                                                                      Feb 20 2015, 9:44 am




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Andrew M. Barker                                          Gregory F. Zoeller
      Stephenie K. Gookins                                      Attorney General of Indiana
      Campbell Kyle Proffitt LLP
      Noblesville, Indiana                                      Justin Roebel
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kirsten L. Phillips,                                      February 20, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                29A02-1407-CR-503
              v.                                                Appeal from the Hamilton Superior
                                                                Court
                                                                The Honorable Daniel L. Pfleging,
      State of Indiana,                                         Judge
      Appellee-Plaintiff                                        Case No. 29D02-1306-FA-5012




      Crone, Judge.


                                              Case Summary
[1]   Five-month-old C.T. tragically died after Kirsten L. Phillips put him down for a

      nap inside a broken portable crib at the home daycare where she worked.

      Following a jury trial, Phillips was convicted of class C felony reckless

      homicide and class D felony involuntary manslaughter. Phillips appeals,

      Court of Appeals of Indiana |Opinion 29A02-1407-CR-503| February 20, 2015               Page 1 of 12
      asserting that the trial court abused its discretion in admitting certain evidence

      at trial. Phillips also asserts that the State presented insufficient evidence to

      support her convictions. We conclude that the trial court did not abuse its

      discretion in admitting evidence and that sufficient evidence supports Phillips’s

      reckless homicide conviction. We need not address the sufficiency of the

      evidence of her lesser conviction for involuntary manslaughter because we

      determine sua sponte that her dual convictions for reckless homicide and

      involuntary manslaughter violate double jeopardy principles. Accordingly, we

      affirm Phillips’s reckless homicide conviction and vacate her involuntary

      manslaughter conviction.


                                  Facts and Procedural History
[2]   The facts most favorable to the verdicts indicate that in January 2013, twenty-

      one-year-old Phillips lived with her mother, Stacey Cox, in Carmel. Cox ran a

      daycare out of the home, and Phillips had been assisting her mother with the

      care of the children at the daycare for about six months. Each day, “[a]bout six

      to nine children” were at the daycare. Tr. at 604. Five-month-old C.T. and his

      sister were two of the children cared for by Cox and Phillips. C.T.’s mother

      was a cousin by marriage of Cox. C.T.’s grandparents paid $130 per week for

      the daycare services.


[3]   On January 24, 2013, C.T.’s grandmother dropped him and his sister off at the

      daycare around 6:30 a.m. Phillips was asleep at the time, but woke up around

      8:00 a.m. and began “playing with all the kids” at the daycare shortly

      thereafter. Id. at 641. At that time, C.T. was awake in a bouncy seat and
      Court of Appeals of Indiana |Opinion 29A02-1407-CR-503| February 20, 2015   Page 2 of 12
      appeared to be “pretty normal.” Id. at 641-42. Phillips helped her mother care

      for the children that morning, and around 11:45 a.m., Phillips made a spaghetti

      lunch for the older children, cleaned them up, and changed all of their diapers.

      “Not too long after that[,]” Phillips fed C.T. about eight ounces of formula and

      burped him. Id. at 646. Because it was naptime for C.T., Phillips placed a

      folded “big queen sized blanket” inside one of the portable cribs in the home

      and laid C.T. on his back on top of the blanket inside the portable crib.1 Phillips

      knew that this particular portable crib was broken as she had previously

      observed that it was “like, bent in” in the bottom. Id. at 648. Phillips put

      another blanket over C.T. and exited the room. Phillips left the residence at

      12:20 p.m. to meet her father for lunch.


[4]   Shortly after 3:00 p.m., Cox went to check on C.T. and found him unresponsive

      in the portable crib. Cox called 911. Paramedics and firefighters who arrived

      on the scene found that C.T. had no pulse and was cold to the touch. His body

      was stiff and he had “blotchy, purple lividity” on his face and his lower

      extremities. Id. at 326. C.T. was transported to the hospital, and after all

      attempts to revive him proved unsuccessful, he was pronounced dead. The




      1
        At trial and on appeal, both parties refer to the portable crib as a “Pack ’n Play.” Although this term is
      often used to describe any portable crib or foldable play-yard regardless of the manufacturer, Pack ’n Play® is
      a brand name and registered trademark of Graco Children’s Products, Inc. It is unclear from the record
      whether the crib at issue was actually a Pack ’n Play or another brand of portable crib. Thus, we will refer
      generally to the device as a portable crib.

      Court of Appeals of Indiana |Opinion 29A02-1407-CR-503| February 20, 2015                         Page 3 of 12
      neonatologist who examined and attempted to revive C.T. concluded that C.T.

      had likely been in cardiac arrest for a long time before arriving at the hospital.


[5]   The State charged Phillips with class A felony neglect of a dependent resulting

      in death, class C felony reckless homicide, and class D felony involuntary

      manslaughter. Prior to trial, the State filed a motion to dismiss the neglect of a

      dependent charge, which was granted by the trial court. The case proceeded to

      trial on the remaining two counts and the jury found Phillips guilty as charged.

      The trial court entered judgment of conviction on both verdicts. This appeal

      ensued.


                                      Discussion and Decision

       Section 1 – The trial court did not abuse its discretion when it
                              admitted evidence.
[6]   We first address Phillips’s contention that the trial court abused its discretion in

      admitting into evidence, over her objection, photographs of the warning labels

      that were affixed to the broken portable crib retrieved from the daycare.

      Among other statements, the labels contained statements from the

      manufacturer instructing the user to never use the crib if any part of the crib was

      broken and to never use any additional padding inside the crib. The labels also

      contained a warning that infants can suffocate on soft bedding and that failure

      to follow the product warnings could result in serious injury or death. Phillips

      argues that the photographs of the warning labels constituted inadmissible




      Court of Appeals of Indiana |Opinion 29A02-1407-CR-503| February 20, 2015   Page 4 of 12
      hearsay and should have been excluded from evidence. The State responds that

      the labels were not hearsay, and we agree.2


[7]   A trial court has broad discretion in ruling on the admission or exclusion of

      evidence. Palilonis v. State, 970 N.E.2d 713, 726 (Ind. Ct. App. 2012), trans.

      denied. An abuse of discretion occurs when the trial court’s ruling is clearly

      against the logic, facts, and circumstances presented. Id. When reviewing the

      admissibility of evidence, we do not reweigh evidence, and we consider

      conflicting evidence most favorable to the trial court’s ruling. Meredith v. State,

      906 N.E.2d 867, 869 (Ind. 2009).


[8]   Hearsay is a statement made out of court that is offered into evidence to prove

      the truth of the matter asserted. Ind. Evidence Rule 801(c). When an out-of-

      court statement is challenged as hearsay, we must first determine whether the

      statement asserts a fact susceptible of being true or false. Stewart v. State, 945

      N.E.2d 1277, 1287 (Ind. Ct. App. 2011), trans. denied. If the statement contains

      no such assertion, it cannot be hearsay and an objection to the evidence should

      be overruled. Id. If the statement does contain an assertion of fact, we consider

      the evidentiary purpose of the proffered statement to determine if it is to prove

      the fact asserted. Id. If the statement is offered to prove the fact asserted, the

      statement is inadmissible unless a hearsay exception applies. Id. Under the




      2
       The State alternatively argues that the labels were admissible pursuant to an exception to the hearsay rule,
      Indiana Evidence Rule 803(17). Because we conclude that the labels were not hearsay, we do not address the
      applicability of this exception.

      Court of Appeals of Indiana |Opinion 29A02-1407-CR-503| February 20, 2015                       Page 5 of 12
       circumstances presented here, we conclude that the statements on the labels did

       not constitute hearsay.


[9]    First, we note that the majority of the statements on the warning labels were

       along the lines of a directive or an imperative, instructing the crib’s user to

       “never” do certain things while using the product. State’s Exs. 21-23. While we

       acknowledge that the “grammatical form of an utterance” does not ultimately

       govern whether it is hearsay, see Stewart, 945 N.E.2d at 1287, we agree with the

       State that the statements here contain no assertions of fact. Because these

       instructive statements do not assert facts susceptible of being true or false, they

       are not hearsay. See Cardin v. State, 540 N.E.2d 51, 54 (Ind. Ct. App. 1989)

       (“Imperative declarations, such as orders or instructions, which by their nature

       can neither be true nor false, cannot be offered for their truth.”), trans. denied.


[10]   As for the declarative statements on the labels that infants can suffocate on soft

       bedding and that failure to follow the product warnings could result in serious

       injury or death, the evidentiary purpose of these proffered statements was not to

       prove the facts asserted. Rather, the State offered the photographs of the labels

       to establish what information was presented and available to Phillips when

       using the portable crib and her resultant state of mind. Specifically, the State

       argued to the jury that “there are these giant warning labels” on the portable

       crib that “you see immediately” that would have alerted Phillips to the

       information contained on the labels, irrespective of the truth of that

       information. Tr. at 786. Because the statements contained on the labels were

       not offered for the truth of the matter asserted, they were not hearsay.

       Court of Appeals of Indiana |Opinion 29A02-1407-CR-503| February 20, 2015   Page 6 of 12
       Accordingly, the trial court did not abuse its discretion in admitting the

       photographs into evidence.


        Section 2 – Sufficient evidence supports the reckless homicide
                                  conviction.
[11]   We turn now to address the sufficiency of the evidence to support Phillips’s

       reckless homicide conviction. Upon review of a claim of insufficient evidence

       to sustain a conviction, we consider only the probative evidence and reasonable

       inferences supporting the verdict. Meehan v. State, 7 N.E.3d 255, 257 (Ind.

       2014) (citing Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)). It is the role

       of the factfinder, not that of this Court, to assess witness credibility and weigh

       the evidence to determine whether it is sufficient to support a conviction. Id.

       We will affirm the conviction unless no reasonable factfinder could find the

       elements of the crime proven beyond a reasonable doubt. Id. It is unnecessary

       for the evidence to overcome every reasonable hypothesis of innocence. Id.

       Rather, the evidence is sufficient if an inference may reasonably be drawn from

       it to support the verdict. Id.


[12]   The version of Indiana Code Section 35-42-1-5 in effect at the time Phillips

       committed her crime provided that a person who recklessly kills another human

       being commits reckless homicide, a class C felony. Conduct is reckless if the

       person engaged in that conduct “in plain, conscious, and unjustifiable disregard

       of harm that might result and the disregard involves a substantial deviation

       from acceptable standards of conduct.” Ind. Code § 35-41-2-2(c). As charged,

       to convict Phillips of this crime, the State was required to prove that Phillips
       Court of Appeals of Indiana |Opinion 29A02-1407-CR-503| February 20, 2015   Page 7 of 12
       recklessly killed C.T. “by providing an unsafe environment.” Appellant’s App.

       at 7.


[13]   The unrefuted evidence presented at trial established that, on the day in

       question, Phillips personally fed C.T. a bottle and put him down for his nap in

       the broken portable crib. She knew that the crib was broken and that it was

       “like, bent in” at the bottom. Tr. at 648. She placed a folded “big queen size

       blanket” in the bottom of the portable crib and then placed C.T. on his back on

       top of that blanket. Id. at 647. She put another blanket over C.T., left the

       room, and then left the residence. A few hours later, Phillips’s mother

       discovered the unresponsive infant and called 911. C.T. was pronounced dead

       shortly after being transported to the hospital. An autopsy of C.T. determined

       that he died of Sudden Unexpected Infant Death with a contributing factor of

       an unsafe sleep environment. The forensic pathologist who performed the

       autopsy opined that C.T. died after “he rolled over into the depression within

       the broken” portable crib. Id. at 543.


[14]   Phillips first argues that there is insufficient evidence that she technically

       “provided” the unsafe sleep environment because the broken portable crib was

       the property of her mother, Cox, and that “Stacey Cox Daycare” provided the

       portable crib for Phillips “to use and put C.T. in it.” Appellant’s Br. at 7. We

       are not persuaded by this nuanced argument. Phillips’s act of placing C.T. for a

       nap on top of a large blanket inside the broken portable crib was sufficient

       evidence from which the jury could reasonably infer that Phillips was the

       person who provided the unsafe sleep environment that caused C.T.’s death.

       Court of Appeals of Indiana |Opinion 29A02-1407-CR-503| February 20, 2015   Page 8 of 12
[15]   Phillips maintains that there is also insufficient evidence that she acted

       recklessly. Specifically, she claims that the State presented no evidence to

       suggest that she was formally trained in child care or otherwise should have

       known that placing C.T. down for a nap in the broken portable crib along with

       additional bedding could result in harm to C.T.


[16]   Again, we are not persuaded that the jury got it wrong. The record indicates

       that Phillips was a twenty-one-year-old adult who had been caring for both

       young children and infants at her mother’s daycare for at least six months. At

       the time she placed C.T. in the portable crib for a nap, Phillips knew that the

       crib was broken and that a portion of the bottom was caved in. As noted above,

       the portable crib was labeled with multiple warnings instructing Phillips that the

       product should never be used if there are any broken parts and should never be

       used with additional padding. Phillips was also warned that serious injury or

       death could result if such instructions were disregarded. Under the

       circumstances presented, a reasonable jury could infer that Phillips was aware

       of the potential for harm and that she acted in conscious disregard of that harm

       when she placed C.T. for a nap in the broken crib with additional padding. The

       evidence was sufficient to support Phillips’s conviction for reckless homicide

       and we affirm that conviction.


          Section 3 – Phillips’s reckless homicide and involuntary
        manslaughter convictions violate double jeopardy principles.
[17]   As for Phillips’s involuntary manslaughter conviction, the version of Indiana

       Code Section 35-42-1-4(e) in effect at the time Phillips committed her crime

       Court of Appeals of Indiana |Opinion 29A02-1407-CR-503| February 20, 2015    Page 9 of 12
       provided that if: (1) a child care provider recklessly supervises a child; and (2)

       the child dies as a result of the child care provider’s reckless supervision; the

       child care provider commits class D felony involuntary manslaughter. A “child

       care provider” means a person who provides child care in or on behalf of a

       child care center or a child care home. Ind. Code § 35-42-1-4(a). A “child care

       home” is defined as

               a “residential structure in which least six (6) children (not including
               the children for whom the provider is a parent, stepparent, guardian,
               custodian, or other relative or any child who is at least fourteen (14)
               years of age and does not require child care) at any time receive child
               care from a provider:
                        (1) while unattended by a parent, legal guardian, or custodian;
                        (2) for regular compensation; and
                        (3) for more than four (4) hours but less than twenty-four (24)
                        hours in each of ten (10) consecutive days per year, excluding
                        intervening Saturdays, Sundays, and holidays.


       Ind. Code § 12-7-2-28.6. As charged, to convict Phillips of this crime, the State

       was required to prove that Phillips, being a childcare provider, recklessly

       supervised C.T., a child in her care, and C.T. died as a result of that reckless

       supervision.


[18]   Phillips alleges that the State failed to present adequate evidence to establish

       that she was a child care provider and that her mother’s business for which she

       worked was a child care home as defined by statute. However, we need not

       address these concerns due to a dispositive conclusion on double jeopardy

       grounds that we reach regarding Phillips’s dual convictions for reckless


       Court of Appeals of Indiana |Opinion 29A02-1407-CR-503| February 20, 2015          Page 10 of 12
       homicide and involuntary manslaughter. Although Phillips does not raise

       double jeopardy on appeal, we have previously stated that double jeopardy

       issues ought to be raised sua sponte because such violations implicate a

       defendant’s fundamental rights. Harrison v. State, 901 N.E.2d 635, 643 (Ind. Ct.

       App. 2009), trans. denied.


[19]   The Indiana Constitution provides, “No person shall be put in jeopardy twice

       for the same offense.” Ind. Const. art. 1, § 14. “Indiana’s Double Jeopardy

       Clause … prevent[s] the State from being able to proceed against a person twice

       for the same criminal transgression.” Richardson v. State, 717 N.E.2d 32, 49

       (Ind. 1999). “[T]wo or more offenses are the ‘same offense’ in violation of

       Article I, Section 14 of the Indiana Constitution, if, with respect to either the

       statutory elements of the challenged crimes or the actual evidence used to

       convict, the essential elements of one challenged offense also establish the

       essential elements of anther challenged offense.” Id.


[20]   “In addition to the instances covered by Richardson, ‘we have long adhered to a

       series of rules of statutory construction and common law that are often

       described as double jeopardy, but are not governed by the constitutional test set

       forth in Richardson.’” Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002)

       (quoting Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002)). One of these

       categories prohibits “conviction and punishment for a crime which consists of

       the very same act as another crime for which the defendant has been convicted

       and punished.” Id.; see also Richardson, 717 N.E.2d at 55 (Sullivan, J.,

       concurring).

       Court of Appeals of Indiana |Opinion 29A02-1407-CR-503| February 20, 2015   Page 11 of 12
[21]   “In crimes ‘such as murder, manslaughter, battery and reckless homicide, the

       gravamen of the offense is causing the death or injury of another person, i.e.,

       the result is part of the definition of the crime.’” Mathews v. State, 849 N.E.2d

       578, 582 (Ind. 2006) (quoting Kelly v. State, 527 N.E.2d 1148, 1155 (Ind. Ct.

       App. 1988), aff’d 539 N.E.2d 25 (Ind. 1989)). Both of Phillips’s convictions

       were based on the death of C.T. Regardless of the statutory elements of the

       crimes or the actual evidence used to convict, at the end of the day a defendant

       cannot be convicted twice for causing the death of one individual. See Sanders v.

       State, 734 N.E.2d 646, 652 (Ind. Ct. App. 2000) (holding that convictions for

       involuntary manslaughter and neglect of a dependent resulting in death

       contravened double jeopardy principles because a defendant cannot be

       convicted twice for one death), trans. denied. Accordingly, Phillips’s dual

       convictions for reckless homicide and involuntary manslaughter cannot stand.


[22]   “When two convictions are found to contravene double jeopardy principles, a

       reviewing court may remedy the violation by reducing either conviction to a

       less serious form of the same offense if doing so will eliminate the violation.”

       Richardson, 717 N.E.2d at 54. If it will not, then the conviction “with the less

       severe penal consequences” must be vacated. Id. at 55. The only remedy

       available here is for us to vacate Phillips’s conviction for class D felony

       involuntary manslaughter.


[23]   Affirmed in part and vacated in part.


       Friedlander, J., and Kirsch, J., concur.

       Court of Appeals of Indiana |Opinion 29A02-1407-CR-503| February 20, 2015   Page 12 of 12
