                                                                   Jun 30 2015, 9:59 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Lawrence D. Newman                                         Gregory F. Zoeller
Newman & Newman, P.C.                                      Attorney General of Indiana
Noblesville, Indiana
                                                           Michael Gene Worden
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Saundra S. Wahl,                                           June 30, 2015

Appellant-Defendant,                                       Court of Appeals Cause No.
                                                           29A04-1409-CR-418
        v.                                                 Appeal from the Hamilton Superior
                                                           Court.

State of Indiana,                                          The Honorable Gail Z. Bardach,
                                                           Judge.
Appellee-Plaintiff.
                                                           Cause No. 29D06-1309-FD-7824




Riley, Judge




Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015                 Page 1 of 30
                                     STATEMENT OF THE CASE

[1]   Appellant-Defendant, Saundra Wahl (Wahl), appeals her conviction for

      involuntary manslaughter, a Class D felony, Ind. Code § 35-42-1-4 (2013).


[2]   We affirm.


                                                      ISSUES

[3]   Wahl raises four issues on appeal which we restate as:

      (1) Whether the State presented sufficient evidence to sustain Wahl’s

      involuntary manslaughter conviction;

      (2) Whether the trial court abused its discretion in denying Wahl’s motion to

      correct error regarding jury misconduct;

      (3) Whether Wahl’s sentence is appropriate; and

      (4) Whether the trial court abused its discretion by ordering Wahl to pay

      restitution.


                              FACTS AND PROCEDURAL HISTORY


[4]   In the spring of 2011, Danny (Danny) and Jocelyne DiRienzo (collectively, the

      DiRienzos) began searching for a daycare for their minor children, D.D., and

      A.D. The DiRienzos were referred to Wahl and her husband, Daniel Wahl

      (Daniel) (collectively, the Wahls) who ran a State-licensed daycare facility out

      of their home basement in Fishers, Indiana. After touring the daycare facility,

      the DiRienzos selected the Wahls to provide child care services to both of their

      children.


      Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 2 of 30
[5]   Prior to June of 2013, Wahl had been working as a child care provider for

      approximately twenty-five years. In 2003, the Wahls built their home with the

      primary intention of operating a daycare facility from their basement. Shortly

      thereafter, the Wahls were licensed, and for ten years, they operated a daycare

      business under the name, Home Away from Home Child Care. In establishing

      their roles as child care providers, the Wahls determined that Wahl would be

      responsible for toddlers ranging from five months to two years, while Daniel

      would be responsible for the older children.


[6]   In June of 2013, A.D. was a healthy, twenty-month-old toddler. On June 20,

      2013, as usual for their day, Daniel had taken the older children to the backyard

      to eat and play. While Daniel was outside with the older children, Wahl

      remained inside with the toddlers for feeding. Due to the older children being

      outside, Wahl removed a compression gate between the kitchen area and the

      toddlers’ sleeping area in the basement so as to allow the small children to

      move and play freely between the two rooms. In addition, Wahl also placed a

      child in a highchair in the kitchen for feeding and walked back to the kitchen

      sink to warm bottles.


[7]   The record shows that in addition to the compression gate that divided the

      toddlers’ sleeping area and a play area adjoining the kitchen, there was a white

      metal security gate positioned in the basement hallway that was used to prevent




      Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 3 of 30
      the children from accessing the stairway leading to the first floor.1 As Wahl was

      standing in the kitchen, she heard the white metal security gate being “jingled.”

      (Transcript p. 405). Immediately, Wahl walked over to inspect. There, she

      found A.D. and another child playing with the gate. Wahl removed and placed

      both children across the room, admonished them, and returned to the kitchen to

      retrieve the child she had left in the highchair, and to grab a bottle.


[8]   From the kitchen, only a portion of the white metal security gate was visible.

      As Wahl was lifting the child from the highchair, she saw the child that A.D.

      had been playing with had passed the white metal security gate. Wahl

      immediately placed the baby she was carrying on the floor and rushed towards

      the gate. Like the other toddler, A.D. had breached the white metal security

      gate; however, as A.D. was returning to the play area adjoining the kitchen, his

      head became trapped between the latch end of the gate and the wall. At first,

      Wahl thought A.D. was okay since his eyes were open. Wahl freed A.D. from

      the white metal security gate, and noticed that A.D. was unresponsive and not




      1
        The Wahls had placed several security gates in their home. From what we can decipher from the record,
      there were about four security gates. On the first floor, there was a white metal gate closing off the stairway
      leading to the second floor. In the basement hallway, there was a similar white metal security gate—at issue
      in this cause—closing off the stairway leading to the first floor. In addition, there was a long plastic
      compression gate dividing a large room in the basement into two sections. Lastly, there was a small plastic
      compression gate diving the toddlers’ sleeping area and the kitchen area.



      Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015                          Page 4 of 30
      breathing. Promptly, Wahl began performing CPR on A.D. As she was doing

      that, she saw two older children who had been out in the yard, and she

      requested them to call Daniel. The children did not comprehend, so Wahl

      momentarily left A.D. on the floor, rushed to the base of the stairway, and

      yelled for assistance. Moments later, Daniel re-entered the basement,

      intercepted the CPR process and asked Wahl to call 911. Within minutes, the

      Fishers Police Department arrived followed by the paramedics. A.D. was then

      transported to Community North Hospital, where he was pronounced dead at

      12:59 p.m. The following day, the autopsy showed that A.D. had died from

      asphyxiation.


[9]   On September 19, 2013, the State filed an Information charging the Wahls 2

      with involuntary manslaughter, a Class D felony, I.C. § 35-42-1-4 (2013). At

      trial, Detective James Hawkins (Detective Hawkins), a criminal forensic

      investigator testified that after he received a call from another officer, he

      immediately drove the Wahls’ residence to investigate. He stated that the white

      metal security gate situated in the Wahls’ basement hallway had been anchored

      on the west wall. On the east wall, there were two independent anchors with

      latches for the gate to lock into. The security gate had been installed in 2003




      2
          Daniel appeals separately.


      Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 5 of 30
       and was maintained by Daniel. Detective Hawkins noted that the “top anchor”

       on the west wall appeared as if it had “been ripped out and then re-anchored

       back in.” (Tr. p. 335). On the east wall, he noted that there were a “bunch of

       wear marks at the receiving end of the top latch” and applying minor pressure

       “like a tap” would cause the gate to open. (Tr. p. 338). According to Detective

       Hawkins, the white metal security gate would not come into contact with the

       latches, and it caused the gate to swing north and south while open. He further

       testified that he learned from Daniel that there was a “wooden rocking chair []

       on the north side of the gate,” and a baby rocking swing on the south end. (Tr.

       p. 379). He added that both had been used to “keep the gate from moving

       when [the Wahls] wanted it shut.” (Tr. p. 379). The wooden rocking chair had

       “a lot of wear marks on the [] vertical rail directly adjacent to where” it would

       “make contact with the baby gate.” (Tr. p. 381).


[10]   Danny described his son as a healthy and happy baby. He testified that

       “approximately a month and a half to two months” prior to A.D.’s death, he

       was in the Wahls’ home either to drop off or pick up his children. (Tr. p. 263).

       Danny recalled that Wahl discussed A.D.’s progress with him, and he recalled

       Wahl stating that A.D. “can even push his way through the baby gate

       downstairs.” (Tr. p. 263).


[11]   The forensic pathologist who conducted A.D.’s autopsy stated that while there

       are many variables that are considered in determining how long it takes to

       asphyxiate, for small children, he indicated that it may take “approximately 90

       seconds to 120 seconds” for asphyxiation to ensue; and it would take “no more

       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 6 of 30
       than 5 minutes” for a child to die. (Tr. p. 437). At the close of the evidence,

       the jury found the Wahls guilty as charged.


[12]   Prior to sentencing, but after the jury returned a guilty verdict for the Wahls, the

       trial court received an email from Juror #7, which stated in part:

               At the start of deliberation the alternate juror started to take over
               deliberation and at that point, I interjected and went to the part in our
               paperwork that stated the alternate juror was not to have any part in
               the deliberation. From that point I felt like there was tension in the
               room between the other jurors. The reason that I feel that the alternate
               juror influenced the other jurors is because he took items out of the
               envelope and took the parts to the gate and operated the gate. I had
               emphasized to the other jurors that what we were dealing with was a
               very serious charge. I asked the other jurors if they had ever been
               incarcerated before. I told the jurors that I had been incarcerated and
               it is a life changing experience. After saying this, the alternate juror let
               out a big sigh, rolled his eyes and shook his head as if he was
               disgusted. Also, at one point, the alternate juror stood up and went to
               the [DVD] player. When he was asked what he was doing, he said he
               wanted to see a particular part in the video. He repeatedly played it
               over and over and increased the volume each time until everyone was
               watching it.


       (Court’s Exh. 1). On June 6, 2014, the trial court scheduled a hearing to

       determine the alleged jury misconduct. At the hearing, the Wahls moved for a

       mistrial and after both parties had presented their arguments, the trial court

       took the matter under advisement. On June 11, 2014, the trial court denied the

       motion. Following a sentencing hearing held on June 30, 2014, the trial court

       sentenced the Wahls to 1095 days in the Department of Correction (DOC) with

       730 days executed and placed them both on probation for 365 days. In

       addition, the trial court ordered the Wahls to jointly and severally pay the

       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015         Page 7 of 30
       DiRenzos $22,353.72 in restitution with $20,232.52 of that amount being

       Danny’s lost wages. In light of the jury misconduct, on July 29, 2014, the

       Wahls, through their appellate counsel, filed a motion to correct error and

       attached an affidavit from Juror #7 requesting the trial court to grant them a

       mistrial, or in the alternative, grant them a hearing to present evidence from

       Juror #7. Consequently, the State responded to the Wahls’ motion on August

       5, 2014, and on August 18, 2014, the trial court denied the Wahls’ motion.


[13]   Wahl now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION

                                         I. Sufficiency of the Evidence

[14]   Wahl first argues that the evidence is insufficient to sustain her conviction.

       When reviewing the sufficiency of the evidence needed to support a criminal

       conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.

       State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence

       supporting the judgment and any reasonable inferences that can be drawn from

       such evidence.” Id. We will affirm if there is substantial evidence of probative

       value such that a reasonable trier of fact could have concluded the defendant

       was guilty beyond a reasonable doubt. Id.


[15]   The version of Indiana Code Section 35-42-1-4(e) in effect at the time Wahl

       committed her crime provided that if: (1) a child care provider recklessly

       supervises a child; and (2) the child dies as a result of the child care provider’s

       reckless supervision; the child care provider commits class D felony involuntary

       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 8 of 30
       manslaughter. Conduct is reckless if the person engaged in that conduct “in

       plain, conscious, and unjustifiable disregard of harm that might result and the

       disregard involves a substantial deviation from acceptable standards of

       conduct.” I.C. § 35-41-2-2(c). As charged, to convict Wahl of involuntary

       manslaughter, the State was required to prove that Wahl recklessly supervised

       A.D. and that A.D. died as a result thereof.


[16]   Wahl argues that the evidence is insufficient to establish that she recklessly

       supervised A.D. “given her close proximity to A.D. when he went back to the

       gate moments after she had initially removed him from the gate.” (Appellant’s

       App. p. 15). The State called Vicki Allen (Allen) of the Indiana Family and

       Social Services Administration (FSSA) to testify regarding the standards

       imposed on child care providers while caring for children. Allen testified that

       according to Ind. Admin Code 3-1.1-36.5, children shall not be left unattended

       and must be “within sight or sound at all times,”—that is, to be seen “without

       obstruction and heard without obstruction.” (Tr. p. 448).


[17]   Here, the unrefuted evidence presented at trial established that, on the day in

       question, A.D. was not within Wahl’s sight or sound at all times. As stated

       above, Wahl was first alarmed by A.D.’s and the other child’s presence by the

       security gate when she heard it jingle. Wahl testified that she walked over to

       the security gate, scolded the children for playing with the security gate, and

       consequently removed them and placed them across the room. Shortly

       thereafter, Wahl returned to the kitchen to grab a bottle and pick up the baby

       she had left in the highchair. Unbeknownst to Wahl, A.D. and the other baby

       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 9 of 30
       had ventured back to the security gate. Moments later, Wahl returned to the

       gate area only to find that the security gate had been released from its latch,

       A.D. and the other baby were on the opposite end, and A.D. was wedged

       between the gate’s latch and the wall.


[18]   In addition, the State presented evidence that Wahl was aware that the gate did

       not function properly and had “placed furniture on both sides of the gate to help

       prevent the children from opening the gate.” (Appellee’s Br. p. 10). We note

       that the purpose of having a baby gate is to ensure that children do not wander

       off to unsupervised areas. Specifically, the State argues that failure to maintain

       a properly functioning gate knowing that there would be small children in the

       house capable of pushing through the gate, and the failure to make certain that

       the gate was properly latched after A.D. and other child had attempted to open

       it, is certainly an act committed in “plain, conscious, and unjustifiable

       disregard” of the harm that might result, and is indeed a “substantial deviation

       from acceptable standards of conduct,” Ind. Code section 35-41-2-2(c).


[19]   In Philips v. State, No. 29A02-1407-CR-503,___N.E.3d___ (Ind. Ct. App. Feb.

       20, 2015), we affirmed Phillips conviction for reckless homicide on the basis

       that she was consciously aware of the potential harm of placing five-month-old

       C.T. inside a broken crib with additional padding. Id. at 4. On the day C.T.

       died, Phillips had fed C.T. and because it was naptime, she placed a folded

       queen size blanket inside a broken portable crib and laid C.T. inside. Id.

       Phillips left the residence at 12:20 p.m. Shortly after 3:00 p.m., Phillips’

       mother, who operated the daycare, went to check on C.T. and found him

       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 10 of 30
       unresponsive. Id. Phillips’ mother called 911. Id. The paramedics and

       firefighters who arrived on the scene found that C.T. had no pulse and was cold

       to the touch. Id. C.T. was transported to the hospital where he was

       pronounced dead. Id. This court was unpersuaded that the jury got it wrong

       particularly because Phillips knew that the crib was broken, the crib had been

       labeled with multiple warnings instructing Phillips that it should never be used

       if there are any broken parts, and there were warnings stating that serious injury

       or death could result if such instructions were disregarded. Id. Under the

       circumstances presented, we found that a reasonable jury could infer that

       Phillips was aware of the potential harm and that she acted in conscious

       disregard of that harm when she placed C.T. for a nap in the broken crib with

       additional padding. Id. at 5.


[20]   As in Phillips, we reject Wahl’s argument that her conduct conformed to

       acceptable standard of conduct while caring for A.D. on June 20, 2013. At

       trial, Detective Hawkins pointed out that the gate did not lock into place, and it

       took insignificant effort to thrust it open. He also stated that because the gate

       did not latch properly, the Wahls had braced the gate with furniture to prevent

       it from swaying open. Moreover, there was evidence presented at trial that the

       Wahls knew that A.D. had become increasingly mobile, strong, and could

       breach the security gate. At trial, Danny stated about two months before

       A.D.’s death, Wahl admitted that A.D. could push his way through the baby

       gate downstairs. Wahl’s claim that it was a different gate is nothing but an




       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 11 of 30
       invitation for this court to reweigh the evidence, which we will not do. See

       Bailey, 907 N.E.2d at 1005.


[21]   Lastly, the State argues that the child-to-staff ratio was beyond the required

       limit and that it rose to the level of reckless supervision. We note that child-to-

       staff ratio means “the maximum number of children permitted per direct child

       care provider.” Ind. Admin. § Code 3-1.1-7.1. Pursuant to Ind. Admin. Code §

       3-1.1-36.5, the Wahls were allowed to have no more than six children from

       birth to 24 months; and at least two of the children should have been sixteen

       months old and walking. Allen testified that based on her initial investigation,

       Wahl was in charge of seven children instead of six. At a later interview, Wahl

       withdrew her prior statement and indicated that she was supervising six

       children on the day in question. Contrary to her latter statements, on appeal,

       Wahl argues that having one child over the number required is not a substantial

       deviation given her close proximity to A.D. the entire time on the day he died.

       We strongly disagree.


[22]   According to the Interpretative Guide for Child Care Home Rule (2013),

       http://www.in.gov/fssa/files/BCC_Homes_Interpretative_Guide.pdf (last

       visited May. 9, 2015), the intent of Ind. Admin. Code 3-1.1-36.5, is“[t]o provide

       for the safety and developmental needs of the children. This rule recognizes

       that ratios need to be lower for younger children and assumes that children

       younger than 24 months place special demands on a caregiver due to their need

       for individual care and attention.” We observe that the regulations were

       promulgated to ensure the health and safety of children entrusted to the care of

       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 12 of 30
       child providers. In light of this regulations objective, we find that Wahl’s

       assertion that caring for one extra child was not an excessive violation of the

       regulations must fail. Also, pursuant to the reckless statute, we find that Wahl’s

       aberration from the regulations should be considered as a substantial deviation

       from acceptable standards of conduct. See I.C. § 35-41-2-2(c).


[23]   Moreover, we note that child security gates are protective barricades designed

       to prevent young children from accessing areas in the home that might be

       unsafe. The risk of death might not be probable but it would be real and

       substantial—something more than an abstract possibility. Although Wahl

       heard A.D. by the security gate the first time, she was unaware of A.D.’s

       presence by the gate the second time, and it placed A.D. in substantial danger

       that lead to his death. The record shows that A.D. was past the security gate

       and was crawling back to the play area when he got lodged in the gate. In

       addition, we find that permitting a child to wander off and access a gate that

       could easily be breached cannot be considered acceptable conduct. In light of

       the foregoing, we find that: Wahl recklessly supervised A.D. and that A.D. died

       as a result of Wahl’s reckless supervision.


                                          II. Motion to Correct Error.

[24]   Next, Wahl argues that the trial court abused its discretion by denying her

       motion to correct error based on alleged jury misconduct. In general, a trial

       court has broad discretion to determine whether to grant or deny a motion to

       correct error. Volunteers of Am. v. Premier Auto Acceptance Corp., 755 N.E.2d 656,

       658 (Ind. Ct. App. 2001). We will reverse only for an abuse of that discretion.
       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 13 of 30
       Id. An abuse of discretion occurs if the trial court’s decision was against the

       logic and effect of the facts and circumstances before the court or if the court

       misapplied the law. Id. The trial court’s decision comes to us cloaked in a

       presumption of correctness, and the appellant has the burden of proving that the

       trial court abused its discretion. Id. In making our determination, we may

       neither reweigh the evidence nor judge the credibility of witnesses. Id. Instead,

       we look at the record to determine if: (a) the trial court abused its judicial

       discretion; (b) a flagrant injustice has been done to the appellant; or (c) a very

       strong case for relief from the trial court’s [order] . . . has been made by the

       appellant. Id.


[25]   Wahl maintains that the interference by the alternate juror during jury

       deliberations constituted impermissible extra-judicial communication. As

       mentioned earlier, prior to sentencing and after the jury returned a guilty verdict

       for the Wahls, the trial court received an email from Juror #7, who indicated

       that the alternate juror had involved himself in the jury deliberations. A

       hearing was conducted on June 6, 2014, and the Wahls moved for a mistrial.

       Subsequently, on June 11, 2014, the trial court denied the Wahls’ motion and

       stated in part:

               There is no evidence of extrajudicial jury taint because the alternate
               juror’s misconduct was in his unspoken handling of the items properly
               admitted into evidence, properly in the jury room during deliberations
               and properly able to be considered by the jury. Even if his actions may
               be considered to be extrajudicial, they were harmless . . .




       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015    Page 14 of 30
       (Appellant’s App. p. 90). Shortly after sentencing, the Wahls filed a motion to

       correct error exclusively supported by Juror #7’s affidavit reiterating the

       statements made in the prior email.


[26]   The State maintains that when a defendant seeks a new trial based on jury

       misconduct, she must show that the misconduct was (1) gross and (2) she was

       probably harmed. See Griffin, 754 N.E.2d at 901. We disagree that this is the

       correct standard of review. Most recently, our supreme court in Ramirez v.

       State, 7 N.E.3d 933, 938 (Ind. 2014), took into account the confusion involved

       when determining jury taint and sought to clarify the existing precedents. In

       particular, the court stated: “[F]ederal and Indiana precedent has narrowed the

       presumption of prejudice to apply in cases where defendants show more than

       just potential taint—but some Indiana precedent, including our own, has

       applied that presumption inconsistently. We now clarify its precise scope, and

       reiterate the proper process for trial courts to address jury taint in the

       courtroom.” Id. at 935. In clarifying the law regarding the various standards

       courts should apply on suspected jury taint, our supreme court stated:

               Defendants seeking a mistrial for suspected jury taint are entitled to the
               presumption of prejudice only after making two showings, by a
               preponderance of the evidence: (1) extra-judicial contact or
               communications between jurors and unauthorized persons occurred,
               and (2) the contact or communications pertained to the matter before
               the jury. The burden then shifts to the State to rebut this presumption
               of prejudice by showing that any contact or communications were
               harmless. If the State does not rebut the presumption, the trial court
               must grant a new trial. On the other hand, if a defendant fails to make
               the initial two-part showing, the presumption does not apply. Instead,
               the trial court must apply the probable harm standard for juror

       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015      Page 15 of 30
               misconduct, granting a new trial only if the misconduct is “gross and
               probably harmed” the defendant. Henri v. Curto, 908 N.E.2d 196, 202
               (Ind. 2009) (internal quotation marks omitted). But in egregious cases
               where juror conduct fundamentally compromises the appearance of
               juror neutrality, trial courts should skip [the] two-part inquiry, find
               irrebuttable prejudice, and immediately declare a mistrial. At all
               times, trial courts have discretion to decide whether a defendant has
               satisfied the initial two-part showing necessary to obtain the
               presumption of prejudice or a finding of irrebuttable prejudice.


       Id. at 939 (internal citations omitted). According to the test proponed in

       Ramirez, Wahl is required to show by a preponderance of the evidence that: (1)

       the alternate juror communicated with jurors without authorization; and (2)

       about the matter before the jury. We will first establish whether Wahl has met

       her initial two-part inquiry of prejudice.


                                                      A. Prejudice

[27]   It is a long-established principle in Indiana jurisprudence that a jury’s verdict

       may not be later impeached by the jurors who returned it. Ward v. St. Mary

       Med. Ctr. of Gary, 658 N.E.2d 893, 894 (Ind. 1995). The policy reasons for this

       are that “(1) there would be no reasonable end to litigation, (2) jurors would be

       harassed by both sides of litigation, and (3) an unsettled state of affairs would

       result.” Id. This principle is also set forth in Indiana Evidence Rule 606(b)

       which provides:

               Upon an inquiry into the validity of a verdict or indictment, a juror
               may not testify as to any matter or statement occurring during the
               course of the jury’s deliberations or to the effect of anything upon that
               or any other juror’s mind or emotions as influencing the juror to assent
               to or dissent from the verdict or indictment or concerning the juror’s


       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015      Page 16 of 30
               mental processes in connection therewith, except that a juror may
               testify (1) to drug or alcohol use by any juror, (2) on the question of
               whether extraneous prejudicial information was improperly brought to
               the jury’s attention or (3) whether any outside influence was
               improperly brought to bear upon any juror.



       Thus, a rebuttable presumption of prejudice will arise if jurors engage in

       misconduct by out-of-court communications with unauthorized persons. Spears

       v. State, 811 N.E.2d 485, 488 (Ind. Ct. App. 2004). In Griffin, our supreme

       court explained that an alternate juror is not a member of the jury, “and he or

       she qualifies as an outside influence under Rule 606(b).” Griffin, 754 N.E.2d at

       903. Lastly, we note that when evaluating jury misconduct, we consider juror

       affidavits to the extent they assert the deliberations were tainted by improper

       influence. Majors v. State, 773 N.E.2d 231, 234 n. 1 (Ind. 2002).


[28]   Here, the jury was instructed that the “alternate will be with you in the room

       but is not permitted in your deliberations or verdict.” (Appellant’s App. p. 66).

       According to Juror #7’s affidavit, after the jury retired to the jury room and

       contrary to the trial court’s instructions, the alternate began leading the jury in

       the discussions. After been asked to withdraw, he proceeded to test and

       experiment with the white metal security gate while discussions were ongoing.

       In addition, the alternate juror repeatedly replayed a video which led the jurors

       to interrupt their discussions and watch a particular portion of the video. From

       the foregoing, it is clear that the alleged communication—both spoken and

       unspoken—constituted impermissible communication barred under Rule

       606(b), and it related to a matter before the jury. Having established that Wahl

       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015    Page 17 of 30
       met her burden pursuant to Ramirez, the burden now shifts to the State to show

       that the alternate juror’s out-of-court communication was harmless.


               B. Whether the Out-of-Court Communication by the Alternate Juror was
                                             Harmless

[29]   The State maintains that it rebutted the presumption of prejudice since the

       evidence of the alleged misconduct amounts to “harmless childish behavior.”

       (Appellee’s Br. p. 16). Specifically, the State argues that according to Juror #7

       affidavit, “it appears that the alternate refrained from speaking with the other

       jurors once it was pointed out to him that he was not to participate in the

       deliberations. (Appellee’s Br. p. 17). In addition, the State argues that all the

       “alternate juror allegedly did was play with properly admitted evidence during

       the deliberations.” (Appellee’s Br. p. 14).


[30]   We note that the test for harmless error is not whether there was substantial

       evidence of the defendant’s guilt but whether the error contributed to the

       verdict. Hall v. State, 796 N.E.2d 388, 396–97 (Ind. Ct. App. 2003), trans.

       denied. As noted above, the jury was admonished before retiring and they were

       well aware that the alternate juror was not to take part in the discussions. Also,

       the trial court tendered an instruction, reminding the jurors that their verdict

       must be based solely on the evidence presented at trial. We must presume that

       the jury followed the trial court’s instructions. Harris v. State, 824 N.E.2d 432,

       440 (Ind. Ct. App. 2005). See also Henriquez v. State, 973 N.E.2d 1154 (Ind. Ct.

       App. 2012) (noting that juries tend to monitor themselves pretty well and that if



       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 18 of 30
       the alternate is trying to deliberate, the other jurors would stop him or bring it

       to the court’s attention) trans. denied.


[31]   Here, Juror #7 advised the alternate juror to cease and desist from discussions,

       and we presume that the other jurors were attentive of that warning. Because

       we find that the jury was obviously aware that the alternate juror was not meant

       to participate in the discussions, any transient comments that the alternate juror

       made at the commencement of the jury deliberations or his curiosity to

       experiment with the exhibits admitted into evidence, did not introduce new

       material into deliberations that was not already known by the jury from the trial

       itself. On these facts, it is plain to us that, while Wahl may have met her initial

       burden, the State rebutted the alleged misconduct, and without more, we

       cannot say that the trial court abused its discretion in denying Wahl’s motion to

       correct error.


                                            III. Inappropriate Sentence


[32]   Next, Wahl argues that her sentence was inappropriate in light of the nature of

       the offense and her character. Indiana Appellate Rule 7(B) 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.” The burden is on the

       defendant to persuade the appellate court that his or her sentence is

       inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       “Ultimately the length of the aggregate sentence and how it is to be served are


       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 19 of 30
       the issues that matter.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

       Whether we regard a sentence as appropriate at the end of the day turns on our

       sense of the culpability of the defendant, the severity of the crime, the damage

       done to others, and a myriad of other considerations that come to light in a

       given case. Id.


[33]   The advisory sentence is the starting point the legislature has selected as an

       appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016,

       1019 (Ind. 2012). At the time of his sentencing, the advisory sentence for a

       Class D felony was one-and-one-half years, with a minimum of six months and

       a maximum of three years. Here, the trial court imposed the maximum

       sentence but suspended one year to probation. In arriving at this sentence, the

       trial court found as mitigating circumstance the fact that Wahl had no criminal

       history at the time. However, the trial court found the nature of the offense and

       the fact that the victim was “less than 12 years of age” to be an aggravating

       circumstance. (Tr. p. 852). See Kile v. State, 729 N.E.2d 211, 214 (Ind. Ct. App.

       2000) (holding that the trial court did not err in using the particularized factual

       circumstances of the case—namely the victim’s age—as an aggravating factor).


[34]   As for the nature of the offense, Wahl argues that she “was not asleep or on

       another floor of the house; she was [a mere] 8-10 feet away from A.D.”

       (Appellant’s Br. p. 23). She further argues that a portion of the security gate

       was “visible from the [] kitchen” and she had just been able to overhear A.D.

       and another child jingle the gate minutes before. To her defense, she argues

       that the moment she observed A.D. stuck in the gate, she quickly removed him

       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 20 of 30
       from danger and began performing CPR. We are not persuaded by Wahl’s

       arguments. At trial, the forensic pathologist testified that for young children

       such as A.D., it may take “approximately 90 seconds to 120 seconds” for

       asphyxiation to ensue; and it would take “no more than 5 minutes” for a child

       to die. (Tr. p. 437). Moreover, as discussed in the foregoing, as a child care

       provider, Wahl was to keep A.D. within sight or sound at all times. The record

       reveals that the security gate did not latch properly and A.D. had successfully

       breached the gate. As such, Wahl’s argument that A.D. was just 8-10 feet

       away, does not alter the fact that A.D. wandered off to an unsupervised area,

       and within minutes, his neck got stuck in a defective gate that triggered his

       death.


[35]   Turning to Wahl’s character, we note that she has led a law-abiding life prior to

       the events of June 20, 2013. At her sentencing hearing, Wahl presented twenty

       -three letters from friends and families who attested that she was a generous and

       loving person as well a good Christian. Though we find that her good character

       is indeed redeeming, it does not alter the seriousness of the charged offense.

       Wahl recklessly supervised A.D., and he died under her care. After due

       consideration of the evidence presented at trial, we cannot say that the sentence

       imposed by the trial court is inappropriate.


                                                  IV. Restitution

[36]   Finally, Wahl contends that the trial court abused its discretion in ordering that

       she jointly and severally pay $20,237.52 in restitution to the DiRenzos for

       Dannny’s lost wages. At the sentencing hearing, Danny stated that he had
       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 21 of 30
       missed a total of 53 days of work due to A.D.’s death. We reverse a trial court’s

       order to pay restitution only for an abuse of discretion. Gil v. State, 988 N.E.2d

       1231, 1234 (Ind. Ct. App. 2013). A trial court abuses its discretion if its

       “decision is clearly against the logic and effects of the facts and circumstances

       before it” or if it “misinterprets or misapplies the law.” Id.


[37]   Indiana Code section 35-50-5-3(a) provides, in relevant part, that “in addition to

       any sentence imposed under this article for a felony or misdemeanor, the court

       may . . . order the person to make restitution to the victim of the crime[.]”

       When such an order is entered, it must be based upon a consideration of:

               (1) property damages of the victim incurred as a result of the crime,
               based on the actual cost of repair (or replacement if repair is
               inappropriate);
               (2) medical and hospital costs incurred by the victim (before the date of
               sentencing) as a result of the crime;
               (3) the cost of medical laboratory tests to determine if the crime has
               caused the victim to contract a disease or other medical condition;
               (4) earnings lost by the victim (before the date of sentencing) as a result
               of the crime including earnings lost while the victim was hospitalized
               or participating in the investigation or trial of the crime; and
               (5) funeral, burial, or cremation costs incurred by the family or estate
               of a homicide victim as a result of the crime.




       Id. An order of restitution is as much a part of a criminal sentence as a fine or

       other penalty. Kotsopoulos v. State, 654 N.E.2d 44, 46 (Ind. Ct. App. 1995). It is

       well established that the restitution order must reflect the actual loss sustained

       by the victim. Smith v. State, 471 N.E.2d 1245, 1248 (Ind. Ct. App. 1984), trans.

       denied. The amount of actual loss is a factual matter, which can be determined
       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015       Page 22 of 30
       only upon presentation of evidence. Id. A restitution order must reflect a loss

       sustained by the victim as a direct and immediate result of the defendant’s

       criminal acts, and the trial court may consider only expenses incurred by the

       victim prior to the date of sentencing. Rich v. State, 890 N.E.2d 44 (Ind. Ct.

       App. 2008), trans. denied.


[38]   Here, Wahl argues that although Danny “presented documentation for his

       requested loss of wages” none of them explained why he missed work for a

       total of 53 days. (Appellant’s Br. p. 28). In response, the State maintains that

       Wahl failed to lodge an objection to that amount. After reviewing the

       transcript, we agree with the State that Wahl did not specifically object to the

       payment of Danny’s loss of wages. Also, our review of the record reveals that

       Wahl did not lodge any objection at the sentencing hearing or the trial court’s

       consideration of the documents that Danny submitted for his loss of wages

       before the sentencing hearing.


[39]   “Generally, failure to object to an award of restitution constitutes waiver of a

       challenge to the award on appeal, unless a defendant argues that the award was

       fundamentally erroneous and in excess of statutory authority.” Morris v. State, 2

       N.E.3d 7, 9 (Ind. Ct. App. 2013), opinion on reh’g. “[A] defendant’s failure to

       make a specific and timely objection to the trial court’s receipt of evidence

       concerning the amount of restitution constitutes waiver of the issue on appeal.”

       Id. Waiver notwithstanding, we recognize the vast weight of case law in this

       state indicates that appellate courts will review a trial court’s restitution order

       even where the defendant did not object based on the rationale that “a

       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 23 of 30
       restitution order is part of the sentence, and ‘it is the duty of the appellate courts

       to bring illegal sentences into compliance.’” Cherry v. State, 772 N.E.2d 433,

       440 (Ind. Ct. App. 2002) (quoting Golden v. State, 553 N.E.2d 1219, 1223–24

       (Ind. Ct. App. 1990), trans. denied)).


[40]   A.D. died on June 20, 2013, and Danny took time off work to grieve the loss of

       his son. According to the pre-sentence investigation report, Danny missed

       work from June 21 through August 30, 2013. He was also absent for two days

       from May 13-14, 2014, to attend the Wahls’ trial. Lastly, Danny missed a day

       of work on June 12, 2014, to attend the sentencing hearing. At the sentencing

       hearing, Danny testified that even though he was compensated while on leave,

       given that he used up his leave days meant that he lost income of $ 20,237.52

       which he would have netted upon retirement. Danny is a federal employee and

       has been for the past sixteen years. Under 5 U.S.C. § 5551(a), federal

       employees who are separated from service are entitled to receive a lump sum

       payment for the annual leave that they have accrued but not taken. We note

       that had Danny not been forced to expend his annual leave, he would have

       been entitled to a lump-sum cash payment for any unused leave in the event of

       retirement as federal employee pursuant to 5 U.S.C. § 5551. In light of the

       foregoing, the trial court properly ordered restitution for loss of wages.


                                                 CONCLUSION

[41]   Based on the foregoing, we conclude that (1) there was sufficient evidence to

       support Wahl’s conviction for involuntary manslaughter; (2) the trial court did

       not abuse its discretion in denying Wahl’s motion to correct error based on jury
       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 24 of 30
       misconduct; (3) Wahl’s sentence is appropriate; and (4) the trial court did not

       abuse its discretion in ordering restitution.


[42]   Affirmed.


[43]   Barnes, J. concurs


[44]   Bailey, J. dissents with separate opinion




       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 25 of 30
                                                    IN THE
           COURT OF APPEALS OF INDIANA

       Saundra S. Wahl,
       Appellant-Defendant,

               v.                                                 Court of Appeals Case No.
                                                                  29A04-1409-CR-418
       State of Indiana,
       Appellee-Plaintiff.




       Bailey, Judge, dissenting.

[45]   I respectfully dissent, because cumulative error denied Wahl a fair trial. I am

       convinced that the alternate juror crossed a line in his persistent efforts to

       influence the duly-selected jurors. Even more egregious, Wahl’s Involuntary

       Manslaughter conviction was achieved by merging regulatory concepts into the

       definition of recklessness as set forth by our Legislature in the Criminal Code.

       Administrative code provisions, State’s Exhibit 65, were submitted as




       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015              Page 26 of 30
       “evidence.”3 The practical effect, however, was that the provisions were used

       to supplement the trial court’s instruction on the law and the jury was, in

       essence, invited to impose a form of strict criminal liability for a child care

       provider’s non-compliance with provisions of an administrative code. In light

       of the very tragic events, the jury complied.


[46]   A criminal conviction absent proof beyond a reasonable doubt on each element

       of the charged crime amounts to fundamental error. In re Winship, 397 U.S.

       358, 361, 90 S.Ct. 1068 (1970). The State charged that Wahl recklessly

       supervised A.D. and thereby violated Indiana Code Section 35-42-1-4(e), which

       at that time provided: “If: (1) a child care provider recklessly supervises a

       child; and (2) the child dies as a result of the child care provider’s reckless

       supervision; the child care provider commits involuntary manslaughter, a Class

       D felony.” Indiana’s Criminal Code provides that one acts recklessly “if he

       engages in the conduct in plain, conscious, and unjustifiable disregard of harm

       that might result and the disregard involves a substantial deviation from

       acceptable standards of conduct.” I.C. § 35-41-2-2(c).




       3
        Pursuant to Indiana Evidence Rule 401, relevant evidence is that which “has any tendency to make a fact,
       more or less probable than it would be without the evidence, and the fact is of consequence in determining the
       action. (emphasis added.)

       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015                       Page 27 of 30
[47]   The theory of prosecution was that non-conformance with regulatory standards

       (one too many children or improper maintenance) is necessarily “a substantial

       deviation from acceptable standards of conduct” as an element of the charged

       crime. The State offered as an exhibit the language of Indiana Administrative

       Code Section 3-1.1-36.5 (setting forth the child to staff ratio and stating that

       children are to be supervised at all times) and asked Vicki Allen to explain or

       define “supervision” within the meaning of the regulatory provision. When

       asked “what does that mean,” she responded: “The children need to be within

       sight or sound at all times.” (Tr. 448.)


[48]   Subsequently, in closing argument, the State invited the jurors to convict Wahl

       on this basis:

               Twenty month old [A.D.] died on June 20, 2013 because of the
               reckless supervision of Saundra and Daniel Wahl. He was playing
               outside of the sight or hearing of Saundra Wahl when Saundra was
               supervising too many infants in addition to [A.D.]. And he and
               another child breeched the gate – this gate – that was maintained by
               Daniel Wahl, and he died in that gate.


       (Tr. 675.) (emphasis added.) In discussing the elements of the crime, the

       Prosecutor read the statutory definition of “recklessness” (including its

       reference to acceptable standards of conduct), and then supplemented the

       definition with reference to Allen’s testimony:

               First, what were the acceptable standards of conduct? Well, Vicki
               Allen described what the minimum State standards were. You can
               exceed those standards, but that’s the minimum. . . . They would
               round up [child ages]. Their supervision they felt was good enough.
               The gate was good enough. Well, it’s not good enough. It’s not
       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015      Page 28 of 30
               sufficient. And it wasn’t just in one area. . . . We know what the
               standards are for supervision. We have two of those. There’s in sight or
               hearing, and there’s the child-to-staff ratio. The Wahls didn’t meet either
               of those.


       (Tr. 678-79.) (emphasis added.)


[49]   In short, the State engrafted language from a regulatory scheme into the

       Criminal Code, such that “a substantial deviation from acceptable standards of

       conduct” became “a substantial deviation from child care provider standards.”

       This invaded the province of the jury whose duty it was to determine whether

       conduct was so substantial in its deviance that it amounted to criminal reckless

       conduct.


[50]   The State should indeed insist upon high standards for child care providers.

       That said, it is perplexing that the Prosecution – and the State on appeal –

       appear satisfied that any failing to provide the best possible care amounts to

       criminal conduct. The State’s brief urges: “When it comes to the care of

       children in a for-profit day care facility, any deviation from the required

       regulations should be considered a substantial deviation from acceptable

       standards of conduct.” (State’s Br. at 10.) This may well be true in a civil

       context, but we are here concerned with a criminal substantial deviation from

       acceptable standards of conduct. It is also troubling that the State urges

       affirmance of a criminal conviction because of the “child-to-staff ratio” and

       “fail[ure] to insure that the child gate functioned properly and safely.” (State’s




       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015             Page 29 of 30
       Br. at 10.) I feel compelled to observe that such “criminal” conduct was not

       specifically charged in the Involuntary Manslaughter charging information.


[51]   In all conduct subject to regulation by this State, such as the operation of a

       business or profession, there is potential for negligence, gross negligence, or

       criminality. Individuals frequently fall short of the standards set by regulatory

       schemes. This can, and should, result in penalties such as warnings, revocation

       of licenses, fines, or other penalties of a civil nature. Egregious conduct can,

       and should, result in the bringing of criminal charges. However, in those

       situations, the conduct proscribed is that defined by our Legislature in the

       Criminal Code and the jury is the arbiter of community standards. A jury of

       one’s peers is entrusted with the determination of whether the accused acted in

       a manner that is so removed from acceptable community standards that he or

       she should be convicted of a felony and locked away from society.


[52]   In my opinion, Wahl’s conviction was not a product of constitutionally

       adequate proceedings and amounts to fundamental error. Accordingly, I

       respectfully dissent.




       Court of Appeals of Indiana | Opinion [ 29A04-1409-CR-418 | June 30, 2015   Page 30 of 30
