                                                                               FILED
MEMORANDUM DECISION                                                       Feb 08 2018, 5:50 am


Pursuant to Ind. Appellate Rule 65(D), this                                    CLERK
                                                                           Indiana Supreme Court
Memorandum Decision shall not be regarded as                                  Court of Appeals
                                                                                and Tax Court
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
Frederick A. Turner                                       Curtis T. Hill, Jr.
Bloomington, Indiana                                      Attorney General of Indiana
                                                          Caroline G. Templeton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Robierre Jomokenya McNeil,                               February 8, 2018

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         53A05-1707-CR-1750
        v.                                               Appeal from the Monroe Circuit
                                                         Court
State of Indiana,                                        Trial Court Case No. 53C09-1606-
                                                         F1-462
Appellee-Plaintiff.
                                                         The Honorable Teresa D. Harper,
                                                         Judge




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018            Page 1 of 20
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Robierre McNeil (McNeil), appeals his conviction and

      sentence for aggravated battery resulting in the death of a child less than

      fourteen years of age, a Level 1 felony, Ind. Code § 35-42-2-1.5; and neglect of a

      dependent, a Level 6 felony, I.C. § 35-46-1-4.


[2]   We affirm.


                                                   ISSUES
[3]   McNeil presents two issues on appeal, which we restate as:

      (1) Whether there was sufficient evidence beyond a reasonable doubt to support

      McNeil’s convictions; and

      (2) Whether McNeil’s sentence is inappropriate in light of the nature of the

      offenses and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   In 2016, Laura Crum (Crum), housed Cy’Nario Smith-Barton (Smith-Barton)

      and Smith-Barton’s two daughters—three-year old A.B., and two-year old

      R.B.—in her two-bedroom apartment in Bloomington, Indiana. McNeil is the

      biological father to A.B. and R.B. McNeil and Smith-Barton were expecting

      their third daughter, K.S-B., who was born on March 29, 2016. At the time

      K.S-B was born, McNeil was not residing at Crum’s apartment since he did not

      get along well with Crum.




      Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 2 of 20
[5]   On May 20, 2016, Crum went on vacation for about a week. In light of Crum’s

      absence, Smith-Barton sought help from McNeil to care for their daughters

      while she went to work. McNeil temporarily moved into Crum’s apartment

      and took up a primary role in caring for his three daughters. Also residing at

      Crum’s apartment was Smith-Barton’s mother, Melzina Nash (Melzina) and

      husband, Tyrone Nash (Tyrone). The record shows that Crum and her eleven-

      year-old daughter, A.C., slept in one bedroom; Melzina and Tyrone slept in the

      other bedroom; and Smith-Bartonand McNeil, together with their three

      daughters, slept in the living room.


[6]   On Memorial Day, May 29, 2016, shortly before 7:00 a.m., Smith-Barton was

      woken up by her two-month old daughter, K.S-B. After feeding K.S-B., she put

      her back in her mechanical swing, and Smith-Barton informed McNeil that she

      was leaving for work. At around 9:00 a.m., Tyrone woke up. Tyrone and

      Melzina had planned on tackling their laundry first thing in the morning at the

      laundromat; however, Melzina wanted to sleep in since she had worked the

      previous night with her shift ending at 6:00 a.m. Shortly after getting out of

      bed, Tyrone went to the kitchen to get some water. Tyrone observed that

      McNeil and his three daughters—A.B., R.B., and K.S-B., were all asleep in the

      living room. Tyrone went back to his bedroom and remained there until

      Melzina woke up sometime before 11:00 a.m. After Tyrone and Melzina got

      ready, they loaded their vehicle with dirty laundry and the couple left.


[7]   At around 10:45 a.m., Crum arrived home after working through the night.

      The air-conditioning was turned off, so she took the remote and switched it on.

      Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 3 of 20
      Crum observed that McNeil and his daughters were all asleep. Crum

      proceeded to her bedroom, and after a failed attempt of kicking out A.C. from

      her bed, she laid down and slept. Shortly before noon, A.C. went outside with

      her phone to record herself singing. A.C. was outside for about an hour, and

      when she came back inside, she got a sandwich and went into the room she

      shared with Crum to watch a couple of Netflix shows. After about forty

      minutes, A.C. went back to the living room. By that time, A.B., R.B., and

      McNeil were awake. However, K.S-B. remained asleep in her mechanical

      swing. Then at approximately 1:00 p.m., Melzina and Tyrone returned to the

      apartment to drop off some groceries and a kiddie pool for A.B. and R.B. Soon

      after, Melzina and Tyrone left for the laundromat. At nearly 2:00 p.m., McNeil

      recruited help from A.C. to fill up the kiddie pool. McNeil watched A.B. and

      R.B. while they played in the kiddie pool, and A.C. was on her phone watching

      YouTube videos. Inside the apartment, K.S-B. remained asleep in her

      mechanical swing, and Crum was in her bedroom sleeping.


[8]   At about 4:00 p.m., Smith-Barton arrived home from work. A.B. and R.B.

      were outside playing in the kiddie pool. When Smith-Barton went inside the

      apartment, she found K.S-B. swaddled in her blanket and asleep in her swing.

      Not wanting to wake her up, Smith-Barton kissed K.S-B. on her forehead and

      then went back outside. McNeil informed Smith-Barton that he wanted to

      leave to go to a friend’s house to record music. Smith-Barton informed McNeil

      that he could not leave since she was returning to work at around 5:00 p.m.




      Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 4 of 20
       Before going back to work, Smith-Barton passed by the laundromat, which was

       about a block from the apartment, to borrow a cigarette from Melzina.


[9]    Just before 4:45 p.m., McNeil actively checked on K.S-B., but she was

       unresponsive. McNeil took K.S-B. into Crum’s room and informed Crum that

       K.S-B. was not breathing. Crum unwrapped the blanket around K.S-B., and

       although K.S-B. was warm, she was unresponsive. Crum called 9-1-1 and

       Melzina. Upon receiving the devastating news, Smith-Barton, Melzina and

       Tyrone all rushed back to the apartment. The Bloomington Police Department

       and Fire Department were first to arrive. Dan Emerick (Emerick), a fire fighter

       and an EMT, noticed that although K.S-B. was still warm, she did not have a

       pulse. Emerick attempted CPR on K.S-B. for about a minute to no avail.

       Moments later, the ambulance arrived, and the paramedics attempted CPR and

       ventilations on K.S-B. on the way to the hospital, arriving at approximately

       5:00 p.m. Attempts to restart K.S-B.’s heart failed and she was pronounced

       dead at 5:31 p.m.


[10]   Meanwhile at the apartment, Officer Dustin Kruse (Officer Kruse) was in the

       living room and his body camera had been activated. McNeil was recorded

       talking to his mother and he repeatedly stated, “[I]it is my fault . . . now [K.S-

       B.] is gone and it is my fault. . . it is my fucking fault.” (State’s Exh. 5 at 47:16).

       McNeil additionally stated,“[O]bviously it is my fault. I personally know it is

       my fault . . . it is nobody else’s fault but mine because I was the only one here to

       watch [K.S-B.]” (State’s Exh. 5 at 1:03, 1:05). McNeil was later detained.



       Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 5 of 20
[11]   On June 6, 2016, McNeil expressed to the jail officials that he wanted to speak

       to the investigating officer in order to narrate the events of the day K.S-B. died.

       Prior to a recorded interview, McNeil was read his Miranda rights and he signed

       a waiver form. McNeil started off by saying that on May 29, 2016, between

       7:00 a.m. and 9:00 a.m., he was half asleep when he picked up K.S-B. from her

       mechanical swing. McNeil reported that while he walked toward the kitchen,

       he tripped and fell with K.S-B. on his left side. By his own admission, McNeil

       stated that K.S-B.’s head “did hit the floor” and she cried from the fall. (State’s

       Exh. 17 at 15:33). McNeil praised himself for consoling K.S-B. He further

       expressed that he changed K.S-B.’s diaper, fed her, and then put her back in the

       swing. McNeil articulated that he did not believe K.S-B. required any medical

       attention after the fall, even though K.S-B.’s breathing had reformed into a

       snore. McNeil recounted that the next time he checked on K.S-B. was around

       2:00 p.m. before going outside with his two daughters, A.B. and R.B., to play in

       the kiddie pool. According to McNeil, K.S-B. was breathing; however, he did

       not wake her up or feed her. The last time McNeil checked on K.S-B. was

       around 4:45 p.m., but K.S-B. was unresponsive. Following his interview, the

       State filed an Information, charging McNeil with Count I, aggravated battery

       resulting in the death of a child less than fourteen years of age, a Level 1 felony;

       and Count II, neglect of a dependent resulting in death, a Level 1 felony.


[12]   A four-day jury trial began on March 3, 2017, and concluded on March 8, 2017.

       During the trial, forensic pathologist Dr. Ronald Kohr (Dr. Kohr) testified for

       the State about the autopsy he had performed on K.S-B. Dr. Kohr affirmed that


       Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 6 of 20
K.S-B.’s cause of death was a blunt force trauma to the head, with the manner

of death being homicide. Dr. Kohr found three separate contusions on K.S-B.’s

head, and he opined that three contusions, as opposed to one, suggested that

K.S-B.’s head injury was non-accidental. Dr. Kohr noted that K.S-B. had a

significant fracture in the posterior left parietal bone, and a similar fracture was

present in the right parietal bone. K.S-B. had also suffered a subdural and

subarachnoid hemorrhage, all of which Dr. Kohr concluded to be the result of

trauma. Dr. Kohr noted that victims who suffer from a subdural and

subarachnoid hemorrhage may display a “loss of consciousness, generally, []

within a very short time . . . we may see interruptions of the normal breathing, .

. . breathing will eventually become very slow, can be labored, can result in

snoring type respirations,” and breathing “would eventually stop. . . all

together. (Tr. Vol. IV, p. 167). When asked to give a time frame for K.S-B.’s

head injury, Dr. Kohr first explained that a contusion which causes blood

vessels to rupture under the skin, will “go through various color changes, [] a

very fresh bruise will be red because the blood is well oxygenated and

oxygenated blood tends to be bright red.” (Tr. Vol. IV, p. 145). He added that

“[a]s the bruise ages and the oxygen level decreases and is absorbed into the

tissues, it will go more of a bluish-purple. [] as it ages further, the chemicals in

the, [] hemoglobin start to break down and go from being a reddish-blue to

purple to more of a green.” (Tr. Vol. IV, p. 145). Dr. Kohr opined that the

hemorrhaging displayed on K.S-B.’s head was “fairly fresh” since the blood

appeared “reddish-blue to reddish-purple.” (Tr. Vol. IV, p. 146). Dr. Kohr also

testified that K.S-B.’s stomach was empty, which was suggestive that K.S-B.

Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 7 of 20
       had not been fed for “at least 7 ½ -9 hours. . . . a child this age do[es] not go

       that long between feeding which tells me that someone was not paying due

       diligence to this child.” (Tr. Vol. IV, p. 176).


[13]   Dr. Shannon Thompson (Dr. Thompson), a board-certified child abuse

       pediatrician for Riley Hospital for Children also testified for the State regarding

       K.S-B.’s autopsy report. She stated that K.S-B.’s injury was representative of

       abusive head trauma. She stated that K.S-B. had “three different areas of

       hemorrhage . . . to both sides of the top of her head. . . and additional

       hemorrhage, [] to the back” of her scalp. (Tr. Vol. IV, p. 206). She indicated

       that the multiple areas of hemorrhage would have likely been caused by “at

       least three impacts” to the head. (Tr. Vol. IV, p. 206). Dr. Thompson

       determined that fracture on the left side of K.S-B.’s skull was “more

       significant.” (Tr. Vol. IV, p. 198). Dr. Thompson also ruled out K.S-B.’s

       trauma being accidental, and she noted that a victim who has suffered an

       accidental head trauma would have a “simple skull fracture, I mean one

       fracture” and not “multiple skull fractures” as witnessed in K.S-B.’s autopsy.

       (Tr. Vol. IV, pp. 200-201). She additionally stated that in accidental head

       trauma cases, “you may have a small, tiny, oval area of bleeding,” and the

       hemorrhaging would not be as extensive in both the “subdural and

       subarachnoid area, [it] is just not something we see typically with accidental”

       head injuries. (Tr. Vol. IV, p. 202). Dr. Thompson conveyed that infants who

       have had a “significant brain injury” would “immediately probably look

       different.” (Tr. Vol. IV, p. 207). “So, if they were crying” they would “stop


       Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 8 of 20
       crying,” breathing may transform into a snore, and the brain would get less

       oxygen over time. (Tr. Vol. IV, p. 208). She added that due to diminished

       levels of oxygen, the brain may lose its ability to regulate “blood flow” and

       “pressure” and eventually, “the cells start to die.” (Tr. Vol. IV, p. 208). She

       testified that an infant who has suffered a brain injury will typically become

       irritable, they may have seizures, they may “hypo-ventilate” and may “stop

       breathing all together.” (Tr. Vol. IV, p. 208). Dr. Thompson placed the time of

       K.S-B.’s head trauma between 7:00 a.m. and 9:00 a.m. on May 29, 2016, when

       K.S-B. was awake and normal to tolerate any feedings.


[14]   At the close of the evidence, the jury returned guilty verdicts for Count I,

       aggravated battery resulting in the death of a child less than fourteen years of

       age, a Level 1 felony; and Count II, neglect of a dependent resulting in death, a

       Level 1 felony. On April 20, 2016, the trial court conducted a sentencing

       hearing and imposed a sentence of forty years for the aggravated battery

       conviction. To avoid double jeopardy concerns, the trial court entered a

       judgement of conviction for the Level 1 felony neglect of a dependent

       conviction as a Level 6 felony, and then sentenced McNeil to a two and one-

       half years, all to be served concurrently in the Department of Correction.


[15]   McNeil now appeals. Additional facts will be provided as necessary.




       Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 9 of 20
                               DISCUSSION AND DECISION
                                         I. Sufficiency of the Evidence

[16]   McNeil contends that the evidence is insufficient to sustain his convictions for

       aggravated battery, a Level 1 felony, and neglect of a dependent, a Level 6

       felony. When reviewing the sufficiency of the evidence needed to support a

       criminal conviction, we neither reweigh evidence nor judge witness credibility.

       Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the

       evidence supporting the judgment and any reasonable inferences that can be

       drawn from such evidence.” Id. We will affirm if there is substantial evidence

       of probative value such that a reasonable trier of fact could have concluded the

       defendant was guilty beyond a reasonable doubt. Id.


                                             A. Aggravated Battery


[17]   Indiana Code section 35-42-2-1.5 provides that “[a] person who knowingly or

       intentionally inflicts injury on a person that creates a substantial risk of death . .

       . commits aggravated battery, a Level 3 felony. However, the offense is a Level

       1 felony if it results in the death of a child less than fourteen (14) years of age

       and is committed by a person at least eighteen (18) years of age.” McNeil

       argues that “[t]here is no evidence, even cumulatively, that allows for a

       reasonable inference that [he] struck [K.S-B.] with . . . a blunt force to have

       caused two fractures, contusions, and brain hemorrhaging. All that was proven

       is suspicion and opportunity.” (Appellant’s Br. p. 13).




       Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 10 of 20
[18]   McNeil analogized his case to Howard v. State, 162 Ind.App. 487, 319 N.E.2d

       849, 850 (1974). In Howard, in reversing the defendant’s conviction for cruelty

       and neglect of a child, we held that: “The evidence most favorable to the State

       merely discloses that the injuries to [the victim’s] head and abdomen occurred

       between 12 and 24 hours prior to his hospitalization. During that period, [the

       victim] was under the control of several persons other than [the defendant]” and

       that “[a]t most, the evidence shows that [the defendant] among others had an

       opportunity to inflict the injuries to [the victim’s] head and abdomen.” Id. at

       851-852.


[19]   The evidence presented against the defendant in Howard is distinguishable from

       the evidence presented in this case, and we do not find Howard instructive.

       Indeed, McNeil ignores the substantial evidence the State presented showing

       that he had exclusive control and care of K.S-B. on the day K.S-B. sustained her

       fatal head injury, which resulted in her death.


[20]   On the day K.S-B. died, she was eight weeks old; McNeil was thirty-four. On

       that morning, Smith-Barton fed K.S-B., and at about 7:00 a.m., she informed

       McNeil that she was leaving for work. Although there were other residents

       living in the apartment, there was uncontroverted evidence that McNeil was the

       sole caregiver to K.S-B. between 7:00 a.m. and 4:45 p.m. Specifically, during a

       recorded interview, McNeil informed the investigating officer that he was

       responsible for K.S-B.’s care on that day. McNeil articulated that the only way

       K.S-B.’s head could have been injured was when he fell on his left side with

       K.S-B. while walking toward the kitchen. Dr. Thompson determined that the

       Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 11 of 20
       fracture on the left side of K.S-B.’s skull was “more significant.” (Tr. Vol. IV,

       p. 198). Although McNeil altered the version of events at his trial, indicating

       that he did not fall with K.S-B., McNeil reiterated that he exclusively attended

       to K.S-B.’s needs and care on the day she died. Both Dr. Kohr and Dr.

       Thompson concluded that K.S-B. was hit with significant force on her head on

       at least three different points, and the impacts ultimately caused two skull

       fractures and massive subdural and subarachnoid hemorrhaging. Both doctors

       consistently testified that the repeated impacts were representative of abusive

       head trauma and they excluded a theory of K.S-B.’s head injury being

       inadvertent. In addition, both doctors testified that there was a probability that

       K.S-B. would have become unconscious shortly after the trauma. Dr. Kohr

       noted that K.S-B. might have experienced interruptions in normal breathing,

       and her breathing may have been “labored” or altered into a “snoring type

       respiration.” (Tr. Vol. IV, p. 167). Dr. Thompson conveyed that immediately

       after the head trauma, K.S-B. “may have tolerated a [feed] but she might have

       not taken as much or she would have seemed sleepy or she would have

       vomited. Something would have alerted” the caregiver that “something’s

       different about her.” (Tr. Vol. IV, p. 224).


[21]   Although Smith-Barton testified that K.S-B. “slept all the time,” she indicated

       that K.S-B. would wake up “maybe every 2 or 3 hours” to feed. (Tr. Vol. IV,

       pp. 101-102). McNeil did not attempt to wake or feed K.S-B. until 4:45 p.m.

       Dr. Thompson cited the likely time for the trauma was between 7:00 a.m. and

       9:00 a.m., when K.S-B. may have been awake to tolerate any feeding.


       Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 12 of 20
       Although Dr. Kohr was unable give a specific timeframe, he opined that

       hemorrhaging in K.S-B.’s head reflected that the trauma was “fairly fresh” since

       the blood appeared “reddish-blue to reddish-purple.” (Tr. Vol. IV, p. 146).


[22]   Here, the medical testimony established that K.S-B.’s head injury was only a

       few hours old, and K.S-B. would not have acted normally after the injury. The

       medical evidence additionally concluded that due to the multiple contusions on

       K.S-B.’s head, the injuries could not have been imposed accidentally, but by a

       “purposeful act.” (Tr. Vol. IV, p. 223). The evidence establishes that two-

       month-old K.S-B. was completely under McNeil’s care when she sustained her

       life-threatening injuries to her head, and based upon our review of the evidence

       as set forth in the record and above, we conclude that sufficient evidence exists

       from which the jury could find McNeil guilty beyond a reasonable doubt of

       aggravated battery as a Level 1 felony.


                                           B. Neglect of a Dependent


[23]   The statute defining the crime of neglect of a dependent provides:


               A person having the care of a dependent, whether assumed
               voluntarily or because of a legal obligation, who knowingly or
               intentionally:


               (1) places the dependent in a situation that endangers the
               dependent’s life or health;


               (2) abandons or cruelly confines the dependent;



       Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 13 of 20
               (3) deprives the dependent of necessary support; or


               (4) deprives the dependent of education as required by law;
               commits neglect of a dependent, a Level 6 felony.


               (b) However, the offense is:


               ****


               (3) a Level 1 felony if it is committed under subsection (a)(1),
               (a)(2), or (a)(3) by a person at least eighteen (18) years of age and
               results in the death of a dependent who is less than fourteen (14)
               years of age


       I.C. § 35-46-1-4.


[24]   The jury found McNeil guilty of Level 1 felony neglect of a dependent. At

       sentencing, however, in order to avoid double jeopardy implications, the trial

       court entered a judgment of conviction for the Level 1 felony as a Level 6

       felony. The charging Information alleged, in part, that McNeil “did knowingly

       place [K.S-B.] in a situation that endangered [her] life or health, to-wit: caused

       her to be injured and failed to get her medical care, which resulted in death.”

       (Appellant’s App. Vol. II, p. 16). We note that the ‘resulting in death’ is not an

       element for the Level 6 felony, and at a minimum, the State only needed to

       prove beyond a reasonable doubt that McNeil knowingly placed K.S-B. in a

       life-threatening situation by failing to seek necessary medical attention.


[25]   McNeil argues that the State failed to prove that he “was actually and

       subjectively aware of a high probability that [K.S-B.] was in actual and
       Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 14 of 20
       appreciable danger due to the blunt force trauma to her head” that necessitated

       immediate medical care. (Appellant’s Br. p. 15). The State, in turn, contends

       that McNeil was aware that K.S-B. had been hurt from the fall, and she

       required medical treatment. The mens rea for the crime of neglect of a

       dependent is the defendant’s “subjective . . . aware[ness] of a high probability

       that he placed the dependent in a dangerous situation.” Gross v. State, 817

       N.E.2d 306, 308 (Ind. Ct. App. 2004). The danger to the dependent must be

       “actual and appreciable.” Id. at 309. Because such a finding requires the fact-

       finder to infer the defendant’s mental state, “this [c]ourt must look to all the

       surrounding circumstances of a case to determine if a guilty verdict is proper.”

       Villagrana v. State, 954 N.E.2d 466, 468 (Ind. Ct. App. 2011).


[26]   McNeil makes several arguments and he begins by claiming that after he placed

       K.S-B. back in her swing between 7:00 a.m. and 9:00 a.m., she soundly slept all

       day. He points out that “any parent can tell you that you don’t want to wake a

       sleeping baby.” (Appellant’s Br. p. 17). In support, he relies on Crum’s

       testimony where she claimed K.S-B. had in the past slept “anywhere between

       four to five hours at times,” and “sometimes even longer.” (Tr. Vol. V, pp. 49-

       50). McNeil further states that other residents who lived at the apartment did

       not notice anything unusual with K.S-B. He directs us to Smith-Barton’s

       testimony where she stated that when she arrived home from work that day,

       K.S-B. was warm, and when she kissed K.S-B. on the forehead, nothing seemed

       unusual with K.S-B. McNeil’s ultimate argument, however, is that K.S-B. did




       Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 15 of 20
       not exhibit any symptoms which would have prompted him to seek medical

       care for K.S-B. on the day she died.


[27]   “A parent is charged with an affirmative duty to care for his or her child.” Lush

       v. State, 783 N.E.2d 1191, 1197 (Ind. Ct. App. 2003) (citing Mallory v. State, 563

       N.E.2d 640, 644 (Ind. Ct. App. 1990)). “Neglect is the want of reasonable

       care—that is, the omission of such steps as a reasonable parent would take,

       such as are usually taken in the ordinary experience of mankind . . . ” Id.

       (quoting White v. State, 547 N.E.2d 831, 836 (Ind. 1989)). 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). Ultimately, whether a

       parent’s failure to provide medical care for an ailing child constitutes criminal

       neglect is a question for the jury to answer. Lush, 783 N.E.2d at 1198. We

       must simply determine whether their answer was reasonable. Id.


[28]   By his own admission during a recorded interview, McNeil stated that he fell

       with K.S-B. between 7:00 a.m. and 9:00 a.m., he consoled K.S-B., changed her

       diaper, fed her, and then put her back in her mechanical swing. McNeil

       thereafter went back to sleep and woke up at around noon. At approximately

       2:00 p.m., before going out to play with his two daughters, McNeil again

       checked on K.S-B., and according to him, K.S-B. was breathing and she seemed

       Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 16 of 20
       okay. At about 4:00 p.m., when Smith-Barton arrived home from work,

       McNeil did not mention that K.S-B. had fallen and hit her head that morning,

       or that she had not been up since about 9:00 a.m. Dr. Kohr testified that an

       infant who was about K.S-B.’s age would require feeding every two to four

       hours, and once the “stomach empties, they tend to be hungry again” and they

       “wake up and cry.” (Tr. Vol. IV, p. 169). Based on Dr. Kohr’s testimony, K.S-

       B. would have been awake around noon for another feeding. Smith-Barton

       testified that K.S-B. “slept great. She slept all the time,” however, she would

       wake up “maybe every 2 or 3 hours” to feed. (Tr. Vol. IV, pp. 101-102). In

       addition, Dr. Thompson expressed that after the injury, K.S-B. “may have

       tolerated a [feeding,] but she might have not taken as much or she would have

       seemed sleepy or she would have vomited.” (Tr. Vol. IV, p. 224). Dr.

       Thompson indicated that McNeil would have been alerted by the fact that

       “something’s different about [K.S-B.]” (Tr. Vol. IV, p. 224).


[29]   Any reasonable parent in McNeil’s position would have been alarmed by the

       fact their infant had not been fed in almost seven hours and had remained

       asleep for a protracted period. McNeil was subjectively aware that K.S-B. had

       injured her head from the supposed fall that morning, and he was in a position

       to understand that medical attention was needed since two-month-old K.S-B.

       had remained asleep and not eaten all day. Mindful of the evidence before us,

       we conclude that the State presented sufficient evidence beyond a reasonable

       doubt to support McNeil’s conviction of neglect of a dependent as a Level 6

       felony.


       Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 17 of 20
                                                  II. Sentencing


[30]   McNeil claims that his sentence is inappropriate in light of the nature of the

       offenses and his character. Indiana Appellate Rule 7(B) empowers us to

       independently review and revise sentences authorized by statute if, after due

       consideration, we find the trial court’s decision inappropriate in light of the

       nature of the offense and the character of the offender. Reid v. State, 876 N.E.2d

       1114, 1116 (Ind. 2007). The “nature of offense” compares the defendant’s

       actions with the required showing to sustain a conviction under the charged

       offense, while the “character of the offender” permits a broader consideration of

       the defendant’s character. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008);

       Douglas v. State, 878 N.E.2d 873, 881 (Ind. Ct. App. 2007). An appellant bears

       the burden of showing that both prongs of the inquiry favor a revision of his

       sentence. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we

       regard a sentence as appropriate at the end of the day turns on our sense of the

       culpability of the defendant, the severity of the crime, the damage done to

       others, and a myriad of other considerations that come to light in a given case.

       Cardwell, 895 N.E.2d at 1224. Our court focuses on “the length of the aggregate

       sentence and how it is to be served.” Id.


[31]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

       1019 (Ind. 2012). For his Level 1 felony aggravated battery, McNeil faced a

       sentencing range of twenty to forty years, with the advisory sentence being

       thirty years. I.C. § 35-50-2-4. McNeil was sentenced to forty years, which is

       Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 18 of 20
       the statutory maximum. Secondly, for his Level 6 felony neglect of a

       dependent, McNeil faced a sentencing range of six months to two and one-half

       years, with the advisory sentence being one year. I.C. § 35-50-2-7(b). The trial

       court imposed a maximum sentence of two and one-half years.


[32]   The nature of McNeil’s offenses in this case does not support appellate sentence

       revision. As the caregiver at the time, McNeil’s responsibility was to ensure the

       health and well-being of his daughter. K.S-B. was only two months old; she

       depended on McNeil to meet all of her needs. The record reveals that K.S-B.’s

       manner of death was a blunt force trauma to the head. The autopsy also

       revealed that K.S-B.’s head had been hit on at least three different points. The

       autopsy also found that K.S-B. had sustained two skull fractures and

       hemorrhaging to her brain. K.S-B. was exclusively under McNeil’s care on the

       day she sustained her head trauma, and he failed to obtain necessary medical

       care.


[33]   The character of the offender is found in what we learn of the offender’s life and

       conduct.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Included in

       the assessment of a defendant’s character is a review of his criminal history.

       Garcia v. State, 47 N.E.3d, 1249, 1251 (Ind. Ct. App. 2015). Also, a record of

       arrests is relevant to a trial court’s assessment of the defendant’s character.

       Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005). McNeil’s lengthy criminal

       history stems from numerous arrests and convictions in Virginia, New York,

       Washington DC, and Indiana. McNeil’s prior criminal convictions include

       carrying a concealed weapon, assault, battery, possession of marijuana, assault

       Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 19 of 20
       on a law enforcement officer, disorderly conduct, trespassing, child molesting,

       intentional damage to a monument, and failing to register as a sex offender.

       Further, McNeil’s prior contacts that did not result in convictions include

       assault, battery on a family member, possession of marijuana, possession of

       paraphernalia, and probation violations. In light of the foregoing, we decline to

       find that McNeil’s sentence is inappropriate in light of the nature of the offenses

       and his character.


                                             CONCLUSION
[34]   In sum, we conclude that there was sufficient evidence beyond a reasonable

       doubt to convict McNeil of his Level 1 felony aggravated battery and Level 6

       felony neglect of a dependent convictions. We further conclude that McNeil’s

       sentence is not inappropriate.


[35]   Affirmed.


[36]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 53A05-1707-CR-1750 | February 8, 2018   Page 20 of 20
