MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                    FILED
this Memorandum Decision shall not be                           Jul 22 2016, 9:47 am

regarded as precedent or cited before any                           CLERK
                                                                Indiana Supreme Court
court except for the purpose of establishing                       Court of Appeals
                                                                     and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Laura Paul                                               Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dereck Worthington,                                      July 22, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A05-1510-CR-1829
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable Michael J. Lewis,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         84D06-1403-FB-794



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016    Page 1 of 7
[1]   Dereck Worthington appeals the sentence imposed by the trial court after he

      pleaded guilty to class C felony Neglect of a Dependent. Worthington argues

      that the trial court made improper evidentiary rulings during his sentencing

      hearing. Finding no error, we affirm.


                                                     Facts

[2]   At some point after 2011, Regina Warren married Kyle Poynter; the couple had

      one child, Z.P. Warren eventually divorced Poynter. She then rekindled a past

      relationship with Worthington. In December 2013, Worthington moved in

      with Warren and her three children, including Z.P., who was seven months old

      at the time. Worthington cared for the children when Warren was not at home.


[3]   Shortly after Worthington began caring for the children, Warren noticed Z.P.’s

      behavior change. According to Warren, Z.P. was no longer social, did not

      smile or laugh, was lethargic, whimpered when held, did not eat, had lost two

      pounds, missed developmental milestones, and was afraid of strangers touching

      her. Although Poynter had visitation privileges with Z.P. during this time,

      Warren and Worthington were Z.P.’s only caregivers.


[4]   On March 18, 2014, Worthington notified Warren that Z.P. had a knot on her

      head. When Warren took Z.P. to the doctor for a scheduled wellness visit, Z.P.

      was directly admitted to the hospital and was evaluated for signs of child abuse.


[5]   The evaluation revealed that Z.P. had multiple injuries: abrasions and bruising

      on her head and neck; bruising and fractures in both legs; bruising on her upper

      Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016   Page 2 of 7
      buttocks; traumatized nail beds; fractures in multiple places in both arms; a

      broken collar bone; and severe, life-threatening head trauma. The evaluation

      concluded that Z.P.’s injuries were caused by abuse and that the injuries had

      occurred at different times and were in different stages of healing.


[6]   On March 26, 2014, Worthington was charged with class B felony aggravated

      battery, class B felony neglect of a dependent resulting in serious bodily injury,

      and class D felony battery. On July 9, 2015, Worthington pleaded guilty to

      neglect of a dependent resulting in serious bodily injury as a class C felony in

      exchange for the dismissal of the other charges. The plea agreement left

      sentencing open to the trial court’s discretion. The stipulated factual basis of

      Worthington’s guilty plea provided that Worthington had care of Z.P.

      sometime between December 2013 and March 2014; that Worthington

      knowingly or intentionally placed Z.P. in a situation that endangered her life or

      health, resulting in bodily injuries to Z.P.’s head, arms, and legs; and that

      Worthington failed to seek medical attention for Z.P. Tr. p. 10.


[7]   At Worthington’s September 23, 2015, sentencing hearing, Warren testified

      about her continued concern for Z.P.’s health. Warren could not identify any

      instance in which she believed Worthington had harmed Z.P.; when questioned

      about how the infant might have been injured, Warren testified that she once

      saw Worthington holding Z.P. and “stretching” Z.P.’s arms back. Z.P. was

      crying as he did this. Tr. p. 26. According to Warren, when she asked what he

      was doing, Worthington replied that he was stretching Z.P. out of concern that



      Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016   Page 3 of 7
       she was experiencing growing pains. Worthington did not object to this

       testimony.


[8]    Worthington then cross-examined Warren, asking her about Poynter. Warren

       testified that Poynter had been charged with domestic battery in the past. The

       State objected to further testimony regarding Poynter’s prior history with

       Warren, arguing that it was irrelevant for the purpose of sentencing

       Worthington on the neglect of a dependent conviction. The trial court

       sustained the objection, stating that “this is the sentencing of Dereck

       Worthington, I’m not going to try somebody else on this case.” Tr. p. 46.


[9]    In sentencing Worthington, the trial court found Z.P.’s severe injuries and

       Worthington’s criminal history to be aggravating circumstances. While it

       found Worthington’s remorse to be a mitigating factor, the trial court held that

       the aggravating factors outweighed the mitigating factor and sentenced

       Worthington to eight years in the Department of Correction. Worthington now

       appeals.


                                    Discussion and Decision

[10]   Worthington raises two arguments on appeal: first, that the State should not

       have been permitted to introduce Warren’s testimony regarding the incident in

       which she saw him “stretching” Z.P.; second, that, even if such evidence was

       properly admitted, he should have been permitted to introduce evidence of

       Poynter’s past domestic battery conviction.


       Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016   Page 4 of 7
[11]   When reviewing a trial court’s sentencing order, we may reverse only if 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.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

       reh’g, 875 N.E. 2d 218. It is well established that when a trial court makes a

       sentencing decision, the rules of evidence, other than those concerning matters

       of privilege, do not apply. E.g., White v. State, 756 N.E.2d 1057, 1061 (Ind. Ct.

       App. 2001); see also Ind. Evidence Rule 101(d)(2) (providing that the Rules of

       Evidence do not apply to sentencing proceedings).


[12]   Worthington argues that the trial court should not have permitted Warren to

       testify about the occasion in which she saw him “stretching” Z.P., maintaining

       that this evidence relates to the battery charges that had been dismissed.

       Initially, we observe that Worthington did not object to this testimony.

       Consequently, he has waived this argument.


[13]   Waiver notwithstanding, we note that this evidence was directly relevant to the

       charge of neglect of a child resulting in serious bodily injury, as it was stipulated

       in the plea agreement that Worthington placed Z.P. in a situation that

       endangered her health, resulting in bodily injuries to the infant. The State is

       entitled to present evidence regarding the nature and circumstances of the crime

       for which the defendant is being sentenced, and this evidence falls squarely

       within that category of information.




       Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016   Page 5 of 7
[14]   Next, Worthington contends that, even if Warren’s testimony was properly

       admitted, he should have been able to cross-examine her regarding the incident

       that led to Poynter’s domestic battery charge. It is well established that

       evidence which a defendant seeks to put forward at sentencing “must be

       relevant to the consideration and would not include facts concerning a

       defendant’s innocence which is the focus of the trial process.” Rabadi v. State,

       541 N.E.2d 271, 277 (Ind. 1989).


[15]   We agree with the trial court that evidence regarding an alleged prior battery by

       Poynter on Warren was irrelevant for the purpose of sentencing Worthington

       on neglect. Worthington had already pleaded guilty to neglect of a dependent,

       admitting that he cared for Z.P. for four months, endangered her life or health,

       resulting in bodily injuries, and failed to seek medical attention when Z.P.

       needed it. Whether or not Poynter had battered Warren in the past is entirely

       irrelevant to the trial court’s sentencing decision with respect to Worthington.

       Moreover, because innocence is not the focus of a sentencing hearing, it was

       improper for Worthington to bring in Poynter’s domestic battery charge as a

       way to prove his own innocence as to Z.P.’s injuries.1 Therefore, we find no

       error on this basis.




       1
         Worthington argues that the State presented evidence regarding the battery charges when it introduced
       Warren’s testimony regarding the “stretching” incident and that, consequently, he should have been
       permitted to introduce evidence rebutting the alleged contention that he had battered Z.P. As noted above,
       however, this evidence related to the nature and circumstances of the neglect charge and was not introduced
       to establish that Worthington had battered the infant. Therefore, this argument is unavailing.

       Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016             Page 6 of 7
[16]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016   Page 7 of 7
