                                                                          Nov 06 2013, 5:39 am
FOR PUBLICATION



ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

P. JEFFREY SCHLESINGER                           GREGORY F. ZOELLER
Appellate Public Defender                        Attorney General of Indiana
Crown Point, Indiana
                                                 KARL M. SCHARNBERG
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana



                            IN THE
                  COURT OF APPEALS OF INDIANA

KIMBERLY KUBINA,                            )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )   No. 45A03-1303-CR-100
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                    APPEAL FROM THE LAKE SUPERIOR COURT
                       The Honorable Diana Ross Boswell, Judge
                            Cause No. 45G03-1105-MR-5


                                 November 6, 2013

                            OPINION - FOR PUBLICATION

BAILEY, Judge
                                           Case Summary

          Kimberly Kubina (“Kubina”) pled guilty to a single count of Neglect of a Dependent,

as a Class A felony,1 and was sentenced to thirty-five years imprisonment. She now appeals,

raising for our review only whether the trial court abused its discretion when it found

aggravating and mitigating circumstances during sentencing.2

          We affirm.

                                  Facts and Procedural History

          We take our statement of facts from the stipulated facts entered along with Kubina’s

plea agreement.

          During 2007 and part of 2008, Kubina lived in Merrillville with her husband Riley

Choate (“Choate”); her minor stepchildren, Christian Choate (“Christian”) and C.C.; her

child with Choate, E.C.; her daughter from a prior relationship, R.K.; and several of her

nieces and nephews. In March 2007, Kubina and Choate notified Christian’s elementary

school that he would be homeschooled from that date forward. Kubina and Choate took this

action because Choate had begun to beat Christian regularly. Kubina was afraid the school

would notice bruises on Christian, that this would lead to inquiries from the Department of

Child Services, and that all the children would be removed from the Kubina/Choate

residence.

          Over time, Choate’s beatings of Christian became increasingly violent. Kubina would


1
    Ind. Code § 35-46-1-4.

2
 Kubina also claims her sentence was inappropriate. However, she fails to make any cogent argument in this
regard, and thus that issue is waived. See Perry v. State, 921 N.E.2d 525, 528 (Ind. Ct. App. 2010).

                                                    2
step in to stop the beatings, but never notified law enforcement or sought medical treatment

for Christian.

       Also beginning in 2007, Christian was confined to a basement room. While initially

allowed to leave the room more often, eventually Christian was permitted to leave the room

only to eat and use the bathroom. Christian’s confinement continued even after Kubina and

Choate learned that Christian had begun to relieve himself in his basement room.

       In April 2008, the family moved to a home in Gary. Christian continued to be

confined to one room in the home—first a bathroom, then later a bedroom he shared with

Choate. In late 2008, Christian escaped the home in Gary until Kubina and one of her nieces,

T.H., discovered Christian at a nearby Walgreens store.

       After this, Choate beat Christian and, with Kubina’s help, confined Christian to a dog

cage for the ensuing six to eight months. Christian was permitted to leave the cage only to

eat, use the bathroom, and perform exercises at Choate’s instruction; Christian was only

permitted to do exercises because Kubina observed that Christian’s feet were turning purple,

which indicated likely circulatory problems. Eventually, Christian began to soil himself

while in the cage; Kubina forced him to wear diapers.

       Also during this period, Kubina directed her stepdaughter, C.C., to feed Christian one

packet of Ramen noodles for breakfast and another packet for lunch, as well as a serving of

the family’s dinner. Kubina eventually observed that, though Christian was thirteen years

old, he wore clothing at a size appropriate for a significantly younger child. Kubina then told

C.C. to prepare two packets of Ramen noodles for each meal, and began to prepare protein


                                              3
shakes for Christian. However, Kubina ceased to oversee Christian’s feeding after she taught

C.C. to prepare Christian’s food.

        Throughout this period, Kubina continued to observe Choate’s beatings of Christian,

but did not inform law enforcement or attempt to obtain medical attention for the child.

Kubina also ordered C.C. to give Christian weekly cold-water baths to reduce swelling and

bruising on Christian’s body.

        On or around April 1, 2009, Kubina had been out of the home running errands. She

returned to find everyone in the home “walking on egg-shells” around Choate because

Christian had gotten into trouble. (App’x at 171.) Kubina let Christian out of his cage to lay

on a baby mattress, and noticed that he was “pale, lethargic, and glassy-eyed.” (App’x at

172.)

        On April 2, 2009, Kubina left the home again to attend a conference at T.H.’s school.

During the conference, Kubina received notice by cell phone that “something was wrong at

home with ‘grandma.’” (App’x at 172.) Upon her return, Kubina found Christian had died.

She notified Choate, who told her “to ‘take care of it’ until he got home.” (App’x at 172.)

        Kubina consequently ordered C.C. to wrap Christian’s body in a blanket, place the

body in two garbage bags, and put the entire bundle into a plastic tote. Kubina then ordered

C.C. to help her carry Christian’s body across the street to a trailer belonging to someone

called “Grandma.” (App’x at 172.)

        After this, Kubina enlisted her sister’s help in driving to a hardware store to purchase

two bags of concrete and two bags of lime. Upon Choate’s return from work that evening


                                               4
and at his insistence, Kubina assisted Choate in burying Christian’s body underneath a shed

on “Grandma’s” property. Choate tore up the floor of the shed and dug a two- or three-foot-

deep hole; Christian’s body was placed in the hole. Kubina gave Choate lime and concrete to

cover Christian’s body, placed a cross and a Bible on the body, and watched as Choate

covered Christian’s body with dirt.

          Sometime in 2011, C.C. informed her and Christian’s mother about the circumstances

of Christian’s death and burial. C.C.’s mother contacted police, and an investigation ensued

that led to the arrests of Kubina and Choate.

          On May 10, 2011, Kubina was charged with Murder, a Felony; 3 Battery, as a Class A

felony;4 two counts of Neglect of a Dependent, each as Class A felonies; 5 and Criminal

Confinement, as a Class B felony.6 On May 16, 2011, the charging information was

amended, and the following charges against Kubina were added: three counts of Obstruction

of Justice, as Class D felonies;7 two counts of Neglect of a Dependent, as Class D felonies;

Removal of a Body from Death Scene, as a Class D felony;8 Failure to Notify Authorities of

the Discovery of a Dead Body, as a Class A misdemeanor;9 and Failure to Report a Dead


3
    I.C. § 35-42-1-1.

4
    I.C. § 35-42-2-1.

5
    I.C. § 35-46-1-4.

6
    I.C. § 35-42-3-3.

7
    I.C. § 35-44-3-4.

8
    I.C. § 36-2-14-17.

9
    I.C. § 36-2-14-17.

                                                5
Body, as a Class A misdemeanor.10

           On May 2, 2012, Kubina and the State entered into a plea agreement whereby Kubina

agreed to plead guilty to a single count of Neglect of a Dependent, as a Class A felony, with

all other charges against her dismissed. In exchange, Kubina was obligated to provide

testimony against Choate. The parties agreed to a sentencing range of twenty-five to thirty-

five years imprisonment, with the length of the sentence to be determined by the trial court.

           The trial court accepted the plea agreement, and subsequently conducted a sentencing

hearing on February 19, 2013. During the hearing, both parties introduced testimony in

support of their respective positions. At the conclusion of the hearing, the trial court

sentenced Kubina to thirty-five years imprisonment, the maximum term permitted by the plea

agreement.

           This appeal ensued.

                                     Discussion and Decision

           Kubina raises a single issue for our review, whether during sentencing the trial court

abused its discretion in finding aggravating and mitigating circumstances.

           Sentencing decisions “rest within the sound discretion of the trial court and are

reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482,

490 (Ind. 2007). Subject to review under the abuse of discretion standard are “[t]he reasons

given” for entry of a sentence, as well as “the omission of reasons arguably supported by the

record”—that is, the trial court’s finding of aggravating and mitigating circumstances in


10
     I.C. § 35-45-19-3.

                                                 6
reaching a sentencing decision. Id. at 491.

       Here, Kubina contends that the trial court improperly took into account her position of

trust vis-à-vis Christian when determining aggravating circumstances. She also argues that

the court ignored uncontroverted evidence that she had, prior to her arrest, been suffering

with undiagnosed and untreated mental illness; that Choate had abused her throughout the

marriage, often in front of the children in the home; that she feared losing her children if she

reported Christian’s abuse to police or healthcare providers; and that she was sincerely

remorseful.

       Among the aggravating circumstances the trial court may take into account in reaching

a sentence is that the defendant “was in a position having care, custody, or control of the

victim of the offense.” I.C. § 35-38-1-7.1(a)(8). Though our statutes provide for a number

of mitigating circumstances, none of which are exclusive, none of those listed by the statute

were ignored by the trial court. See I.C. §§ 35-38-1-7.1(b) & (c). However, regardless of the

presence or absence of aggravating or mitigating circumstances, a trial court may impose any

sentence authorized by statute and permissible under the Indiana Constitution. I.C. § 35-38-

1-7.1(d).

       As to the question of Kubina’s position of trust, Kubina contends that taking an

element of an offense as an aggravating circumstance is an abuse of discretion. Yet trial

courts are not prohibited from considering material elements of an underlying offense in

considering aggravating circumstances at sentencing. Pedraza v. State, 887 N.E.2d 77, 80

(Ind. 2008). And Indiana courts have long held that “so long as the trial court takes into


                                               7
consideration facts not needed to prove the elements of the offense, the nature and

circumstances of the crime can appropriately be considered as aggravating circumstances.”

Hall v. State, 870 N.E.2d 449, 464 (Ind. Ct. App. 2007) (citing McCann v. State, 749 N.E.2d

1116, 1120 (Ind. 2001)), trans. denied.

       The statute under which Kubina was convicted requires that the defendant have had

“care of a dependent.” I.C. § 35-46-1-4(a). Kubina had more than mere care of Christian;

she was a stepparent involved in Christian’s upbringing and living in the same home with

him, and directly assisted Choate in Christian’s abuse on numerous occasions. The trial court

noted several of these facts, as well as the nature of Christian’s “long, lingering, torturous

death.” (Sentencing Tr. at 115.) We thus find no abuse of discretion in the trial court’s

finding that Kubina was in a position of trust with Christian.

       As to mitigating circumstances, the trial court took into account only one such factor:

that Kubina lacked any criminal history. (Sentencing Tr. at 115.)        As to the question of

remorse, while the trial court found that Kubina was remorseful, it afforded that

determination no weight because of the nature and circumstances of the offense. (Sentencing

Tr. at 113.) As to the rest of Kubina’s proposed mitigating circumstances, the statute does

not by its terms require that the trial court have taken them into account. Nevertheless, we

note that the trial court noted these facts, but apparently afforded them no weight in reaching

a sentencing decision, observing “I’ve seen some pretty bad foster homes before but nothing,

nothing that rises to the level of this.” (Sentencing Tr. at 114.)

       We decline Kubina’s invitation to second-guess the court’s finding and weighing of


                                              8
aggravating and mitigating circumstances. We therefore find no abuse of discretion in the

trial court’s sentencing.

                                       Conclusion

       Having found no abuse of discretion in the trial court’s determination of aggravating

and mitigating circumstances, we affirm the trial court’s sentencing order.

       Affirmed.

MAY, J., and BRADFORD, J., concur.




                                             9
