                                                                                  FILED
                                                                              Oct 30 2019, 9:20 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Anthony C. Lawrence                                        Curtis T. Hill, Jr.
      Anderson, Indiana                                          Attorney General of Indiana
                                                                 J.T. Whitehead
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kayla N. Hudson,                                           October 30, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-CR-1088
              v.                                                 Appeal from the Madison Circuit
                                                                 Court
      State of Indiana,                                          The Honorable David A. Happe,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 48C04-1808-F1-1965



      Pyle, Judge.


                                        Statement of the Case
[1]   Kayla N. Hudson (“Hudson”) appeals her aggregate forty-year sentence

      imposed after she pled guilty to Level 1 felony neglect of a dependent causing




      Court of Appeals of Indiana | Opinion 19A-CR-1088 | October 30, 2019                            Page 1 of 15
      death1 to her daughter and Level 3 felony neglect of a dependent resulting in

      serious bodily injury2 to her son. Hudson argues that: (1) the trial court abused

      its discretion in its determination of aggravating and mitigating circumstances;

      and (2) her aggregate sentence is inappropriate. Concluding that the trial court

      did not abuse its discretion and that Hudson’s sentence is not inappropriate, we

      affirm her sentence.


[2]   We affirm.


                                                      Issues
                 1. Whether the trial court abused its discretion when sentencing
                 Hudson.

                 2. Whether Hudson’s sentence is inappropriate.

                                                       Facts
[3]   Hudson had two children, including son R.H. (“R.H.”) and daughter P.H.

      (“P.H.”) (collectively, “the children”). On the evening July 28, 2018, Hudson

      went to work and left twenty-three-month-old P.H. and three-year-old R.H. in

      the care of her boyfriend, Ryan Ramirez (“Ramirez”). Hudson did so even

      though she knew that Ramirez had physically abused the children on multiple

      occasions. Ramirez, along with the children, picked up Hudson from work that

      evening. R.H. had bruising on his body and legs and swollen eyes. Hudson




      1
          IND. CODE § 35-46-1-4.
      2
          Id.


      Court of Appeals of Indiana | Opinion 19A-CR-1088 | October 30, 2019          Page 2 of 15
      went into a Walmart store to buy cover-up cream to mask the bruising and

      green tea bags to put on R.H.’s eyes to reduce the swelling before a scheduled

      doctor’s appointment for the following day. When they all got home, Ramirez

      carried P.H. into the house and put her to bed.


[4]   The following morning, around 6:15 a.m., Hudson was “worried” about P.H.

      because she had “not heard any sounds coming from her” during the night.

      (Tr. Vol. 2 at 11). When Hudson checked on P.H., she noticed that the child

      was unresponsive, not breathing, and cold to the touch. Hudson did not call for

      medical help. Instead, Hudson undressed P.H. and placed her in a warm bath,

      attempting to raise her body temperature. Hudson noticed that P.H. had

      bruises on her. After the bath failed to yield the desired results, Hudson

      attempted to do CPR on the child. Hudson still did not call for medical help.

      Eventually, Hudson put P.H. in a diaper, dressed her, and took her to the

      emergency room, where they arrived at 6:49 a.m. P.H. had “multiple

      contusions and abrasions to her face, head, and body,” and these injuries were

      “apparent to everyone” at the hospital. (Tr. Vol. 2 at 13). P.H. was

      pronounced dead at 7:06 a.m. An autopsy report was later conducted, and it

      revealed “two deep liver lacerations accompanied by a measured 410 ml of

      blood in the abdomen as well as fracture of the right occipital skull, subdural

      staining overlying the left parietal lobe of the brain and very numerous

      contusions involving the head, trunk and upper and lower extremities.” (State’s

      Ex. Vol. at 6). The report also revealed that P.H. had a “[f]aint circumferential

      contusion encircling [her] anus and involving the perineum[.]” (State’s Ex. Vol.


      Court of Appeals of Indiana | Opinion 19A-CR-1088 | October 30, 2019       Page 3 of 15
      at 6). The autopsy report listed P.H.’s cause of death as “[m]ultiple blunt force

      injuries with liver lacerations and hemoperitoneum” and the manner of death

      as “Homicide[.]” (State’s Ex. Vol. at 4).


[5]   R.H. was also at the hospital with Hudson. The hospital staff examined R.H.,

      who was “covered with a myriad of contusions and abrasions,” and then sent

      him to Riley Hospital. (Tr. Vol. 2 at 12). Further examination revealed that

      R.H.’s injuries included “multiple contusions, a fracture to the distal right ulnar

      diaphysis, a buckle fracture to the ninth rib, an old fracture of the right distal

      radial diaphysis, a healed fracture at the base of the metatarsal.” (Tr. Vol. 2 at

      12-13). R.H. also had elevated liver enzymes, indicating that his liver had been

      bruised and was healing. Additionally, R.H. had petechiae in his left eye that

      was the result of “a lot of force” to his head, a distended stomach, a bald spot

      on the top of his head that was caused by either his hair being pulled out or

      malnourishment, light bruising on and above his penis, and cigarette burns on

      his ankles. (Tr. Vol. 2 at 13).


[6]   The State charged Hudson with Level 1 felony neglect of a dependent causing

      death and Level 3 felony neglect of a dependent resulting in serious bodily

      injury.3 Thereafter, during a March 2019 hearing, Hudson pled guilty as




      3
       The State charged Ramirez with murder and Level 3 felony neglect of a dependent resulting in serious
      bodily injury, and it also filed a life without parole enhancement. See Trial Cause Number 48C04-1808-MR-
      1964. Ramirez’s case is currently pending and is scheduled for trial in 2020.

      Court of Appeals of Indiana | Opinion 19A-CR-1088 | October 30, 2019                          Page 4 of 15
      charged and agreed to an “open plea.” (Tr. Vol. 2 at 5). The trial court

      accepted the guilty pleas and enter judgments of conviction on both counts.


[7]   During the sentencing hearing, the State introduced the autopsy report and

      photographs of R.H.’s injuries. The State also presented testimony from Kailyn

      Morgan (“Morgan”), who was the mother of P.H.’s brother, and Dannette Fee

      (“Fee”), who was P.H.’s maternal grandmother. Both witnesses had, at various

      times, seen P.H. and R.H. with bruises or injuries on their bodies. These

      witnesses testified that, when they had asked Hudson about injuries to P.H.,

      Hudson would blame R.H. for P.H.’s injuries. For example, P.H. had

      previously had a broken leg that required a cast, and Hudson blamed R.H. for

      the injury. They also testified that Hudson would always have an excuse or a

      change of story about any injuries to the children. Morgan stated that she had

      been concerned about Hudson’s care of the children and the people that

      Hudson let around the children. Morgan once questioned R.H. about how he

      had gotten a mark on his arm, and he responded that “mommy” had done it.

      (Tr. Vol. 2 at 26). Morgan noticed around Christmas that the children’s

      “behaviors were changing” and that they were “acting very strange[ly.]” (Tr.

      Vol. 2 at 27). Specifically, Morgan noticed that P.H. was “irritated in her

      diaper area” and that R.H. was “very underweight[,] . . . look[ed] very

      malnourished[,] [a]nd was hiding his food[.]” (Tr. Vol. 2 at 27). After Morgan

      asked Hudson about her concerns for the children, Hudson ceased

      communication with Morgan and refused to let her see the children. When Fee

      asked Hudson about R.H. having black eyes, Hudson told Fee that R.H. just


      Court of Appeals of Indiana | Opinion 19A-CR-1088 | October 30, 2019      Page 5 of 15
      had low iron levels. When discussing Hudson’s decision to plead guilty, both

      Fee and Morgan testified that they did not believe that Hudson had any

      remorse or sense of responsibility for her offenses against her children. Morgan

      stated that Hudson’s guilty plea was merely “part of the lies that have continued

      since the beginning” and that she was doing it “to avoid more trouble.” (Tr.

      Vol. 2 at 29). Fee stated that Hudson was “a master of deception” and warned

      the trial court “not to be misled . . . by her ability to deceive people.” (Tr. Vol.

      2 at 38).


[8]   During the hearing, Hudson admitted that she knew that Ramirez had abused

      her children, that she had not done anything to stop it, and that she had tried to

      cover it up. She also admitted that she had lied to the police when they were

      conducting the initial investigation and then again just a month or two before

      the sentencing hearing. She also testified that she had been in numerous

      abusive relationships and admitted that she had put “having a man in front of

      everything else.” (Tr. Vol. 2 at 57). Hudson testified and presented testimony

      from her therapist at the county jail who testified that Hudson had a difficult

      childhood and had been raised by her grandparents. Hudson, however,

      acknowledged that her difficult childhood did not change the fact that she knew

      it was wrong to beat a child to death. Hudson indicated that she was pleading

      guilty to accept responsibility and so that R.H. could be adopted by his foster

      family.


[9]   When sentencing Hudson, the trial court stated, in part, as follows:



      Court of Appeals of Indiana | Opinion 19A-CR-1088 | October 30, 2019        Page 6 of 15
               In cases involving serious misconduct like in this case, I think it’s
               a helpful starting point[] to think about why the legislature treats
               this conduct so severely. And, of course, that’s because as a
               society we recognize that parents have a crucial, fundamental,
               human obligation to protect and care for their children. They
               have to be the ones that are obligated to reach out and help when
               their child cries out for help. It’s fundamental to being a parent,
               it’s fundamental to being a human to respond that way. And the
               harms from not meeting that obligation can be severe, as they
               were in this case. It states the obvious to say that this [is] a tragic
               case. . . . It is not at all an overstatement to say that based on the
               evidence, the testimony, the autopsy photos, probable cause
               affidavit, that both of these children suffered tremendously.
               Openly and visibly. And there’s no doubt in the Court’s mind
               that [Hudson] had to have been aware that that was going on,
               had opportunities to intervene and stop it, and did not do that. . .
               . The Court has no power to undue [sic] the wrong that
               happened here and the pain that was caused by Mr. Ramirez and
               Ms. Hudson. The one thing we can do is hold parents
               accountable for the actions that they engaged in. This kind of
               conduct can’t be dismissed as a lapse of judgment. It was
               conscious conduct that went on over a long period of time. And
               it’s reasonable to expect that when young child victims have life-
               altering harms or life-ending harms that the people who
               participated in that will have some life-changing consequences as
               a result.

       (Tr. Vol. 2 at 68-69, 73-73).


[10]   The trial court found that Hudson’s remorse, her guilty plea, and her lack of

       criminal history to be mitigating circumstances. As for aggravating

       circumstances, the trial court found the following: P.H.’s “tender age” and

       vulnerability; the fact that there were “multiple counts with multiple victims[;]”

       the nature and circumstances of the offenses, including that the crimes were an

       Court of Appeals of Indiana | Opinion 19A-CR-1088 | October 30, 2019          Page 7 of 15
       “ongoing pattern of conduct over a period of time” where Hudson was aware of

       her children’s injuries but had failed to intervene and protect them. (Tr. Vol. 2

       at 71, 72). The trial court imposed a thirty-one (31) year sentence, which was

       only one year above the advisory sentence, for Hudson’s Level 1 felony

       conviction and an advisory sentence of nine (9) years for her Level 3 felony

       conviction, and the trial court ordered that the two sentences be served

       consecutively in the Indiana Department of Correction. Thus, the trial court

       imposed an aggregate forty (40) year sentence. Hudson now appeals.


                                                     Decision
[11]   Hudson contends that: (1) the trial court abused its discretion when sentencing

       her; and (2) her sentence is inappropriate. We will review each argument in

       turn.


       1. Abuse of Discretion


[12]   Hudson argues that the trial court abused its discretion in its determination of

       mitigating and aggravating circumstances. Sentencing decisions rest within the

       sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.

       2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). So long as the sentence is

       within the statutory range, it is subject to review only for an abuse of discretion.

       Id. An abuse of discretion will be found where the decision is clearly against

       the logic and effect of the facts and circumstances before the court or the

       reasonable, probable, and actual deductions to be drawn therefrom. Id. A trial

       court may abuse its discretion in a number of ways, including: (1) failing to

       Court of Appeals of Indiana | Opinion 19A-CR-1088 | October 30, 2019       Page 8 of 15
       enter a sentencing statement at all; (2) entering a sentencing statement that

       includes aggravating and mitigating factors that are unsupported by the record;

       (3) entering a sentencing statement that omits reasons that are clearly supported

       by the record; or (4) entering a sentencing statement that includes reasons that

       are improper as a matter of law. Id. at 490-91.


[13]   Hudson first contends that the trial court abused its discretion by failing to

       consider her troubled childhood as a mitigating circumstance. However, a trial

       court is not obligated to accept a defendant’s claim as to what constitutes a

       mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). In

       fact, a claim that the trial court failed to find a mitigating circumstance requires

       the defendant to establish that the mitigating evidence is both significant and

       clearly supported by the record. Anglemyer, 868 N.E.2d at 493. “Our supreme

       court has ‘consistently held that evidence of a difficult childhood warrants little,

       if any, mitigating weight.’” Patterson v. State, 909 N.E.2d 1058, 1062 (Ind. Ct.

       App. 2009) (quoting Ritchie v. State, 875 N.E.2d 706, 725 (Ind. 2007), reh’g

       denied).


[14]   Here, when sentencing Hudson, the trial court acknowledged Hudson’s difficult

       childhood and her attempt to explain “the causes of how [she] got to this

       point[,]” and it indicated that “it should not be ignored.” (Tr. Vol. 2 at 70).

       However, the trial court stated that Hudson’s childhood “d[id]n’t eliminate the

       responsibility” and refused it as a mitigating factor. (Tr. Vol. 2 at 70). We find

       no abuse of discretion by the trial court. See, e.g., Patterson, 909 N.E.2d at 1062



       Court of Appeals of Indiana | Opinion 19A-CR-1088 | October 30, 2019       Page 9 of 15
       (concluding that there was no abuse of discretion because the defendant’s

       childhood was not a significant mitigating circumstance).


[15]   Next, Hudson challenges the trial court’s determination that P.H.’s tender age

       of twenty-three months was an aggravating circumstance. Specifically, she

       contends that such an aggravator was improper because the age of the victim

       was an element of her offense.


[16]   Generally, where the age of the victim is a material element of the crime, the

       age of the victim may not be used as an aggravating circumstance. Kien v. State,

       782 N.E.2d 398, 414 (Ind. Ct. App. 2003) (citing Stewart v. State, 531 N.E.2d

       1146, 1150 (Ind. 1988)), reh’g denied, trans. denied. “However, the trial court

       may properly consider the particularized circumstances of the material elements

       of the crime” to be an aggravating factor. Id. (citing Stewart, 531 N.E.2d at

       1150). For example, a trial court may properly consider as aggravating the age

       of the victim when the trial court considers that the victim was of a “tender

       age.” Id. (citing Stewart, 531 N.E.2d at 1150 and Buchanan v. State, 767 N.E.2d

       967, 971 (Ind. 2002)). Stated differently, we have held that a trial court may

       properly consider the victim’s age as an aggravating factor where “the youth of

       the victim is extreme.” Reyes v. State, 909 N.E.2d 1124, 1128 (Ind. Ct. App.

       2009). Our supreme court has explained that “[t]he younger the victim, the

       more culpable the defendant’s conduct.” Hamilton v. State, 955 N.E.2d 723, 727

       (Ind. 2011).




       Court of Appeals of Indiana | Opinion 19A-CR-1088 | October 30, 2019     Page 10 of 15
[17]   Hudson seems to recognize that her challenge to this aggravating circumstance

       rings hollow. Indeed, she acknowledges that “in many neglect of a dependent

       cases, this Court has affirmed the trial court’s use of a victim’s tender age as an

       aggravating factor.” (Hudson’s Br. 15) (citing Edwards v. State, 842 N.E.2d 849

       (Ind. Ct. App. 2006); Kile v. State, 729 N.E.2d 211 (Ind. Ct. App. 2000); Mallory

       v. State, 563 N.E.2d 640 (Ind. Ct. App. 1990), trans. denied). She suggests that

       we should “revisit[]” these “rulings[.]” (Hudson’s Br. 15). We reject her

       suggestion.


[18]   Here, when discussing the tender age of P.H. as an aggravating circumstance,

       the trial court stated:


               The extreme tender age of P.[H.] in particular is an aggravating
               factor. The elements of this crime could’ve been proven with a
               young teenager, but here we had a two (2) year old child, in fact
               two (2) children with a fairly tender age, but particularly P.[H.],
               was particularly vulnerable. She wasn’t able in any way to reach
               out for help outside the home. She was more dependent and
               more vulnerable so the crime is worse when committed against a
               child like that.

       (Tr. Vol. 2 at 72). The trial court also noted that the abuse against P.H. had

       occurred over an extended period of time, that Hudson was aware of it, but she

       did nothing about the abuse. Because the trial court found that P.H.’s tender

       age to be part of the particularized circumstances of this case, we conclude that

       the trial court did not abuse its discretion by identifying this aggravating

       circumstance.



       Court of Appeals of Indiana | Opinion 19A-CR-1088 | October 30, 2019      Page 11 of 15
[19]   Lastly, we reject Hudson’s suggestion that the trial court improperly considered

       the nature and circumstances of the offenses to be an aggravating circumstance.

       “Generally, the nature and circumstances of a crime is a proper aggravating

       circumstance.” Gomillia v. State, 13 N.E.3d 846, 853 (Ind. 2014) (internal

       quotation marks and citation omitted). Here, the trial court discussed the

       nature and circumstances of Hudson’s offenses, including the extent and

       obvious nature of the injuries to the children, the ongoing duration of the abuse,

       and Hudson’s lack of action to protect the children. Accordingly, we conclude

       that the trial court did not abuse its discretion by considering this aggravating

       circumstance. See, e.g., id.


       2. Inappropriate Sentence


[20]   Hudson argues that the aggregate sentence for her Level 1 felony neglect of a

       dependent causing death and Level 3 felony neglect of a dependent resulting in

       serious bodily injury is inappropriate. We disagree.


[21]   We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Ind. Appellate Rule 7(B). The

       defendant has the burden of persuading us that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). The principal role of a

       Rule 7(B) review “should be to attempt to leaven the outliers, and identify some

       guiding principles for trial courts and those charged with improvement of the

       sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “Appellate Rule 7(B)


       Court of Appeals of Indiana | Opinion 19A-CR-1088 | October 30, 2019     Page 12 of 15
       analysis is not to determine whether another sentence is more appropriate but

       rather whether the sentence imposed is inappropriate.” Conley v. State, 972

       N.E.2d 864, 876 (Ind. 2012) (internal quotation marks and citation omitted),

       reh’g denied.


[22]   When determining whether a sentence is inappropriate, we acknowledge that

       the advisory sentence “is the starting point the Legislature has selected as an

       appropriate sentence for the crime committed.” Childress, 848 N.E.2d at 1081.

       Here, Hudson entered a guilty plea and was convicted of Level 1 felony neglect

       of a dependent causing death and Level 3 felony neglect of a dependent

       resulting in serious bodily injury. A person who commits a Level 1 felony

       “shall be imprisoned for a fixed term of between twenty (20) and forty (40)

       years, with the advisory sentence being thirty (30) years.” I.C. § 35-50-2-4. A

       person who commits a Level 3 felony “shall be imprisoned for a fixed term of

       between three (3) and sixteen (16) years, with the advisory sentence being nine

       (9) years.” I.C. § 35-50-2-5. The trial court imposed consecutive sentences of

       thirty-one (31) years—only one year above the advisory sentence—for

       Hudson’s Level 1 felony conviction and an advisory sentence of nine (9) years

       for her Level 3 felony conviction. Thus, the trial court imposed an aggregate

       forty (40) year sentence, which was below the potential maximum sentence of

       fifty-six (56) years.


[23]   Turning first to the nature of Hudson’s two felony neglect of a dependent

       offenses, we echo the trial court’s observation that twenty-three-month-old P.H.

       and three-year-old R.H. had “suffered tremendously[,]” both “[o]penly and

       Court of Appeals of Indiana | Opinion 19A-CR-1088 | October 30, 2019     Page 13 of 15
       visibly[,]” for an extended period of time in their short lives. (Tr. Vol. 2 at 69).

       More specifically, P.H.’s autopsy report revealed that the toddler had “two deep

       liver lacerations accompanied by a measured 410 ml of blood in the abdomen

       as well as fracture of the right occipital skull, subdural staining overlying the left

       parietal lobe of the brain and very numerous contusions involving the head,

       trunk and upper and lower extremities.” (State’s Ex. Vol. at 6). The report also

       revealed that P.H. had a “[f]aint circumferential contusion encircling [her] anus

       and involving the perineum[.]” (State’s Ex. Vol. at 6). R.H.’s injuries included

       “multiple contusions, a fracture to the distal right ulnar diaphysis, a buckle

       fracture to the ninth rib, an old fracture of the right distal radial diaphysis, a

       healed fracture at the base of the metatarsal.” (Tr. Vol. 2 at 12-13). R.H. also

       had elevated liver enzymes, indicating that his liver had been bruised and was

       healing. Additionally, R.H. had petechiae in his left eye that was the result of

       “a lot of force” to his head, a distended stomach, a bald spot on the top of his

       head that was caused by either his hair being pulled out or malnourishment,

       light bruising on and above his penis, and cigarette burns on his ankles. (Tr.

       Vol. 2 at 13). Despite the obvious nature of these injuries and Hudson’s

       awareness of them, Hudson did nothing to protect her children. Instead, she

       tried to cover up the injuries—both physically with cream and tea bags and

       factually when she made excuses about the origin of the injuries when

       confronted by other people.


[24]   Turning to Hudson’s character, we recognize that she has no prior criminal

       history. Indeed, the trial court considered that as a mitigating circumstance


       Court of Appeals of Indiana | Opinion 19A-CR-1088 | October 30, 2019        Page 14 of 15
       when imposing the advisory and near-advisory sentences in this case. We note,

       however, that Hudson’s admitted choice to put “having a man in front of” the

       care of her young and vulnerable children reflects poorly on her character. (Tr.

       Vol. 2 at 57). Hudson admitted that she knew that her children were being

       abused, that she did not do anything to stop it, and that she tried to cover it up.

       She also admitted that she had lied to police, both when they were conducting

       the initial investigation and then again just a month or two before the

       sentencing hearing.


[25]   Hudson has not persuaded us that her aggregate forty-year sentence for her

       Level 1 felony neglect of a dependent causing death and Level 3 felony neglect

       of a dependent resulting in serious bodily injury is inappropriate. Therefore, we

       affirm the sentence imposed by the trial court.


[26]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-1088 | October 30, 2019      Page 15 of 15
