MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                     May 31 2018, 10:32 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
Emilee L. Stotts                                        Curtis T. Hill, Jr.
Marion, Indiana                                         Attorney General of Indiana

                                                        Justin F. Roebel
                                                        Supervising Deputy Attorney General
                                                        Indianapolis, Indiana


                                            IN THE
      COURT OF APPEALS OF INDIANA

Brandon D. Mettler,                                     May 31, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        35A02-1711-CR-2742
        v.                                              Appeal from the Huntington Circuit
                                                        Court
State of Indiana,                                       The Honorable Thomas M. Hakes,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        35C01-1610-F1-182



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2742 | May 31, 2018            Page 1 of 14
                                             Case Summary
[1]   While under the influence of illegal drugs, Brandon D. Mettler drove his vehicle

      left of center at a high speed and collided with two oncoming vehicles. As a

      result, his girlfriend’s six-year-old son was killed, and his girlfriend and her two

      other children were injured. A jury convicted him of level 1 felony neglect of a

      dependent causing death, level 4 felony operating while under the influence of a

      controlled substance causing death, level 5 felony neglect of a dependent, and

      level 6 felony neglect of a dependent. He admitted to his habitual offender

      status, and the trial court sentenced him to an aggregate sixty-five-year term.

      He now appeals, challenging the sufficiency of the evidence to support his

      neglect convictions, the trial court’s treatment of aggravating factors during

      sentencing, and the appropriateness of his sentence. We affirm.


                                 Facts and Procedural History
[2]   In January 2014, Mettler and Kaytlin Brubaker became romantically involved.

      Within a couple months, they moved in together and resided with Brubaker’s

      three sons, twins Ka.B. and Ky.B., born in 2009, and Ko.B., born in 2012

      (collectively “the Children”). Mettler, Brubaker, and the Children lived

      together as a family for the ensuing two years, with Mettler driving the Children

      to school, feeding them, playing with them, bathing them, and helping with

      discipline. Tr. Vol. 3 at 54, 79. Mettler provided financially for the Children

      and claimed them as dependents on his 2015 tax form. Id. at 55. The Children

      referred to Mettler as “daddy,” and Mettler’s biological children, who lived

      elsewhere, referred to the Children as their brothers. Id. at 54.

      Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2742 | May 31, 2018   Page 2 of 14
[3]   In 2015, Mettler became addicted to heroin and methamphetamine (“meth”).

      Soon thereafter, Brubaker became addicted as well. Mettler injected heroin

      every four to six hours and smoked meth regularly. Id. at 60. He sometimes

      would “cook” the heroin in the Children’s presence. Id. at 84-85.


[4]   On March 26, 2016, the family planned to go to Fort Wayne, pick up Mettler’s

      biological children, and go to a movie. Mettler injected heroin around 11:00

      a.m., smoked meth at 11:30 a.m., and repeated the regimen around 2:00 and

      2:30 p.m., respectively. Id. at 75. At 3:00 p.m., the family left North

      Manchester for Fort Wayne in their minivan, with Mettler driving, Brubaker in

      the front passenger seat, and the Children in the back seats. At one point,

      Brubaker expressed her concern to Mettler, who appeared to be nodding off,

      but Mettler said that he was fine and would not pull over. He told her to be

      quiet or he would “shut [her] up.” Id. at 63-64. Shortly thereafter, Mettler

      drove about one foot left of the center line and collided with a piece of farm

      equipment being towed by an oncoming pickup truck. He then collided with a

      second oncoming pickup truck, also towing farm equipment. The posted speed

      limit on the state highway was fifty-five miles per hour. An accident

      reconstruction specialist determined that Mettler had his cruise control set at

      sixty-seven or sixty-eight miles per hour at the time of the accident. He also

      found no evidence of Mettler braking or swerving.


[5]   Emergency personnel arrived, and six-year-old Ka.B. died at the scene. The

      cause of death was blunt force trauma with a skull fracture and severe brain

      injury. State’s Ex. 10. Three-year-old Ko.B. was hospitalized and placed in the

      Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2742 | May 31, 2018   Page 3 of 14
      intensive care unit for several days with an eye socket fracture and lethargy.

      Brubaker and Ky.B. were treated at the hospital and released. Mettler suffered

      serious injuries and was taken to the hospital, where he tested positive for

      amphetamine, methamphetamine, codeine, and morphine (metabolite of

      heroin).


[6]   The State charged Mettler with level 1 felony neglect of a dependent resulting in

      death, level 4 felony operating while under the influence (“OWI”) of a

      controlled substance causing death, level 5 felony neglect of a dependent, level

      6 felony neglect of a dependent, driving left of center (infraction), and a habitual

      offender count. In bifurcated proceedings, the jury convicted him of the three

      neglect counts and the OWI count. Mettler subsequently admitted to the

      habitual offender count.


[7]   At sentencing, the trial court identified as aggravating circumstances Mettler’s

      violation of his position of trust with the Children, his criminal history, the fact

      that he was out on bond when he committed the current offenses, and a new

      and unrelated criminal charge against him. The court specifically found no

      mitigating circumstances. The court did not enter judgment on Mettler’s OWI

      count and instead, merged it with his level 1 felony neglect conviction and

      sentenced him to an aggregate sixty-five-year term. The sentence comprised

      thirty-nine years for level 1 felony neglect, consecutive five- and two-year terms,

      respectively, for the level 5 and 6 felony neglect convictions, and a nineteen-

      year fixed additional term for the habitual offender adjudication. Mettler now

      appeals. Additional facts will be provided as necessary.

      Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2742 | May 31, 2018   Page 4 of 14
                                     Discussion and Decision

       Section 1 – Sufficient evidence supports Mettler’s convictions
                         for neglect of a dependent.
[8]   Mettler contends that the evidence is insufficient to support his convictions for

      neglect of a dependent. When reviewing a challenge to the sufficiency of

      evidence, we neither reweigh evidence nor judge witness credibility. Moore v.

      State, 27 N.E.3d 749, 754 (Ind. 2015). Rather, we consider only the evidence

      and reasonable inferences most favorable to the verdict and will affirm the

      conviction unless no reasonable factfinder could find the elements of the crime

      proven beyond a reasonable doubt. Id. Reversal is appropriate only when

      reasonable persons would be unable to form inferences as to each material

      element of the offense. McCray v. State, 850 N.E.2d 998, 1000 (Ind. Ct. App.

      2006), trans. denied. The evidence need not “overcome every reasonable

      hypothesis of innocence.” Dalton v. State, 56 N.E.3d 644, 647 (Ind. Ct. App.

      2016) (quoting Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007)), trans. denied.


[9]   Mettler was convicted of one count each of neglect of a dependent as a level 1

      felony, a level 5 felony, and a level 6 felony. Indiana Code Section 35-46-1-

      4(a)(1) reads, “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, a Level 6 felony.” The offense is elevated

      to a level 5 felony when it results in bodily injury to the dependent and to a

      level 1 felony where it is committed by a person at least age eighteen and results

      Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2742 | May 31, 2018   Page 5 of 14
       in the death of a dependent who is under age fourteen. Ind. Code § 35-46-1-

       4(b)(1), -(b)(3). Indiana Code Section 35-46-1-1 defines “Dependent” as “(1) an

       unemancipated person who is under eighteen (18) years of age; or (2) a person

       of any age who has a mental or physical disability.”


[10]   Mettler challenges the sufficiency of the evidence only with respect to the

       element of whether the Children were his dependents by voluntary assumption

       of care. In making this argument, he emphasizes that he was under no legal

       obligation to care for the Children, as they were Brubaker’s biological children

       with other men and he had not sought to adopt or otherwise formally obligate

       himself to them. In this vein, we note that the statute was specifically drafted to

       include circumstances where the facts and circumstances support a reasonable

       inference that the adult has voluntarily assumed the care of the dependent.


[11]   In McGowan v. State, 89 N.E.3d 424, 429 (Ind. Ct. App. 2017), another panel of

       this Court found sufficient evidence to support the jury’s factual determination

       that the defendant had voluntarily assumed the care of her cohabiting

       boyfriend’s children for purposes of the neglect statute and had knowingly

       placed them in danger by essentially running a drug house. McGowan and her

       boyfriend operated as a family with the boyfriend’s children and had two

       additional children together. The Court found sufficient evidence that

       McGowan voluntarily assumed the care of her boyfriend’s children by cooking

       for them, enrolling them in school, transporting them to school, and assuming a

       “parent-like role.” Id. at 425.



       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2742 | May 31, 2018   Page 6 of 14
[12]   Similarly, in Street v. State, 30 N.E.3d 41, 50 (Ind. Ct. App. 2015), trans. denied,

       another panel of this Court found the evidence sufficient to support a finding of

       voluntary assumption of care to support Street’s neglect conviction where he

       lived with his girlfriend and her daughter and grandchild, and the daughter

       viewed him as a father figure. Street, his girlfriend, and his girlfriend’s

       grandchild all slept together in a bed in which Street kept a loaded firearm

       inside a pillowcase. Id. at 44.


[13]   Here, Mettler had cohabited with Brubaker and the Children for two years. He

       admitted that he was “there as a father figure” for the Children. Tr. Vol. 3 at

       100. Although he attempted to downplay his role as secondary to Brubaker’s,

       especially on matters of discipline and punishment, he was “daddy” to the

       Children and referred to them as his “sons.” Id. at 54, 79, 95-96. He drove the

       Children to school, fed them, played with them, and bathed them. Id. at 54.

       He provided for the Children financially and claimed them as dependents on

       his 2015 tax form. Id. at 55. His own biological children, with whom he had

       regular visitation, referred to the Children as their brothers. Id. at 54. He

       admitted that driving the Children in his vehicle at the time of the crash

       amounted to voluntarily assuming their care. See Id. at 108 (Mettler’s response

       to the State’s question, “When you’re the driver, who has the care of the

       occupants of that car?” … “I do.”).


[14]   Simply put, Mettler, Brubaker, and the Children operated as a family, and

       Mettler functioned as the Children’s father. Thus, the evidence supports the

       jury’s determination that Mettler voluntarily assumed their care. His arguments

       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2742 | May 31, 2018   Page 7 of 14
       amount to invitations to reweigh evidence and reassess witness credibility,

       which we cannot and will not do. See Moore, 27 N.E.3d at 754. The evidence is

       sufficient to support Mettler’s convictions for neglect of a dependent.


          Section 2 – The trial court acted within its discretion in its
             treatment of aggravating factors during sentencing.
[15]   Mettler also challenges the trial court’s treatment of aggravating factors during

       sentencing. Sentencing decisions rest within the sound discretion of the trial

       court, and so long as a sentence is within the statutory range, it is subject to

       review only for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490

       (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion occurs

       where the trial court’s decision is clearly against the logic and effect of the facts

       and circumstances before it, or the reasonable, probable, and actual deductions

       to be drawn therefrom. Sloan v. State, 16 N.E.3d 1018, 1026 (Ind. Ct. App.

       2014). One of the ways in which a trial court may abuse its discretion is if the

       sentencing statement identifies aggravating factors that “are improper as a

       matter of law.” Anglemyer, 868 N.E.2d at 491.


[16]   Mettler claims that the trial court improperly designated as an aggravator a

       material element of his neglect offenses. A trial court may not use a material

       element of the offense as an aggravating factor, but it may find the nature and

       particularized circumstances surrounding the offense to be an aggravating

       factor. Caraway v. State, 959 N.E.2d 847, 850 (Ind. Ct. App. 2011), trans. denied

       (2012). In other words, “[w]here a trial court’s reason for imposing a sentence

       greater than the advisory sentence includes material elements of the offense,

       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2742 | May 31, 2018   Page 8 of 14
       absent something unique about the circumstances that would justify deviating

       from the advisory sentence, that reason is ‘improper as a matter of law.’”

       Gomillia v. State, 13 N.E.3d 846, 852-53 (Ind. 2014) (quoting Anglemyer, 868

       N.E.2d at 491). “Even if the trial court relied on an improper factor under this

       aggravating circumstance, the sentence may be upheld so long as [t]he

       remaining components of that aggravator were proper.” Id. at 853 (quoting

       McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001)).


[17]   Particularly, Mettler contends that the trial court improperly designated as an

       aggravator his violation of a position of trust. He asserts that this factor

       essentially is equivalent to the voluntary assumption of care element of the

       neglect offenses. See Ind. Code § 35-46-1-4 (defining neglect of a dependent).

       “A position of trust exists where a defendant has ‘more than a casual

       relationship with the victim and has abused the trust resulting from that

       relationship.’” Amalfitano v. State, 956 N.E.2d 208, 211 (Ind. Ct. App. 2011)

       (quoting Rodriguez v. State, 868 N.E.2d 551, 555 (Ind. Ct. App. 2007), trans.

       denied (2012). “Generally, cohabitation arrangements of nearly any character

       between adults do in fact, and should, establish a position of trust between the

       adults and minors living or staying together.” Id.


[18]   At sentencing, the trial court addressed the aggravating circumstances as

       follows:


               I don’t understand taking drugs. I do, however, understand
               drinking. So I can equate the two. Not quite, but I can equate
               them a bit. I drink alcohol. I raised three children. I never, ever

       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2742 | May 31, 2018   Page 9 of 14
               once got into a car and drove those children anywhere. Not
               down the street, not out of the block, if I had alcohol in my
               system. Just didn’t do it. That has nothing to do with the fact
               that I would drink alcohol. It has to do with the fact that I
               wouldn’t do it. I think that comes under position of trust relating
               to children. They don’t have a choice. Get in the car, kids, we’re
               going down to the liquor store. Get in the car, kids, we’re going
               to go watch a movie. And one of them doesn’t make it there and
               two of them are harmed. And you’re lucky to be alive. Position
               of trust relating to children is one of the most powerful
               aggravators that exists. They don’t have a choice. What are they
               going to do? Go, “No, we’ll skip this time, thanks. We’ll stay
               here and watch tv in the motel room. No, you’ve been doing
               drugs today, we’re going to skip today, thanks anyway.” Sure
               they could have done that. And the sun comes up in the west.
               They didn’t have a chance. That’s the problem. You were out
               on bond, you had an interim charge in Grant County and your
               criminal history which is rife with drugs is extensive.


       Tr. Vol. 3 at 160.


[19]   We agree with Mettler’s observation that the voluntary assumption of care is

       similar to a position of trust, in that both involve an examination of the nature

       of the relationship between the adult and the minor children. That said, we

       believe the trial court’s remarks reflect a narrower focus with respect to the

       latter. The court focused very particularly on Mettler’s decision to drive the

       Children while under the influence of heroin and meth, not merely on his

       broader assumption of their care by providing financially and acting as a father

       figure, albeit one addicted to drugs. As such, we do not believe that the trial

       court was merely parroting an element of the offense. Even if that had been the

       case, we note that the court also identified as aggravators Mettler’s extensive

       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2742 | May 31, 2018   Page 10 of 14
       criminal record and drug addiction, which we address in more depth below.

       The trial court acted within its discretion in its treatment of aggravating factors.


                Section 3 – Mettler has failed to meet his burden of
                  establishing that his sentence is inappropriate.
[20]   Finally, Mettler asks that we review and revise his sentence pursuant to Indiana

       Appellate Rule 7(B), which states that we “may revise a sentence authorized by

       statute if, after due consideration of the trial court’s decision, [this] Court finds

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” When a defendant requests appellate review and

       revision of his sentence, we have the power to affirm or reduce the sentence.

       Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we

       may consider all aspects of the penal consequences imposed by the trial court in

       sentencing, i.e., whether it consists of executed time, probation, suspension,

       home detention, or placement in community corrections, and whether the

       sentences run concurrently or consecutively. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010). We do not look to see whether the defendant’s

       sentence is appropriate or if another sentence might be more appropriate; rather,

       the test is whether the sentence is “inappropriate.” Fonner v. State, 876 N.E.2d

       340, 344 (Ind. Ct. App. 2007). A defendant bears the burden of persuading this

       Court that his sentence meets the inappropriateness standard. Anglemyer, 868

       N.E.2d at 490.


[21]   In considering the nature of Mettler’s offenses, “the advisory sentence is the

       starting point the Legislature has selected as an appropriate sentence.” Id. at

       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2742 | May 31, 2018   Page 11 of 14
       494. When determining the appropriateness of a sentence that deviates from an

       advisory sentence, we consider whether there is anything more or less egregious

       about the offense as committed by the defendant that “makes it different from

       the typical offense accounted for by the legislature when it set the advisory

       sentence.” Holloway v. State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011).


[22]   The sentencing range for a level 1 felony is twenty to forty years, with an

       advisory term of thirty years. Ind. Code § 35-50-2-4(b). A level 5 felony carries

       a sentencing range of one to six years, with a three-year advisory term, and a

       level 6 felony carries a range of six months to two and one-half years, with a

       one-year advisory term. Ind. Code §§ 35-50-2-6(b), -7(b). A habitual offender

       finding for a person convicted of a level 1 felony carries an additional fixed

       nonsuspendible term of six to twenty years. Ind. Code § 35-50-2-8(i)(1).

       Mettler’s sixty-five-year aggregate sentence was not the maximum but was

       above the advisory term. To the extent that he complains about the trial court

       executing his entire term, we remind him that nineteen of his sixty-five years

       are nonsuspendible pursuant to his habitual offender adjudication.


[23]   The nature and consequences of Mettler’s offenses are devastating. He injected

       heroin and smoked meth twice on the day of the crash, with his second

       administration of the drugs coming within an hour of his driving the family on

       a highway to another city. He was nodding off while driving, yet he drove

       more than ten miles per hour above the posted speed limit. He disregarded

       Brubaker’s admonitions to pay attention or pull over and drove one foot left of

       center. As he plunged into the oncoming farm equipment vehicles, he left no

       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2742 | May 31, 2018   Page 12 of 14
       trace of having braked, skidded, or swerved. Minutes later, six-year-old Ka.B.

       was dead, three-year-old Ko.B. was hospitalized in intensive care, and Brubaker

       and six-year-old Ky.B. required treatment at the emergency room. Mettler’s

       neglect was more than just a failure to supervise dependents who were exposed

       to danger; Mettler was the instrumentality of that danger. The nature of

       Mettler’s offenses does not militate toward a reduced sentence.


[24]   Nor does Mettler’s character merit a shorter sentence. We conduct our review

       of a defendant’s character by engaging in a broad consideration of his qualities.

       Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on

       reh’g, 11 N.E.3d 571. Based on our review of the record, we find Mettler to be a

       serial drug user whose normal routine includes taking meth and heroin several

       times a day and who admits to cooking heroin in front of the Children. As a

       teenager, he used marijuana, alcohol, and “pills,” and did not finish high school

       because of “drugs/missed too much.” Tr. Vol. 3 at 147; Appellant’s App. Vol.

       3 at 27. His drug use, now escalated, has continued to carry negative

       consequences such as his loss of employment due to excessive absenteeism. He

       admitted that when he is under the influence of drugs, he has “confusion as far

       as [his] thoughts,” yet he testified that he drove the twins to school numerous

       times and that he had driven the Children in the past while under the influence.

       Tr. Vol. 3 at 97, 102, 109. Even after he caused the fatal crash, his attitude

       reflected callous indifference rather than remorse over the devastation and loss.

       See, e.g., id. at 86 (Brubaker’s testimony that Mettler told her “to get over it.

       Sh*t happens.”). He attended a therapeutic communities program while


       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2742 | May 31, 2018   Page 13 of 14
       incarcerated for prior offenses yet resumed his drug use after his release and

       pled guilty to possession of chemical reagents with intent to manufacture. In

       short, Mettler does not appear to have made any serious effort to make the

       changes necessary to conquer his addiction.


[25]   Also significant is Mettler’s criminal record, which spans four counties and two

       decades. His first entanglement with the criminal justice system came at age

       ten, when he was placed on probation and in community service for offenses

       that would have been class C felony burglary, class C felony criminal mischief,

       and class D felony theft if committed by an adult. As a teenager, he was in and

       out of community service and served probation for conduct amounting to

       criminal trespass and underage possession of alcoholic beverages. His adult

       record includes convictions for class B felony dealing in narcotics, class C

       felony sexual misconduct with a minor, two level 6 felony drug-related offenses,

       and class A misdemeanor residential entry. He was out on bond when he

       committed the current offenses and was the subject of an unrelated charge filed

       in another county shortly thereafter.


[26]   Based on the foregoing, we conclude that Mettler has failed to demonstrate that

       his sentence is inappropriate in light of the nature of the offenses and his

       character. Accordingly, we affirm his sentence.


[27]   Affirmed.


       Bailey, J., and Brown, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 35A02-1711-CR-2742 | May 31, 2018   Page 14 of 14
