Brown v. State

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

Jill M. Denman Steve Carter

John W. Bailey Attorney General of Indiana

Matheny, Michael, Hahn

& Bailey, LLP ADAM M. DULIK

Huntington, Indiana Deputy Attorney General

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

APRIL M. BROWN, )

)

Appellant (Defendant), )

)

v. ) Cause No. 35S00-0010-CR-

599

)

STATE OF INDIANA, )

)

Appellee (Plaintiff). )

APPEAL FROM THE HUNTINGTON CIRCUIT COURT

The Honorable Mark A. McIntosh, Judge

Cause No. 35C01-0002-CF-00009

June 17, 2002

SHEPARD, Chief Justice

While appellant April M. Brown sat and watched, her husband Levohn

(Lee) Brown struck their three-year-old daughter with a blow that proved

fatal because the parents let her go for a week without any medical

attention. A jury found April Brown guilty of aiding in murder and neglect

of a dependent causing serious bodily injury. We affirm the latter, and

remand for a new trial on the former.

Facts & Procedural History

On February 4, 2000, Lee Brown struck his three-year-old daughter

MicKenzie in the back of the head with a large wooden paddle as she stood

with her nose against a wall. The blow caused a four-and-one-half-inch

skull fracture. April Brown, MicKenzie’s stepmother, witnessed the blow.

Though April saw no serious signs of injury immediately after the attack,

over the following week she watched MicKenzie’s health deteriorate

significantly. April did not seek medical treatment for MicKenzie until

February 11, when she called 911. MicKenzie died from the untreated skull

fracture shortly after arriving at the emergency room.

April was charged with aiding MicKenzie’s murder[1] and with neglect

of a dependent causing serious bodily injury.[2] A jury found her guilty

on both counts, and the trial court sentenced her to maximum consecutive

terms totaling eighty-five years.

I. Was April an Accomplice?

Because it is so pivotal to April’s claim of trial error, we begin by

considering the sufficiency of the evidence that she aided in MicKenzie’s

murder.

To convict April of aiding in murder, the State had to prove beyond a

reasonable doubt that she (1) knowingly or intentionally (2) aided,

induced, or caused Lee (3) to murder MicKenzie. See Ind. Code Ann. §§ 35-

41-2-4, 35-42-1-1(1) (West 1998).

The particular facts and circumstances of each case must be

considered in determining whether a person participated in the commission

of an offense as an accomplice. Peterson v. State, 699 N.E.2d 701 (Ind.

Ct. App. 1998). Certain factors have long been considered probative in

that determination, including: (1) presence at the scene of the crime; (2)

companionship with another engaged in criminal activity; (3) failure to

oppose the commission of the crime; and (4) a defendant’s course of conduct

before, during, and after the occurrence of the crime. Johnson v. State,

490 N.E.2d 333, 334 (Ind. 1986).

April does not dispute her presence at the scene of the crime, and her

marriage to Lee clearly constituted “companionship.” This companionship

continued for a period of time even after MicKenzie’s death.

The facts most favorable to the verdict indicate that April heard Lee

tell MicKenzie, “you’re going to listen to me or I’m going to beat it into

you” just prior to the beating. (R. at 491-92.) She also heard Lee ask

MicKenzie, “Do you want me to put you through this wall[?]” (Id.)

After hearing these threats, April joined Lee in the bedroom to find

him holding MicKenzie against a wall by her pajamas. (Id.) He again was

threatening “to put her through the wall.” (Id.) April sat down and

watched Lee strike MicKenzie in the back of the head with a large wooden

paddle.

Lee then asked April, “[H]ave I gone too far?” (R. at 632.) She

replied, “[Y]ou are too easy on her, she was – she is – she will be fine.”

(Id.) She also said that “she was sick of [Lee] treating MicKenzie like a

porcelain doll.” (R. at 632-33.) April made similar comments to Lee

before the day of this incident. (Id.)

After the attack, April cleaned up MicKenzie’s blood that had

splattered on surrounding objects for fear that someone would realize what

had occurred. (R. at 361, 377.) Over the next few days, April realized

MicKenzie was having trouble standing, walking, moving her left arm,

focusing her eyes, and controlling her bowels. (R. at 517.) MicKenzie

also suffered numerous bruises to her entire body. (R. at 339-40, 517.)

During this time, April would watch as Lee knocked MicKenzie on her head

and slapped her in the face. (R. at 518.) Two days after the beating,

April saw Lee slap MicKenzie “hard enough that [her] head would jolt back”

and cause her to fall to the ground. (R. at 519.)

From Monday until Thursday, the four days preceding MicKenzie’s death,

April was the sole parent in the home, (R. at 637), and she recognized the

need for medical treatment, (R. at 339-40, 343-45, 347, 517). She

requested the advice of a friend, who upon seeing MicKenzie was so alarmed

at the child’s condition that he offered to take them to the hospital. (R.

at 347, 615-17, 621.) April declined and instead did nothing. (Id.)

On the morning of February 11, MicKenzie stopped breathing. Only

after speaking with Lee did April call 911. The fireman who first

responded to the emergency call testified about MicKenzie’s visibly

protruding forehead and the bruises that covered her body. He also

described MicKenzie’s rigid and swollen torso, which was the result of

massive bleeding in her stomach.

While doctors and emergency technicians attempted to save MicKenzie’s

life, April frustrated their efforts. She concocted stories of MicKenzie

suffering from the flu, experiencing respiratory problems, and taking adult

doses of medication.

Even after MicKenzie’s death, April continued to cover up the crime by

lying to the authorities on numerous occasions. (R. at 300, 305-07, 314,

324, 328-31, 337-38, 354-55, 376.) It was only after Lee admitted striking

MicKenzie with the paddle that April told authorities about the

circumstances surrounding the incident. (R. at 356-66.)

April’s failure to oppose MicKenzie’s continued abuse and to seek

medical treatment is particularly probative because she owed a parental

duty to protect. See Mobley v. State, 227 Ind. 335, 85 N.E.2d 489 (1949).

In Mobley, this Court confronted an eerily similar case of child abuse.

Three-year-old Alice Mobley died from cerebral injuries caused by repeated

acts of violence committed by her mother’s boyfriend. 227 Ind. at 340-41,

85 N.E.2d at 491.

Although it was unclear whether any of Alice’s mother’s acts caused

the brain injuries, it was undisputed that the child was in the exclusive

control of the mother and her boyfriend for the weeks preceding her death.

Id. In discussing the possibility that none of the mother’s acts

contributed to the child’s death, Justice Young wrote:

While it is true that the mere presence of a person at the scene of a

crime is insufficient to constitute him a principal therein, in the

absence of anything in his conduct showing a design to encourage,

incite, aid, abet or assist in the crime, the trier of the facts may

consider failure of such person to oppose the commission of the crime

in connection with other circumstances and conclude therefrom that he

assented to the commission of the crime, lent his countenance and

approval thereto and thereby aided and abetted it. This, it seems to

us, is particularly true when the person who fails to interfere owes a

duty to protect as a parent owes to a child.

Mobley, 85 N.E.2d at 492, 227 Ind. at 344 (internal citations omitted).

This rationale is particularly pertinent to the instant case.

Our review of these multiple factors, including April’s presence at

the scene of the crime, her continued companionship with Lee, her

statements of encouragement for harsher punishment both before and after

the skull-fracturing blow, her failure to render or seek medical treatment

despite its obvious necessity, her status as the sole caregiver for much of

the week prior to MicKenzie’s death, her failure to oppose continued abuse

after the initial injury, her repeated lies to medical personnel and

authorities about the cause of MicKenzie’s death, and especially her duty

to protect the child, all lead us to conclude that she “assented to the

commission of the crime, lent h[er] countenance and approval thereto and

thereby aided and abetted it.” Id.

The State presented sufficient evidence to convict April of aiding in

MicKenzie’s murder.

II. Claims of Error

Still, this is not a standard set of facts constituting accomplice

liability. April lent her encouragement to these abhorrent acts and was a

significant cause of MicKenzie’s death, but she did not participate in the

physical act of landing the blow. With the evidence supporting accomplice

liability as close as it is, we turn to April’s two claims of trial error.

A. Exclusion of Lee’s Testimony. The defense called Lee to the

stand during its case-in-chief and asked him what his intent was in

administering the blow to MicKenzie’s head. The State objected, arguing

that Lee’s intent was irrelevant. The trial court did not allow Lee to

answer. The defense subsequently made an offer of proof that Lee would

have testified that he did not intend to cause MicKenzie’s death and that

the strike to the head was an accident. (R. at 666.)

Claims of error in the exclusion or admission of evidence are reviewed

for an abuse of discretion. McCarthy v. State, 749 N.E.2d 528 (Ind. 2001).

An error is harmless if its probable impact on the jury, in light of all

of the evidence in the case, is sufficiently minor so as not to affect a

party’s substantial rights. Stewart v. State, 754 N.E.2d 492 (Ind. 2001).

The evidence in question bore directly on Lee’s state of mind in

striking MicKenzie. Without the finding of a knowing or intentional

killing by Lee, the State could not have proven that April aided him in the

murder. See Johnson v. State, 687 N.E.2d 345, 350 (Ind. 1997) (citation

omitted) (“An accomplice may be tried and convicted when the proof of the

underlying crime is sufficient.”). While it is true, as the State has

argued, that it could obtain a conviction without proving that Lee intended

to cause death (by showing that he “knowingly” caused the death), his level

of intentionality was an important element of proof in April’s crime as

charged.

Our review of the record convinces us that this error was not

harmless. The defense did elicit testimony from Lee that he was going to

spank MicKenzie for her defiance, (R. at 627, 629), but Lee was not

otherwise allowed to explain his intent in striking MicKenzie. Given a

different set of facts on the issue of accomplice liability, we might rule

this error harmless. But considering the closeness of the evidence on this

charge, the exclusion of this evidence requires reversal.

B. Lesser Included Instructions. April also argues that the trial

court erred by refusing a jury instruction on the lesser included offenses

of aiding in reckless homicide and aiding in voluntary manslaughter.

To determine whether to instruct the jury on a lesser included offense

of a charged crime, the court must employ the analysis outlined in Wright

v. State, 658 N.E.2d 563 (Ind. 1995). First, the court must compare the

statute defining the charged crime with the statute defining the lesser

included offense to determine whether the lesser included offense is

"inherently included" in the crime charged. Id. at 566.

Where the only element distinguishing the crimes is the degree of

culpability, as is the case between reckless homicide and murder, the

lesser included offense is inherently included. See Miller v. State, 720

N.E.2d 696, 702-03 (Ind. 1999); accord Taylor v. State, 587 N.E.2d 1293,

1303-04 (Ind. 1992). Therefore, aiding in a reckless homicide is an

inherently included lesser offense of aiding in a murder.

Having satisfied the first requirement, the trial court must then

evaluate the evidence presented by both parties. Wright, 658 N.E.2d at

567. If there is a serious evidentiary dispute about the elements

distinguishing the greater offense from the lesser offense and “a jury

could conclude that the lesser offense was committed but not the greater,

then it is reversible error for a trial court not to give an instruction,

when requested, on the inherently or factually included lesser offense."

Id. If, on the other hand, there is no meaningful evidence from which the

jury could properly find the lesser offense was committed, the court should

not give the lesser included offense instruction. Id.

Our analysis of this requirement is complicated by the trial court’s

exclusion of Lee’s testimony regarding his intent in striking MicKenzie.

Had the trial court properly allowed the testimony, he would have testified

that he accidentally struck MicKenzie in the head and that he did not

intend to kill her. (R. at 665-66.) In support of this statement, Lee

testified that prior to striking MicKenzie, he told April that he was going

to give MicKenzie “a couple swats on the behind.” (R. at 629.)

This evidence would have created a serious evidentiary dispute as to

whether Lee committed murder, reckless homicide or voluntary manslaughter.

Had the jury believed this assertion, it could not have properly convicted

April of aiding in murder because conviction of an accomplice requires

sufficient proof of the underlying crime. See Sanquenetti v. State, 727

N.E.2d 437, 441 (Ind. 2000). As such, the trial court’s refusal to

instruct the jury on the lesser included offenses of aiding in reckless

homicide or in voluntary manslaughter was reversible error.

There Was Evidence of Neglect

April next contends that insufficient evidence supported her

conviction for neglect of a dependent causing serious bodily injury. On

this claim, some additional details about MicKenzie’s horrific death are

telling.

After recognizing MicKenzie’s dire medical condition, April and Lee,

rather than taking their three-year-old to a doctor, attempted “therapy.”

They bathed MicKenzie in an Epsom salt bath only to watch as her head

repeatedly rolled to the side, filling her mouth with water. (R. at 349.)

When this “therapy” failed, April watched as Lee attempted to make

MicKenzie stand on her own. (R. at 350.) Each time he would release

MicKenzie, she would fall to the ground, sometimes hitting her head. (R.

at 350-51.)

Furthermore, the State presented testimony from Dr. Scott Wagner, who

said that children are resilient to head injuries and that MicKenzie’s

chances for survival were good had she received prompt medical treatment.

(R. at 422.) Though Dr. Wagner could not pinpoint when MicKenzie became

untreatable, he testified that her medical condition would have worsened

with each passing day and the sooner the treatment, the better chance

MicKenzie would have had to live. (R. at 419-22.) Dr. Wagner further

testified that MicKenzie would not have appeared normal just after the

blow, would have frequently been unconscious, and would have continued to

get worse before her eventual death. (R. at 419-21.)

This tale of maternal neglect is so shocking that the customary words

of legal analysis seem inadequate to the task. Simply put, overwhelming

evidence proves April knew MicKenzie desperately needed medical treatment

and that MicKenzie would still be alive had she received it promptly. We

affirm April’s conviction of neglect of a dependent causing serious bodily

injury.

III. Sentencing

Finally, April challenges her twenty-year sentence for neglect of a

dependent as both erroneous and manifestly unreasonable.

A. Aggravating and Mitigating Factors. The trial court found five

aggravators: (1) April’s lack of remorse; (2) her need for correctional or

rehabilitative treatment; (3) imposition of a reduced sentence or

suspension of the sentence would depreciate the seriousness of the crime;

(4) the victim’s age; and (5) the nature and circumstances of the crime.

The trial court found one mitigator, April’s lack of criminal history.

April first argues that her need for rehabilitation best served by

incarceration was not supported by the record. The State concedes that

this aggravating factor was improper. The remaining aggravators, however,

may serve to enhance April’s sentence.

April also contends that the trial court erred in failing to consider

two mitigating factors: (1) the likelihood that the offense would never re-

occur because April and Lee subsequently divorced; and (2) that the need

for supervision is low. Though the trial court must identify all

“significant” mitigating factors, it is not required to accord them the

weight defendant requests. Bonds v. State, 721 N.E.2d 1238, 1243 (Ind.

1999).

April claimed she did not seek medical treatment for MicKenzie because

she feared reprisal from Lee. (R. at 347, 355-56, 520-21.) Though April

was no longer married to Lee by the time of her sentencing, her trial

testimony revealed a history of abusive relationships. (R. at 441-68.) In

light of this evidence, the trial court did not abuse its discretion in

rejecting April’s contention that she was unlikely to neglect a dependent

again.

It was also within the court’s discretion to reject as a significant

mitigating factor April’s claim that she needed little supervision. Though

April correctly points out that the risk assessment instrument prepared for

the pre-sentence report indicates relatively low risk, April’s own

contributions to the report could rightly have given Judge McIntosh pause

on this point. Asked what type of sentence she thought she should receive,

April replied, “I don’t feel I deserve anything [f]or a crime I didn’t

commit. [Seven] months has already been taken from my children, my family,

and myself unjustly.” (Appellant’s App. at 49.)

B. Manifestly Unreasonable. April also argues that her sentence is

manifestly unreasonable. In light of the nature of Brown’s neglect and her

stunning lack of remorse following the incident, a twenty-year sentence is

hardly unreasonable.

Conclusion

We reverse the conviction for aiding in murder and remand for retrial.

We affirm the conviction and sentence for neglect of a dependent.

Dickson, Sullivan, and Rucker, JJ., concur.

Boehm, J., concurs in part and dissents in part with separate opinion.

BOEHM, Justice, concurring in part, dissenting in part.

I concur in the part of the opinion affirming Brown’s conviction for

neglect of a dependent causing severe bodily injury. Although this three-

year-old child was the victim of a horrible and disgusting crime, I

respectfully dissent from the portion finding sufficient evidence to

convict Brown of aiding murder.

The majority does not address what seems to me to be a critical gap in

the State’s evidence. Brown was charged with being an accomplice to

murder. Accordingly, as the majority opinion reflects, if there was a

murder in the facts, it is the blow Lee struck, not the subsequent events

as to which Brown was a principal, not an accomplice. I cannot find

evidence that supports the notion that Brown either “knowingly” or

“intentionally” assisted Lee in causing MicKenzie’s death. Accomplice

liability requires a person “knowingly and intentionally” aid the

principal. Ind. Code § 35-41-2-4 (1998). This requires proof beyond

reasonable doubt that either (1) Brown knew Lee was about to deliver a

fatal blow or (2) Brown intended to encourage Lee to kill the child.

In most crimes, the acts of assistance also supply awareness of the

principal’s purpose to commit the crime. Here, however, all Brown did was

tell Lee he was “going too easy” on the victim and fail to intervene in

Lee’s clearly expressed intent to punish the child. I cannot infer from

this evidence that at the time immediately before the fatal blow was struck

by Lee, Brown had any basis to conclude that death would result.

Certainly, I cannot find evidence of her knowledge of a high degree of

probability that death would result or a “conscious objective” that the

child be killed. I.C. § 35-41-2-2. To be sure, Brown’s actions after the

fatal blow was delivered fully support the neglect of a dependent

conviction. I would affirm the conviction of neglect of a dependent,

reverse the murder conviction, and impose the trial court’s maximum

sentence of twenty years.

-----------------------

[1] Ind. Code Ann. §§ 35-42-1-1(1), 35-41-2-4 (West 1998).

[2] Id. at § 35-46-1-4.