MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                     FILED
regarded as precedent or cited before any
court except for the purpose of establishing                    May 02 2017, 6:46 am

the defense of res judicata, collateral                              CLERK
                                                                 Indiana Supreme Court
estoppel, or the law of the case.                                   Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Frederick Vaiana                                        Curtis T. Hill, Jr.
Voyles Zahn & Paul                                      Attorney General of Indiana
Indianapolis, Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Diamond Miller,                                         May 2, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1610-CR-2364
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Mark D. Stoner,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        49G06-1411-F1-52295



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2364 | May 2, 2017       Page 1 of 8
[1]   Diamond Miller appeals her conviction for Level 1 Felony Neglect of a

      Dependent Resulting in Death,1 arguing that the evidence is insufficient.

      Finding the evidence sufficient, we affirm.


                                                    Facts
[2]   Miller’s son, E.P., was born on February 5, 2013. In December 2013, Miller

      and E.P. moved in with Miller’s boyfriend, Frank Larkins. Miller’s father,

      William Miller, regularly helped with childcare while Miller was at work.

      Between December 2013 and October 2014, William frequently observed

      bruises on E.P.’s legs, hips, and face.


[3]   On October 24, 2014, Miller took E.P. and her other child to William so that he

      could babysit while she worked over the weekend. During the weekend, E.P.

      ate normally, played with other children, and showed no signs of illness. On

      October 27, 2014, around 4:30 p.m., Miller and Larkins retrieved E.P. and his

      sibling. William observed Larkins look back at E.P. in the backseat and E.P.

      was visibly “spooked” and looked “like he seen [sic] a ghost.” Tr. Vol. III p.

      18-19. Larkins left with E.P. in his vehicle while William took Miller to work.

      Miller believed that E.P. was fine when she left him with Larkins for the day.


[4]   Miller returned home that evening at approximately 10:00 p.m. She called

      William around 11:00 p.m. to ask what E.P. had eaten over the weekend,




      1
          Ind. Code § 35-46-1-4.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2364 | May 2, 2017   Page 2 of 8
      telling William that E.P. had been complaining of stomach pain and did not

      want to eat.


[5]   E.P.’s symptoms worsened throughout the night of October 27 and the day of

      October 28. He had severe stomach pain and vomited repeatedly; he could not

      keep down any liquids. E.P. was in such pain that he attempted to avoid any

      type of movement and could not sleep because of the pain. Miller heard him

      groaning as he attempted to sleep; she fell asleep to the sound of her child

      moaning in pain. Miller did not seek any medical treatment, hoping the

      symptoms would subside by Wednesday.


[6]   Around 7:30 a.m. the morning of Wednesday, October 29, Miller awoke to find

      E.P. cold and limp. Emergency officials were called and a paramedic arrived to

      find Larkins administering chest compressions on the child. The paramedic

      discovered that E.P.’s body was cold and stiff, consistent with rigor mortis; the

      child was dead. The paramedic testified that the extent of the child’s rigor

      mortis led him to believe that E.P. had been dead for an extended period of

      time.


[7]   Dr. Thomas Sozio performed an autopsy on E.P.’s body. He noticed that

      E.P.’s left cheek was swollen, he had a small abrasion around his chin, a bruise

      on his right forearm, and a scratch on his chest. When Dr. Sozio conducted his

      internal examination, he discovered that E.P.’s duodenum—the passage tube

      leading from his stomach to his small intestine—had been severed. E.P.’s

      pancreas had also suffered damage. As a result of the severing of the


      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2364 | May 2, 2017   Page 3 of 8
      duodenum, bacteria from the intestines leaked into E.P.’s abdominal cavity,

      causing an infection called peritonitis. E.P.’s abdominal lymph nodes were

      enlarged and Dr. Sozio found blood in his abdominal cavity. The infection

      eventually turned into sepsis, causing the toddler’s death.


[8]   Dr. Sozio and Dr. Tara Harris—a board certified child abuse pediatrician for

      Riley Hospital for Children—testified as to the cause of E.P.’s internal injuries.

      Dr. Sozio stated that this type of injury is consistent with those suffered by

      patients in high speed car accidents. Dr. Harris testified that a “really high

      force trauma” to E.P.’s abdomen pushed his internal organs all the way back to

      his spinal vertebrae, lacerating the connection between E.P.’s stomach and

      intestines. Tr. Vol. II p. 84-85. Dr. Harris stated that this injury could not have

      been caused by E.P. falling or engaging in normal toddler activities.


[9]   Dr. Harris testified regarding the likely progression of E.P.’s symptoms after

      suffering this trauma. Immediately after the impact, E.P. would have been

      crying and indicating pain in his abdomen. The injury would have caused

      increasing abdominal pain that would be amplified with any movement,

      causing the child to try to be still to avoid any movement. E.P. would not have

      been able to digest any substances, forcing vomiting, which would have caused

      intensifying pain. The building infection would have caused his stomach to

      increasingly bloat until it was very tense. Both Dr. Harris and Dr. Sozio

      testified that if E.P. had received timely medical care, he could have had

      surgery to repair his injuries and treat the infection. Dr. Harris testified that

      E.P. should have received medical attention because his symptoms kept

      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2364 | May 2, 2017   Page 4 of 8
       “getting worse, not better, that he was very thirsty but then couldn’t keep

       anything down and progressively having abdominal distention, moaning,

       becoming less engaged.” Tr. Vol. III p. 129-30.


[10]   On November 20, 2014, the State charged Miller with two counts of Level 1

       felony neglect of a dependent resulting in death and two counts of Level 5

       felony neglect of a dependent resulting in serious bodily injury. The State later

       dismissed the two Level 5 felony charges. Following a jury trial, the jury found

       Miller guilty of one of the Level 1 felony charges and not guilty of the other.

       On September 23, 2016, the trial court sentenced Miller to twenty years

       imprisonment, with fifteen years to be served in the Department of Correction

       and five years to be served on work release. Miller now appeals.


                                    Discussion and Decision
[11]   Miller’s sole argument on appeal is that the evidence is insufficient to support

       the conviction. When reviewing a claim of insufficient evidence, we will

       consider only the evidence and reasonable inferences that support the

       conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm

       if, based on the evidence and inferences, a reasonable jury could have found

       the defendant guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d

       1003, 1005 (Ind. 2009).

[12]   To convict Miller of Level 1 felony neglect of a dependent resulting in death,

       the State was required to prove beyond a reasonable doubt that she knowingly

       or intentionally placed E.P. in a situation that endangered his life or health,

       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2364 | May 2, 2017   Page 5 of 8
       resulting in E.P.’s death. I.C. §§ 35-46-1-4(a), -4(b)(3). The jury found that

       Miller’s failure to seek medical care for E.P. endangered his life and caused his

       death. Miller contends that the evidence in the record does not establish that

       she acted knowingly. In the context of a neglect conviction resulting from the

       alleged failure to provide timely medical care, it has been established that

       “[w]hen there are symptoms from which the average layperson would have

       detected a serious problem necessitating medical attention, it is reasonable for

       the jury to infer that the defendant knowingly neglected the dependent.”

       Mitchell v. State, 726 N.E.2d 1228, 1240 (Ind. 2000), abrogated on other grounds,

       924 N.E.2d 643 (Ind. 2010).


[13]   Miller insists that the evidence establishes only that her child was vomiting and

       feeling unwell, and that a reasonable parent would not necessarily have sought

       medical attention within the first twenty-four hours of such symptoms. The

       record readily reveals symptoms far beyond vomiting, however:


            Monday night, E.P. did not want to eat, was complaining of stomach
             pain, and was lethargic and sleepy.
            Throughout the day on Tuesday, E.P.’s pain worsened. He was thirsty
             and attempted to drink fluids, but vomited up everything he took in.
            Dr. Harris testified that throughout this time, E.P.’s pain and discomfort
             would have escalated, causing him to cry and try to be as still as possible,
             which Miller testified that, in fact, he did.
            Tuesday night, Miller observed that E.P. could not sleep because of his
             pain and heard him groaning as he remained motionless to control the
             pain. She fell asleep that night to the sound of his moans.
            Dr. Harris testified that throughout this period, E.P.’s abdomen would
             have become more and more bloated until it was visibly bloated and very


       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2364 | May 2, 2017   Page 6 of 8
               tense. That was, in fact, the state of his abdomen when the paramedic
               found the child dead on Wednesday morning.

       We agree with Miller that, if vomiting had been E.P.’s only symptom, a

       conviction for neglect would likely be unwarranted. Here, however, the jury

       reasonably rejected that argument, concluding that E.P. had many other

       troubling symptoms that would have caused an average layperson to seek

       medical treatment for the child.


[14]   In McMichael v. State, we considered a very similar situation. 471 N.E.2d 726,

       728-29 (Ind. Ct. App. 1984). In that case, a toddler died after exhibiting

       symptoms of peritonitis—the same infection E.P. suffered—and the defendant

       had failed to secure medical treatment. The child in that case exhibited nearly

       identical symptoms to E.P.—consistent vomiting, no desire to eat, swelling

       abdomen, and extraordinary stomach pain. Id. at 729. This Court held that,

       given those symptoms, the defendant “was aware of a high probability that by

       failing to obtain medical care, he was placing [his child] in a dangerous

       situation.” Id. at 731. Here, likewise, the jury reasonably reached the same

       conclusion.


[15]   Ultimately, whether a parent’s failure to provide medical care for an ailing child

       constitutes criminal neglect is a question for the jury to answer. Lush v. State,

       783 N.E.2d 1191, 1198 (Ind. Ct. App. 2003). We must simply determine

       whether their answer was reasonable. Given the evidence in the record here

       regarding E.P.’s serious symptoms, we find that a reasonable jury could have



       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2364 | May 2, 2017   Page 7 of 8
       found that Miller knowingly placed E.P. in a situation that endangered his life,

       resulting in his death. The evidence is sufficient.


[16]   The judgment of the trial court is affirmed and remanded with instructions to

       ensure that the records in both Miller’s and Larkins’s cases are complete. 2


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




       2
         The State explains that Larkins and Miller were tried jointly (Larkins faced charges of murder, aggravated
       battery, battery resulting in death to a person less than fourteen, and two counts of neglect of a dependent
       resulting in death). In Miller’s case, the trial court admitted statements made by both Miller and Larkins, but
       the exhibit volume contains only the recording of Larkins’s statement. In the exhibit volume where Miller’s
       statement should have been placed is a notation indicating that the disk containing the statement was placed
       in the record of Larkins’s appeal, which is currently pending. Counsel for the State was able to obtain both
       statements for this appeal, but suggested that we remand the two exhibit volumes—from both cases—to the
       trial court so that it can ensure that both statements are present in the records of both cases. We agree, and
       so remand.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2364 | May 2, 2017                  Page 8 of 8
