MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          Dec 31 2015, 9:22 am
regarded as 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
David M. Payne                                          Gregory F. Zoeller
Ryan & Payne                                            Attorney General of Indiana
Marion, Indiana
                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Wanetta Marie Lloyd,                                    December 31, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        27A02-1503-CR-161
        v.                                              Appeal from the Grant Superior
                                                        Court
State of Indiana,                                       The Honorable Dana J.
Appellee-Plaintiff                                      Kenworthy, Judge
                                                        Trial Court Cause No.
                                                        27D02-1404-FA-3



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 27A02-1503-CR-161 | December 31, 2015      Page 1 of 9
                                           Case Summary
[1]   Wanetta Marie Lloyd appeals her thirty-five-year sentence for class A felony

      neglect of a dependent resulting in death. She asserts that she was denied due

      process when the trial court admitted certain medical testimony from her co-

      defendant’s trial and that the trial court abused its discretion in its treatment of

      aggravators and mitigators. Finding that she waived review of her due process

      argument and otherwise invited any error concerning the medical testimony

      and finding that the trial court acted within its discretion in its treatment of

      aggravators and mitigators, we affirm.


                              Facts and Procedural History
[2]   At around 1:00 a.m. on February 13, 2013, Lloyd got off work and went to her

      home that she shared with Donald Riddle. She and Riddle had an agreement

      that he would watch her three young children and take care of the house in

      exchange for his living with her. Both Lloyd and Riddle used marijuana and

      morphine. The two were involved in drug dealing and had conducted

      transactions in front of the children.


[3]   Shortly after Lloyd returned from work, she left and went to her boyfriend’s

      house. She returned in the early morning hours and went to bed until early

      afternoon. Thereafter, she ran errands, ordered pizza, and returned home at

      dinner time. She ate pizza with Riddle and her two older children, and then

      took morphine and smoked marijuana with Riddle. She took a shower and

      planned to take her older daughter out for some late evening shopping. Around

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      9:45 p.m., she went into the room of her youngest child, two-year-old A.C.,

      who had been ill and vomiting during the previous days. She found A.C. dead

      on her bedroom floor and called 911.


[4]   When investigators arrived, they found A.C. cold to the touch and determined

      that she had been dead for quite some time. A.C.’s head, neck, back, torso,

      abdomen, and arms were covered with second- and third-degree burns. She

      had bruises on her head, face, legs, foot, and ankle. An autopsy showed that

      A.C. died as a result of the burns, which were determined to have been

      deliberately inflicted. White, unburned areas around her eyes and certain parts

      of her neck indicated that she might have attempted to squint and cover herself

      when the burns were being inflicted. The attending pathologist concluded that

      immediate treatment might have proved life-saving. Lloyd admitted to police

      that she had not checked on A.C. between the time she came home from work

      (1:00 a.m.) and the time she found A.C. dead (9:45 p.m.). Police found

      marijuana, plastic bags, and a digital scale in the home. They also recovered

      text messages referencing the purchase and sale of illegal substances.


[5]   Lloyd and Riddle were charged as co-defendants. Riddle’s case proceeded to

      trial. Lloyd pled guilty to class A felony neglect of a dependent resulting in

      death, class D felony maintaining a common nuisance, and class D felony

      marijuana dealing. At her sentencing hearing, the State submitted transcripts of

      testimony from the pathologist who performed A.C.’s autopsy and a pediatric

      burn specialist, both of whom had testified at Riddle’s trial. The same trial

      judge presided over Riddle’s trial and Lloyd’s sentencing. Lloyd affirmatively

      Court of Appeals of Indiana | Memorandum Decision 27A02-1503-CR-161 | December 31, 2015   Page 3 of 9
      agreed to the admission of the transcripts. The trial court sentenced Lloyd to

      thirty-five years for class A felony neglect of a dependent causing death, with

      twenty-five years executed and ten years suspended to supervised probation.

      The court sentenced her to two years for each of the class D felony convictions,

      both to run concurrent to her sentence for the class A felony. Lloyd now

      appeals her sentence for class A felony neglect of a dependent. Additional facts

      will be provided as necessary.


                                  Discussion and Decision

          Section 1 – Lloyd waived review of her due process
            argument and invited any error that occurred.
[6]   Lloyd asserts that the trial court violated her due process rights during the

      sentencing hearing by admitting transcripts of medical testimony from Riddle’s

      trial. She bases her argument on that fact that the admitted transcripts were not

      subject to cross-examination by her counsel. However, she did not object when

      the transcripts were offered for admission during the sentencing hearing. Thus,

      she has waived review of this issue. Robey v. State, 7 N.E.3d 371, 379 (Ind. Ct.

      App.), trans. denied. To the extent that she argues that the alleged error

      amounted to fundamental error, we note that she not only failed to object but

      also affirmatively agreed to the admission of the doctors’ testimony. As such,

      she invited any error that may have occurred. The invited error doctrine forbids

      a party to take advantage of an error that she “commits, invites, or which is the

      natural consequence of her own neglect or misconduct.” Brewington v. State, 7

      N.E.3d 946, 974-75 (Ind. 2014), cert. denied (2015); Wright v. State, 828 N.E.2d
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      904, 907 (Ind. 2005). “[E]rror invited by the complaining party is not reversible

      error.” Booher v. State, 773 N.E.2d 814, 822 (Ind. 2002) (citation omitted).

      “Even constitutional errors may be invited.” Barnett v. State, 24 N.E.3d 1013,

      1017 (Ind. Ct. App. 2015) (citation omitted). In short, Lloyd affirmatively

      agreed to the admission of the transcripts and now complains that she was

      deprived of her constitutional right to cross-examine the witnesses whose

      testimony was included in them. As such, she invited the alleged error and

      cannot obtain reversal on this basis.


       Section 2 – The trial court did not abuse its discretion
       in its treatment of aggravating and mitigating factors.
[7]   Lloyd also maintains that the trial court abused its discretion in its treatment of

      certain aggravators and mitigators. Sentencing decisions rest within the sound

      discretion of the trial court, and as long as a sentence is within the statutory

      range, it is subject to review only for an abuse of discretion. Anglemyer v. State,

      868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse

      of discretion occurs where the trial court’s decision is clearly against the logic

      and effect of the facts and circumstances before it, or the reasonable, probable,

      and actual deductions to be drawn therefrom. Sloan v. State, 16 N.E.3d 1018,

      1026 (Ind. Ct. App. 2014). The trial court sentenced Lloyd to a thirty-five-year

      term for her class A felony conviction, which carries a sentencing range of

      twenty to fifty years. Ind. Code § 35-50-2-4 (2013). Because her sentence is

      within the statutory range, we review it for an abuse of discretion.



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[8]   Indiana Code Section 35-38-1-7.1 lists matters that may be considered as

      aggravating and mitigating circumstances by the trial court in sentencing.

      Subsection (c) emphasizes that the list of statutory factors is not exhaustive, and

      subsection (d) allows the trial court to impose any sentence that is authorized by

      statute and permissible under the Indiana Constitution. Here, the trial court

      found the aggravators to be Lloyd’s history of juvenile delinquency; the victim’s

      young age, complete dependency, and extreme vulnerability; the level of harm,

      injury, and damage to the victim; and the presence of Lloyd’s children during

      drug transactions. The court assigned as mitigators Lloyd’s relatively law-

      abiding life (except for drug use); her expressions of remorse; her acceptance of

      responsibility as evidenced by her guilty plea; her likelihood of probation

      success; and the potential undue hardship of her imprisonment on her

      remaining children. The sentencing order contains extensive reasons for the

      trial court’s assignment of the various aggravators and mitigators. With respect

      to each of the factors cited, the court indicated whether it found the factor to be

      “extremely strong,” “strong,” “moderate,” or “weak.” Appellant’s App. at 33-

      34.


[9]   Lloyd’s arguments focus mainly on the weight the trial court assigned to certain

      factors. We remind her that the relative weight or value assignable to

      mitigators and aggravators is not subject to review for abuse of discretion.

      Anglemyer, 868 N.E.2d at 491-92. For example, she cites the trial court’s use of

      her juvenile record as an aggravator and her relatively law-abiding adult life as a

      mitigators and posits that these factors should have merely offset. She also


      Court of Appeals of Indiana | Memorandum Decision 27A02-1503-CR-161 | December 31, 2015   Page 6 of 9
takes umbrage with the trial court’s designation of the harm, injury, loss or

damage suffered by the victim as an “extremely strong” aggravator. With

respect to this factor, the trial court explained,

        The harm, injury, loss or damage suffered by A.C. was
        significant, and greater than the elements necessary to prove
        commission of the offense. In particular, the medical evidence
        presented during the jury trial of co-Defendant Donald Riddle
        indicated that A.C. suffered extreme pain for some hours prior to
        her death, due to her untreated burns, which covered a large part
        of her body. One aspect of this evidence provides insight into
        A.C.’s last day of life. The doctors who examined A.C.’s injuries
        explained why the areas around her eyes and her neck were not
        burned; the explanation indicated that A.C. squeezed her eyes
        closed and scrunched her shoulders upward in a self-protective
        stance. The medical evidence indicates that A.C. tried to save
        her own little life … but she was left to suffer, alone and without
        comfort, until she died. Defendant knew A.C. had been sick,
        including vomiting, for a couple of days prior to her death.
        Defendant came and went from the home several times in the 24
        hours before A.C. was discovered deceased, yet she never
        checked on her child during this time. This is an extremely strong
        aggravating factor.


Appellant’s App. at 34. (Emphasis in original.) Lloyd claims that this finding

is emotional in tone and fails to account for her attempts to seek medical help

once she discovered A.C.’s lifeless, burned body. However, the neglect charge

was not based on Lloyd’s failure to seek help after the fact. Rather, she was

charged with (and pled guilty to) neglect based on her failure to check on her

two-year-old child for more than twenty hours. In other words, Lloyd’s

comings and goings over the last day of A.C.’s fleeting life, especially when she


Court of Appeals of Indiana | Memorandum Decision 27A02-1503-CR-161 | December 31, 2015   Page 7 of 9
       knew that A.C. had been ill and when she knew of Riddle’s criminal activities,

       demonstrate her total lack of concern for her toddler’s wellbeing and

       whereabouts. We find no abuse of discretion here.


[10]   Lloyd also maintains that the trial court improperly designated an element of

       her offense as an aggravator. See Gomillia v. State, 13 N.E.3d 846, 852-53 (Ind.

       2014) (“Where a trial court’s reason for imposing a sentence greater than the

       advisory sentence includes material elements of the offense, absent something

       unique about the circumstances that would justify deviating from the advisory

       sentence, that reason is ‘improper as a matter of law.’”). Specifically, she

       challenges the trial court’s use of the victim’s young age as an inappropriate

       aggravator given that age is already an element of the offense of class A felony

       neglect of a dependent. The threshold age for a victim in such a case is “less

       than fourteen.” Ind. Code § 35-46-1-4(b)(3). Here, the victim, only two years

       old, was far younger than the threshold age. 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. See, e.g., Edwards v. State, 842 N.E.2d 849, 855 (Ind. Ct.

       App. 2006) (fifteen-month-old victim); Kile v. State, 729 N.E.2d 211, 214 (Ind.

       Ct. App. 2000) (six-year-old victim); Mallory v. State, 563 N.E.2d 640, 647-48

       (Ind. Ct. App. 1990) (six-year-old victim), trans. denied (1991).


[11]   Although twenty hours might not be considered so protracted a period where

       the child is an adolescent or early teen, in this case, Lloyd failed to check on her

       sick two-year-old for twenty hours. Also, A.C.’s means for drawing her

       mother’s attention were more limited, i.e., she likely lacked access to a cell

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       phone and thus could not call for help. The circumstances here are particularly

       grievous as medical personnel determined that A.C. had been dead for a while

       when discovered and that immediate treatment might have saved her life. The

       gruesome photographic exhibits show the lifeless, severely burned body of a

       very small child still in diapers. Simply put, A.C.’s tender age is a unique

       circumstance surrounding Lloyd’s offense. Thus, even to the extent that the

       trial court considered an element of Lloyd’s offense as an aggravator, it did not

       abuse its discretion.


[12]   In sum, Lloyd’s due process argument is not subject to review due to invited

       error. The trial court acted within its discretion in its treatment of aggravating

       and mitigating factors. Consequently, we affirm. 1


[13]   Affirmed.


       May, J., and Bradford, J., concur.




       1
         Lloyd argues that the trial court used her testimony from Riddle’s jury trial against her in assessing her
       character during sentencing. She cites the trial court’s statement in its sentencing order that she had testified
       at Riddle’s jury trial “without immunity.” Appellant’s App. at 34. Even assuming that she had “use
       immunity” concerning her testimony at Riddle’s trial, we disagree with her conclusion that the trial court
       used her previous testimony to disparage her character. In fact, the court found that her “character and
       attitudes indicate that she is unlikely to commit another crime[,] … has accepted responsibility[,] … willingly
       gave statements to police, [and] testified at [Riddle’s] trial without immunity …. The Court believes her
       remorse to be genuine. This is a strong mitigating factor.” Id. (Emphasis in original.) Thus, we find any
       error concerning her immunity status to have been harmless.

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