      injury,” “second anoxic diffuse brain injury,” and “global hypoxia.” Tr. p. 12, 67-72.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-92 | October 14, 2015               Page 3 of 7
      mental state, changes in body temperature, and limpness of the body. The

      treating emergency room physician testified that Destinee’s condition when she

      was brought to the hospital was consistent with global hypoxia as a cause of

      death.


[5]   After law enforcement received the autopsy results, they brought Massey into

      police headquarters for another interview. Massey relayed a different version of

      events during this interview. She stated that she had been potty training

      Destinee but that Destinee continued to have accidents. When Destinee

      urinated in a location other than the bathroom, Massey would spank and strike

      her with belts, books, magazines, and newspapers. Massey struck Destinee

      with a pan on one occasion, and struck her in the vagina with a belt on another

      occasion. Massey stated that the night before Destinee’s death, Destinee

      urinated on the floor after dinner. Massey grabbed Destinee by the face,

      squeezed it, and dragged Destinee into the bathroom by her face, striking the

      toddler repeatedly as she dragged her along the floor. Massey gave Destinee a

      bath and put her to bed. Destinee was still crying. Massey left the room but

      came back later to tell Destinee to stop crying. Destinee was on her back in

      bed, and Massey turned her over so that she was face down. Massey held

      Destinee’s arms in such a way that it caused Destinee’s face to press into the

      bed and inhibited her ability to breathe. Destinee eventually stopped crying.

      Massey stated that she pressed Destinee’s face into the mattress because the

      toddler was crying and Massey was tired of listening to it.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-92 | October 14, 2015   Page 4 of 7
[6]   On December 2, 2013, the State charged Massey with murder, class A felony

      battery, and class A felony neglect of a dependent. Massey waived a jury trial,

      and her bench trial took place on January 9, 2015. On January 14, 2015, the

      trial court found Massey guilty as charged. At the February 6, 2015, sentencing

      hearing, the trial court entered judgment on the murder conviction and vacated

      the other two convictions on double jeopardy grounds. The trial court

      sentenced Massey to sixty years imprisonment with four years suspended to

      probation. Massey now appeals.


                                   Discussion and Decision
[7]   Massey’s sole argument on appeal is that the evidence is insufficient to support

      her conviction for murder. To convict Massey of murder, the State was

      required to prove beyond a reasonable doubt that she knowingly killed

      Destinee. I.C. § 35-42-1-1.


[8]   When we review a challenge to the sufficiency of the evidence, we neither

      reweigh the evidence nor assess witness credibility. McClellan v. State, 13

      N.E.3d 546, 548 (Ind. Ct. App. 2014), trans. denied. Instead, we consider only

      the probative evidence supporting the conviction and the reasonable inferences

      that may be drawn therefrom. Id. If there is substantial evidence of probative

      value from which a reasonable factfinder could have drawn the conclusion that

      the defendant was guilty beyond a reasonable doubt, then the verdict will not be

      disturbed. Id.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-92 | October 14, 2015   Page 5 of 7
[9]    Massey contends that there is insufficient evidence proving that she acted

       knowingly. A person “engages in conduct ‘knowingly’ if, when he engages in

       the conduct, he is aware of a high probability that he is doing so.” Ind. Code §

       35-41-2-2(b). It is well established that intent and knowledge may be proved

       solely by circumstantial evidence and reasonable inferences drawn from the

       facts and circumstances of each case. Heavrin v. State, 675 N.E.2d 1075, 1079

       (Ind. 1996). One “is presumed to have intended the reasonable results of his or

       her own acts.” Id.


[10]   With respect to the crime of murder, to “knowingly” kill requires, at a

       minimum, an awareness on the part of the defendant of a high probability that

       death will result from his actions. Storey v. State, 552 N.E.2d 477, 483 (Ind.

       1990). In evaluating the defendant’s intent, the trier of fact may consider the

       nature of the attack, the circumstances surrounding the crime, the duration and

       brutality of the defendant’s actions, and the relative strengths and sizes of the

       defendant and victim. Williams v. State, 749 N.E.2d 1139, 1141 (Ind. 2001);

       Childers v. State, 719 N.E.2d 1227, 1229 (Ind. 1999); Nunn v. State, 601 N.E.2d

       334, 339 (Ind. 1992).


[11]   In the case before us, at the time of her death, Destinee weighed approximately

       twenty pounds and had just turned two years old. Massey was a fully grown

       adult. Massey admitted that she became angry, grabbed Destinee by the face,

       and dragged her down the hallway, striking the toddler as she dragged her. She

       heard Destinee gasping as she squeezed the toddler’s face. An hour later,

       Massey pushed Destinee’s face into her mattress to stop her from crying. It was

       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-92 | October 14, 2015   Page 6 of 7
       reasonable for the trial court, acting as factfinder, to infer from these actions

       that Massey was aware of a high probability that Destinee’s death would result

       from her actions.3 Given the relative strength and sizes of Massey and

       Destinee, as well as the duration and brutality of Massey’s actions, it was

       reasonable to infer that Massey acted with the requisite intent to murder

       Destinee. Massey’s arguments to the contrary amount to a request that we

       reweigh the evidence—a request we decline. Consequently, we find the

       evidence sufficient to support Massey’s murder conviction.


[12]   The judgment of the trial court is affirmed.


       Bailey, J., and Mathias, J., concur.




       3
         Massey argues that because the State was unable to discern and prove the precise injury that caused
       Destinee’s death, it was unable to prove her state of mind at the time the fatal action occurred. We do not
       believe the State is required to meet such a burden. The State proved that blunt force trauma and a
       catastrophic lack of oxygen to the brain caused Destinee’s death, and it proved that Massey struck her child,
       dragged her down the hall by her face, and then forcibly pushed her face into a mattress and held it there,
       preventing her from breathing. It is reasonable to infer that Massey acted with the requisite intent throughout
       the attacks of her child, regardless of which precise injury led to Destinee’s death.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1503-CR-92 | October 14, 2015              Page 7 of 7
