MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                               Oct 17 2016, 9:23 am
regarded as precedent or cited before any
                                                                        CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael Frischkorn                                       Gregory F. Zoeller
Frischkorn Law LLC                                       Attorney General of Indiana
Fortville, Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Matthew S. Wagoner,                                      October 17, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         30A04-1603-CR-671
        v.                                               Appeal from the Hancock Superior
                                                         Court
State of Indiana,                                        The Honorable Terry K. Snow,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         30D01-1506-MR-794



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A04-1603-CR-671 | October 17, 2016      Page 1 of 10
[1]   Matthew Wagoner appeals his convictions for Murder1 and Level 6 Felony

      Neglect of a Dependent,2 arguing that the evidence is insufficient to support the

      convictions. Wagoner also contends that the sentence imposed by the trial

      court is inappropriate in light of the nature of the offenses and his character.

      Finding that the evidence is sufficient and the sentence is not inappropriate, we

      affirm.


                                                     Facts
[2]   In May 2015, Wagoner and Jessica Wagoner were married and had one child

      together—one-year-old Z.W. Z.W. was fine during the day and night of May

      27, 2015, and around 6:45 a.m. on May 28, Jessica left the house for work and

      left the infant in Wagoner’s care.


[3]   On the morning of May 28, home care nurse Christina Ferrell stopped at the

      Circle K gas station in Greenfield at approximately 8:45 a.m. While there, she

      noticed a man, later identified as Wagoner, with a baby girl. Ferrell noticed

      that the baby’s breathing appeared labored and worried that the infant needed

      medical attention. She mentioned to Wagoner that the baby did not sound

      good and asked if he had taken her to the emergency room. He responded

      (falsely) that he had just done so. Although the weather was warm that day,

      Wagoner kept Z.W. covered up with a blanket. When the infant moved,




      1
          Ind. Code § 35-42-1-1.
      2
          Ind. Code § 35-46-1-4.


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      however, Ferrell was able to observe redness around the baby’s eyes and red

      blotches on her legs. Wagoner walked through the hospital parking lot on his

      way home from the Circle K but did not take Z.W. to the emergency room.


[4]   Text messages between Wagoner and Jessica reveal that Z.W. vomited three

      times that morning, was sleepier than normal, and had “done nothing but

      moan” during the morning. State’s Ex. 52. Wagoner told Jessica that they

      could not take Z.W. to the doctor because she had three dark lines of bruises on

      her face. When he walked to Circle K with Z.W., he texted Jessica that “her

      face looks bad in the sun.” Id.


[5]   Around 9:30 a.m., Jessica called their babysitter, Krista Coffin, asking Coffin to

      go to Jessica’s home immediately because Z.W. was not breathing. Jessica was

      on her way home from work but Coffin lived closer. When Coffin arrived,

      Wagoner met her at the door and told her that Z.W. was not breathing and had

      fallen off the bed. Coffin found Z.W. on the bedroom floor, motionless and

      blue. Coffin asked Wagoner if he had called 911 and he said, “I can’t.” Tr. p.

      357. Wagoner continued to refuse to call 911, so Coffin took his phone and

      called 911 herself. Despite repeated attempts to revive Z.W. by Coffin, Jessica,

      Wagoner, and medical personnel, Z.W. was pronounced dead at the hospital at

      10:00 a.m.


[6]   Greenfield law enforcement immediately began an investigation into Z.W.’s

      death. Wagoner told them that the infant had fallen off of the bed while he was

      changing her diaper. While being transported to the hospital, Wagoner


      Court of Appeals of Indiana | Memorandum Decision 30A04-1603-CR-671 | October 17, 2016   Page 3 of 10
      commented that “he was a piece of shit and he didn’t deserve to live.” Id. at

      176. On May 30, Wagoner twice attempted to commit suicide, telling a

      responding officer that “he was a piece of shit and that he wanted to die.” Id. at

      191.


[7]   Z.W.’s autopsy revealed fifty bruises, contusions, abrasions, and scratches on

      Z.W.’s body. She also had healing fractures. She had sustained recent severe

      blunt force injury to her head, brain, and abdomen, as well as lacerations to her

      liver and pancreas and bruises to all of the organs in her abdominal cavity.

      Both the head and abdominal injuries were sufficiently severe to have caused

      her death; a fall from a bed would not have caused either of those injuries. The

      amount of force required to cause the abdominal injuries was similar to that

      found in deaths due to traffic accidents or falls from second or third story

      windows.


[8]   The injuries to Z.W.’s eyes, face, head, and neck appeared fresh and were most

      likely inflicted within two to four hours, or as little as thirty minutes, before she

      died. Z.W. would have lost consciousness from the head injury prior to her

      death. The laceration of her liver would have resulted in death within two to

      four hours of the time the injury was sustained. The combination of the head

      and abdominal injuries would have led to a more rapid deterioration and a

      shorter time before death. In other words, the major injuries to Z.W.’s head

      and abdomen would have resulted in her death in, at most, two to four hours.




      Court of Appeals of Indiana | Memorandum Decision 30A04-1603-CR-671 | October 17, 2016   Page 4 of 10
[9]    On June 1, 2015, the State charged Wagoner with murder and Level 1 felony

       neglect of a dependent. Wagoner’s jury trial took place between January 25

       and February 2, 2016, and the jury found Wagoner guilty as charged. The trial

       court reduced Wagoner’s Level 1 felony neglect of a dependent conviction to a

       Level 6 felony conviction based on double jeopardy concerns. The trial court

       sentenced Wagoner to sixty-five years imprisonment for the murder conviction

       and to a consecutive term of two and one-half years imprisonment for the

       neglect conviction, with two and one-half years suspended to probation.

       Wagoner now appeals.


                                    Discussion and Decision
                                I. Sufficiency of the Evidence
[10]   First, Wagoner argues that the evidence is insufficient to support his two

       convictions. 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).


                                                A. Murder
[11]   To convict Wagoner of murder, the State was required to prove beyond a

       reasonable doubt that he knowingly killed Z.W. I.C. § 35-42-1-1. A person

       engages in conduct knowingly when, at the time he engages in the conduct, he

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       is aware of a high probability that he is doing so. Ind. Code § 35-41-2-2(b). A

       defendant’s murder conviction may be sustained on circumstantial evidence

       alone. Sallee v. State, 51 N.E.3d 130, 134 (Ind. 2016). Likewise, a trier of fact

       may infer that the requisite intent for a crime exists based solely on

       circumstantial evidence: “Knowledge and intent are both mental states and,

       absent an admission by the defendant, the trier of fact must resort to the

       reasonable inferences from both the direct and circumstantial evidence to

       determine whether the defendant has the requisite knowledge or intent to

       commit the offense in question.” Stokes v. State, 922 N.E.2d 758, 764 (Ind. Ct.

       App. 2010) (holding knowledge may be proved by circumstantial evidence, and

       may be inferred from a defendant’s conduct and the natural and usual sequence

       to which such conduct logically and reasonably points).


[12]   In this case, the evidence supporting the verdict is as follows:


            Z.W. was in the sole care of Wagoner beginning at approximately 6:45
             a.m. on the day of her death.
            Z.W. was pronounced dead at approximately 10:00 a.m.
            The cause of Z.W.’s death was blunt force trauma, stemming from the
             severe injuries to her head and/or her abdomen.
            Both of those injuries were recent and were inflicted within a short time
             of Z.W.’s death. At most, those injuries were inflicted two to four hours
             before her death; at the least, as little as thirty minutes before her death.

       Additionally, Wagoner told police that Z.W. sustained the injuries by falling off

       of the bed. It is not at all possible that her injuries were sustained in that way.

       See Grimes v. State, 450 N.E.2d 512, 521-22 (Ind. 1983) (holding that the jury



       Court of Appeals of Indiana | Memorandum Decision 30A04-1603-CR-671 | October 17, 2016   Page 6 of 10
       may consider a defendant’s attempts to provide falsehoods as evidence of

       consciousness of guilt).


[13]   A reasonable jury could have concluded, based upon the above evidence, that

       Wagoner—the baby’s sole caregiver at the time she was fatally beaten—was the

       perpetrator of her injuries. As to whether Wagoner acted knowingly, we note

       that a defendant’s intent may be inferred from his “conduct and the natural and

       usual sequence to which such conduct logically and reasonably points.” Stokes,

       922 N.E.2d at 764. In this case, Z.W.’s abdominal injury was caused by such

       severe physical force that it was comparable to someone killed in a traffic

       accident or who had fallen from a two- or three-story window and landed on

       her abdomen. A reasonable juror could infer that an adult male could not strike

       a small infant in such a manner without understanding that there was a high

       probability that it would kill her. We agree with the State that “[t]o believe

       otherwise defies logic and human experience.” Appellee’s Br. p. 21. We find,

       based on the evidence in the record, that a reasonable jury could have found

       beyond a reasonable doubt that Wagoner knowingly killed Z.W. and we

       decline to reverse on this basis.


                                                 B. Neglect
[14]   Next, Wagoner argues that the evidence is insufficient to support his conviction

       for Level 6 felony neglect of a dependent. The jury convicted Wagoner of Level

       1 felony neglect of a dependent, which required the State to prove beyond a

       reasonable doubt, among other things, that Wagoner was at least eighteen years


       Court of Appeals of Indiana | Memorandum Decision 30A04-1603-CR-671 | October 17, 2016   Page 7 of 10
       old and neglected Z.W., resulting in her death. I.C. § 35-46-1-4. As noted

       above, however, the trial court reduced the conviction to a Level 6 felony,

       removing the requirement of proof of Wagoner’s age. Id.


[15]   Wagoner’s sole argument with respect to this conviction is that the State did not

       sufficiently prove that he was at least eighteen when he neglected Z.W. As he

       was ultimately convicted of and sentenced on a Level 6 felony, however, we

       need not determine whether the State adequately proved his age.


[16]   That said, the State introduced into evidence Wagoner’s recorded interview

       with law enforcement. Wagoner told law enforcement that his date of birth

       was “5/27/84.” State’s Ex. 53. Moreover, the jury was presented with a

       photograph of Wagoner holding Z.W.; from this photograph, the jury could

       have reasonably inferred that Wagoner was over the age of eighteen when the

       photograph was taken. State’s Ex. 2; see Rowe v. State, 867 N.E.2d 262, 266-67

       (Ind. Ct. App. 2007) (holding that where a defendant’s age is an element of the

       offense, the jury can infer the defendant’s age through observation and

       circumstantial evidence). Therefore, even if the State were required to prove

       Wagoner’s age to support the neglect conviction, we find that the evidence was

       sufficient to do so.


                                         II. Appropriateness
[17]   Finally, Wagoner contends that the sentence imposed by the trial court is

       inappropriate in light of the nature of the offenses and his character. Indiana

       Appellate Rule 7(B) provides that this Court may revise a sentence if it is

       Court of Appeals of Indiana | Memorandum Decision 30A04-1603-CR-671 | October 17, 2016   Page 8 of 10
       inappropriate in light of the nature of the offense and the character of the

       offender. We must “conduct [this] review with substantial deference and give

       ‘due consideration’ to the trial court’s decision—since the ‘principal role of

       [our] review is to attempt to leaven the outliers,’ and not to achieve a perceived

       ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

       (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

       citations omitted).


[18]   For the murder conviction, Wagoner faced a possible sentence of forty-five to

       sixty-five years imprisonment, with an advisory term of fifty-five years

       imprisonment. Ind. Code § 35-50-2-3. He received a maximum sixty-five-year

       term. For the Level 6 felony neglect of a dependent conviction, Wagoner faced

       a term of six months to two and one-half years imprisonment, with an advisory

       term of one year. I.C. § 35-50-2-7. He received a maximum two-and-one-half-

       year term, to be served consecutively to the murder sentence, but fully

       suspended to probation.


[19]   As to the nature of Wagoner’s offenses, it is challenging to find words that fully

       capture the heinousness of his actions. As the parent of Z.W., as well as her

       sole caregiver on the morning of her death, Wagoner held the ultimate position

       of trust—and abused that position in a violent, horrifying fashion. Wagoner

       knew that the infant was having difficulty that morning, as evidenced by his

       texts to Jessica describing how Z.W. was vomiting, moaning, and acting

       sleepier than normal, as well as the expressed concern of a fellow customer at a

       convenience store about Z.W.’s labored breathing. But he did not seek medical

       Court of Appeals of Indiana | Memorandum Decision 30A04-1603-CR-671 | October 17, 2016   Page 9 of 10
       attention because of concerns about the bruising to her face. And when she

       stopped breathing, he did not call 911. Instead, he texted Jessica. Jessica asked

       Coffin to run to the house, and when Coffin got there, Wagoner continued to

       refuse to call 911. Finally, Coffin took his phone and called 911 herself. But by

       then, it was too late. Wagoner later attempted to conceal his crime by

       inventing a story that Z.W. had sustained her injuries by falling off of the bed.

       To say the least, the nature of these offenses does not aid Wagoner’s

       inappropriateness argument.


[20]   As for Wagoner’s character, he has a criminal history dating back to when he

       was a juvenile; his history also includes five adult felony convictions and a class

       A misdemeanor domestic violence conviction. His probation was revoked in

       almost every single one of these cases. He was on pretrial release for other

       charges when he committed the instant offenses. Wagoner’s character does not

       persuade us to find in his favor on his inappropriateness argument.


[21]   It has often been said that maximum sentences should be reserved for the very

       worst offenses and the very worst offenders. We do not fault the trial court for

       finding that this case qualifies. The sentence imposed by the trial court is not

       inappropriate in light of the nature of the offenses and Wagoner’s character.


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


       Vaidik, C.J., and Najam, J., concur.




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