MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 FILED
court except for the purpose of establishing                         Jun 13 2017, 11:12 am

the defense of res judicata, collateral                                   CLERK
estoppel, or the law of the case.                                     Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                         Curtis T. Hill, Jr.
Brownsburg, Indiana                                     Attorney General of Indiana

                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Frank Larkins, III                                      June 13, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1611-CR-2516
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G06-1411-MR-52285



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2516 | June 13, 2017          Page 1 of 17
                                       Statement of the Case
[1]   Frank Larkins, III appeals his convictions for aggravated battery, as a Level 1

      felony, and neglect of a dependent, as a Level 1 felony, following a jury trial.

      He presents two issues for our review:

              1.      Whether the trial court abused its discretion when it
                      denied his motion to sever his trial from his codefendant’s
                      trial.

              2.      Whether the State presented sufficient evidence to support
                      his convictions.


[2]   We affirm.


                                 Facts and Procedural History
[3]   In February 2013, Diamond Miller and her son D.P. were living with

      Diamond’s father, William Miller, when she gave birth to her son E.P.

      Sometime in 2013, Diamond began dating Larkins, and in December 2013,

      Diamond, D.P., and E.P. began living with Larkins and Larkins’ elderly great

      grandmother, Gladys Brasher. Diamond and Larkins then had a daughter

      together, M.M.


[4]   On Friday, October 24, 2014, Diamond dropped off D.P. and E.P. at William’s

      house for the weekend. E.P. showed no signs of illness over the weekend. On

      Monday, October 27, at approximately 4:30 p.m., Larkins and Diamond met

      William, D.P., and E.P. in a parking lot, and, while Larkins stayed seated in

      the driver’s seat of his truck, Diamond and William helped the boys move from

      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2516 | June 13, 2017   Page 2 of 17
      William’s car into Larkins’ truck. As E.P. entered the truck, E.P. and Larkins

      made eye contact, and William observed that E.P. “looked spooked” as though

      he had “seen a ghost.” Tr. Vol. 3 at 18-19. William then drove Diamond to

      work, and Larkins drove D.P. and E.P. to Larkins’ brother’s house for a visit.

      Larkins’ brother Bryant was living with his girlfriend Jayna Tramble and

      Bryant’s children at the time. D.P. and E.P. played with Bryant’s children

      while Larkins visited with Bryant and Tramble for a couple of hours.


[5]   After leaving Bryant’s residence, at approximately 6:30 p.m., Larkins drove

      D.P. and E.P. home. Larkins’ then eighty-five-year-old great grandmother,

      Brasher, was home that evening, but she mostly stayed in her bedroom with the

      door closed. When Diamond got home from work at approximately 10:00

      p.m., Larkins, D.P., and E.P. were eating dinner. But E.P. only took two bites

      of food and spit them out. E.P. complained of stomach pain. A short time

      later, Diamond called William to ask him what E.P. had eaten over the

      weekend. William reported that E.P. had eaten normally and seemed to be fine

      over the weekend. At some point, E.P. went to sleep for the night.


[6]   On Tuesday, October 28, E.P. was lethargic and sick to his stomach. E.P. did

      not eat, and he vomited every time he tried to drink fluids. E.P. vomited eight

      to ten times that day. E.P.’s stomach was distended, but it “deflate[d]” after he

      vomited. Tr. Vol. 2 at 97. E.P. stayed still as much as possible to minimize the

      pain he was having. E.P. went to sleep at approximately 6:00 p.m. Diamond

      and Larkins heard E.P. moaning in pain in his bed, but he eventually quieted

      down.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2516 | June 13, 2017   Page 3 of 17
[7]   At a little before 8:00 a.m. on Wednesday, October 29, Diamond found E.P.

      unresponsive in his bed. Diamond woke Larkins, and they called 9-1-1. The 9-

      1-1 operator instructed Larkins to perform chest compressions on E.P. while

      they waited for emergency medical technicians (“EMT”) to arrive. When the

      EMTs arrived, they found Larkins giving chest compressions to E.P., who was

      lying on the floor in a hallway. EMT John Longstreet determined that E.P.

      was dead and was exhibiting rigor mortis, which indicated that E.P. had been

      dead for “an extended period of time.” Id. at 28. Indianapolis Metropolitan

      Police Department officers and a deputy coroner, Jessica Miller, soon arrived at

      the apartment. At some point, Larkins told Miller that he “had an interest in”

      television shows involving medical diagnoses, and he asked her “what kind of

      injuries would cause [E.P.’s] abdomen to be found distended or rigid.” Id. at

      103. And Larkins asked Miller if she would be able to determine the cause of

      an abdominal injury to E.P. Miller told a homicide detective at the scene about

      Larkins’ questions.


[8]   Larkins and Diamond gave voluntary statements to police officers. They

      explained that they thought E.P. had a stomach virus on Tuesday and that they

      had intended to take him to get medical treatment on Wednesday if he was not

      feeling better.


[9]   Dr. Thomas Sozio conducted an autopsy and concluded that E.P. had died

      from an infection after he suffered blunt force trauma to his abdomen akin to

      what would be sustained in a “high speed car accident.” Id. at 199. In



      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2516 | June 13, 2017   Page 4 of 17
       particular, Dr. Sozio found that E.P’s duodenum1 had been severed such that

       “it had completely separated and it was torn in two pieces.” Id. at 178. Dr.

       Sozio also found: a partial laceration to E.P.’s pancreas; a large amount of

       blood and pus in E.P’s abdomen; “some fat that had been torn”; and signs of an

       infection. Id. at 177. Dr. Sozio concluded that if E.P. had received timely

       medical care after the impact injury, he could have had surgery to repair his

       injuries and treat the infection that ultimately killed him.


[10]   The State charged Larkins with murder, a felony; aggravated battery, as a Level

       1 felony; two counts of neglect of a dependent, as Level 1 felonies; battery, as a

       Level 2 felony; and two counts of battery, as Level 5 felonies. 2 And the State

       charged Diamond with two counts of neglect of a dependent, as Level 1

       felonies. When the State indicated that it would try Larkins and Diamond

       together in a single trial, Larkins moved to sever the trials. The trial court

       denied that motion after a telephonic hearing.


[11]   During the joint trial, the State presented expert testimony that E.P. died

       approximately eighteen to thirty-six hours after sustaining the blunt force

       trauma to his abdomen. No one could pinpoint the time of E.P.’s death, but

       the evidence showed that, because E.P. was exhibiting rigor mortis when EMTs

       arrived at 8:00 a.m. on October 29, he had “likely” been dead “for hours” at




       1
           The duodenum is the “first part of the small intestine after the stomach.” Tr. Vol. 2 at 177.
       2
           Prior to trial, the State dismissed the two Level 5 felony charges against Larkins.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2516 | June 13, 2017                Page 5 of 17
       that point. Tr. Vol. 3 at 97. And while there was no evidence to pinpoint the

       time of injury, Dr. Harris testified that it “would have happened after” E.P. had

       been playing with the kids at Bryant’s house, which was when Larkins was

       home with D.P. and E.P. on Monday evening. Id. at 93. Finally, the State

       presented expert testimony that the blunt force trauma to E.P.’s abdomen was

       not the result of a fall and could not have been inflicted by another child.


[12]   At the conclusion of trial, the jury found Larkins guilty of all but the murder

       charge, upon which the jurors could not find unanimity.3 The trial court

       entered judgment of conviction for aggravated battery, as a Level 1 felony, and

       neglect of a dependent, as a Level 1 felony. The court sentenced Larkins to

       concurrent thirty-four year sentences, with twenty years in the Department of

       Correction, eight years on work release, six years suspended, and two years on

       probation. This appeal ensued.


                                      Discussion and Decision
                                    Issue One: Motion to Sever Trials

[13]   Larkins first contends that the trial court abused its discretion when it denied

       his motion to sever his trial from Diamond’s trial. Indiana Code Section 35-34-

       1-11(b) provides in relevant part that, upon a defendant’s motion, the court

       shall order a separate trial of codefendants whenever the court determines that a




       3
         The jury found Diamond guilty of one count of neglect of a dependent, as a Level 1 felony. We affirmed
       her conviction on appeal. Miller v. State, No. 49A02-1610-CR-2364, 2017 WL 1632534 (Ind. Ct. App. May 2,
       2017).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2516 | June 13, 2017        Page 6 of 17
       separate trial is necessary to protect a defendant’s right to a speedy trial or is

       appropriate to promote a fair determination of the guilt or innocence of a

       defendant. But there is a strong judicial policy in favor of joint trials where

       codefendants are charged with the same crime. Lee v. State, 684 N.E.2d 1143,

       1149 (Ind. 1997). The trial court has discretion to grant or deny a motion for

       separate trials. Id. at 1147. In order to show an abuse of discretion in the denial

       of a motion for separate trials, the defendant must show actual prejudice. Id. at

       1148. It is the defendant’s burden to show that a fair trial could not otherwise

       have been had and “not merely that severance would enhance the prospects for

       acquittal.” Id. at 1149 (quoting Blacknell v. State, 502 N.E.2d 899, 905 (Ind.

       1987)).


[14]   Larkins maintains that, over his objection, the trial court permitted the State to

       present evidence against Diamond that “would not have been admissible” if

       Larkins had been tried separately. Appellant’s Br. at 29. In particular, the State

       presented William’s testimony that, after Larkins and Diamond began living

       together, William: saw bruises “all over” E.P. “about every time” he saw him;

       repeatedly talked to Diamond about the bruises; disagreed with Diamond’s

       conclusion that the bruises were just a result of play with other kids; and told

       Diamond not to let “anybody watch the kids.” Tr. Vol. 3 at 10-11. William

       testified that Larkins was regularly taking care of the children in Diamond’s

       absence. Id. at 11.


[15]   Immediately before William began his testimony, the trial court admonished

       the jury as follows:

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2516 | June 13, 2017   Page 7 of 17
        With Mr. Miller’s testimony the Court is giving you another
        admonition, . . . [that] the testimony you are about to receive
        from Mr. Miller, until you are further advised by the Court, that
        this testimony is to be considered as to Defendant Miller only. It
        is not to be considered in any way, shape, or form against Mr.
        Larkins. It shall not be commented upon, referred to or in any
        way considered by the jury against Mr. Larkins.


Tr. Vol. 3 at 5. Then, at the conclusion of William’s testimony regarding the

frequent bruising he had seen on E.P., the trial court stated as follows:


        All right. Ladies and Gentlemen, again, the Court wants to draw
        the clear distinction of the information that you received up to
        this point that was admissible against Defendant Miller only.
        And it was admissible for the purpose for two reasons. One, to
        show the witness’s state of mind as to why he communicated,
        why he communicated to Ms. Miller about his observations. It
        also goes to Diamond Miller’s state of mind about what
        knowledge she may have had or what warnings she may have
        had about the health of her child or the care of her child. Again,
        you are not to consider it in any way, shape, or form for the truth
        of the matter, in the sense that there were bruises or whatever, he
        is not a medical expert. Nor has he testified in any way at this
        point that he saw anyone, especially and including Mr. Larkins
        create these injuries. That’s why you’re not permitted to use it
        against Mr. Larkins in any way, shape, or form. Because he
        doesn’t have that information and you’ve not heard it. So it’s
        only allowed for those two purposes, his state of mind as to why
        he said what he said, if you find that he said it, and Ms. Miller’s
        state of mind if she heard it and what she knew or may not have
        known about any warnings about Mr. Larkins. That’s the only
        thing you can use it for. . . .


Id. at 11-12. The trial court asked the jurors to indicate whether they did not

understand the admonishment, and none of the jurors so indicated. The trial
Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2516 | June 13, 2017   Page 8 of 17
       court also instructed the jury in relevant part as follows: “Any evidence which

       was limited to one defendant should not be considered by you as to any other

       defendant. You should give separate consideration to each defendant.”

       Appellant’s App. Vol. 2 at 102.


[16]   Larkins contends that he was denied a fair trial because “William’s testimony

       about the bruises, and his opinion regarding their source, would not have been

       admissible [under Indiana Evidence Rule 404(b)] if Larkins had been tried

       alone.” Appellant’s Br. at 31. And Larkins maintains that he was prejudiced

       by that testimony and that the trial court’s admonitions and instructions “did

       not eliminate the prejudice.” Id. We cannot agree.


[17]   First, it is well settled that we presume the jury followed the trial court’s

       admonishments and that the excluded testimony played no part in the jury’s

       deliberation, Francis v. State, 758 N.E.2d 528, 532 (Ind. 2001), and when the

       jury is properly instructed, we presume they followed such instructions.

       Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 2015) (citation omitted). Indeed, as the

       State points out, it appears that the jury disregarded William’s testimony

       altogether in that it acquitted Diamond of the neglect of a dependent charge

       based on her conduct in leaving E.P. in Larkins’ care despite having been

       notified that Larkins might be abusing E.P.4 Further, during deliberations, the

       jury asked the trial court for information regarding any “Child Protective



       4
          The jury convicted Diamond of neglect of a dependent based on her failure to timely obtain medical
       treatment for E.P.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2516 | June 13, 2017            Page 9 of 17
       Service records,” “witnesses of any abuse of the children,” and “any criminal

       record of Frank Larkins.” Appellant’s App. Vol. 2 at 135. Those questions

       suggest that the jury did not improperly consider William’s testimony in

       determining Larkins’ guilt. Larkins has not shown that he was denied a fair

       trial as a result of William’s testimony.


[18]   Moreover, we reject Larkins’ contention that “William’s testimony about the

       bruises, and his opinion regarding their source, would not have been admissible

       if Larkins had been tried alone.” Appellant’s Br. at 31. To the contrary, that

       testimony might have been admissible in a separate trial against Larkins under

       an exception to Evidence Rule 404(b), which provides that evidence of prior

       bad acts may be admissible to prove motive, opportunity, intent, preparation,

       plan, knowledge, identity, absence of mistake, or lack of accident. For

       example, in Clemons v. State, 610 N.E.2d 236 (Ind. 1993), during the defendant’s

       trial on charges that he had abused one of his twin sons, the State introduced

       evidence that the defendant had previously abused his other twin son. Our

       supreme court held that such evidence was admissible to show the defendant’s

       modus operandi, identity, absence of mistake, or lack of accident. Id. at 242-43.

       Again, Larkins has not shown that he was denied a fair trial because of the trial

       court’s admission of William’s testimony regarding his suspicions that Larkins

       had previously abused E.P.


[19]   Finally, Larkins contends that he was prejudiced by William’s testimony

       because the trial court prohibited his defense counsel from cross-examining

       William. In support of that contention, Larkins cites Bruton v. United States, 391

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2516 | June 13, 2017   Page 10 of 17
       U.S. 123, 126 (1968), where the Supreme Court held that the trial court’s

       admission of a codefendant’s confession into evidence at a joint trial violated

       the defendant’s right to cross-examination. Larkins concedes that Bruton “is not

       directly on point,” but he maintains that, “as in Bruton, the testimony would not

       have been admissible if Larkins had been tried alone, and it was not subject to

       cross-examination.” Appellant’s Br. at 9. But, again, William’s testimony

       might have been admissible at a separate trial. Further, during the joint trial,

       William was subject to thorough cross-examination by Diamond’s defense

       counsel, and Larkins does not assert that he would have elicited different

       testimony from William if he had been permitted to cross-examine him. Again,

       Larkins has not demonstrated that he was denied a fair trial. The trial court did

       not abuse its discretion when it denied Larkins’ motion to sever.


                                Issue Two: Sufficiency of the Evidence

[20]   Larkins contends that the State presented insufficient evidence to support his

       convictions. Our standard for reviewing the sufficiency of the evidence needed

       to support a criminal conviction is as follows:

               First, we neither reweigh the evidence nor judge the credibility of
               witnesses. Second, we only consider the evidence supporting the
               [verdict] and any reasonable inferences that can be drawn from
               such evidence. A conviction will be affirmed if there is
               substantial evidence of probative value supporting each element
               of the offense such that a reasonable trier of fact could have
               found the defendant guilty beyond a reasonable doubt. It is the
               job of the fact-finder to determine whether the evidence in a
               particular case sufficiently proves each element of an offense, and


       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2516 | June 13, 2017   Page 11 of 17
               we consider conflicting evidence most favorably to the trial
               court’s ruling.


       Willis v. State, 27 N.E.3d 1065, 1066-67 (Ind. 2015) (citations and quotation

       marks omitted).


                                             Aggravated Battery

[21]   To prove aggravated battery, as a Level 1 felony, the State was required to show

       that Larkins knowingly or intentionally inflicted injury on E.P., that is, a

       lacerated pancreas and/or a lacerated duodenum, that created a substantial risk

       of death and did result in the death of E.P., who was under the age of fourteen.

       See Ind. Code § 35-42-2-1.5 (2017). Larkins maintains that the State did not

       prove beyond a reasonable doubt that he was the person who injured E.P.

       Larkins asserts that no one “ever saw [him] hitting or abusing” E.P.; he did not

       make any incriminating statements; and there is no physical evidence

       implicating him. Appellant’s Br. at 18. And Larkins contends that the injury to

       E.P. “could have been inflicted any time between 10:00 a.m. on Monday,

       [when E.P. was in William’s care], and 9:30 p.m. on Monday, when [E.P.]

       started exhibiting symptoms.” Id. at 19. Larkins maintains that “seven

       different adults had access to” E.P. during that time frame and, thus, each had

       the opportunity to hurt E.P. Id.


[22]   Larkins’ contentions amount to a request that we reweigh the evidence, which

       we will not do. Dr. Harris explained how E.P. would have reacted to the injury

       that led to his death:


       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2516 | June 13, 2017   Page 12 of 17
                 It would have been a very painful injury. So he certainly
                 would have been crying and would have been indicating pain to
                 that area of his abdomen. Smaller babies can’t always tell us
                 exactly where it hurts, but a twenty[-]month[-]old can. So I
                 would expect him to have been indicating abdomen pain, crying,
                 upset. After that he may have calmed down some. But this type
                 of injury causes increasing pain over time and increasing
                 discomfort with movement. So if he held perfectly still he may
                 have been able to decrease or control his pain somewhat. But
                 moving around would have been really uncomfortable.


       Tr. Vol. 3 at 85 (emphasis added). The State presented evidence that E.P.

       showed no signs of injury, either crying or indicating pain, prior to his return

       home with Larkins on Monday evening. Thus, Larkins’ contentions that

       William, William’s neighbor,5 Bryant, or Tramble may have inflicted the injury

       to E.P. are without merit. To the extent Larkins contends that his eighty-five-

       year-old great grandmother may have inflicted the injury to E.P., Larkins does

       not direct us to any evidence suggesting either that she had the physical strength

       to inflict the injury or that she was ever alone with E.P. on Monday evening.

       Finally, Larkins asserts that Diamond may have inflicted the injury on E.P., but

       the State presented evidence that E.P. was already exhibiting symptoms of the

       injury when Diamond arrived home from work on Monday evening.


[23]   Further, we disagree with Larkins that he did not make incriminating

       statements. When EMTs and police arrived at the residence on Wednesday




       5
           Larkins states that a neighbor visited William over the weekend when E.P. was staying with William.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2516 | June 13, 2017           Page 13 of 17
       morning, Larkins stated that E.P. had been awake that morning and had shown

       signs of life as Larkins performed CPR on him. But the undisputed evidence

       showed that E.P. exhibited rigor mortis that morning and that E.P. had been

       dead for an extended period of time. Dr. Harris testified that “false histories

       [are] provided more often when injuries have been inflicted” by the person

       reporting the history. Id. at 98. In addition, at the scene, shortly after the

       EMTs had declared that E.P. was dead, Larkins asked questions about the

       deputy coroner’s ability to find the cause of the abdominal injury to E.P., which

       seemed inappropriate under the circumstances.


[24]   In sum, the State presented evidence that E.P. sustained a blunt force injury to

       his abdomen during the evening of October 27, when he was home with

       Larkins, D.P., and Larkins’ elderly great grandmother. Again, E.P. was

       exhibiting signs of the injury when Diamond arrived home from work that

       evening. We hold that the State presented sufficient evidence to support

       Larkins’ aggravated battery conviction.


                                           Neglect of a Dependent

[25]   To prove neglect of a dependent, as a Level 1 felony, the State was required to

       show that Larkins, being at least eighteen years of age and having the care of

       E.P., a dependent less than fourteen years of age, did knowingly place E.P. in a

       situation that endangered E.P.’s life or health, that is, failed to obtain timely

       medical treatment for E.P. and which resulted in the death of E.P. See I.C. §

       35-46-1-4. Larkins contends that “there is no evidence that E.P.’s need for

       medical care was apparent, or that Larkins was actually and subjectively aware
       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2516 | June 13, 2017   Page 14 of 17
       of that need.” Appellant’s Br. at 25. Larkins asserts that E.P.’s fatal injury was

       internal and exhibited no “external bruising or damage.” Id. And Larkins

       maintains that he reasonably believed that E.P. was suffering from a stomach

       virus that did not require immediate medical attention. We cannot agree.


[26]   First, we note that Diamond made similar arguments in her brief on appeal,

       which another panel of this court rejected. In Miller, we held as follows:


               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).

               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.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2516 | June 13, 2017   Page 15 of 17
               • 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 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.


       Slip op. at 2-3.


[27]   We agree with the analysis in Miller and hold that, given the evidence, the jury

       reasonably concluded that Larkins was also guilty of neglect of a dependent as

       charged. Moreover, because the State presented sufficient evidence to prove

       that Larkins inflicted the life-threatening injury upon E.P., that is further

       evidence that Larkins was subjectively aware that E.P. required medical

       treatment. See Lush v. State, 783 N.E.2d 1191, 1197 (Ind. Ct. App. 2003). In

       other words, the evidence shows that Larkins “was in a position to understand

       the urgency of the situation and that medical attention was needed.” Id. We

       hold that the State presented sufficient evidence to support Larkins’ conviction

       for neglect of a dependent.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2516 | June 13, 2017   Page 16 of 17
[28]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2516 | June 13, 2017   Page 17 of 17
