MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                FILED
regarded as precedent or cited before any                                        Mar 13 2020, 9:06 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark Small                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Ian McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Cody Brown,                                              March 13, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1742
        v.                                               Appeal from the Clinton Circuit
                                                         Court
State of Indiana,                                        The Honorable Bradley K. Mohler,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         12C01-1507-F1-690



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1742 | March 13, 2020                    Page 1 of 16
                                             Case Summary
[1]   Following a jury trial, Cody Brown was convicted of Level 1 felony neglect of a

      dependent resulting in death and Level 2 felony battery to a person less than

      fourteen years of age resulting in death, both of which related to the death of his

      infant daughter. Brown claims that his two convictions violate double jeopardy

      principles, that the trial court abused its discretion when it admitted into

      evidence two letters that he had written during a police interview, and that his

      sentence of thirty-two years with two years suspended is inappropriate.


[2]   We affirm in part, vacate in part, and remand.


                                   Facts & Procedural History
[3]   Brown and C.B. (Mother) are the parents of one child, A.B., who was born in

      June 2015. Brown and Mother, then married, lived in an apartment in

      Frankfort, Indiana. On July 25, 2015, Mother, Brown, and A.B. attended the

      annual Hot Dog Festival in Frankfort. They went home for a period of time,

      and then Mother returned to the festival around 8:00 p.m., with Brown staying

      home to care for A.B. Around 9:00 p.m., Brown brought A.B. in a child seat

      carrier to Mother at the festival. Mother thought Brown looked “scared” and

      “nervous” and “like he’[d] been crying.” Transcript Vol. 2 at 24. Brown told

      Mother that he had tripped in the apartment “over the stroller and the cats” and

      fell while holding A.B. and that they needed to go to the hospital. Id. at 25.

      Mother saw that A.B. was not breathing normally, her eyes were closed, and

      Mother “knew something wasn’t right.” Id. Mother and Brown went to the


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1742 | March 13, 2020   Page 2 of 16
      local hospital, and doctors told them that A.B. should be transferred to Riley

      Hospital for Children in Indianapolis (Riley). Brown initially expressed

      reluctance about transferring A.B. to Riley and urged that he, Mother, and A.B.

      instead go home. Mother asked Brown to go to their apartment to get her

      phone charger and some clothes, which he did, and while he was gone, she

      consented to the transfer. After evaluation at Riley, doctors there determined

      that A.B. had traumatic head injuries.


[4]   Meanwhile, Detective Wesley Hickson of the Frankfort Police Department

      (FPD) began an investigation of A.B.’s injuries. Det. Hickson contacted

      Brown’s family, and thereafter Brown called Det. Hickson and agreed to meet

      him at Riley. There, Det. Hickson interviewed Mother and Brown separately.

      Det. Hickson read and Brown signed a Miranda waiver form. Brown told Det.

      Hickson that Mother had left the apartment around 8:00 p.m. and that he had

      wanted “to go to the freaking . . . concert and not stay home.” Id. at 81. He

      told Det. Hickson that he was trying to feed A.B. when there was a knock at the

      door, which he thought was someone coming to see a piece of furniture that he

      had listed for sale. Brown told Det. Hickson that, while holding A.B., he got up

      to answer the door but “[e]ither a cat ran under his feet or he tripped on a

      stroller and he fell with [the] baby.” Id. at 82. Brown described that, as he fell,

      he turned his body in the air to protect A.B. and fell on his shoulder, securely

      holding A.B.’s head with his arm, so that only A.B.’s bottom made contact with

      the floor. Brown said that when he answered the door, no one was there.

      Brown told Det. Hickson that A.B. initially was fussy after the fall and calmed


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1742 | March 13, 2020   Page 3 of 16
      down when he put her in her car seat, but “something didn’t seem right,” so he

      took A.B. to the festival to find Mother “so that they could go to the hospital.”

      Id. at 85. Brown told Det. Hickson that, when he went back to the apartment to

      get the charger and clothes, he moved the stroller into the kitchen from the

      living room and hallway area.


[5]   On July 28, Brown contacted Det. Hickson and asked about the progress of the

      investigation. Det. Hickson asked Brown to speak with him again, and Brown

      agreed to come to the FPD the next day. Brown was interviewed by Det.

      Hickson on July 29 in the interview room. Det. Hickson again read Miranda

      rights to Brown, who signed a waiver of those rights. The interview lasted three

      hours. Brown initially told Det. Hickson a similar version of events about

      tripping in the apartment and falling in such a way to protect A.B. from hitting

      her head. Brown said that the sound that he thought was a knock on the door

      was not actually a knock but was the neighbors down the hall making noise.

      He explained to Det. Hickson that he decided to take A.B. to Mother because

      A.B. began to act not normal and he believed something was wrong. Det.

      Hickson left the interview for five to ten minutes and, upon returning, advised

      Brown that the information received from the medical professionals indicated

      that A.B. was not injured by a fall. As the interview progressed, Det. Hickson

      said Brown became emotional and changed his version of events, telling Det.

      Hickson that he had been sitting and feeding A.B., and was rocking her but she

      would not stop crying and calm down, and he felt himself “getting more

      frustrated with the baby.” Id. at 114. Brown said he “went into his own little


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1742 | March 13, 2020   Page 4 of 16
      world” and when he opened his eyes, he was “rocking the baby too hard.” Id.

      Det. Hickson testified that he offered Brown the opportunity to write letters to

      Mother and A.B. “explaining to them . . . what had happened and his feelings

      on that.” Id. at 115. He left Brown in the interview room during which time

      Brown wrote two letters, one to Mother and one to A.B. Det. Hickson said

      that, upon returning to the interview room, he (Det. Hickson) read the letters

      aloud, and Brown signed them. Det. Hickson arrested Brown.


[6]   A.B. was treated at Riley for a couple of weeks. Her condition continued to

      decline, and she was placed for a time on artificial ventilation and nutrition,

      which later was removed. A.B. died some days later, on August 13, 2015. The

      autopsy report stated that A.B. died from blunt force trauma to her head, which

      the pathologist determined was the result of rapid “acceleration/deceleration”

      movement. Id. at 221.


[7]   On August 13, 2015, the State charged Brown with neglect of a dependent

      resulting in death, a Level 1 felony, and battery to a person less than 14 years of

      age resulting in death, a Level 2 felony. Brown filed a motion to suppress the

      statements that he made to Det. Hickson, including the letters he wrote to

      Mother and A.B. Brown’s motion asserted that Det. Hickson used “deceptive

      interrogation techniques” and “psychological intimidation,” which rendered his

      statements involuntary. Appellant’s Appendix Vol. 3 at 29-30. Brown relied, in

      part, on the fact that that during the three-hour interview Det. Hickson – who

      Brown knew socially from church and in the community – stated a number of

      times that he would like to help Brown, that he could not help Brown if he was

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1742 | March 13, 2020   Page 5 of 16
      not honest, that classes could help Brown, that he could help Brown get

      through this, and suggested admitting his mistake. Brown maintained that his

      “will was overcome” due to promises made and coercion. Id. at 32.


[8]   The State’s response observed that Det. Hickson first met with Brown on July

      26 at Riley, where Brown was not in custody and signed an Advice of Rights

      form and that, after Brown called Det. Hickson on July 28 inquiring about the

      status of the investigation, Brown agreed to come to the police station the

      following day to talk to Det. Hickson. Brown’s mother brought Brown to the

      police station, and Brown and Det. Hickson met in an interview room. Det.

      Hickson advised Brown of his Miranda rights and he again signed an Advice of

      Rights form. They met for approximately three hours, and during that time,

      Det. Hickson stepped out of the room for some minutes on at least two

      occasions. The State maintained that none of Det. Hickson’s interview

      techniques amounted to psychological intimidation.


[9]   Following the motion to suppress hearing, the trial court issued an order

      denying Brown’s motion, finding that the length of the interview was not

      excessive or unreasonable, especially given that Det. Hickson left the room on

      two occasions. The court also observed that Brown “is educated, was advised

      of his Miranda rights, was not in custody, and was not restrained[,]” and it

      found “no evidence” that Det. Hickson was deceptive or utilized psychological

      intimidation “to any extent that would violate [Brown’s] rights.” Id. at 45.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1742 | March 13, 2020   Page 6 of 16
[10]   The jury trial commenced October 2, 2017. Among other witnesses, the State

       called Det. Hickson to testify. Brown did not object at trial when Det. Hickson

       testified to the oral statements that Brown had made during his interviews with

       Det. Hickson at Riley and later at the Frankfort police station. Det. Hickson

       testified that he could tell when interviewing Brown at Riley that Brown was

       “agitated” about the fact that Mother had left him with A.B. while she attended

       a concert at the festival. Transcript Vol. 2 at 81. Brown told Det. Hickson about

       having “somewhat of an anger issue” and that he would sometimes punch a

       wall or pillow to deal with the anger. Id. at 124. Det. Hickson testified that he

       and Brown discussed an event that had occurred about two weeks prior, on July

       12 or 13, when Mother and Brown took A.B. to a Lafayette hospital because

       A.B. was not breathing properly due to choking while being fed. A.B. was

       transferred at that time from Lafayette to Riley. No diagnosis was made and

       A.B. was released.


[11]   During Det. Hickson’s testimony, the State sought to admit the two letters that

       Brown had written during the July 29 interview. Brown objected on the same

       grounds raised in his motion to suppress, as well as on the basis that the

       probative value was outweighed by prejudicial effect. The trial court admitted

       the letters over his objection, and the letters were read into evidence. His letter

       to Mother included:


               I was talking to [Det. Hickson] and remembered that I was
               rocking [A.B.] trying to get to her to calm down and go to sleep.
               I regretfully admit I got frustrated and went off to my own world
               while rocking her. When I came to I was going faster th[a]n I

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1742 | March 13, 2020   Page 7 of 16
               was before. After that I started to feed her again and that is when
               I fell with [A.B.]. I guess you were right. IT’S ON ME.
               Anyways I know you want a divorce so I will give you one. I’m
               so sorry and I do love [A.B.]. Let her know that daddy loves her
               and never meant to hurt her. I will never forgive myself for doing
               this even though it was an accident.


       Id. at 118 (emphasis in original).


[12]   Catherine Huber, M.D., a member of Riley’s Child Protection Team (the

       Team) – a group of pediatricians and nurse practitioners who are called to

       evaluate cases in which there is suspected child abuse or neglect – testified that

       A.B.’s injuries were caused by “a rapid acceleration and deceleration event

       where the head is moved back and forth quite quickly[.]” Id. at 165. Her final

       diagnosis was that A.B.’s injuries were from “non-accidental trauma[.]” Id. at

       164. Dr. Huber testified that, based on her education and experience, Brown’s

       explanation about tripping and falling while carrying A.B. was not consistent

       with the injuries sustained by A.B.


[13]   In addition to calling two witnesses, Brown testified in his own defense. He

       stated that he was “frustrated” that Mother preferred to go to the festival rather

       than stay home with her family and “went to [his] own little world to try and

       calm down” for thirty to sixty seconds, and when he “came out of it,” he

       “recognized that [he] was rocking just a little bit harder than what [he] was

       initially.” Transcript Vol. 3 at 69-70, 92. Brown stated that he then tried to feed

       A.B., but she would not take her bottle, and when he got up to answer a knock

       at the door, he tripped and fell on the stroller and the cats. He testified that he

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1742 | March 13, 2020   Page 8 of 16
       did not have “any interactions” with A.B. that day “that could have caused her

       harm.” Id. at 88.


[14]   The jury found Brown guilty of both charges. In December 2017, the trial court

       sentenced him on Count I to thirty-two years with two years suspended to

       probation and to a concurrent term of nineteen years on Count II. Brown filed

       an appeal, which this court dismissed without prejudice in order for him to file

       a belated motion to correct error concerning alleged juror misconduct, which

       the trial court denied. Brown now appeals.


                                       Discussion & Decision
                                             I. Double Jeopardy

[15]   Brown asserts that his convictions for Count I, Level 1 felony neglect of a

       dependent resulting in death, and Count II, Level 2 felony battery on a person

       less than fourteen years of age resulting in death, violate the Double Jeopardy

       Clause of the Indiana Constitution, which provides: “No person shall be put in

       jeopardy twice for the same offense.” Ind. Const. art. 1, § 14. “Indiana’s

       Double Jeopardy Clause ... prevent[s] the State from being able to proceed

       against a person twice for the same criminal transgression.” Lumbley v. State, 74

       N.E.3d 234, 241 (Ind. Ct. App. 2017), trans. denied. Whether multiple

       convictions violate double jeopardy is a question of law, which this court

       reviews de novo. Rexroat v. State, 966 N.E.2d 165, 168 (Ind. Ct. App. 2012),

       trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1742 | March 13, 2020   Page 9 of 16
[16]   The Indiana Supreme Court has held that “two or more offenses are the ‘same

       offense’ in violation of Article 1, Section 14 of the Indiana Constitution, if, with

       respect to either the statutory elements of the challenged crimes or the actual

       evidence used to convict, the essential elements of one challenged offense also

       establish the essential elements of another challenged offense.” Richardson v.

       State, 717 N.E.2d 32, 49 (Ind. 1999). In addition to the same-elements and

       actual-evidence tests, Indiana also follows a “‘series of rules of statutory

       construction and common law that are often described as double jeopardy, but

       are not governed by the constitutional test set forth in Richardson.’” Guyton v.

       State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Pierce v. State, 761 N.E.2d

       826, 830 (Ind. 2002)). One of these rules bars “[c]onviction and punishment for

       a crime which consists of the very same act as another crime for which the

       defendant has been convicted and punished.” Id.


[17]   Here, Brown argues that Count I and Count II “arose from the same event

       involving the same child as a victim.” Appellant’s Brief at 26. The State

       concedes that the two convictions violate principles of double jeopardy. As the

       State observes, the charging information and closing arguments show that

       Brown’s physical abuse of A.B. was used to show that he endangered her and

       that he battered her and thus “the very same act” was used to prove both

       offenses. Appellee’s Brief at 23. Our court has recognized that imposition of

       concurrent sentences is insufficient to cure the problem. See Adams v. State, 754

       N.E.2d 1033, 1036 (Ind. Ct. App. 2001). We therefore remand with




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1742 | March 13, 2020   Page 10 of 16
       instructions to vacate the conviction for Count II, Level 2 felony battery on a

       person less than fourteen years of age resulting in death.


                                          II. Admission of Evidence

[18]   Brown asserts that the letters he wrote to Mother and A.B. during his interview

       with Det. Hickson should have been suppressed and not admitted at trial over

       his objections. The general admission of evidence at trial is a matter we leave

       to the discretion of the trial court. See Clark v. State, 994 N.E.2d 252, 259-60

       (Ind. 2013). We review for an abuse of the trial court’s discretion and reverse

       only when the admission of the challenged evidence is clearly against the logic

       and effect of the facts and circumstances and the error affects a party’s

       substantial rights. Sage v. State, 114 N.E.3d 923, 928 (Ind. Ct. App. 2018).


[19]   Brown argues that the two letters he wrote during his interview with Det.

       Hickson were not voluntary. 1 Under Indiana law, the State is required to prove

       beyond a reasonable doubt that a statement is voluntary. Sage, 114 N.E.2d at

       928 (citing Weisheit v. State, 26 N.E.3d 3, 18 (Ind. 2015), cert. denied). When

       evaluating the voluntariness of a statement, the trial court considers the

       “totality of the circumstances, including any element of police coercion; the

       length, location, and continuity of the interrogation; and the maturity,




       1
         To the extent that Brown contends that his verbal statements to Det. Hickson should not have been
       admitted, he did not object at trial when Det. Hickson testified to what Brown said during the interviews.
       Thus, the issue is waived. Shoda v. State, 132 N.E.3d 454, 460 (Ind. Ct. App. 2019) (pretrial motions do not
       preserve error and defendant must make contemporaneous objection when evidence is introduced at trial).
       The only exception would be for fundamental error, and Brown does not argue or mention fundamental error
       in his brief.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1742 | March 13, 2020                Page 11 of 16
       education, physical condition, and mental health of the defendant.” Id. The

       critical inquiry is whether the defendant’s statements were induced by violence,

       threats, promises, or other improper influence. Scalissi v. State, 759 N.E.2d 618,

       621 (Ind. 2001). We review the trial court’s determination of voluntariness as a

       sufficiency of the evidence issue. Sage, 114 N.E.2d at 928. We do not reweigh

       the evidence, and we will affirm if the trial court’s finding of voluntariness is

       supported by substantial evidence. Id. We will consider the foundational

       evidence from the trial related to the circumstances surrounding the defendant’s

       statements to police, as well as the evidence from the motion to suppress

       hearing which is favorable to the defendant and which is not in direct conflict

       with the trial testimony. See Clark, 994 N.E.2d at 259 n.9 (citing Kelley v. State,

       825 N.E.2d 420, 427 (Ind. Ct. App. 2005)).


[20]   Here, at the suppression hearing and at the trial, Det. Hickson testified that

       Brown contacted him on July 28, Brown’s mother brought him to FPD the next

       day at Det. Hickson’s request, Brown signed a Waiver of Rights form, and he

       interviewed Brown for about three hours in the interview room. Det. Hickson

       testified that, after Brown changed his story from tripping and falling to

       acknowledging that he was frustrated and realized he was “rocking the baby too

       hard,” Det. Hickson offered Brown “the opportunity” to write “apology” letters

       to Mother and to A.B. “explaining to them . . . what had happened and his

       feelings on that.” Transcript Vol. 1 at 79, 80; see also Transcript Vol. 2 at 114, 115.

       Det. Hickson stepped out of the room and observed Brown writing the letters.

       Det. Hickson denied that he ever made any threats or promises to Brown.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1742 | March 13, 2020   Page 12 of 16
       While Brown testified at trial that Det. Hickson did not offer him water or a

       restroom break, Det. Hickson testified that Brown did not ask to use the

       restroom and he did not recall whether he offered water to Brown.


[21]   At the suppression hearing, Det. Hickson testified that he knew at the time of

       the interview that Brown was twenty-one years old and had a high school

       diploma. Det. Hickson acknowledged that because, through his training and

       experience, he felt that Brown was at first being dishonest, he continued to press

       Brown with questions, and that once Brown began to open up, Brown became

       emotional, which Det. Hickson told Brown “was part of the process of taking

       responsibility for our actions.” Transcript Vol. 1 at 81. With regard to Det.

       Hickson’s various statements to Brown about helping him, Det. Hickson

       explained that, although he was in search of the truth about what happened to

       A.B., he was also “there to be [Brown’s] voice” and that if Brown had given

       him information that was contradictory to that which he already had, Det.

       Hickson would have “looked into it to ensure . . . [Brown] would have been

       given the fair shake.” Id. at 85. Det. Hickson stated, “I went above and beyond

       for [Brown] and his family during this investigation. More so than I’ve ever

       done with any other family.” Id. at 86.


[22]   Based on the totality of the circumstances, we find that Det. Hickson’s tactics

       did not overcome Brown’s will or render his statement involuntary. Det.

       Hickson allowed Brown to tell his version of events about how he tripped while

       holding A.B., but he also told Brown that this version did not comport with the

       reports of the medical professionals and encouraged him to be honest. Det.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1742 | March 13, 2020   Page 13 of 16
       Hickson testified that he offered but did not instruct or require Brown to write

       the letters. When Det. Hickson read the letters back to Brown, Brown did not

       contest the statements therein. We find that the trial court’s determination of

       voluntariness was supported by sufficient evidence. Accordingly, the trial court

       did not abuse its discretion when it admitted the letters at trial.


                                                 III. Sentence

[23]   Brown also challenges the thirty-two-year sentence imposed by the trial court.

       Brown conflates the abuse of discretion standard with the inappropriate

       sentence standard, arguing: “The sentence was unreasonable given the nature

       of the offense and Brown’s character, particularly when the trial court gave no

       weight to Brown’s military service.” Appellant’s Brief at 27. This is improper. It

       is well-settled that the two types of claims are distinct and are to be analyzed

       separately. King v. State, 894 N.E.2d 265, 266 (Ind. Ct. App. 2008).


[24]   Pursuant to Ind. Appellate Rule 7(B), this Court “may revise a sentence

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

       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” Deference to the trial court’s sentencing

       decision “should prevail unless overcome by compelling evidence portraying in

       a positive light the nature of the offense (such as accompanied by restraint,

       regard, and lack of brutality) and the defendant’s character (such as substantial

       virtuous traits or persistent examples of good character).” Stephenson v. State, 29

       N.E.3d 111, 122 (Ind. 2015). Brown bears the burden of persuading us that his


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1742 | March 13, 2020   Page 14 of 16
       sentence is inappropriate. Barker v. State, 994 N.E.2d 306, 315 (Ind. Ct. App.

       2013), trans. denied.


[25]   An abuse of discretion occurs if the decision is clearly against the logic and

       effect of the facts and circumstances. Belcher v. State, 138 N.E.3d 318, 327 (Ind.

       Ct. App. 2019), trans. denied. A trial court abuses its discretion if it (1) fails to

       enter a sentencing statement at all, (2) enters a sentencing statement that

       explains reasons for imposing a sentence—including a finding of aggravating

       and mitigating factors if any—but the record does not support the reasons, (3)

       enters a sentencing statement that omits reasons that are clearly supported by

       the record and advanced for consideration, or (4) considers reasons that are

       improper as a matter of law. Allen v. State, 875 N.E.2d 783, 788 (Ind. Ct. App.

       2007) (quotations omitted). The relative weight or value assignable to reasons

       properly found, or to those which should have been found, is not subject to

       review for abuse of discretion. Id.


[26]   In the Argument section of his brief, Brown discusses neither the nature of the

       offense nor his character. Rather, as the State observes, Brown merely recites

       principles of review (under both Rule 7(B) and abuse of discretion), states the

       minimum, advisory, and maximum sentences for his offenses, “and ends his

       argument.” Appellee’s Brief at 25. While Brown mentions in his heading that

       “the trial court gave no weight to Brown’s military service[,]” Appellant’s Brief at

       27, Brown fails to cite to the record or provide any argument in support. In

       sum, Brown has failed to meet his burden to show either that that his sentence

       is inappropriate or that the trial court abused its discretion in sentencing him.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1742 | March 13, 2020   Page 15 of 16
[27]   Judgment affirmed in part, vacated in part, and remanded.


       Robb, J. and Bradford, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1742 | March 13, 2020   Page 16 of 16
