MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D), this                          Dec 05 2018, 10:16 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                         CLERK
                                                                       Indiana Supreme Court
purpose of establishing the defense of res judicata,                      Court of Appeals
                                                                            and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                     Curtis T. Hill, Jr.
Keating & LaPlante, LLP                                Attorney General of Indiana
Evansville, Indiana                                    Justin F. Roebel
                                                       Supervising Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Melody Helmbrecht,                                         December 5, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-1965
        v.                                                 Appeal from the Vanderburgh
                                                           Superior Court
State of Indiana,                                          The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           82D03-1708-F5-4645



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1965 | December 5, 2018               Page 1 of 6
                                          Case Summary
[1]   In 2017, Melody Helmbrecht was tasked with the care of the severely-disabled

      B.M. B.M.’s father (“Father”) eventually became concerned about B.M.’s care

      and installed surveillance cameras, which recorded Helmbrecht abusing B.M.

      Helmbrecht was eventually convicted of Level 6 felony battery of a disabled

      person, and the trial court sentenced her to two years of incarceration with one

      year suspended to therapeutic work release. Helmbrecht contends that the trial

      court abused its discretion in sentencing her. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   Helmbrecht is a licensed practical nurse who, in the summer of 2017, was

      assigned to care for nine-year-old B.M. at her Evansville home while Father

      was at work. B.M. suffers from cerebral palsy and a seizure disorder, is

      developmentally delayed, is non-verbal with no way of communicating,

      requires constant supervision, and is entirely dependent upon others to fulfill

      her needs. At some point, Father became concerned about B.M.’s care and

      installed cameras in the house in plain view, informing Helmbrecht’s employer

      that he was doing so. When Father reviewed the video recorded by the

      cameras, he observed B.M. on the couch “swaying back and forth” while

      Helmbrecht ignored her from the other side of the couch. Tr. p. 24. Additional

      video showed Helmbrecht dragging B.M. by a wrist, pinning B.M. behind

      herself on the couch while B.M. was kicking and apparently trying to escape,

      ignoring B.M., and dropping B.M. onto the couch.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1965 | December 5, 2018   Page 2 of 6
[3]   On August 3, 2017, the State charged Helmbrecht with Level 5 felony battery

      resulting in bodily injury to a disabled person and Level 6 felony neglect of a

      dependent. On May 4, 2018, the trial court found Helmbrecht guilty of battery

      of a disabled person as a Level 6 felony. On June 12, 2018, the trial court

      sentenced Helmbrecht to two years of incarceration with one year suspended to

      therapeutic work release.


                                Discussion and Decision
[4]   Under our current sentencing scheme, “the trial court must enter a statement

      including reasonably detailed reasons or circumstances for imposing a

      particular sentence.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),

      modified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2008). We review the

      sentence for an abuse of discretion, which occurs if “the decision is clearly

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

      Id. at 490–91.


[5]   Helmbrecht contends that the trial court impermissibly used elements of her

      crime as aggravating circumstances. It is true that the Indiana Supreme Court


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1965 | December 5, 2018   Page 3 of 6
      has concluded “that in some circumstances it is improper” to rely on a

      “material element of an offense” when identifying a sentencing aggravator.

      Gomillia v. State, 13 N.E.3d 846, 852 (Ind. 2014). That said, while “a material

      element of a crime may not be used as an aggravating factor to support an

      enhanced sentence[,] the trial court may properly consider the particularized

      circumstances of the factual elements as aggravating factors” and “this

      aggravator is thought to be associated with particularly heinous facts or

      situations.” McElroy v. State, 865 N.E.2d 584, 589–90 (Ind. 2007).


[6]   Turning to the case before us, Helmbrecht was convicted of Level 6 felony

      battery of a disabled person, which required proof that she knowingly or

      intentionally touched B.M. in a rude, insolent, or angry manner where “[t]he

      offense [was] committed against a person of any age who has a mental or

      physical disability and [was] committed by a person having the care of the

      person with the mental or physical disability[.]” Ind. Code § 35-42-2-1(e)(4). In

      sentencing Helmbrecht, the trial court stated the following:


              [Y]ou have no prior criminal record but the nature and
              circumstances of the events that you are in a position of care,
              custody and control over the victim, that the victim, obviously, is
              a young child and not only is it a young child, is a disabled child,
              these are the folks who deserve our best and you fell way short of
              that in this case.
      Tr. Vol. II p. 52. In addition, the sentencing order indicates the following:


              Court finds mitigating circumstances to be [Helmbrecht’s] lack of
              criminal record. Court finds aggravating circumstances to be the
              nature and circumstances of the crime, [Helmbrecht’s] position of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1965 | December 5, 2018   Page 4 of 6
              care and control of the victim, the fact that the victim was a child
              and that the victim was disabled. Court finds aggravating
              circumstances outweigh the mitigating circumstances calling for
              an enhanced sentence.
      Appellant’s App. Vol. II p. 50.


[7]   We conclude that the trial court’s findings reflect a consideration of the

      particularized circumstances of Helmbrecht’s offense and not a mere

      restatement of the elements. First, the trial court properly found it aggravating

      that B.M. was a young child, being nine at the time. While the offense was

      aggravated to a Level 6 felony based on Helmbrecht’s status as a caregiver to a

      disabled victim, the offense for which Helmbrecht was convicted does not

      account for B.M.’s youth.1 Second, while B.M.’s mental or physical disability is

      an element of the offense, B.M. is not merely disabled but profoundly disabled,

      being entirely dependent on others and suffering from cerebral palsy, a seizure

      disorder, a developmental delay, and a complete inability to communicate.

      Third, even though assumption of care is an element of the offense, the trial

      court went beyond that element by recognizing that Helmbrecht was entrusted

      with providing a high degree of care, finding that Helmbrecht was in “a

      position of care, custody and control over the victim[.]” Tr. 52. Helmbrecht

      was charged with the care of a severely disabled child who is entirely dependent




      1
        Indeed, B.M.’s youth would have independently justified elevating the offense to a Level 6 felony charge
      because the battery was “committed against a person less than fourteen (14) years of age and [was]
      committed by a person at least eighteen (18) years of age.” See Ind. Code § 35-42-2-1(e).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1965 | December 5, 2018                  Page 5 of 6
      on others, which goes beyond the mere assumption of care. Helmbrecht has

      failed to establish that the trial court abused its discretion in sentencing her.


[8]   We affirm the judgment of the trial court.


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




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1965 | December 5, 2018   Page 6 of 6
