MEMORANDUM DECISION                                                     FILED
                                                                    Jul 13 2016, 8:59 am
Pursuant to Ind. Appellate Rule 65(D), this
                                                                        CLERK
Memorandum Decision shall not be regarded as                        Indiana Supreme Court
                                                                       Court of Appeals
precedent or cited before any court except for the                       and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Alexander L. Hoover                                       Gregory F. Zoeller
Law Office of Christopher G. Walter,                      Attorney General of Indiana
P.C.
                                                          Karl M. Scharnberg
Nappanee, Indiana
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Krysti I. LaVanway,                                       July 13, 2016

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          50A05-1601-CR-202
        v.                                                Appeal from the Marshall Superior
                                                          Court.
                                                          The Honorable Robert O. Bowen,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Cause No. 50D01-1509-F1-10




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 50A05-1601-CR-202 | July 13, 2016         Page 1 of 10
                                       Statement of the Case
                                 1
[1]   Krysti I. LaVanway appeals the thirty-five-year sentence the trial court

      imposed after she pleaded guilty to neglect of a dependent resulting in death, a

      Level 1 felony. We affirm.


                                                      Issues
[2]   LaVanway raises two issues, which we restate as:

              I.       Whether the trial court abused its discretion in the course
                       of sentencing LaVanway.
              II.      Whether LaVanway’s sentence is inappropriate in light of
                       the nature of the offense and her character.

                                Facts and Procedural History
[3]   LaVanway lived in a motel in Plymouth, Indiana, with her boyfriend, Shane

      Weedling, and her two-year-old daughter from a previous relationship, S.W.

      LaVanway had a job but Weedling did not, so Weedling watched S.W. while

      LaVanway was at work.


[4]   On September 18, 2015, LaVanway went to work at 5:20 a.m. and left S.W. in

      Weedling’s care. Between 9:30 and 10:00 a.m., Weedling texted LaVanway to

      say he was upset because S.W. had wet the bed again, and he did not want

      S.W. to stay with them anymore. Later, he sent another message stating that




      1
       LaVanway’s last name is spelled several different ways in the record. We use the spelling she provided
      when she testified in court.

      Court of Appeals of Indiana | Memorandum Decision 50A05-1601-CR-202 | July 13, 2016             Page 2 of 10
      he had beaten S.W. and would continue to beat her until LaVanway returned

      home. LaVanway responded that she would try to get off work.


[5]   LaVanway returned to the motel room at 11:30 a.m. and found S.W.

      unconscious and unresponsive. Her face was bloody. Weedling did not want

      LaVanway to take S.W. to the hospital because “he was afraid he’d get in

      trouble.” Tr. p. 30.


[6]   Several hours later, S.W. was still unconscious and unresponsive, and

      LaVanway asked a neighbor to drive her and S.W. to the hospital. They

      arrived at 2:21 p.m. An attending physician noted S.W. had injuries consistent

      with physical abuse, including life-threatening head injuries, and hospital staff

      called the police. Detective Sergeant Leo Mangus of the Plymouth Police

      Department was dispatched to the hospital and spoke with LaVanway. She

      agreed to go to the police station for questioning. Meanwhile, S.W. was

      transported by helicopter to a hospital in Fort Wayne for specialized emergency

      treatment.


[7]   At the police station, LaVanway told Detective Mangus that S.W. had fallen in

      the shower after she had left the bathroom, and she immediately took S.W. to

      the hospital. She further said Weedling had been at the grocery store at the

      time. LaVanway consented to a search of her motel room, and Detective

      Mangus took her there.


[8]   When they arrived, Weedling was asleep. Detective Mangus woke him and

      questioned him. Weedling said he was in the motel room, but not the

      Court of Appeals of Indiana | Memorandum Decision 50A05-1601-CR-202 | July 13, 2016   Page 3 of 10
       bathroom, when S.W. fell. Detective Mangus and another officer took

       Weedling and LaVanway back to the police station.


[9]    During a search of the motel room, officers discovered red stains on the

       mattress of the bed, as well as red stains on a pillow on a child’s mattress. They

       also found bloody tissues and a diaper with red stains, a hairbrush that had

       been broken in half, and a green, child-sized shirt with multiple red stains.


[10]   At the police station, LaVanway changed her story and told Detective Mangus

       that Weedling had been in the motel room when S.W. was injured. She further

       stated she accidentally dropped S.W. in the shower, and Weedling was not in

       the bathroom at the time. The detective questioned Weedling separately. He

       said LaVanway had been at work when S.W. was injured, and he had asked her

       to come home.


[11]   Later, after Detective Mangus reviewed Weedling and LaVanway’s text

       messages and discussed them with her, LaVanway admitted that she had

       returned to the motel room at 11:30 and had delayed taking S.W. to the

       hospital to avoid getting Weedling in trouble.


[12]   S.W. died in the hospital on September 19, 2015, without regaining

       consciousness. An autopsy revealed S.W. had injuries to her buttocks,

       forehead, left cheek and ear, mouth, right arm, right foot, left shoulder, and

       back. Some of the injuries were older than others. The marks on S.W.’s

       buttocks were consistent with being struck with the broken hairbrush the



       Court of Appeals of Indiana | Memorandum Decision 50A05-1601-CR-202 | July 13, 2016   Page 4 of 10
       officers found in the motel room. The cause of death was homicide, resulting

       from blunt force trauma to the head.


[13]   The State charged LaVanway with neglect of a dependent resulting in death, a

       Level 1 felony. The parties reached a plea agreement and submitted it to the

       trial court, but LaVanway later sought and received permission to withdraw

       from the agreement. She pleaded guilty without a plea agreement, and the

       court accepted her plea. At the sentencing hearing, the court identified two

       mitigating factors, namely LaVanway’s lack of an adult criminal record and her

       guilty plea. The court listed the following aggravating circumstances in its

       order of judgment:

               a.       The Defendant lied to police, medical personnel and
                        investigators during the investigation. Those lies were an
                        attempt to “cover-up” the crime committed.
               b.       As a result of the lies, medical personnel were not
                        immediately told how [S.W.] sustained her injuries. Such
                        lack of knowledge could have impeded their diagnosis and
                        emergency care.
               c.       There was evidence of prior injuries to [S.W.]. However,
                        the Defendant denies those injuries were the result of
                        abuse.
               d.       The Defendant’s delay in seeking medical treatment for
                        [S.W.] after she arrived home from work was much more
                        than neglect. She purposely disregarded the health and
                        welfare of her daughter knowing that [S.W.] was in peril
                        and needed immediate medical attention.
               e.       By delaying seeking medical treatment and by lying to
                        investigators and medical personnel, the Defendant was
                        protecting her boyfriend and placing his penal interest
                        ahead of the life of her child.



       Court of Appeals of Indiana | Memorandum Decision 50A05-1601-CR-202 | July 13, 2016   Page 5 of 10
       Appellant’s App. pp. 112-13. The court imposed a thirty-five-year sentence

       upon LaVanway, and she now appeals.


                                    Discussion and Decision
                                     A. Sentencing Discretion
[14]   LaVanway claims the trial court erred in the course of identifying aggravating

       circumstances. A trial court may impose any sentence that is authorized by

       statute and permissible under the Constitution of the State of Indiana. Ind.

       Code § 35-38-1-7.1(d) (2015). In general, sentencing decisions are left to the

       sound discretion of the trial court, and we review the trial court’s decision only

       for an abuse of discretion. Singh v. State, 40 N.E.3d 981, 987 (Ind. Ct. App.

       2015), trans. denied. 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.

       Winkleman v. State, 22 N.E.3d 844, 852 (Ind. Ct. App. 2015), trans. denied.


[15]   A trial court may abuse its discretion in a number of ways, including: (1) failing

       to 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.




       Court of Appeals of Indiana | Memorandum Decision 50A05-1601-CR-202 | July 13, 2016   Page 6 of 10
[16]   LaVanway argues the trial court inappropriately cited an element of the offense

       as an aggravating factor, specifically her neglect of S.W. The State asserts the

       court’s sentence was based on the circumstances of the offense.


[17]   Where a trial court’s reason for imposing a sentence greater than the advisory

       sentence includes material elements of the offense at issue, the sentence is

       erroneous absent something unique about the circumstances that would justify

       deviating from the advisory sentence. Gomillia v. State, 13 N.E.3d 846, 852-53

       (Ind. 2014). Nevertheless, a sentencing court may properly consider specific

       elements of the nature and circumstances of an offense to be an aggravating

       circumstance. Id. at 853.


[18]   The trial court declined to cite S.W.’s age, the fact of her death, or LaVanway’s

       “breach of trust” with S.W. to be aggravating factors, deeming them to be

       “elements of the crime.” Tr. p. 85. Instead, the court noted:

               However, your lack of responsiveness to the needs of your child
               went way beyond what I believe is – was necessary to prove the
               commission of the crime, so going beyond what was necessary to
               prove the commission of the crime, even though it may have
               been an element of it, your lack of responsiveness for that long a
               period of time is a mit – is an aggravating factor I can consider.
       Id. at 86. The court further identified LaVanway’s lies to S.W.’s doctors and

       the police to be an aggravating factor, noting her lies could have hindered

       S.W.’s medical care. In addition, the court cited as an aggravating factor

       LaVanway’s choice to prioritize protecting Weedling over her daughter’s life.




       Court of Appeals of Indiana | Memorandum Decision 50A05-1601-CR-202 | July 13, 2016   Page 7 of 10
[19]   Based on this record, we conclude the trial court was well aware of its

       obligation to avoid citing elements of the offense as aggravating factors and

       instead focused on specific circumstances of the crime that went beyond what

       was necessary to prove the offense. The cited aggravating factors are

       appropriate, and the court did not abuse its sentencing discretion. See Gomillia,

       13 N.E.3d at 853 (trial court appropriately considered factual circumstances of

       the crime as aggravating factors).


                 B. Nature of Offense and Character of Offender
[20]   LaVanway asks the Court to exercise its authority to reduce her sentence.

       Pursuant to Indiana Appellate Rule 7(B), we may revise a sentence otherwise

       authorized by statute “if, after due consideration of the trial court’s decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” The principal purpose of this review is to

       leaven the outliers rather than to achieve a “correct” result in each case.

       Kunberger v. State, 46 N.E.3d 966, 973 (Ind. Ct. App. 2015).


[21]   Whether a sentence is inappropriate ultimately turns on the culpability of the

       defendant, the severity of the crime, the damage done to others, and myriad

       other factors that come to light in a given case. Id. at 972-73. The defendant

       bears the burden of persuading the appellate court that his or her sentence is

       inappropriate. Russell v. State, 970 N.E.2d 156, 162 (Ind. Ct. App. 2012), trans.

       denied.




       Court of Appeals of Indiana | Memorandum Decision 50A05-1601-CR-202 | July 13, 2016   Page 8 of 10
[22]   At the time LaVanway committed her offense, a Level 1 felony was punishable

       by a maximum sentence of 40 years and a minimum sentence of 20 years, with

       an advisory sentence of 30 years. Ind. Code § 35-50-2-4 (2014). The trial court

       sentenced LaVanway to thirty-five years.


[23]   Turning to the nature of the offense, LaVanway delayed seeking help for S.W.

       for over three hours. She did not contact the authorities after Weedling texted

       her to say he had beaten S.W. and would continue to beat her until LaVanway

       returned home, and she did not immediately seek help upon returning to the

       motel room and discovering S.W. unconscious and unresponsive, with blood

       on her face. Instead, she prioritized helping Weedling to avoid the

       consequences of his violent acts.


[24]   When LaVanway finally took S.W. to the hospital, she repeatedly lied to

       medical staff and to Detective Mangus, frequently changing her story but

       always trying to minimize Weedling’s role. In addition, the record reflects that

       S.W.’s body bore numerous marks from prior incidents of abuse, which

       LaVanway must have ignored. LaVanway was willing to risk her child’s life to

       protect Weedling, which is reprehensible.


[25]   As for the character of the offender, LaVanway points to her guilty plea, her

       lack of an adult criminal record, and her gainful employment as positive

       character traits. The evidence against her was strong, which negates any

       mitigating considerations from her plea. In addition, LaVanway admitted she

       frequently smoked marijuana, which indicates she has not lived a law-abiding


       Court of Appeals of Indiana | Memorandum Decision 50A05-1601-CR-202 | July 13, 2016   Page 9 of 10
       life. Finally, her employment record does not outweigh the tragic

       circumstances of this offense. She has failed to demonstrate that her sentence is

       inappropriate.


                                                Conclusion
[26]   For the reasons stated above, we affirm the judgment of the trial court.


[27]   Affirmed.


[28]   May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 50A05-1601-CR-202 | July 13, 2016   Page 10 of 10
