MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be
                                                                  Dec 02 2016, 9:03 am
regarded as precedent or cited before any
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.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                       Gregory F. Zoeller
Brooke Smith                                            Attorney General of Indiana
Keffer Barnhart LLP
                                                        Michael Gene Worden
Indianapolis, Indiana                                   Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Beth Montgomery,                                        December 2, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        82A01-1603-CR-568
        v.                                              Appeal from the Vanderburgh
                                                        Superior Court
State of Indiana,                                       The Honorable Robert J. Pigman,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        82D03-1410-F1-3805



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1603-CR-568 | December 2, 2016    Page 1 of 11
[1]   Beth Montgomery was convicted of Neglect of a Dependent Resulting in

      Death,1 a Level 1 Felony, and Neglect of a Dependent,2 a Level 6 Felony. She

      appeals her Level 1 Felony conviction, arguing that her statement to law

      enforcement officers should not have been admitted as evidence and that there

      was insufficient evidence to sustain the conviction. Finding no error and

      sufficient evidence, we affirm.


                                                    Facts
[2]   Montgomery suffers from depression, chronic migraine headaches, and chronic

      back pain. She took anti-depressant and pain medications during and after her

      pregnancy with B.B. On August 27, 2014, Montgomery was admitted to the

      hospital and delivered B.B. During and following the delivery, Montgomery

      suffered from complications that required emergency medical treatment. B.B.

      also required medical attention because he had respiratory distress and

      withdrawal symptoms, but he was released from the hospital seven days later in

      a healthy condition. Upon B.B.’s discharge, Montgomery and John Bivens,

      Montgomery’s fiancé and B.B.’s father, were provided with information about

      how to care for B.B. This information included instructions that the baby was

      to sleep on his back in a crib by himself.




      1
          Ind. Code § 35-46-1-4(b)(3).
      2
          I.C. § 35-46-1-4(a).


      Court of Appeals of Indiana | Memorandum Decision 82A01-1603-CR-568 | December 2, 2016   Page 2 of 11
[3]   On September 29, 2014, Bivens returned home from work and cared for B.B.

      and his older sibling, K.B., while Montgomery slept for a few hours. Before he

      and K.B. went to sleep in the master bedroom, Bivens made sure that

      Montgomery was awake and coherent so that she could care for B.B. At some

      point that night, Montgomery fell asleep on the couch.


[4]   Around two a.m. on September 30, Montgomery woke Bivens up because B.B.

      was next to her and not moving. Montgomery called 911, and the 911

      dispatcher instructed Bivens to perform CPR on the baby. When the fire

      department personnel arrived at the home, one of the first responders observed

      that B.B. was so pale that he matched the color of his diaper and that he was

      stiff and cold. The first responder took over CPR, and after about ten or fifteen

      minutes, the baby was transported to the hospital, by which time he was

      already deceased. The cause of death was suffocation.


[5]   The same first responder decided to call the Sheriff’s Department because of the

      poor condition of Montgomery’s trailer home. Among other things, it was

      dirty, it contained at least ten dogs and cats, it smelled strongly of animal urine,

      and it was covered with dog droppings.


[6]   Montgomery and Bivens voluntarily went to the Vanderburgh County

      Command Post for questioning. While there, Montgomery was advised of her

      Miranda3 rights, which she waived by signing a written waiver form.



      3
          Miranda v. Arizona, 384 U.S. 436 (1966).


      Court of Appeals of Indiana | Memorandum Decision 82A01-1603-CR-568 | December 2, 2016   Page 3 of 11
      Montgomery initially told the detectives that she woke up in the middle of the

      night, that B.B. was in his bassinet, that she discovered that he was cold, and

      that he must have rolled over onto his stomach. When the detectives said that

      B.B. was too young to roll over, Montgomery insisted that she had seen him

      roll over twice before and that he had been holding his head up since he came

      home from the hospital.


[7]   At one point, Montgomery asked the detectives whether she needed an

      attorney, but the interview continued. Eventually, she told them that she

      wanted an attorney and asked whether she was free to leave. When told that

      she was not free to leave, she asked whether she was under arrest, and the

      detectives told her that she was. The detectives left the room. Montgomery

      then opened the door and asked, “Can I speak with you?” Tr. p. 331. She

      asked what she was under arrest for, and one detective said that the condition

      of the house was enough to substantiate a charge of neglect. Shortly thereafter,

      Montgomery started talking about what happened to B.B., explaining that

      when she woke up, the baby was lying face down on the couch next to her, that

      he was not breathing, and that he was cold.


[8]   On October 2, 2014, the State charged Montgomery with Level 1 felony neglect

      of a dependent resulting in death and Level 6 felony neglect of a dependent. On

      March 6, 2015, the trial court held a hearing on Montgomery’s motion to

      suppress evidence related to her statement to the detectives, and on March 27,

      2015, the trial court denied the motion. On December 1-3, 2015, a jury trial

      took place, and the jury found Montgomery guilty as charged. The trial court

      Court of Appeals of Indiana | Memorandum Decision 82A01-1603-CR-568 | December 2, 2016   Page 4 of 11
       sentenced her to twenty years incarceration for the Level 1 felony and one year

       incarceration for the Level 6 felony, with the sentences running consecutively.


                                    Discussion and Decision
                    I. Statement to Law Enforcement Officers
[9]    Montgomery argues that the trial court erred when it allowed her videotaped

       interview with law enforcement officers to be admitted into evidence. A trial

       court has broad leeway regarding the admission of evidence. Smith v. State, 889

       N.E.2d 836, 839 (Ind. Ct. App. 2008). We will reverse only if the decision is

       clearly against the logic and effect of the facts before the trial court. Figures v.

       State, 920 N.E.2d 267, 271 (Ind. Ct. App. 2010).


[10]   Montgomery first contends that the trial court should not have admitted her

       statement because the detectives violated her Miranda rights when they

       continued questioning her after she expressed interest in getting an attorney.

       “To invoke the right to counsel, it is not enough that the defendant might be

       invoking his rights; the request must be unambiguous.” Bailey v. State, 763

       N.E.2d 998, 1103 (Ind. 2002) (quotation marks and citation omitted) (emphasis

       original). An officer does not need to stop questioning when an accused makes

       an equivocal statement requesting counsel, nor does the officer have to ask

       clarifying questions to determine whether the accused wants counsel. Id.

       Further, when an individual who is being interrogated invokes her right to

       counsel but “initiates ‘further communication, exchanges, or conversations’

       with law enforcement, then the individual may be further interrogated without

       Court of Appeals of Indiana | Memorandum Decision 82A01-1603-CR-568 | December 2, 2016   Page 5 of 11
       counsel present.” Hartman v. State, 988 N.E.2d 785, 788 (Ind. 2013) (quoting

       Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)).


[11]   The record shows that the detectives advised Montgomery of her Miranda rights

       before questioning her and that Montgomery understood her rights before she

       signed the waiver form. During questioning, when Montgomery asked whether

       she needed an attorney, the detectives lawfully continued the conversation. In

       the first instance, Montgomery asked, “Do I need an attorney cause I feel . . .”

       and said “I’m feeling like I’m being . . . .” Tr. p. 320. These statements

       constitute an equivocal request, and the detectives were not obligated to stop

       questioning her at that point. See King v. State, 991 N.E.2d 612, 618 (Ind. Ct.

       App. 2013) (finding that defendant’s question of “Am I going to need an

       attorney?” did not constitute an unequivocal request for counsel); Collins v.

       State, 873 N.E.2d 149, 156 (Ind. Ct. App. 2007) (finding that defendant’s

       statement, “I probably need an attorney,” was an observation rendered

       equivocal by the use of the word “probably”).


[12]   In the second instance, Montgomery stated, “I think I need an Attorney is what

       I think. Yeah I want an Attorney. I’m free to leave right?” Tr. p. 330. The

       detectives told her that she was not free to leave. Montgomery asked, “So am I

       under arrest?” Id. at 331. At that point, the detectives left the interview room,

       but Montgomery opened the door and said, “Can I speak with you?” Id. She

       asked why she was under arrest, and one detective told her that the condition of

       her house warranted a charge of neglect for both of her children. One detective

       said, “I mean you want to talk to us, if you’re wanting to talk to us I’ll be glad

       Court of Appeals of Indiana | Memorandum Decision 82A01-1603-CR-568 | December 2, 2016   Page 6 of 11
       to talk to you and let you know what’s going on. But if your [sic] gonna come

       to the door do you want to talk to us?” Id. at 331-32. Montgomery said, “Yeah

       I, I wanted to know what I was . . . .” Id. at 332. Detective Chapman said,

       “Did you not come to the door and say, can I talk to you?” Id. Montgomery

       replied, “Yeah but first I want know what I’m being arrested for or what I’m

       going to be charged with?” Id. The detectives then resumed questioning her.


[13]   When Montgomery opened the door and asked whether she could speak with

       the detectives, she initiated further communication with them, thereby allowing

       the detectives to continue to question her. Montgomery claims that she did not

       reinitiate the interrogation but merely asked the detectives an administrative

       question about why she was being arrested. She points to no authority to justify

       such a distinction, and we find that her question was properly considered to be

       a communication that allowed the detectives to resume questioning her. See

       Owens v. State, 732 N.E.2d 161, 164 (Ind. 2000) (finding that the defendant

       initiated further communication with the detective such that his rights were not

       violated when, after the detective ceased questioning after the defendant

       requested a lawyer, the defendant inquired about his mother and asked, “What

       could happen to somebody that did this?”). Montgomery also claims that the

       detectives did not scrupulously honor her right to counsel; we note, however,

       that before the detectives resumed questioning her, they twice confirmed that

       she wanted to talk with them and that she was the one who initiated the

       conversation after they stopped it.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1603-CR-568 | December 2, 2016   Page 7 of 11
[14]   Montgomery next contends that the trial court should not have admitted her

       statement because it was involuntarily given. Specifically, she asserts that “[i]t

       is questionable whether Beth’s statement is a product of rational intellect in

       light of the timing of the interrogation and the fact that it occurred mere hours

       after the death of her infant son, and while she was in a fragile emotional and

       mental state.” Appellant’s Br. p. 15.


[15]   “A statement is voluntary if, in the light of the totality of the circumstances, the

       confession is the product of a rational intellect and not the result of physical

       abuse, psychological intimidation, or deceptive interrogation tactics that have

       overcome the defendant's free will.” State v. Keller, 845 N.E.2d 154, 165 (Ind.

       Ct. App. 2006) (quotation marks and citation omitted). Factors that may be

       considered when reviewing the totality of the circumstances for whether a

       waiver of rights was voluntary include police coercion; the length, location, or

       continuity of the interrogation; and the defendant’s maturity, education,

       physical condition, and mental health. Id.


[16]   Montgomery does not allege that she suffered physical abuse, psychological

       intimidation, or deceptive interrogation tactics, nor does the record support the

       idea that Montgomery was mistreated while at the command post. Although

       she was emotionally upset by the death of her son, we cannot say that such

       feelings negate the voluntariness of her statement.


[17]   Because Montgomery’s rights were not violated when the detectives obtained

       her statement, we find no error in the trial court’s admitting it into evidence.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1603-CR-568 | December 2, 2016   Page 8 of 11
       However, even if we found that the trial court had committed an error in

       admitting her statement, it would have been harmless because, as discussed

       below, the conviction is supported by other substantial independent evidence of

       guilt. E.g., Headlee v. State, 678 N.E.2d 823 (Ind. Ct. App. 1997).


                              II. Sufficiency of the Evidence
[18]   Montgomery argues that there is insufficient evidence supporting her conviction

       for neglect of a dependent resulting in death because she did not knowingly fall

       asleep with B.B. in her arms. 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). Circumstantial evidence alone is sufficient if inferences may

       reasonably be drawn that enable the factfinder to find the defendant guilty

       beyond a reasonable doubt. Pratt v. State, 744 N.E.2d 434, 437 (Ind. 2001).


[19]   To convict Montgomery of Level 1 felony neglect of a dependent resulting in

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

       “[a] person having the care of a dependent, whether assumed voluntarily or

       because of a legal obligation, who knowingly or intentionally . . . place[d] the

       dependent in a situation that endanger[ed] the dependent’s life or health,” that

       she was at least eighteen years old, and that the care “result[ed] in the death of a

       dependent who is less than fourteen (14) years of age.” Ind. Code § 35-46-1-


       Court of Appeals of Indiana | Memorandum Decision 82A01-1603-CR-568 | December 2, 2016   Page 9 of 11
       4(a)(1), (b)(3). To establish that Montgomery acted “knowingly,” the State was

       required to prove that she was “aware of a high probability” that she was

       engaging in that conduct. Ind. Code § 35-41-2-2(b).


[20]   Montgomery argues that she was unaware of and had no conscious control

       over her behavior. The record, however, indicates that Montgomery was well

       aware of her decisions, which included taking medications that affected her

       ability to adequately care for her children and home. The evidence shows that

       the hospital staff informed Montgomery on how to care for B.B. and instructed

       her on how B.B. was to sleep alone on his back in his crib. Montgomery was

       aware that it was important for B.B. to sleep on his back—when the detectives

       questioned her, she emphasized that B.B. always slept on his back. Bivens

       testified that Montgomery was awake and coherent before he went to bed on

       the night that B.B. died. The evidence shows that Montgomery knew that she

       had taken medication that day and was tired that night. The forensic medical

       evidence established that B.B. died from suffocation as a result of being on his

       stomach and on a surface that was not flat. Finally, in her statement to the

       detectives, Montgomery admitted that when she woke up, B.B. was lying face-

       down on a couch cushion next to her.


[21]   Although Montgomery argues that she was unaware of what she was doing, the

       jury was free to disbelieve her and infer from the surrounding circumstances

       that she took B.B. out of his bassinet and held him while she was sitting on the

       couch, thereby placing her baby in a situation in which he could fall asleep in a

       physically dangerous position. We will not second-guess the jury in its

       Court of Appeals of Indiana | Memorandum Decision 82A01-1603-CR-568 | December 2, 2016   Page 10 of 11
       assessment of her credibility. The evidence is sufficient to support her

       conviction for neglect of a dependent resulting in death.


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


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




       Court of Appeals of Indiana | Memorandum Decision 82A01-1603-CR-568 | December 2, 2016   Page 11 of 11
