                                                                               FILED
                                                                           Jul 23 2020, 8:37 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Brandon E. Murphy                                          Curtis T. Hill, Jr.
      Cannon Bruns & Murphy, LLC                                 Attorney General of Indiana
      Muncie, Indiana                                            George P. Sherman
                                                                 Supervising Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                    IN THE
            COURT OF APPEALS OF INDIANA

      Jessica M. Skeens,                                         July 23, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-CR-2475
              v.                                                 Appeal from the Delaware Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Linda Ralu Wolf,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 18C03-1706-F1-8



      Crone, Judge.


                                               Case Summary
[1]   Jessica M. Skeens consumed alcohol and marijuana, failed to properly restrain

      several of her children in her van, got into an argument with her boyfriend

      while speeding on the highway, and lost control of the van, which ran off the

      highway and rolled over. One of Skeens’s children was partially ejected from
      Court of Appeals of Indiana | Opinion 19A-CR-2475| July 23, 2020                             Page 1 of 13
      the van and killed. The State charged Skeens with numerous offenses. After a

      trial, the jury found Skeens guilty of level 1 felony neglect of a dependent

      resulting in death, three counts of level 6 felony neglect of a dependent, and

      class B misdemeanor marijuana possession. The trial court sentenced her to

      forty-one years. Skeens now appeals, arguing that her level 1 felony conviction

      is not supported by sufficient evidence, that the trial court erred in admitting

      certain testimony and instructing the jury, and that her sentence is inappropriate

      in light of the nature of the offenses and her character. We affirm her

      convictions and sentence.


                                  Facts and Procedural History
[2]   The facts most favorable to the convictions follow. Skeens had four children,

      the oldest of whom was six-year-old T.W. On May 28, 2017, Skeens drank

      alcohol and smoked marijuana. She and her boyfriend Nathaniel Jordan

      decided to take the children to the Muncie Children’s Museum. Skeens put all

      four children in her van and failed to properly restrain three of them, including

      T.W., who was not secured in a car seat as required by law. The van’s right

      front tire had no tread, the left rear tire was a spare, the van’s frame was bent,

      and the wheels were out of alignment.


[3]   Skeens drank whiskey from a water bottle while driving. She began arguing

      with Jordan and parked on the shoulder of State Road 67. Skeens and Jordan

      got out of the van and continued arguing. He threw her bottle into a field and

      threw her keys into the middle of the road. Skeens called a friend and asked to

      be picked up, but then she retrieved her keys and continued driving down the
      Court of Appeals of Indiana | Opinion 19A-CR-2475| July 23, 2020           Page 2 of 13
      highway. Skeens and Jordan, who were not wearing seatbelts, resumed their

      argument and started trading blows. Skeens lost control of the van, which ran

      off the right side of the road at sixty-four miles per hour, nine miles per hour

      over the posted speed limit. The van rolled over and came to a stop 100 feet off

      the highway. T.W. was partially ejected through one of the van’s windows and

      died from multiple traumatic blunt force injuries.


[4]   Police officers were dispatched to the scene. Skeens was belligerent and

      smelled of an alcoholic beverage. Her eyes were twitching and glassy, and her

      speech was slurred. Inside and outside the van, officers found numerous beer

      and liquor bottles, a marijuana pipe, and a prescription bottle with Skeens’s

      name containing marijuana. Skeens’s arm was fractured, and she was taken to

      the hospital. A blood sample was taken, which tested positive for THC

      metabolites and indicated that her blood alcohol level was .063. During a

      police interview that same day, Skeens admitted that she had been drinking and

      stated, “[S]omething happened to my car because it’s not in good shape. You

      can’t drive it. It’s terrible to drive.[…] I shouldn’t be driving at all.” Ex. Vol. 5

      at 15 (State’s Ex. 3).


[5]   The State charged Skeens with level 1 felony neglect of a dependent resulting in

      death, level 4 felony causing death when operating a motor vehicle with a

      schedule I or II controlled substance in the blood, level 5 felony causing death

      when operating a motor vehicle while intoxicated, level 5 felony reckless

      homicide, three counts of level 6 felony neglect of a dependent, class B

      misdemeanor marijuana possession, and class C misdemeanor operating a

      Court of Appeals of Indiana | Opinion 19A-CR-2475| July 23, 2020           Page 3 of 13
      motor vehicle without ever receiving a license. At trial, forensic toxicologist

      Dr. Sheila Arnold testified that Skeens was impaired at the time of the crash

      from consuming alcohol and marijuana, which “have different pathways

      through which they cause impairment[,]” and thus the “combined impairment

      increase[ed] the overall impairment of each [substance] individually.” Tr. Vol.

      2 at 166. Indiana State Trooper Coley McCutcheon testified that T.W. “should

      have been in some form of booster seat” and that she “could have come out of

      the base of [her] seatbelt” because her shoulder belt had not been properly

      secured. Tr. Vol. 3 at 12, 9. Indiana State Trooper and certified accident

      reconstructionist Scott Keegan testified over objection that Skeens was impaired

      at the time of the crash, that T.W.’s “chances of not being hurt [would have

      been] greatly improved” if she had “been properly restrained in a child safety

      seat,” and that T.W.’s death resulted from her not being “properly restrained in

      a car seat at the time.” Id. at 57, 60. Trooper Keegan testified without

      objection that “[i]t is the driver’s responsibility […] that children in all positions

      of the vehicle are restrained” and that “several factors played a role” in the

      crash, including “that there were improper tires on the vehicle[,]” that Skeens

      was “impaired by alcohol and THC” and “was not using a seatbelt while

      driving[,]” and “that the vehicle was speeding[.]” Id. at 55, 59.


[6]   The jury found Skeens guilty on all but the reckless homicide and operating

      without a license counts. The trial court entered judgment of conviction on the

      neglect and marijuana possession counts and sentenced Skeens to thirty-five

      years on the level 1 felony count and two years on each of the level 6 felony


      Court of Appeals of Indiana | Opinion 19A-CR-2475| July 23, 2020            Page 4 of 13
      counts, all consecutive, for a total of forty-one-years; the court also imposed a

      concurrent six-month sentence on the marijuana possession count. Skeens now

      appeals. Additional facts will be provided below.


                                      Discussion and Decision

         Section 1 – Skeens has waived any argument regarding the
                admissibility of Trooper Keegan’s opinions.
[7]   We first address Skeens’s argument that the trial court erred in admitting, over

      her objections, Trooper Keegan’s testimony that she was impaired at the time of

      the crash and that T.W. died because she had not been properly restrained in a

      car seat. At trial, Skeens objected to this testimony because she had not

      received pretrial notice of the trooper’s opinions. See id. at 35 (“Judge, this is

      not in his report and I consider this to be an expert opinion that I am entitled to

      some pretrial notice of.”), 56 (“Judge, again, this is an expert opinion. I was

      given no notice that he was going to render this opinion.”). On appeal, she

      argues for the first time that the trial court erred in admitting those opinions

      because Trooper Keegan was not qualified to render them.


[8]   A trial court cannot be found to have erred as to an argument that it never had

      an opportunity to consider; accordingly, as a general rule, a party may not

      present an argument on appeal unless the party raised that argument before the

      trial court. Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). “In such




      Court of Appeals of Indiana | Opinion 19A-CR-2475| July 23, 2020           Page 5 of 13
      circumstances the argument is waived.” Id. 1 Moreover, Trooper Keegan’s

      opinion regarding Skeens’s impairment is merely cumulative of Dr. Arnold’s

      opinion, and he reiterated his opinion later in his testimony without objection.

      Accordingly, any error in the admission of that opinion is harmless. Brittain v.

      State, 68 N.E.3d 611, 621 (Ind. Ct. App. 2017), trans. denied. The same is true

      for Trooper Keegan’s opinion regarding the cause of T.W.’s death, which is

      largely cumulative of Trooper McCutcheon’s testimony. See. Tr. Vol. 3 at 12

      (Trooper McCutcheon: “[T.W.] should have been in some form of booster

      seat. So simply being in that seatbelt by itself is not properly worn. She was

      not properly restrained in the vehicle as she should have been.”), 9 (“[W]ith her

      small stature being in that seatbelt improperly, she could have come out of the

      base of that seatbelt.”).


          Section 2 – Skeens’s sufficiency argument is based on a false
                                     premise.
[9]   Next, we address Skeens’s challenge to the sufficiency of the evidence

      supporting her conviction for level 1 felony neglect of a dependent causing

      death. To convict Skeens of level 1 felony neglect, the State had to prove

      beyond a reasonable doubt that Skeens, being at least eighteen years of age and

      having the care of T.W., a dependent less than fourteen years of age, knowingly




      1
        Skeens makes a three-sentence, citation-free argument that it was “particularly egregious” that the State did
      not disclose Trooper Keegan’s opinions before trial. Appellant’s Br. at 22. This argument is also waived.
      Whitfield v. State, 127 N.E.3d 1260, 1268 n.5 (Ind. Ct. App. 2019) (finding citation-free argument waived due
      to lack of cogency), trans. denied.

      Court of Appeals of Indiana | Opinion 19A-CR-2475| July 23, 2020                                   Page 6 of 13
       placed T.W. in a situation that endangered her life or health, and which

       resulted in her death. Appellant’s App. Vol. 2 at 29 (charging information);

       Ind. Code § 35-46-1-4. Citing Patel v. State, 60 N.E.3d 1041 (Ind. Ct. App.

       2016), Skeens argues that the State was obligated to present “medical or

       scientific expert” testimony that a particular act or omission on her part resulted

       in T.W.’s death, and that the State’s failure to present such testimony requires

       that we reduce her conviction to a level 6 felony. Appellant’s Br. at 16.


[10]   We disagree with the premise of Skeens’s argument. In Patel, the defendant

       used drugs that she had purchased online to terminate her pregnancy at home;

       the baby was born alive but died shortly thereafter. The State charged Patel

       with class A felony (now level 1 felony) neglect, alleging that the baby died as a

       result of Patel’s failure to provide medical care after its birth. The jury found

       Patel guilty as charged. On appeal, Patel challenged the sufficiency of the

       evidence regarding causation, arguing that “the State failed to elicit …

       testimony from its medical experts” that “the baby’s death would not have

       occurred but for Patel’s failure to provide medical care immediately after its

       birth.” Patel, 60 N.E.3d at 1053, 1052. This Court agreed that the State failed

       to prove causation and therefore reduced Patel’s conviction to a class D (now a

       level 6) felony. We did not specifically hold that medical expert testimony was

       required to establish causation; we simply addressed the argument as framed by

       Patel, and the State pointed to no other competent evidence regarding

       causation. But even assuming that medical expert testimony would have been

       required to prove causation in Patel, we note that this case presented no medical


       Court of Appeals of Indiana | Opinion 19A-CR-2475| July 23, 2020            Page 7 of 13
       or scientific issues with respect to causation, and therefore no medical or

       scientific expert testimony was required. Because this is the extent of Skeens’s

       sufficiency argument, we do not address it further.


         Section 3 – Skeens has failed to establish that the trial court
          abused its discretion in instructing the jury on causation.
[11]   Skeens also contends that the trial court erred in instructing the jury on

       causation. “The purpose of jury instructions is to inform the jury of the law

       applicable to the facts without misleading the jury and to enable it to

       comprehend the case clearly and arrive at a just, fair, and correct verdict.”

       Davis-Martin v. State, 116 N.E.3d 1178, 1191-92 (Ind. Ct. App. 2019), trans.

       denied. “The manner of instructing a jury lies largely within the discretion of

       the trial court, and we will reverse only for an abuse of discretion.” Carter v.

       State, 31 N.E.3d 17, 25 (Ind. Ct. App. 2015), trans. denied. “In determining

       whether a trial court abused its discretion by declining to give a tendered jury

       instruction, we consider (1) whether the tendered instruction correctly states the

       law; (2) whether there was evidence presented at trial to support giving the

       instruction; and (3) whether the substance of the instruction was covered by

       other instructions that were given.” Id. “We consider jury instructions not in

       isolation, but as a whole, with reference to each other.” Id. “To constitute an

       abuse of discretion, the instructions given must be erroneous, and the

       instructions taken as a whole must misstate the law or otherwise mislead the

       jury.” Merriweather v. State, 128 N.E.3d 503, 512 (Ind. Ct. App. 2019) (citation

       omitted), trans. denied.

       Court of Appeals of Indiana | Opinion 19A-CR-2475| July 23, 2020             Page 8 of 13
[12]   Skeens submitted the following proposed final instruction on causation: “If you

       find that the defendant’s conduct caused the accident that produced the death of

       the victim, the State has proven the element of ‘causation.’ However, if you

       find that someone else’s conduct caused the accident, you must find the

       defendant not guilty.” Appellant’s App. Vol. 2 at 211. The trial court refused

       Skeens’s instruction and gave three other instructions on causation. Instruction

       number 7 reads as follows:


               In regard to the First Charge [i.e., level 1 felony neglect of a
               dependent resulting in death], a Defendant’s conduct is legally
               responsible for causing the death if the State has proven beyond a
               reasonable doubt that:
               1. the death would not have occurred without the conduct; and
               2. the death was a natural, probable, and foreseeable result of
               Defendant’s conduct.
               The State of Indiana is not required to prove that the Defendant’s
               conduct was the sole cause of the death.


       Appellant’s App. Vol. 3 at 80. Instruction number 8 reads, “In Indiana, a result

       is deemed foreseeable if it is a natural and probable consequence of the act of

       the Defendant.” Id. at 81. And instruction number 9 reads, “Where an

       intervening cause is claimed as superseding the defendant’s actions, the

       intervening cause must be unforeseeable to relieve the defendant of criminal

       liability.” Id. at 82.


[13]   On appeal, Skeens argues that the trial court abused its discretion in refusing

       her instruction and in giving its instructions because the latter embrace the

       “civil law” concept of proximate cause. Appellant’s Br. at 18. But proximate

       Court of Appeals of Indiana | Opinion 19A-CR-2475| July 23, 2020         Page 9 of 13
       cause was determined to be the proper standard in Patel, the neglect case

       mentioned above, 60 N.E.3d at 1052, as well as in Abney v. State, 766 N.E.2d

       1175 (Ind. 2002), the operating-while-intoxicated-causing-death case on which

       Skeens relies. See id. at 1177-78 (noting “the well-settled rule that the State

       must prove the defendant’s conduct was a proximate cause of the victim’s

       injury or death.”). Skeens also argues that instructions 7 and 9 “effectively

       shifted the burden to the defense to show that there was an intervening or

       superseding cause[,]” Appellant’s Br. at 19-20, but she cites no authority to

       establish that this was contrary to law. Accordingly, this argument is waived.

       Whitfield v. State, 127 N.E.3d 1260, 1268 n.5 (Ind. Ct. App. 2019), trans. denied.

       In sum, Skeens has failed to establish an abuse of discretion. Therefore, we

       affirm her convictions.


         Section 4 – Skeens has failed to establish that her sentence is
                                inappropriate.
[14]   Finally, we address Skeens’s request to reduce her sentence pursuant to Indiana

       Appellate Rule 7(B), which provides that we may revise a sentence authorized

       by statute if, after due consideration of the trial court’s decision, we find that the

       sentence is inappropriate in light of the nature of the offense and the character

       of the offender. “Whether we regard a sentence as inappropriate 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.’” Kunberger

       v. State, 46 N.E.3d 966, 972-73 (Ind. Ct. App. 2015) (quoting Cardwell v. State,

       895 N.E.2d 1219, 1224 (Ind. 2008)). “[T]he principal role of appellate review is

       Court of Appeals of Indiana | Opinion 19A-CR-2475| July 23, 2020           Page 10 of 13
       to ‘leaven the outliers,’ not achieve the perceived ‘correct’ result in each case.”

       Id. at 973 (quoting Cardwell, 895 N.E.2d at 1225). “We therefore ‘focus on the

       forest—the aggregate sentence—rather than the trees—consecutive or

       concurrent, number of counts, or length of the sentence on any individual

       count.’” Id. (quoting Cardwell, 895 N.E.2d at 1225). “The question is not

       whether another sentence is more appropriate, but rather whether the sentence

       imposed is inappropriate.” Norton v. State, 137 N.E.3d 974, 988 (Ind. Ct. App.

       2019), trans. denied (2020). Skeens bears the burden of persuading us that her

       sentence is inappropriate. Kunberger, 46 N.E.3d at 972.


[15]   “As to the nature of the offense, the advisory sentence is the starting point the

       legislature has selected as an appropriate sentence for the crime committed.”

       Id. at 973. The advisory sentence for a level 1 felony is thirty years, with a

       range of twenty to forty years. Ind. Code § 35-50-2-4(b). The advisory sentence

       for a level 6 felony is one year, with a range of six months to two and one-half

       years. Ind. Code § 35-50-2-7(b). The trial court sentenced Skeens to thirty-five

       years for the level 1 felony and two years for each level 6 felony, all consecutive,

       for a total of forty-one years. 2 Skeens asserts that “[t]he nature of this offense is

       a tragic accident and was not the produce [sic] of care, planning or criminal

       intent.” Appellant’s Br. at 23. This disregards the obvious fact that she was

       charged with and convicted of neglect, and that the legislature has determined




       2
        Skeens cites a case regarding maximum sentences, which is inapplicable because she did not receive the
       maximum sentence for any of her crimes.

       Court of Appeals of Indiana | Opinion 19A-CR-2475| July 23, 2020                              Page 11 of 13
       that neglect resulting in death merits serious penal consequences. Skeens

       neglected all four of her children, and the presence of multiple victims justifies

       consecutive sentences. Cardwell, 895 N.E.2d at 1225. Moreover, the scale of

       Skeens’s neglect cannot be overstated: she got drunk on whiskey and high on

       marijuana, loaded her young children in her unsafe van without proper

       restraints, drove down the highway at nearly ten miles per hour over the speed

       limit, got into a physical fight with her boyfriend, lost control of the van, and

       then careened off the road, with tragic results. The nature of Skeens’s offenses

       does not support a reduced sentence.


[16]   Analysis of an offender’s character “involves a broad consideration of a

       defendant’s qualities. The character of the offender is shown by the offender’s

       life and conduct.” Adams v. State, 120 N.E.3d 1058, 1065 (Ind. Ct. App. 2019)

       (citations and quotation marks omitted). Skeens has no prior criminal history,

       but during her interview for her presentence investigation report, she admitted

       to having a long history of substance abuse and to driving her children on

       multiple occasions while under the influence of alcohol and marijuana. As the

       trial court remarked at the sentencing hearing, “The reality is, Ms. Skeens has

       not led a law-abiding life, she just never got caught until now.” Tr. Vol. 4 at 22.

       After she was arrested and incarcerated, she snorted methamphetamine that

       had been smuggled into the jail. When she was released on bond, she used

       marijuana and alcohol, drinking a fifth of whiskey per day during the week and

       then stopping so she could have weekend visitation with her surviving children.

       At sentencing, the trial court made multiple references to what it characterized


       Court of Appeals of Indiana | Opinion 19A-CR-2475| July 23, 2020          Page 12 of 13
       as Skeens’s “selfish, defiant, combative, and belligerent nature” and her “lack of

       respect for lawful authority[.]” Id. at 25, 27. Skeens has offered nothing that

       contradicts this assessment. She has failed to persuade us that her sentence is

       inappropriate in light of the nature of the offenses and her character. Therefore,

       we affirm her sentence.


[17]   Affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-2475| July 23, 2020        Page 13 of 13
