Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res
                                                           Mar 13 2013, 8:46 am
judicata, collateral estoppel, or the law
of the case.




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

JOHN C. BOHDAN                                    GREGORY F. ZOELLER
Fort Wayne, Indiana                               Attorney General of Indiana

                                                  RICHARD C. WEBSTER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

MICHAEL A. COMBS,                                 )
                                                  )
        Appellant-Defendant,                      )
                                                  )
               vs.                                )      No. 02A03-1209-CR-393
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Plaintiff.                       )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                           The Honorable Frances C. Gull, Judge
                             Cause No. 02D06-1109-FB-210


                                        March 13, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                    Case Summary

      Michael Combs appeals his conviction for Class B felony neglect of a dependent

and his sentence for Class A felony child molesting, two counts of Class B felony neglect

of a dependent, and Class D felony battery. We affirm.

                                         Issues

      Combs raises two issues, which we restate as:

            I.   whether the evidence is sufficient to sustain his conviction
                 for Class B felony neglect of a dependent related to D.D.;
                 and

           II.   whether his sentence is inappropriate in light of the nature
                 of the offense and the character of the offender.

                                          Facts

      In August 2010, Shanna Vorndran and her children, two-year-old M.D. and one-

year-old D.D., moved into a house in Fort Wayne with Combs, his sister, Anna Hogan,

and Hogan’s four children. M.D. had a speech delay and rarely talked. Vorndran worked

at a Wendy’s restaurant, but Combs and Hogan were not working. Combs and Hogan

watched the children while Vorndran worked. After moving into the house, Vorndran

started noticing more bruises on M.D. and D.D. and noticed that M.D. had a rash around

his anus and injuries to his anus and penis. Vorndran, Hogan, and a neighbor had also

seen Combs hit M.D.

      On September, 14, 2010, Vorndran worked from approximately 11:45 a.m. until

5:00 p.m. Vorndran did not recall having contact with her children before she left for

work. Combs and Hogan watched the children while Vorndran was working. When


                                            2
Vorndran got home from work, she found D.D. on a bed, in pain, and with a swollen leg.

Hogan said that D.D. had fallen out of his playpen. At approximately 10:00 p.m.,

Vorndran took D.D. to the hospital. Vorndran learned that D.D. had a spiral fracture of

his femur, and he had surgery that night. The spiral fracture was inconsistent with a fall,

and the Department of Child Services (“DCS”) was contacted.

      On September 15, 2010, Lanita Holder, a DCS family case manager, talked with

Vorndran. Vorndran initially claimed that she and the children were living with her

mother.   However, Vorndran’s mother reported that she had not seen Vorndran in

months. When DCS family case managers and police officers arrived at Vorndran’s

house, they discovered that M.D. was filthy, covered with bruises, and had blood in his

diaper. Combs claimed that M.D. had fallen out of the bathtub when he was watching

him. DCS removed M.D. and Hogan’s children from the residence. M.D. was examined

at a sexual assault treatment center and at the hospital emergency room. The sexual

assault nurse documented seventy-five injuries on M.D., including numerous bruises and

abrasions on his body. M.D. had bruises and abrasions on his genitals and several tears

to his anus, including one fresh tear. The anal injuries were consistent with more than

one episode of anal intercourse or penetration by a blunt object. Hogan later reported to

police that, on September 15, 2010, while Vorndran was at the hospital, she saw Combs

having what appeared to be anal intercourse with M.D.

      The State charged Combs with Class A felony child molesting of M.D., Class B

felony neglect of dependent D.D., Class B felony neglect of dependent M.D., and Class D



                                            3
felony battery of M.D.1 After a jury trial, Combs was found guilty as charged. At the

sentencing hearing, the trial court found Combs’s lack of criminal history to be a

mitigating factor. The trial court found the following aggravating factors: the fact that

Combs was a caretaker for the children and in a position of trust, the children’s young

age, the fact that there were multiple victims, and the nature and circumstances of the

offenses. The trial court sentenced Combs to forty years for the Class A felony child

molesting conviction, ten years for each of the Class B felony neglect of a dependent

convictions, and one and one-half years for the Class D felony battery conviction. The

trial court ordered the sentences to be served consecutively for an aggregate sentence of

sixty-one and one-half years in the Department of Correction. Combs now appeals.

                                                Analysis

                                   I. Sufficiency of the Evidence

          Combs argues that the evidence is insufficient to sustain his conviction for Class B

felony neglect of dependent D.D.2 When reviewing the sufficiency of the evidence

needed to support a criminal conviction, we neither reweigh evidence nor judge witness

credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the

evidence supporting the judgment and any reasonable inferences that can be drawn from

such evidence.” Id. We will affirm if there is substantial evidence of probative value




1
 Vorndran pled guilty to two counts of Class B felony neglect of a dependent, and Hogan pled guilty to
two counts of Class C felony neglect of a dependent.
2
    Combs does not appeal his remaining convictions.
                                                       4
such that a reasonable trier of fact could have concluded the defendant was guilty beyond

a reasonable doubt. Id.

        The offense of neglect of a dependent is governed by Indiana Code Section 35-46-

1-4(a)(1), which provides that “[a] person having the care of a dependent, whether

assumed voluntarily or because of a legal obligation, who knowingly or intentionally . . .

places the dependent in a situation that endangers the dependent’s life or health . . .

commits neglect of a dependent.” The offense is a Class B felony if it results in serious

bodily injury. Ind. Code § 35-46-1-4(b)(2). Combs argues the evidence is insufficient to

show that he was caring for D.D. or that he knew of D.D.’s injury.

        The State presented evidence that Combs was present in the home on September

14, 2010, and that Combs was the only adult present in the home for part of the day.

D.D.’s injury would have been extremely painful during any movement, and Combs

admitted to placing D.D. on the bed. Despite D.D.’s obvious injury, Combs did not seek

medical treatment for him. In fact, Combs and Hogan took Vorndran’s vehicle for

approximately ninety minutes after she returned home from work, leaving her with no

vehicle to transport D.D. to the hospital.

        The evidence is sufficient to sustain Combs’s conviction for the neglect of D.D.

Combs’s argument to the contrary is merely a request that we reweigh the evidence and

judge the credibility of the witnesses, which we cannot do. See Bailey, 907 N.E.2d at

1005.




                                             5
                                           II. Sentence

       Next, Combs argues that his sixty-one and one-half year sentence is inappropriate

in light of the nature of the offense and the character of the offender.3 Indiana Appellate

Rule 7(B) 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. When considering

whether a sentence is inappropriate, we need not be “extremely” deferential to a trial

court’s sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.

2007). Still, we must give due consideration to that decision. Id. We also understand

and recognize the unique perspective a trial court brings to its sentencing decisions. Id.

Under this rule, the burden is on the defendant to persuade the appellate court that his or

her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,

and identify some guiding principles for trial courts and those charged with improvement

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. When reviewing the

appropriateness of a sentence under Rule 7(B), we may consider all aspects of the penal

consequences imposed by the trial court in sentencing the defendant, including whether a

3
  The State argues that Combs waived this issue by failing to make an argument regarding the nature of
the offense and the character of the offender. However, Combs does argue that his sentence is
inappropriate under Indiana Appellate Rule 7(B). Thus, we will address the issue.
                                                  6
portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

2010).

         The nature of the offense is horrific and disturbing. At the sentencing hearing, the

investigating detective described this case as the most horrific that he had worked on

because of the “savage brutality” that M.D. endured. Sentencing Tr. p. 9. Despite his

knowledge of D.D.’s injury, Combs left one-year-old D.D. in agony for hours and failed

to get medical attention for him. Combs brutally beat and sexually assaulted two-year-

old M.D., leaving M.D. with possibly permanent physical damage. Although M.D. had

seventy-five injuries, Combs did not seek medical attention for him.

         As for the character of the offender, although Combs has no prior criminal record,

we see no redeeming qualities that would warrant a reduction in his sentence. Combs

completely abused his position as caregiver for the two small boys, but he argues that the

trial court improperly used his position of trust or caregiver as an aggravator because it

was an element of the offense for neglect. To the extent Combs is arguing that the

aggravator was improper, we note that our supreme court held in Pedraza v. State, 887

N.E.2d 77, 80 (Ind. 2008), that, following the 2005 statutory sentencing changes, the use

of a material element of a crime as an aggravating factor is “no longer inappropriate in

light of the nature of the offense and the character of the offender double enhancement.”

Thus, Combs’s argument fails.4 At the sentencing hearing, the investigating detective

testified that Combs displayed “nothin[g] but pure arrogance.” Id.


4
 The State also properly notes that only the sentence for the child molesting conviction was enhanced,
and Combs’s position as a caregiver was not an element of that offense.
                                                  7
        Combs argues that his sentence should be reduced based on Buchanan v. State,

767 N.E.2d 967 (Ind. 2002), in which our supreme court reduced a fifty-year-sentence for

child molesting to forty years. We must disagree with Combs’s assertion that the facts of

Buchanan are similar to those here. Buchanan involved one molestation of a five-year-

old child. Here, Combs was convicted of child molestation, battery, and the neglect of

two young children with horrific injuries. Given the nature of the offenses and the

character of the offender, we conclude that the sixty-one and one-half year sentence is not

inappropriate.5

                                               Conclusion

        The evidence is sufficient to sustain Combs’s conviction for Class B felony

neglect of D.D., and his sentence is not inappropriate in light of the nature of the offense

and the character of the offender. We affirm.

        Affirmed.

BAKER, J., and RILEY, J., concur.




5
  According to Combs, we should revise the consecutive sentences to concurrent sentences for the
convictions related to M.D., i.e., the neglect, battery, and child molestation convictions, because there was
“factual overlay” between the offenses. Appellant’s Br. p. 19. To the extent this argument implicates a
double jeopardy issue, we find the argument waived for failure to make a cogent argument. See, e.g.,
Shane v. State, 716 N.E.2d 391, 398 (Ind. 1999) (“The failure to develop an argument results in a waiver
of that argument.”).


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