MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Sep 20 2019, 9:24 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
Stanley L. Campbell                                      Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General

                                                         Megan M. Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Auralea Till,                                            September 20, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-808
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D05-1710-F3-54



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019                 Page 1 of 12
                                             Case Summary
[1]   Auralea Till appeals her conviction, following a jury trial, for level 3 felony

      neglect of a dependent. Till asserts that the trial court abused its discretion in

      admitting certain evidence and that the State presented insufficient evidence to

      support her conviction. She also claims that the twelve-year sentence imposed

      by the trial court is inappropriate in light of the nature of the offense and her

      character. We find no abuse of discretion, and we conclude that the State

      presented sufficient evidence. We further conclude that Till has not met her

      burden to demonstrate that her sentence is inappropriate. Accordingly, we

      affirm.


                                 Facts and Procedural History
[2]   Till had two children with Daniel Lopresti. The first child, D.L., was born on

      May 15, 2015, and the second child, V.L., was born on October 6, 2016. On

      June 3, 2017, Till awoke to care for the two young children around 8:00 a.m.,

      and she began drinking alcohol before 10:30 a.m. Lopresti left the home after

      11:30 a.m. to go to run errands and to pick up some fast-food for the family.

      Sometime later that day after Lopresti returned, Till was outside with the

      children while Lopresti worked in the yard repairing a small swimming pool.


[3]   At around 8:00 p.m., Lopresti asked Till to take the children inside because

      D.L. was interfering with his work on the pool. Till went inside with the

      children. She turned a movie on for D.L. in the living room, and she laid

      seven-month-old V.L. on the cluttered floor. Till went into the kitchen, poured


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 2 of 12
      a glass of juice, washed dishes, and pulled dinner out of the refrigerator. She

      then went outside to talk to Lopresti and to smoke a cigarette.


[4]   When Till returned inside, she observed that V.L. had a blanket over his head.

      She removed the blanket and discovered that he had a plastic bag wrapped

      around his head. Till grabbed the baby and ran outside carrying him in her

      arms and screaming. Lopresti saw that V.L. was not breathing and that he had

      already turned blue. Till put V.L. down in the grass and began CPR while

      Lopresti called 911. Lopresti took over performing CPR because he realized

      that Till was just blowing air over V.L.’s face rather than blowing air into his

      mouth.


[5]   Emergency personnel arrived on the scene and found Lopresti administering

      CPR. V.L. was still not breathing and had no heartbeat, so the paramedics

      began chest compressions and placed a bag and a mask over V.L.’s mouth to

      provide “positive-pressure ventilation.” Tr. Vol. 2 at 219. The paramedics were

      eventually able to resuscitate V.L., and he was transported by ambulance to the

      hospital. Lopresti accompanied V.L. in the ambulance while Till stayed home.


[6]   Police officers and a Department of Child Services investigator arrived on the

      scene and observed that Till was exhibiting signs of intoxication and smelled of

      alcohol. Lopresti’s brother-in-law, Timothy Wolford, who had come to the

      home to pick up D.L., noticed that when he hugged Till that she “reeked” of

      alcohol. Tr. Vol. 3 at 93. Till was behaving frantically and told officers




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 3 of 12
      inconsistent stories about the circumstances surrounding what happened to

      V.L.


[7]   V.L. spent several weeks in a local hospital before being transferred to Riley

      Children’s Hospital Rehabilitation. He had sustained a severe hypoxic brain

      injury caused by a “prolonged … low-oxygen” event. Tr. Vol. 2 at 240. He

      needed a feeding tube and he suffered from nerve storming.1 V.L. has

      permanent brain damage and was ultimately diagnosed with cerebral palsy,

      epilepsy, and numerous developmental delays.


[8]   The State charged Till with level 3 felony neglect of a dependent. On

      November 27, 2017, the State filed its notice of intent to present Indiana

      Evidence Rule 404(b) evidence, to which Till responded with a written

      objection. The State sought to introduce evidence of Till’s alcohol use while

      pregnant with V.L. and her three older children, her alcohol use while caring

      for V.L. and her three older children, her inattentiveness to V.L., her

      unhappiness about being pregnant with V.L., and her desire to abort V.L. The

      trial court held a hearing and subsequently issued its order denying the State’s

      request to present evidence of Till’s “prior incidents of alcohol use resulting in

      her children being placed at risk and her alcohol use while pregnant … unless

      the door is opened” by defense counsel. Appellant’s App. Vol. 2 at 44.




      1
        Nerve storming or “neuro storm” is what happens after a “prolonged hypoxic event” when “nerves just
      start firing randomly[,]” causing agitated behavior, muscle twitches, and high fevers. Tr. Vol. 2 at 240-41.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019                  Page 4 of 12
       However, the trial court ruled that Till’s “alcohol use/inattention to the victim

       in this case after his birth is relevant and admissible.” Id.


[9]    During trial, Lopresti testified, over Till’s objection, that Till became

       intoxicated regularly while caring for V.L. and D.L., requiring him to often take

       the children to his sister’s house so that his sister could care for them.

       Lopresti’s sister, Nichole Wolford, testified, over Till’s objection, that she

       observed Till leave V.L. unattended on numerous occasions and that she had

       discussed this dangerous behavior with Till. At the conclusion of the trial, the

       jury found Till guilty of level 3 felony neglect of a dependent. The trial court

       imposed a twelve-year aggregate sentence. This appeal ensued.


                                      Discussion and Decision

            Section 1 – The trial court did not abuse its discretion in
                          admitting certain evidence.
[10]   Till challenges the trial court’s admission of evidence. The appellate court

       affords the trial court wide discretion in ruling on the admissibility of evidence.

       Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012). “We review evidentiary

       decisions for abuse of discretion and reverse only when the decision is clearly

       against the logic and effect of the facts and circumstances.” Id.


[11]   Till claims that the trial court abused its discretion in admitting certain

       testimony that she was inattentive to V.L. while also using alcohol on prior

       occasions. Specifically, Till argues that the testimony was inadmissible

       character evidence pursuant to Indiana Evidence Rule 404(b). The State

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 5 of 12
       responds that the challenged evidence was admissible to prove Till’s intent and

       to also show that what happened to V.L. was not simply an accident.


[12]   Indiana Evidence Rule 404(b) provides that evidence of a crime, wrong, or

       other act is not admissible to prove a person’s character in order to show that on

       a particular occasion the person acted in accordance with the character.

       However, such evidence may be admissible to prove “motive, opportunity,

       intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

       accident.” Ind. Evidence Rule 404(b)(2). In assessing the admissibility of Rule

       404(b) evidence, (1) the court must determine that the evidence of other crimes,

       wrongs, or acts is relevant to a matter at issue other than the defendant’s

       propensity to commit the charged act, and (2) the court must balance the

       probative value of the evidence against its prejudicial effect pursuant to

       Evidence Rule 403. Whatley v. State, 908 N.E.2d 276, 281 (Ind. Ct. App. 2009),

       trans. denied.


[13]   Here, the challenged testimony that Till often used alcohol while caring for

       V.L., that she had exhibited a pattern of leaving him unattended, and that she

       had been warned of the dangers of doing so, was relevant and admissible to

       show her intent and lack of accident. Indeed, the trial court held a full hearing

       prior to trial to consider the entirety of the State’s proposed 404(b) evidence and

       specifically limited the admissible evidence to the above-mentioned type of

       testimony based upon the court’s determination that such evidence was highly

       probative of Till’s intent. Moreover, Till concedes that her defense at trial was

       that what happened to V.L. was an accident, and it is well settled that lack of

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 6 of 12
       accident is a subset of intent. See Fairbanks v. State, 119 N.E.3d 564, 568 (Ind.

       2019) (the State may offer other-bad-acts evidence of lack of accident when an

       accident defense is raised or the defendant places accident at issue at trial).


[14]   Nevertheless, Till maintains that the trial court should have excluded the

       testimony because its probative value was substantially outweighed by its

       prejudicial effect. The trial court has wide latitude in weighing the probative

       value of the evidence against the possible prejudice. Prairie v. State, 914 N.E.2d

       294, 298 (Ind. Ct. App. 2009). Contrary to Till’s assertions, the prejudicial

       effect of the evidence of her prior alcohol use, inattentiveness to V.L., and

       warnings about the same, did not substantially outweigh its probative value.

       Although such evidence certainly did not paint Till in a good light, any

       prejudice was outweighed by the evidence’s highly probative value to show that

       V.L.’s injuries were not simply accidental as claimed by Till but the result of

       Till’s knowing behavior. The trial court did not abuse its discretion in

       admitting the challenged evidence.


        Section 2 – The State presented sufficient evidence to support
                              Till’s conviction.
[15]   Till next challenges the sufficiency of the evidence to support her conviction.

       When reviewing a claim of insufficient evidence, we neither reweigh the

       evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495, 499 (Ind.

       2015). We look to the evidence and reasonable inferences drawn therefrom that

       support the conviction, and will affirm if there is probative evidence from which

       a reasonable factfinder could have found the defendant guilty beyond a

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 7 of 12
       reasonable doubt. Id. In short, if the testimony believed by the trier of fact is

       enough to support the conviction, then the reviewing court will not disturb it.

       Id. at 500.


[16]   To convict Till of level 3 felony neglect of a dependent, the State was required

       to prove that Till, a person having the care of V.L., knowingly or intentionally

       placed V.L. in a situation that endangered his life or health, which resulted in

       serious bodily injury to V.L. Ind. Code § 35-46-1-4(b)(2). A “knowing” mens

       rea in this regard requires a subjective awareness of a high probability that a

       dependent had been placed in a dangerous situation. Villagrana v. State, 954

       N.E.2d 466, 468 (Ind. Ct. App. 2011) (citing Ind. Code § 35-41-2-2(b)).


[17]   Till concedes that, as V.L.’s mother, she was charged with his care. She also

       concedes that V.L. suffered serious bodily injury. She contends, however, that

       the State failed to establish that she knowingly placed V.L. in a situation

       endangering his life or health. That is, she argues that the State presented

       insufficient evidence that she was subjectively aware of a high probability that

       V.L. had been placed in a dangerous situation when she left him unattended on

       the cluttered living room floor.


[18]   In most child neglect cases, a finding of a knowing mens rea requires the

       factfinder to infer the defendant’s mental state. Pierson v. State, 73 N.E.3d 737,

       741 (Ind. Ct. App. 2017), trans. denied. Thus, this Court must look to all the

       surrounding circumstances of a case to determine if a guilty verdict is proper.

       Id. Here, the jury heard testimony from several witnesses that Till exhibited


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 8 of 12
       signs of intoxication when V.L. was injured, and that she gave inconsistent

       stories regarding why and for how long she left V.L. unattended. The medical

       evidence indicated that V.L. was left unattended for a prolonged period.

       Moreover, the jury saw multiple pictures of the area where Till discovered V.L.

       unresponsive. Those pictures showed an area completely covered with toys,

       clothes, cups, blankets, plastic bags, trash, and all sorts of debris that could

       undoubtedly be extremely dangerous to an unattended small child with even

       the slightest mobility.


[19]   Till directs us only to her self-serving testimony that she did not see anything

       dangerous around the area where she left V.L. unattended. This is simply a

       request for us to reweigh the evidence, and we cannot. There was sufficient

       evidence from which a reasonable jury could infer that Till acted knowingly, as

       she was “aware of facts that would alert a reasonable parent, under the

       circumstances, to take affirmative action to protect the child.” Hastings v. State,

       560 N.E.2d 664, 667 (Ind. Ct. App. 1990). The State presented sufficient

       evidence to support Till’s conviction.


       Section 3 – Till has not met her burden to demonstrate that the
               trial court imposed an inappropriate sentence.
[20]   Finally, Till requests that we reduce the twelve-year sentence imposed by the

       trial court pursuant to Indiana Appellate Rule 7(B), which provides that we

       may revise a sentence authorized by statute if, after due consideration of the

       trial court's decision, we find that the sentence “is inappropriate in light of the

       nature of the offense and the character of the offender.” The defendant bears

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 9 of 12
       the burden to persuade this Court that his or her sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible

       sentencing scheme allows trial courts to tailor an appropriate sentence to the

       circumstances presented, and the trial court’s judgment “should receive

       considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

       The principal role of appellate review is to attempt to “leaven the outliers.” Id.

       at 1225. Whether we regard a sentence as inappropriate at the end of the day

       turns on “our sense of the culpability of the defendant, the severity of the crime,

       the damage done to others, and myriad other facts that come to light in a given

       case.” Id. at 1224. “The question under Appellate Rule 7(B) is not whether

       another sentence is more appropriate; rather, the question is whether the

       sentence imposed is inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind.

       Ct. App. 2007).


[21]   Regarding the nature of the offense, the advisory sentence is the starting point

       that the legislature has selected as an appropriate sentence for the crime

       committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range

       for a level 3 felony is between three and sixteen years, with an advisory

       sentence of nine years. Ind. Code § 35-50-2-5(b). The trial court here imposed

       a twelve-year sentence, which is above the advisory but well below the

       maximum allowable sentence.


[22]   Till maintains that an enhanced sentence is inappropriate based upon the nature

       of her offense because “[t]he fact that the child sustained injuries as a result of

       what happened” is already contemplated by level 3 felony charge and that

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 10 of 12
       “[n]othing about the injury would be a cause for aggravating it beyond the

       advisory sentence[.]” Appellant’s Br. at 29. Till attempts to minimize the

       egregiousness of her behavior and ignores that V.L. did not just suffer serious

       bodily injury, he suffered extensive and lifelong brain damage. He has been

       diagnosed with cerebral palsy, epilepsy, and numerous developmental delays,

       and he currently spends twelve to fourteen hours per week in various therapies.

       The trial court noted the “extraordinary impact” Till’s neglect had on V.L. due

       to the seriousness of his injuries and the fact that he will “never have a normal

       life.” Tr. Vol. 4 at 173-74. Till has not persuaded us that the nature of the

       offense warrants a sentence reduction.


[23]   Till fares no better when we consider her character. The character of the

       offender is found in what we learn of the offender’s life and conduct. Croy v.

       State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). While we acknowledge that

       Till does not have a prior criminal history, the trial court found that Till has a

       long history of exhibiting several other negative character traits. She has a

       history of alcohol abuse and admits to drinking alcohol while pregnant. She

       lost custody of two of her older children after they were diagnosed with fetal

       alcohol syndrome. Even after that tragic outcome, she did not change her

       behavior, as her next two children were also diagnosed with fetal alcohol

       syndrome. As the trial court observed, despite the intervention of those

       involved in social services, Till has made “miserable efforts” toward recovery

       and reformation. Tr. Vol. 4 at 173. She currently does not have custody of any

       of her five children, and she is permitted only supervised visitation with three of


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 11 of 12
       them. Moreover, Till is more than $25,000 behind in her child support

       obligation. None of this reflects positively on her character.


[24]   Till points to her recent attendance at Alcoholics Anonymous meetings to

       demonstrate her commitment to change. However, even after V.L. was

       injured, Till continued to abuse alcohol, reportedly frequenting bars and

       proudly posting her escapades on social media. As noted by the trial court,

       Till’s recent “efforts at recovery have been too little and far too late.” Id. at 174.

       Under the circumstances, Till has not met her burden to demonstrate that a

       twelve-year sentence is inappropriate in light of the nature of the offense and

       her character. Therefore, we affirm the sentence imposed by the trial court.


[25]   Affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019   Page 12 of 12
