Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                           Jan 20 2015, 9:22 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

JEFFREY P. LITTLE                                  GREGORY F. ZOELLER
Power, Little, Little & Little                     Attorney General of Indiana
Frankfort, Indiana
                                                   CHRISTINA D. PACE
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

HEATHER L. MCDANIEL,                               )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 12A05-1405-CR-223
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE CLINTON SUPERIOR COURT
                          The Honorable Justin H. Hunter, Judge
                             Cause No. 12D01-1308-FD-752



                                        January 20, 2015


                 MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                    CASE SUMMARY

       On August 7, 2013, Appellant-Defendant Heather McDaniel and her co-workers went

to a Lebanon bar after work and had several alcoholic drinks. McDaniel had taken Xanax

pills earlier in the day and she became extremely intoxicated. While attempting to drive

home, McDaniel swerved off the road and struck two children head on. The victims suffered

life-threatening injuries and were immediately flown to Indianapolis-area hospitals via

medical helicopter. McDaniel pled guilty to two counts of Class D felony causing serious

bodily injury while operating a vehicle while intoxicated. The trial court imposed a three

year sentence on each count, to be served consecutively, with a total of five years executed at

the Department of Correction and one year suspended to probation. McDaniel argues (1) that

the trial court abused its discretion in sentencing her, and (2) that her sentence is

inappropriate in light of the nature of the offense and character of the offender. We affirm.

                       FACTS AND PROCEDURAL HISTORY

        On August 7, 2013, McDaniel worked in Lebanon from approximately 6:50 a.m.

until 3:25 p.m. McDaniel had taken a Xanax pill around 6:00 a.m. before leaving for work,

and another at lunch, sometime between noon and 1:00 p.m. After leaving work, McDaniel

met with co-workers at a Lebanon bar called the Warehouse. McDaniel did not recall exactly

how much she drank, although she remembers drinking beer and a banana-flavored mixed

drink. McDaniel became intoxicated and attempted to drive home.

       On her way home, McDaniel swerved onto the shoulder of the road and struck two

children with her vehicle. The children, brother and sister S.D. and M.D., were riding their

                                              2
bikes home at the time. When law enforcement officers arrived at the scene, they observed

that McDaniel had an odor of alcohol, slurred speech, glassy and bloodshot eyes, slow

manual dexterity, and unsteady balance. Officers could not conduct a field sobriety test on

McDaniel because she could not stand on her own. The preliminary blood test indicated that

McDaniel had a blood alcohol content (BAC) of 0.21 and a Breathalyzer test indicated a

BAC of 0.14. Officers found a pill bottle in McDaniel’s glove compartment labeled Nicole

Barnes (the daughter of McDaniel’s friend and coworker). The bottle was labeled to contain

Ciprodex otic suspension but instead contained forty-six Xanax pills. McDaniel admitted

that the pills were not hers.

       As a result of the accident, M.D and S.D. were transported to Indianapolis-area

hospitals via medical helicopter. M.D. was transported to St. Vincent’s Hospital where she

underwent a ten-hour surgery and blood transfusion to treat her injuries. M.D. had a ripped

carotid artery, lacerated spleen, broken wrists, broken legs, compound fractures in her face,

eight broken teeth, and was in a coma. S.D. was transported to Riley Hospital where he was

treated for a broken wrist, broken hands and fingers, and a broken femur on his growth plate.

       As a result of their injuries, the children have had significant long-term damage. Due

to the damage to her legs, M.D. has difficulty walking and cannot run, climb stairs, get up by

herself, or get on her knees. M.D. had significant scarring on her face and, at the time of the

sentencing hearing, was waiting for a plastic surgeon to determine what procedures would be

available to repair the facial damage. As a result of the damage to the growth plate in S.D.’s

leg, his leg has quit growing, and he will require more surgeries to attempt to repair the

                                              3
damage. Doctors told S.D. that he will no longer be able to play sports.

       The State charged McDaniel with two counts of Class D felony causing serious bodily

injury while operating a motor vehicle while intoxicated, two counts of Class D felony

causing serious bodily injury when operating a motor vehicle with an ACE of .08 or more,

and one count of Class D felony possession of a controlled substance. McDaniel pled guilty

to two counts of Class D felony causing serious bodily injury while operating a vehicle while

intoxicated and the remaining charges were dismissed.

       At the sentencing hearing, the trial court identified the following aggravating factors:

(1) McDaniel has an alcohol-related criminal history1, (2) McDaniel did not respond to the

leniency of prior courts in sentencing, (3) the degree of McDaniel’s intoxication and

recklessness was severe, and (4) the victims suffered “horrific injuries” which far exceeded

the elements necessary to prove the crime. Tr. 103. As mitigating factors, the court found (1)

McDaniel pled guilty, (2) sought out counseling on her own, and (3) is remorseful. The trial

court imposed a three-year sentence for each count, to be served consecutively, with a total of

five years executed and one year suspended to probation.

                             DISCUSSION AND DECISION

       McDaniel claims that the trial court abused its discretion in crafting her sentence and

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

offender.

                                    I. Abuse of Discretion



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                As long as the sentence is within the statutory range, it is subject to
        review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482,
        490 (Ind. 2007), aff’d on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of
        discretion occurs if the decision is clearly against the logic and effect of the
        facts and circumstances before the court, or the reasonable, probable, and
        actual deductions to be drawn therefrom. Id. One way in which a trial court
        may abuse its discretion is by failing to enter a sentencing statement at all. Id.
        Another example includes entering a sentencing statement that explains
        reasons for imposing a sentence, including aggravating and mitigating factors,
        which are not supported by the record. Id. at 490-91.
                Because the trial court no longer has any obligation to weigh
        aggravating and mitigating factors against each other when imposing a
        sentence, a trial court cannot now be said to have abused its discretion by
        failing to properly weigh such factors. Id. at 491.

Sharkey v. State, 967 N.E.2d 1074, 1078 (Ind. Ct. App. 2012).

        McDaniel contends that the trial court abused its discretion in crafting her sentence by

(1) using an element of the charged offense as an aggravating factor, (2) failing to provide a

proper sentencing statement which explained the aggravating and mitigating factors, (3)

using her previous alcohol related offenses as aggravators, and (4) not allocating enough

weight to the given mitigating factors2.

                        A. Use of an Element of the Crime as an Aggravator

        McDaniel claims that the trial court abused its discretion by considering the extent of

the victims’ injuries as an aggravator. Indiana Code section 35-38-1-7.1 states

        (a) In determining what sentence to impose for a crime, the court may consider
        the following aggravating circumstances:
        (1) The harm, injury, loss, or damage suffered by the victim of an offense was:

        1
           In 2000, McDaniel was convicted of operating while intoxicated, and in 2011, she was convicted of
public intoxication.
         2
           We do not address this final argument as it is not a cognizable claim on appeal. As mentioned in
Section I, “a trial court cannot now be said to have abused its discretion by failing to properly weigh
[aggravating and mitigating] factors.” Anglemyer, 868 N.E.2d at 491.
                                                     5
              (A) significant; and
              (B) greater than the elements necessary to prove the commission of the
              offense.

According to the statute, consideration of the victims’ injuries as an aggravator was permitted

in this case. As discussed above, the children suffered life-threatening, permanent injuries

which far exceeded the necessary elements of the crime. The elements of causing serious

bodily injury when operating a motor vehicle while intoxicated are: (1) a person causes

serious bodily injury to another, (2) while operating a vehicle, (3) with a BAC of at least

0.08. Ind. Code § 9-30-5-4. “‘Serious bodily injury’ means bodily injury that creates a

substantial risk of death or that causes: (1) serious permanent disfigurement, (2)

unconsciousness; (3) extreme pain; (4) permanent or protracted loss or impairment of the

function of a bodily member or organ; or (5) loss of a fetus.” Ind. Code § 35-31.5-2-292.

The victims’ injuries were grave enough to meet every condition listed in Section 35-31.5-2-

292, with the exception of (5). Clearly, these injuries are greater than the elements necessary

to prove the commission of the offense, and so the trial court did not abuse its discretion in

considering them as aggravating factors.

                                    B. Sentencing Statement

       McDaniel claims that the trial court failed to provide a proper sentencing statement.

The trial court’s sentencing statement must “include a reasonably detailed recitation of the

trial court’s reasons for imposing a particular sentence. If the recitation includes a finding of

aggravating or mitigating circumstances, then the statement must identify all significant

mitigating and aggravating circumstances and explain why each circumstance has been

                                               6
determined to be mitigating or aggravating.” Anglemyer, 868 N.E.2d at 491.

       McDaniel argues that the trial court erred when it failed to explain why it found

certain factors to be mitigating. Specifically, McDaniel argues that the trial court should

have explained why it found the following factors mitigating: that McDaniel pled guilty, that

she was remorseful and accepted responsibility for her crimes, and that she sought out

counseling without court order before pleading guilty. The mitigating nature of these

circumstances is patently obvious and requires no explanation. See Francis v. State, 817

N.E.2d 235, 237 n. 2 (Ind. 2004) (“a sentencing court is inherently aware of the fact that a

guilty plea is a mitigating circumstance”). In such cases, it is not necessary for the trial court

to explain the reasons for finding a particular factor mitigating.

                         C. Using Previous Convictions as Aggravators

       McDaniel argues that it was inappropriate for the trial court to use her prior record as

an aggravator. Indiana Code section 35-38-1-7.1 provides as follows: “In determining what

sentence to impose for a crime, the court may consider the following aggravating

circumstances: … The person has a history of criminal or delinquent behavior.” Section 35-

38-1-7.1 also states that the court may consider as a mitigating factor that “[t]he person has

no history of delinquency or criminal activity, or the person has led a law-abiding life for a

substantial period before commission of the crime.”

       McDaniel argues that she has led a law-abiding life for a substantial period of time.

The trial court addressed this argument in its sentencing statement. Although McDaniel’s

previous conviction for operating while intoxicated occurred nearly thirteen years prior to

                                                7
this case, the trial court found that her conviction for public intoxication in 2011 indicated

that there had been no change in McDaniel’s attitude, character, or desire to behave any

differently. As such, McDaniel is essentially arguing that the trial court did not properly

weigh the aggravating and mitigating factors. As we mentioned above, this is not a

cognizable claim on appeal. Anglemyer, 868 N.E.2d at 491.

                               II. Appropriateness of Sentence

       “Ind. Appellate Rule 7(B) empowers us to independently review and revise sentences

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

inappropriate in light of the nature of the offense and the character of the offender.”

Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013) trans. denied. “An appellant

bears the burden of showing both prongs of the inquiry favor revision of her sentence. Id.

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

       In Anderson, we found that the appellant waived her Rule 7(B) argument because she

argued on appeal “only the ‘character’ prong and not the ‘nature of the offense’ prong.” Id.

McDaniel only argues that her sentence was inappropriate based on her character and has

made no arguments as to the nature of the offense. As such, she has waived any argument in

this regard.

       Waiver notwithstanding, McDaniel’s argument still fails. In reviewing the first prong

of the appropriateness inquiry, McDaniel’s conduct was nothing short of egregious and

clearly exceeds the elements of the charged offense. The degree of McDaniel’s intoxication

makes her decision to drive exceptionally reckless. Based on the two blood alcohol tests, her

                                              8
BAC was somewhere between 0.14 and 0.21, roughly two or two-and-a-half times the legal

limit. Furthermore, she chose to drink alcohol knowing she had taken at least two Xanax

pills earlier in the day. As a result, McDaniel was so intoxicated she could not stand on her

own while officers were questioning her, she did not know she was intoxicated until she

“woke up in jail,” and she did not remember driving her car or the accident. Tr. 63. In

addition, the extent of the injuries suffered by the victims far exceeds the minimum necessary

to establish the serious bodily injury element of the crime. The children have suffered

permanent, life-altering injuries, both physical and psychological. Considering the severity

of their injuries, it is nothing short of a miracle that both are alive. In light of these facts,

McDaniel’s conduct undoubtedly justified an enhanced sentence.

       As for her character, McDaniel had two prior convictions for alcohol-related offenses.

McDaniel admitted to having an alcohol dependency and yet, even in light of the problems it

caused, she did nothing to change her pattern of reckless behavior. Instead, she allowed the

problem to escalate to the point at which she endangered others and ultimately, and

tragically, injured two children. Accordingly, we have found nothing to suggest that

McDaniel’s sentence is inappropriate based on the nature of her offense or character.

       The judgment of the trial court is affirmed.

NAJAM, J., and MATHIAS, J., concur.




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