MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                      May 25 2017, 9:22 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Barbara Jo Woolley,                                     May 25, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        83A05-1612-CR-2765
        v.                                              Appeal from the Vermillion Circuit
                                                        Court
State of Indiana,                                       The Honorable Bruce V. Stengel,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        83C01-1510-F3-6



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 83A05-1612-CR-2765 | May 25, 2017     Page 1 of 9
[1]   Barbara Jo Woolley appeals the sentence imposed by the trial court after

      Woolley pleaded guilty to four counts of Level 3 Felony Neglect of a

      Dependent. Woolley argues that the trial court erred in ordering consecutive

      sentences and by finding an improper aggravating factor. Finding no error, we

      affirm.


                                                    Facts
[2]   In September 2013, Woolley lost her job as a licensed practical nurse at a

      nursing home. Because of the loss of income, she and her ex-husband, Gordon,

      moved in with her son, John; John’s wife, Danielle; and John and Danielle’s

      four children—J.W. (age eight), C.W. (age five), S.W. (age four), and A.W.

      (age two).


[3]   On October 16, 2015, the Department of Child Services (DCS) received a report

      alleging that the Woolley home was dirty. When DCS workers and law

      enforcement entered the residence, they encountered a scene that was described

      as “the worst neglect case” they had ever seen. Sent. Tr. p. 32-43, 54. Police

      officers documenting the scene required respirators, disposable foot covers, and

      gloves for their safety, especially in the upstairs of the home.


[4]   The home had a strong odor of urine and feces. S.W. and A.W. were found

      upstairs in cribs in the master bedroom. The room was cluttered, dark, and

      dirty. Feces were smeared on the wall behind S.W.’s crib. A.W. appeared

      dirty. Four-year-old S.W. had wrist bones as small as an infant’s and his skin

      had a yellow tint. Five-year-old C.W. was in the adjacent room, which

      Court of Appeals of Indiana | Memorandum Decision 83A05-1612-CR-2765 | May 25, 2017   Page 2 of 9
      contained only a toddler mattress on the floor. She appeared to be very

      malnourished. Eight-year-old J.W. was found in another room that was locked

      from the outside. He slept in a wooden bed frame with no mattress, box spring,

      or pillows. Everything in the room—including every wall, the ceiling, the

      “bed,” the blankets, and the floor—was smeared with feces. The feces on the

      floor had been there so long that they were smoothed over from being walked

      on over time. Even the items that J.W. used to eat—his bowl, plate, and sippy

      cup—were covered in feces. The room had no toys, and the windows were

      boarded up with plywood.


[5]   All four children lacked proper hygiene and were suffering from varying degrees

      of malnutrition and dehydration. None of the children were potty-trained,

      none of them could communicate, and none of them even recognized one

      another. Their physical condition was appalling: J.W. had fecal matter on his

      legs, under his fingernails, and under his toenails; S.W. had fleas and fecal

      matter on his body; C.W. had head lice and fleas on her; and J.W. and A.W.

      had bug bites on their bodies. All the children were pale, had yellow-tinted

      skin, and would not eat normal food for their ages. Only J.W. could eat solid

      food; the other children ate only baby food because they did not know how to

      chew or swallow solids. S.W. was so emaciated that his ribs and hip bones

      were visible. At the age of four years, he weighed only 22.3 pounds.


[6]   None of the children had seen a doctor since they were born except for J.W.,

      who had been to a doctor once when he was three years old. None of the



      Court of Appeals of Indiana | Memorandum Decision 83A05-1612-CR-2765 | May 25, 2017   Page 3 of 9
      children had been outside in over a year. Some of the neighbors did not even

      know that children lived at that residence.


[7]   The children’s guardian ad litem, an attorney who had been serving as a

      guardian ad litem for twenty-two years, later described C.W. and S.W. as

      looking “like Holocaust survivors” and said that the children “were all like no

      other children that [she] had ever seen.” Sent. Tr. p. 17-19. The guardian ad

      litem summarized their condition as follows:


              All the children suffer from health issues along with indescribable
              mental and functional impairments . . . . These children never
              saw the sunshine, the grass, felt the snow, experienced the
              warmth of loving arms. Instead they were kept in rooms and
              cribs like caged animals. Diapers, sewage and filth was
              throughout the house. The children didn’t even have the
              consolation of each other. None expressed any recognition of
              their siblings. They were deprived of food, health care, love and
              stimulation. They don’t even cry when upset, likely because it
              has never elicited a response so why bother.


      Appellant’s App. Vol. II p. 203.


[8]   While Woolley’s grandchildren were confined upstairs, she regularly left the

      home to attend classes at Ivy Tech Community College, where she was enrolled

      in the education program. As part of her coursework, she learned about child

      and adolescent development and the duty to report child abuse and neglect.

      Woolley went upstairs daily to see the children and babysat the children more

      than once. She admitted that the children had been downstairs only two or

      three times in the two years she had lived in the residence.

      Court of Appeals of Indiana | Memorandum Decision 83A05-1612-CR-2765 | May 25, 2017   Page 4 of 9
[9]    On October 30, 2015, the State charged Woolley with four counts of Level 3

       felony neglect of a dependent. She pleaded guilty as charged on July 20, 2016.

       On August 11, 2016, the trial court sentenced Woolley to consecutive terms of

       sixteen years for the neglect of J.W. and nine years each for the neglect of the

       other three children—an aggregate term of forty-three years imprisonment. She

       now appeals.


                                    Discussion and Decision
                                   I. Consecutive Sentences
[10]   Woolley first argues that the trial court erred by imposing consecutive

       sentences. Trial courts may only impose consecutive sentences within the

       bounds of the statutory sentencing scheme. Ind. Code § 35-50-1-2; Wilson v.

       State, 5 N.E.3d 759, 762 (Ind. 2014). Because neglect of a dependent is not

       listed as a “crime of violence,” Woolley’s offenses are subject to a statutory cap

       if they arise from a single episode of criminal conduct. I.C. § 35-50-1-2.

       Whether multiple offenses constitute a single episode of criminal conduct is a

       factually sensitive inquiry to be made by the trial court. Schlichter v. State, 779

       N.E.2d 1155, 1157 (Ind. 2002). In conducting this analysis, the focus is on the

       timing of the offenses and the simultaneous and contemporaneous nature of the

       crimes. Reed v. State, 856 N.E.2d 1189, 1200-01 (Ind. 2006).


[11]   Woolley’s offenses do not constitute a single episode of criminal conduct. First,

       her crimes involve four separate children. See, e.g., Pittman v. State, 885 N.E.2d

       1246, 1259 (Ind. 2008) (holding that “[c]onsecutive sentences reflect the

       Court of Appeals of Indiana | Memorandum Decision 83A05-1612-CR-2765 | May 25, 2017   Page 5 of 9
       significance of multiple victims”). Furthermore, the children each suffered

       daily neglect over a period of two years. In other words, an individual crime

       was committed against each child victim every day for two years. It is readily

       apparent that these crimes do not constitute a single episode of criminal

       conduct.


[12]   The trial court articulately explained its reasons for imposing consecutive

       sentences:


               [Woolley] was in the household for a little over two years, about
               25 months. This conduct was not closely related in time. It was
               not closely related in circumstances. This was an individual
               crime committed each day and repeated each day such that the
               episode of criminal conduct just not—does not apply. This is not
               a single episode. The probable cause and plea—or probable
               cause and charging information encompass evidence of multiple
               acts of neglect, depravity, cruelty and confinement that occurred
               over multiple years. This did not occur in one single incident
               over two hours, four hours, six hours, but, in fact, occurred for
               the vast majority of the childrens’ lifetime and for the [entire]
               lifetime of the youngest child, [A.W.]. So the Court does not feel
               that . . . our legislature[] intended this [to] apply and there are
               several cases . . . that indicate this is not considered to be an
               episode of criminal conduct.


       Sent. Tr. p. 79-80. We agree, and find no error with respect to the imposition of

       consecutive sentences.


                                     II. Aggravating Factor
[13]   Woolley also argues that the trial court found an improper aggravating factor.

       One of the ways in which a trial court can err in the sentencing process is by
       Court of Appeals of Indiana | Memorandum Decision 83A05-1612-CR-2765 | May 25, 2017   Page 6 of 9
       finding aggravators or mitigators that are unsupported by the record or

       improper as a matter of law. E.g., Laster v. State, 956 N.E.2d 187, 193 (Ind. Ct.

       App. 2011).


[14]   Woolley was a licensed practical nurse during the years she lived with the

       children. The trial court found this to be an aggravating factor, explaining its

       reasoning as follows:


               All nurses, registered nurses, your licensed practical nurses, at the
               time they are pinned, when they get their authority to practice
               take a pledge and that pledge is known as the Florence
               Nightingale Pledge. I had told the attorneys that I was going to
               take judicial notice that she was a practical nurse and that pledge
               is as follows: “I solemnly pledge myself before God and in the
               presence of this assembly to pass my life in purity and to practice
               my profession faithfully. I will abstain from whatever is
               deleterious and mischievous and will not take or knowingly
               administer any harmful drug. I will do all in my power to
               maintain and elevate the standard of my profession and will hold
               in confidence all personal matters committed to my keeping and
               all my family affairs coming into my knowledge in the practice of
               my calling. With loyalty I will endeavor to aid the physician in
               his work and to devote myself to the welfare of those committed
               to my care.” I want to emphasize and repeat the last phrase of
               the Florence Nightingale Pledge which nurses in Indiana, and I
               think, in fact, all nurses across the country take. The last phrase
               is “Devote myself to the welfare of those committed to my care.”
               That does not say to the patients committed to my care but it just
               says to the welfare of those committed to my care. I think that is
               an aggravating factor that she’s a nurse, that she’s taken a pledge
               to devote herself to those committed to—to devote herself to the
               welfare of those committed to her care. Also as a nurse she has a
               legal duty to report evidence of suspected abuse to law
               enforcement officers. Also as a nurse she has received

       Court of Appeals of Indiana | Memorandum Decision 83A05-1612-CR-2765 | May 25, 2017   Page 7 of 9
               specialized training to recognize the situations, to know how
               devastating it is on youngsters to not have a proper diet, to not
               get exercise, to not be in the sunlight, to not have cleanliness.
               She knows all those and she’s received special training, although
               it doesn’t take any special training. I once again have to look at
               these pictures, pictures that have been introduced 1 through 11 to
               see those to know that this is just a horrible situation, particularly
               the pictures from 4 through 11 that depict the children.


       Sent. Tr. p. 82-83. Woolley argues that this aggravator was inappropriate

       because the nurse’s pledge was evidence outside the record and because her

       nursing background was irrelevant, inasmuch as “no special training was

       necessary to detect the inappropriate conditions of the children.” Appellant’s

       Br. p. 13.


[15]   Initially, we note that Woolley did not object to this aggravating factor, either at

       the beginning of the sentencing hearing when the trial court indicated its

       intention to take judicial notice of her nursing background and the pledge or at

       the end in the passage set forth above. Consequently, she has waived this

       argument. Angleton v. State, 714 N.E.2d 156, 158 (Ind. 1999).


[16]   Waiver notwithstanding, we note that Woolley’s nursing background is

       supported by the record. Appellant’s App. Vol. II p. 173. Furthermore, we

       cannot say that the trial court erred by finding that her nursing background is

       particularly aggravating given the nature of these offenses. Woolley is correct

       that even a lay person would have recognized that the conditions these four

       children were forced to live in were unconscionable. Appellant’s Br. p. 23-24.

       Therefore, it is even more egregious when a nurse—a person trained in an

       Court of Appeals of Indiana | Memorandum Decision 83A05-1612-CR-2765 | May 25, 2017   Page 8 of 9
       occupation that focuses solely on the health and well-being of other people—

       takes no action to help her four obviously suffering grandchildren. She had a

       greater awareness than an average lay person of the physical, mental, and

       developmental needs of children, but did nothing.


[17]   As for the trial court’s acknowledgement of the nurse’s pledge, it is apparent

       that the trial court was merely using the pledge to emphasize its point that

       nurses are in the business of caring for others and, as a nurse, Woolley fell

       woefully short of what is commonly expected of those in her profession. In

       other words, the trial court used the pledge to highlight the reason that

       Woolley’s training and experience in the nursing profession was aggravating.

       We find no error in this regard or in any regard with respect to this aggravating

       factor.1


[18]   The judgment of the trial court is affirmed.


       Barnes, J., and Crone, J., concur.




       1
        Even if we did find error in the recitation of the nurse’s pledge, it would not render the aggravator itself
       improper. We are confident that the trial court would still have found Woolley’s nursing background to be
       an aggravator even if it had not been aware of or recited the nurse’s pledge.

       Court of Appeals of Indiana | Memorandum Decision 83A05-1612-CR-2765 | May 25, 2017                 Page 9 of 9
