Mitchell v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Katherine A. Cornelius Jeffrey A. Modisett

Marion County Public Defenders Office Attorney General of Indiana

Indianapolis, Indiana

Randi E. Froug

Deputy Attorney General

Indianapolis, Indiana

In The

INDIANA SUPREME COURT

SHIRLEY MITCHELL, )

Defendant-Appellant, )

)

v. ) 49S00-9803-CR-163

)

STATE OF INDIANA, )

Plaintiff-Appellee. )

________________________________________________

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Tanya Walton Pratt, Judge

Cause No. 49G01-9612-CF-193960

________________________________________________

On Direct Appeal

April 18, 2000

DICKSON, Justice

The defendant, Shirley Mitchell, was convicted of murder[1] and

neglect of a dependent, a class B felony.[2] The victim was her

granddaughter. For murder, the trial court ordered a sentence of sixty-

five years but suspended five years. For neglect of a dependent, the trial

court entered the conviction as a class D felony and sentenced the

defendant to three years. The sentences were to be served concurrently.

On appeal, the defendant claims seven errors: (1) erroneous

admission of hearsay testimony; (2) inappropriate comments by the trial

court; (3) improper admission of autopsy photographs; (4) jury misconduct;

(5) inconsistent jury verdicts; (6) improper and confusing instructions on

lesser-included offenses; and (7) use of an inappropriate aggravating

factor in sentencing. In its appellee’s brief, the State also claims

error, asserting that the trial court improperly modified the conviction

for neglect of a dependent from a class B felony to a class D felony.

Hearsay Evidence

The defendant claims that the trial judge erred by allowing a social

worker to testify regarding comments made by Auinia, the murder victim's

sister, during counseling sessions conducted after the victim's body was

discovered. Auinia was nine years old when the counseling began and when

she testified at trial.

On the evening of November 11, 1996,[3] the defendant repeatedly

struck her six-year-old granddaughter, Emporia, with a two-foot-long wooden

rod. Auinia, Emporia's older sister and also the defendant's

granddaughter, was present and observed the beating. On the morning of

November 12, 1996, the defendant woke Auinia and told her that Emporia was

not breathing. Auinia observed as the defendant wrapped Emporia's body in

a sheet and bedspread and hid it in a locked outdoor closet. The defendant

told Auinia not to tell anyone about what happened to Emporia, saying that

"it would be all [Auinia's] fault" and that the grandchildren would have to

go to foster homes. Record at 663. Emporia's body was discovered by the

authorities on December 11, 1996. On December 18, 1996, Auinia began

receiving counseling from a social worker. During a counseling session on

January 21, 1997, Auinia first told the social worker that the defendant

told Emporia to "die, die" while the defendant was beating her. Record at

931.

The trial of the defendant began on October 14, 1997. On October 15,

1997, Auinia testified that, during the beating incident, the defendant

told the victim to "die and different things like bad words and just

telling her to die." Record at 658. To the question whether the defendant

was saying this when she was hitting the victim with the stick, Auinia

answered, "No." Record at 659. On cross-examination, defense counsel

asked Auinia whether she had spoken with certain people about the beating,

including the social worker, and Auinia indicated that she had. Defense

counsel asked Auinia the following: "Now you also indicated—you also told

[one of the prosecutors] that when your grandma was—was hitting Emporia

that she was saying some bad things; right?" Record at 680. After Auinia

answered in the affirmative, defense counsel asked: "And then you told

[that same prosecutor] that she—she said something about Emporia dying;

right?" Record at 680. Auinia responded, "Yes." Record at 680. This was

followed immediately by the following:

Defense Counsel: Now when Detective Hornbrook and Detective Buttram

talked with you, you also told them that she said something. Do you

remember that?

Witness: Yes.

Defense Counsel: Okay. And do you remember saying that she just

said—that your grandma just said that she was going to whip Emporia

until she told the truth?

Witness: No.

Record at 680. Shortly thereafter, the following questioning occurred:

Defense Counsel: Okay. And you have stated that—that she was—she was

hurting Emporia.

Witness: Yes.

Defense Counsel: And that she was, at that time in the bedroom, that

she was saying things to her.

Witness: Yes.

Defense Counsel: Okay. Now, do you recall telling Detective Buttram

and Detective Hornbrook that your grandma said to Emporia at that

time, I'm going to whip you and if you don't tell me the truth, you

know, then it's going to be worse. Do you remember telling Detective

Hornbrook and Detective Buttram that?

Witness. No.

Record at 683.

Later in the trial, when the State asked the social worker on direct

examination whether Auinia had talked with the social worker specifically

about what the defendant was saying while she was beating Emporia, the

defendant objected to the testimony as hearsay, arguing that the testimony

did not satisfy the requirements of Indiana Evidence Rule 801(d)(1)(B).

The defendant argued that, on cross-examination of Auinia, she had simply

presented a statement that was inconsistent with what she had testified to

and did not suggest that Auinia had falsified a statement or fabricated

testimony. Regarding the admission of the social worker's testimony,

defense counsel argued:

Your Honor, we would note also that I never asked Auinia about that

question [whether the defendant said "die, die"] on cross-examination

at all. I never asked her. I never said isn't it true that [the

defendant] never said that. I said—I never said to her, isn't it true

that you did not make the statement to Detective Hornbrook. I never

asked her, isn't it true that you didn't tell us this in the

deposition. [The State] is absolutely wrong. All I did was present

to the jury an additional statement that she had made or another

statement that she had made. I did not make any follow up there that

it was a statement that was in contrast with the die, die, die. I

didn't touch it. Therefore, it clearly isn't at issue. It simply

isn't.

Record at 928. The trial court remarked that "that's not my recollection,

counsel," and indicated that defense counsel had made such "inferences"

during cross-examination. Record at 928, 930.

The trial court overruled the defendant's objection and indicated that

it would allow limited testimony by the social worker on this matter. The

social worker then testified that Auinia told her that the defendant had

said "die, die" to Emporia while she was beating her. Record at 931.

A ruling on the admissibility of an arguably hearsay statement is

within the sound discretion of the trial court. Horan v. State, 682 N.E.2d

502, 511 (Ind. 1997) (citing Jones v. State, 655 N.E.2d 49, 56 (Ind.

1995)); Taylor v. State, 587 N.E.2d 1293, 1302 (Ind. 1992)). We will

reverse "'only where the decision is clearly against the logic and effect

of the facts and circumstances.'" Jackson v. State, 697 N.E.2d 53, 54

(Ind. 1998) (quoting Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997)).

Even if a trial court errs in admitting hearsay evidence, we will only

reverse when the error is inconsistent with substantial justice.

Timberlake v. State, 690 N.E.2d 243, 255 (Ind. 1997). Thus, evidence

improperly admitted under Indiana Evidence Rule 801(d)(1)(B) will not give

rise to a new trial if its "'probable impact on the jury, in light of all

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

substantial rights of the parties.'" Bouye v. State, 699 N.E.2d 620, 626

(Ind. 1998) (quoting Brown v. State, 671 N.E.2d 401, 408 (Ind. 1996)). See

also Ind. Evidence Rule 103(a); Ind. Trial Rule 61.

Although hearsay evidence is generally not admissible, Indiana Rule of

Evidence 801(d)(1)(B) provides that a statement is not hearsay if "[t]he

declarant testifies at the trial or hearing and is subject to cross

examination concerning the statement, and the statement is . . . consistent

with the declarant's testimony, offered to rebut an express or implied

charge against the declarant of recent fabrication or improper influence or

motive, and made before the motive to fabricate arose."

Challenging the trial court's ruling allowing the testimony, the

defendant contends first that Auinia's prior statement was not consistent

with her trial testimony. We disagree and find Auinia's prior statement

sufficiently consistent with her trial testimony. In both statements,

Auinia described the defendant, at approximately the same time, hitting

Emporia and speaking about Emporia dying. Minor inconsistencies between

trial testimony and prior statements do not necessarily render the prior

statements inadmissible for purposes of Indiana Evidence Rule 801(d)(1)(B).

Brown, 671 N.E.2d at 407.

The defendant also contends that her defense counsel neither

challenged the veracity of Auinia's testimony nor expressly or implicitly

suggested that Auinia's testimony was a fabrication or that someone had

improperly influenced the testimony. Because the defense cross-examination

presented a prior statement and thereby suggested that Auinia had

previously described the earlier incident without mentioning that the

defendant told Emporia to die, we find that the defense implied that Auinia

had fabricated her trial testimony.

Finally, the defendant challenges the trial court ruling by urging

that the prior statement was made after the motive to fabricate would have

arisen. The defendant contends that, if there was ever an improper motive

on the part of Auinia, it would have existed prior to the statement she

made to the social worker. The State responds that the defendant implied

that Auinia fabricated her "die, die" testimony while preparing for trial

and argues that Auinia made the statement to the social worker before any

such motive for fabrication would have arisen. Because this is not an

unreasonable interpretation of the record, we decline to find an abuse of

discretion on the issue of whether the implied fabrication preceded the

motive to fabricate.

We hold, therefore, that the trial court did not abuse its discretion

in allowing the social worker to testify as to comments made by Auinia in

January of 1997, nearly nine months before trial.

Comments by the Trial Court

The defendant contends that she was denied a fair trial because the

judge made inappropriate comments during the trial regarding the evidence.

Specifically, the defendant argues that the judge improperly repeated and

emphasized the most damaging portion of one witness's testimony, improperly

asked another witness to speak up as that witness provided damaging

testimony and later emphasized the credibility of that witness, and

improperly emphasized the importance of comments the defendant made to a

bystander after Emporia's body was discovered.

At trial, the defendant failed to object to these allegedly

inappropriate comments by the judge. A failure to object at trial results

in waiver of the issue on appeal. Cf. Isaacs v. State, 673 N.E.2d 757, 763

(Ind. 1996) (a defendant waives possible error concerning the prosecutor's

comments when he fails to object to the argument at trial); Ware v. State,

560 N.E.2d 536, 538 (Ind. Ct. App. 1990) (the failure to include

allegations of bias and prejudice on the part of the trial judge in the

motion to correct error results in a waiver of the right to have this issue

considered on appeal); Lahrman v. State, 465 N.E.2d 1162, 1168 (Ind. Ct.

App. 1984) (a prompt objection to a trial court's allegedly improper

conduct is required to preserve the issue on appeal). The correct

procedure to be employed when a judge makes an allegedly improper comment

is to request an admonishment and, if further relief is desired, to move

for a mistrial. Isaacs, 673 N.E.2d at 763. Failure to request an

admonishment or move for a mistrial results in waiver of the issue. Id.

Seeking to avoid procedural default, the defendant, citing Kennedy v.

State, 258 Ind. 211, 280 N.E.2d 611 (1972), and Ware, 560 N.E.2d 536, urges

that this claim is not foreclosed because the judge's comments constitute

fundamental error. We acknowledge that Indiana appellate courts have on

rare occasions determined that the comments of a judge constituted

fundamental error.[4] These cases do not, however, establish as a rule

that any improper comment by a trial judge will constitute fundamental

error and thereby avoid the need for contemporaneous objection.

The fundamental error exception is extremely narrow. To qualify as

fundamental error, "an error must be so prejudicial to the rights of the

defendant as to make a fair trial impossible." Willey v. State, 712 N.E.2d

434, 444-45 (Ind. 1999) (citations omitted). To be fundamental error, the

error "must constitute a blatant violation of basic principles, the harm or

potential for harm must be substantial, and the resulting error must deny

the defendant fundamental due process." Wilson v. State, 514 N.E.2d 282,

284 (Ind. 1987). See also Ford v. State, 704 N.E.2d 457, 461 (Ind. 1998)

("This Court views the fundamental error exception to the waiver rule as an

extremely narrow one, available only 'when the record reveals clearly

blatant violations of basic and elementary principles [of due process], and

the harm or potential for harm [can]not be denied.'") (quoting Warriner v.

State, 435 N.E.2d 562, 563 (Ind. 1982)). After reviewing the judge's

comments, we decline to permit the defendant to avoid procedural default

upon her claim of fundamental error. The judge's remarks merely required

witnesses to speak audibly and asserted reasonable management of the

proceedings.

Admission of Photographs

The trial court admitted six autopsy photographs into evidence. The

defendant contends that the trial court abused its discretion in admitting

three of these photographs, State's exhibit numbers 19, 21, and 26,

claiming that they were unfairly prejudicial.[5] The defendant claims that

the primary effect of these photographs was to sway the emotions of the

jury. At trial, the defense objected to the admission of these

photographs, arguing that the post-mortem changes to the body caused the

photographs to be more prejudicial than probative, that one of the

photographs was duplicative, and that injuries in one photograph did not

appear as they did at the time of death, were not caused by the defendant,

and thus would confuse the jury. The defense did not object to the

admission of the three other photographs. The State responds that the

pathologist testified that the photographs accurately represented the

appearance of Emporia's body at the time of the autopsy, that the

pathologist used the photographs to explain and illustrate the many

injuries to various parts of Emporia's body, and that the pathologist

explained that the post-mortem changes to her body had nothing to do with

her injuries.

Because the admission and exclusion of evidence falls within the sound

discretion of the trial court, this Court reviews the admission of

photographic evidence only for abuse of discretion. Byers v. State, 709

N.E.2d 1024, 1028 (Ind. 1999); Amburgey v. State, 696 N.E.2d 44, 45 (Ind.

1998). Relevant evidence, including photographs, may be excluded only if

its probative value is substantially outweighed by the danger of unfair

prejudice. Evid. R. 403; Byers, 709 N.E.2d at 1028. "Even gory and

revolting photographs may be admissible as long as they are relevant to

some material issue or show scenes that a witness could describe orally."

Amburgey, 696 N.E.2d at 45. See also Byers, 709 N.E.2d at 1028.

Photographs, even those gruesome in nature, are admissible if they act as

interpretative aids for the jury and have strong probative value. Spencer

v. State, 703 N.E.2d 1053, 1057 (Ind. 1999); Robinson v. State, 693 N.E.2d

548, 553 (Ind. 1998).

The challenged photographs depicted various parts of Emporia's body

from different angles, were relevant, had strong probative value, and

served as interpretative aids for the jury in understanding the number and

location of injuries inflicted upon Emporia's body. At least one

photograph admitted without objection also depicted post-mortem changes to

the body. We find that any potential for prejudice does not substantially

outweigh the probative value of the photographs. Thus, we conclude that

the trial court did not abuse its discretion by admitting the photographs.

Jury Misconduct

The defendant also claims that the trial court erred in denying her

motion to correct error, alleging that jury misconduct required a new

trial. Based on an article that appeared in the Indianapolis Star, the

defendant argued that the jury reached its verdict after conducting an

impermissible experiment during deliberation in which the jury foreman

allegedly beat the back of a leather chair fifty times with the two-foot-

long wooden rod that had been introduced into evidence. The defendant

urged that, by conducting this experiment, the jury improperly considered

extrinsic evidence because the jury experiment constituted additional

evidence supplementary to that introduced during the trial. The defendant

claimed that she had a right to be present during this examination of the

evidence. As relief for this alleged error, the defendant requested an

evidentiary hearing to ascertain the existence, nature, and content of the

alleged jury experiment and to present juror testimony and affidavits

regarding the possible existence of extraneous influences upon the jury

deliberations and a new trial.

In ruling on the defendant's motion to correct error, the trial court

entered findings of fact and conclusions of law. The trial court found

that an unverified allegation contained in a newspaper article alone is not

sufficient to constitute newly discovered evidence. The court held that,

even if the newspaper article is factual, the foreman's actions constituted

permissible examination of the evidence and not an improper extra-judicial

experiment. The trial court noted that the wooden rod had been admitted

into evidence and that the State, during closing argument, had conducted a

similar examination with the rod and argued that the jury should imagine a

child being hit similarly, up to fifty times. Finding no evidence of

improper jury experimentation, the court concluded that the defendant had

no right to be present during the jury's permissible examination of the

evidence during its deliberation. The State contends that the jury

properly examined intrinsic evidence, which had been introduced at trial,

and thus that the trial court correctly determined that the jury did not

consider additional or extrinsic evidence.

In a motion to correct error, a party may address newly discovered

material evidence, including alleged jury misconduct. T.R. 59(A). When

reviewing a trial court's denial of a motion to correct error on newly

discovered evidence, the standard of appellate review is deferential, and

we will reverse only when the trial court has abused its discretion.

Francis v. State, 544 N.E.2d 1385, 1388 (Ind. 1989); Moredock v. State, 441

N.E.2d 1372, 1373 (Ind. 1982). The burden is on the appellant to show that

the newly discovered evidence meets the prerequisite for a new trial.

Francis, 544 N.E.2d at 1388; Reed v. State, 479 N.E.2d 1248, 1252 (Ind.

1985).

We have repeatedly noted that, at common law, a verdict was not

subject to impeachment by evidence from the jurors who returned it. See

Karlos v. State, 476 N.E.2d 819, 824 (Ind. 1985); Fox v. State, 457 N.E.2d

1088, 1092 (Ind. 1984) (citing cases). Indiana's evidence rules

incorporate this prohibition but permit exceptions in three instances:

Upon an inquiry into the validity of a verdict or indictment, a

juror may not testify as to any matter or statement occurring during

the course of the jury's deliberations or to the effect of anything

upon that or any other juror's mind or emotions as influencing the

juror to assent to or dissent from the verdict or indictment or

concerning the juror's mental processes in connection therewith,

except that a juror may testify (1) to drug or alcohol use by any

juror, (2) on the question of whether extraneous prejudicial

information was improperly brought to the jury's attention or (3)

whether any outside influence was improperly brought to bear upon any

juror. A juror's affidavit or evidence of any statement by the juror

concerning a matter about which the juror would be precluded from

testifying may not be received for these purposes.

Evid. R. 606(b). In Kennedy v. State, 578 N.E.2d 633, 640-41 (Ind. 1991),

cert. denied, 503 U.S. 921, 112 S.Ct. 1299, 117 L.Ed.2d 521 (1992), we held

that the actions of two jurors, who were of height and build similar to the

defendant, in trying on clothing introduced into evidence, constituted a

permissible examination of the evidence and not an improper extra-judicial

experiment.

In this case, the trial court admitted into evidence the two-foot-

long wooden rod used to beat Emporia. The pathologist testified that

Emporia had suffered a minimum of fifty separate injuries to her head and

body. Before closing argument, the defendant objected to the State using

the rod to beat on a table or metal bar, and the trial court limited the

State's use to striking only something soft. During closing argument, the

State used the rod to strike a bag five times and directed the jury to

consider Emporia being struck fifty times. The trial court, acting within

its discretion, allowed the admitted exhibits to be taken with the jury

into deliberation. The defendant did not object.

Even if we were to assume the accuracy of the newspaper article, an

evidentiary hearing would not be necessary because such conduct is not

improper. Thus, because such conduct would not constitute an extra-

judicial experiment requiring reversal, the defendant's right to be present

during all critical stages of trial was not violated. The trial court did

not abuse its discretion in denying the defendant's motion to correct

error.

Inconsistent and Unreliable Verdicts

The defendant contends that the jury's verdicts, finding the

defendant guilty of murder and neglect of a dependent, are internally

inconsistent and therefore unreliable. The defendant argues that, in

finding the defendant guilty of neglect, "the jury found the failure to

seek medical treatment caused Emporia's death and [the defendant's]

negligence led to the need for medical treatment." Brief of Defendant-

Appellant at 19. The defendant also argues that, in finding the defendant

guilty of murder, "the jury found she knowingly killed Emporia and the

beating, not the failure to seek medical treatment, caused her death."

Brief of Defendant-Appellant at 19. The defendant frames her argument as

follows: "Both of these propositions cannot be true. If [the defendant's]

state of mind was merely one of negligence, she cannot be also guilty of

Murder. If her state of mind was knowing, she was not negligent." Brief

of Defendant-Appellant at 19. Thus, the defendant argues that the

defendant could not have knowingly caused Emporia's death under the murder

charge and negligently caused her death under the neglect charge.

When this Court reviews a claim of inconsistent jury verdicts, we

will take corrective action only when the verdicts are "extremely

contradictory and irreconcilable." Jones v. State, 689 N.E.2d 722, 724

(Ind. 1997). See also Hodge v. State, 688 N.E.2d 1246, 1248 (Ind. 1997)

("'Verdicts may be so extremely contradictory and irreconcilable as to

require corrective action.'") (quoting Jackson v. State, 540 N.E.2d 1232,

1234 (Ind. 1989)); Butler v. State, 647 N.E.2d 631, 636 (Ind. 1995)

("[T]his court will 'review findings and verdicts to determine whether they

are consistent; however, perfect logical consistency is not demanded and

only extremely contradictory and irreconcilable verdicts warrant corrective

action by this Court.'") (quoting Hoskins v. State, 563 N.E.2d 571, 577

(Ind. 1990)) (emphasis omitted). Furthermore, we will not attempt to

interpret the thought process of the jury in arriving at its verdict, and

perfect logical consistency is not required. Jones, 689 N.E.2d at 724;

Butler, 647 N.E.2d at 636. See also Hodge, 688 N.E.2d at 1249 ("'In

resolving such a claim, the Court will not engage in speculation about the

jury's thought processes or motivation.'") (quoting Jackson, 540 N.E.2d at

1234).

In this case, the State charged the defendant with knowingly killing

Emporia Pirtle, by striking her with a wooden stick, thereby inflicting

mortal injuries and causing her to die. To convict the defendant of

murder, the jury had to find beyond a reasonable doubt that the defendant

knowingly killed Emporia. Ind. Code § 35-42-1-1. To prove that the

defendant acted knowingly, the State had to prove that the defendant was

aware of a high probability that the conduct would result in death.[6]

Ind. Code § 35-41-2-2(b) ("A person engages in conduct 'knowingly' if, when

he engages in the conduct, he is aware of a high probability that he is

doing so."); Powers v. State, 696 N.E.2d 865, 870 (Ind. 1998). See also

Brown v. State, 703 N.E.2d 1010, 1021(Ind. 1998) ("The trial court could

reasonably determine that by inflicting over twenty wounds Brown acted

'knowing' that his actions could produce death."); Horne v. State, 445

N.E.2d 976, 979 (Ind. 1983) ("[A]n act is done 'knowingly' or 'purposely'

if it is willed, is the product of a conscious design, intent or plan that

it be done, and is done with an awareness of the probable consequences.").

In determining whether a defendant was aware of the high probability that

her actions would result in the death of the victim, the duration,

severity, and brutality of a defendant's actions, and the relative

strengths and sizes of a defendant and a victim, may be considered.

Anderson v. State, 681 N.E.2d 703, 708 (Ind. 1997); Gibson v. State, 515

N.E.2d 492, 496-97 (Ind. 1987).

The State also charged the defendant with knowingly placing Emporia

Pirtle in a situation that might endanger her life or health by failing to

seek medical attention for her, which resulted in serious bodily injury and

death. To convict the defendant of neglect of a dependent, the jury had to

find beyond a reasonable doubt that the defendant, having the care of

Emporia Pirtle, a dependent, by failing to seek medical attention,

knowingly or intentionally[7] placed Emporia in a situation endangering her

life or health. Ind. Code § 35-46-1-4(a). To convict the defendant of

neglect as a class B felony, the jury had to find beyond a reasonable doubt

that the neglect resulted in serious bodily injury.[8] Id.

Under the dependent neglect statute, the level of culpability required

for knowing behavior "is that level where the accused must have been

subjectively aware of a high probability that he placed the dependent in a

dangerous situation." Armour v. State, 479 N.E.2d 1294, 1297 (Ind. 1985)

(applying Ind. Code § 35-41-2-2). Proof of this subjective awareness

requires resort to inferential reasoning to ascertain the defendant's

mental state. Barrett v. State, 675 N.E.2d 1112, 1116 (Ind. Ct. App.

1996); Kellogg v. State, 636 N.E.2d 1262, 1265 (Ind. Ct. App. 1994); Hill

v. State, 535 N.E.2d 153, 154 (Ind. Ct. App. 1989). When there are

symptoms from which the average layperson would have detected a serious

problem necessitating medical attention, it is reasonable for the jury to

infer that the defendant knowingly neglected the dependent.[9] Hill, 535

N.E.2d at 155. Also, in the context of care of a dependent, we have said

that "'[n]eglect is the want of reasonable care—that is, the omission of

such steps as a reasonable parent would take, such as are usually taken in

the ordinary experience of mankind. . . .'" White v. State, 547 N.E.2d

831, 836 (Ind. 1989) (quoting Eaglen v. State, 249 Ind. 144, 150, 231

N.E.2d 147, 150 (1967)).

The evidence adduced at trial demonstrated the following. On

November 11, 1996, with a two-foot-long wooden rod, the defendant, a fifty-

one-year-old woman, struck Emporia, a six-year-old girl, at least five

times on the head and approximately fifty times on the shoulders, back,

buttocks, arms, and legs. The defendant told the child to "die." Record

at 658. With both of her hands, the defendant choked Emporia, causing the

girl to gasp. Immediately after the beating, Emporia had visible bruises

all over her body, and she acted differently. Her mouth was swollen, and

her lips were purple. She could no longer walk after the beating. Her

older sister had to help her take a bath, and then she had to help Emporia

walk from the bathtub to where she would sleep that night.

The next morning Emporia was not breathing. The defendant wrapped

Emporia in a sheet and bedspread and put her in the storage shed located

outside the apartment, beside the patio. The defendant told Emporia's

sister, Auinia, not to tell anyone or she would have to go to a foster

home. For one month, neither the defendant nor Auinia mentioned Emporia's

death to anyone. Finally, Auinia told their mother that Emporia was dead.

On December 11, 1996, one month after the beating, paramedics responded to

an emergency call and discovered Emporia's body in the shed.

In finding the defendant guilty of murder and neglect of a dependent,

the jury could logically conclude that the defendant knowingly killed

Emporia (i.e., that she was aware of the high probability that her repeated

striking of Emporia on the head and body with the rod would result in

death), and that the defendant knowingly placed Emporia in a situation that

might endanger her life or health (i.e., that she was subjectively aware of

a high probability that she placed Emporia in a dangerous situation by

failing to seek medical attention when the average layperson would have

recognized the danger and sought help). The jury was not required to find,

and in fact did not find, that the defendant knowingly caused Emporia's

death under the murder charge and negligently caused her death under the

neglect charge. Instead, with both of the charged offenses, the jury was

required to find that the defendant acted knowingly. We hold, therefore,

that the verdicts are not inconsistent.

Confusing Instructions

The defendant argues that the trial court's instructions to the jury

on the lesser-included offenses of involuntary manslaughter and reckless

homicide were confusing, improper, and deficient.

During the conference regarding final instructions, the trial court

and the parties extensively discussed the wording of the jury instructions

explaining reckless homicide and involuntary manslaughter. The process

resulted in the trial court giving the defendant’s tendered instructions

numbers 1 and 4 as modified, and the defense withdrawing its proposed

instructions numbers 2, 3, and 5. After a recess to permit the

instructions to be prepared in final form and reviewed by counsel, the

court reconvened and asked if there were any objections. Each of the

defendant’s two lawyers separately declared that she had no objection.

Because a defendant who fails to object to an instruction at trial waives

any challenge to that instruction on appeal, T.R. 51(C); Ford, 704 N.E.2d

at 461, we find that the defendant waived this claim.

Attempting to avoid procedural default, the defendant argues that the

court's failure to explain the differences in the mens rea required for the

various offenses constituted fundamental error. Citing Clark v. State, 668

N.E.2d 1206, 1210 (Ind. 1996), and Jackson v. State, 575 N.E.2d 617, 621

(Ind. 1991), the defendant urges that fundamental error occurs when a trial

court improperly or insufficiently explains the differences in mens rea.

Unlike the present case, both Clark and Jackson involved attempted murder,

and neither addressed a claim of fundamental error for failing to explain

the difference in the mens rea required for various offenses. In Clark,

this Court reversed an attempted murder conviction, holding that, because

the trial court's instruction for attempted murder allowed conviction on

"knowingly" and did not require "intent to kill," the trial court's correct

statement in its general instructions could not cure this erroneous

instruction. Clark, 668 N.E.2d at 1210. In Jackson, the defendant, who

was convicted of attempted murder, challenged a jury instruction that the

defendant claimed failed to require the finding of proof beyond a

reasonable doubt of specific intent to commit murder, but this Court

refused to find fundamental error. Jackson, 575 N.E.2d at 620-21.

This Court views the fundamental error exception to the waiver rule as

an extremely narrow one, available only "'when the record reveals clearly

blatant violations of basic and elementary principles [of due process], and

the harm or potential for harm [can]not be denied.'" Ford, 704 N.E.2d at

461 (quoting Warriner, 435 N.E.2d at 563). We find no fundamental error.

Aggravating Factor

The defendant contends that the trial court used an improper

aggravating factor to enhance the defendant's sentence for murder.

Specifically, the defendant argues that the trial court erroneously found

as an aggravating circumstance that the imposition of a sentence below the

presumptive would depreciate the seriousness of the crime.

We have held that "the statutory aggravating factor 'imposition of a

reduced sentence would depreciate the seriousness of the crime,' . . . only

supports a refusal to reduce the presumptive sentence. The sentencing

court should not use this statutory factor when considering whether

defendant should receive less than the maximum enhanced sentence." Archer

v. State, 689 N.E.2d 678, 684 (Ind. 1997) (quoting Ind. Code § 35-38-1-

7.1(b)(4)) (other citations omitted). See also McCants v. State, 686

N.E.2d 1281, 1286 (Ind. 1997); Bacher v. State, 686 N.E.2d 791, 801 (Ind.

1997). We agree that the trial court improperly used this factor as an

aggravating circumstance.

However, a single aggravating circumstance is adequate to justify a

sentence enhancement. Gibson v. State, 702 N.E.2d 707, 710 (Ind. 1998);

Williams v. State, 690 N.E.2d 162, 172 (Ind. 1997). When a sentencing

court improperly applies an aggravating circumstance, but other valid

aggravating circumstances exist, a sentence enhancement may still be

upheld. Gibson, 702 N.E.2d at 710; Blanche v. State, 690 N.E.2d 709, 715

(Ind. 1998). In this case, the trial court found several other aggravating

circumstances: the defendant's extensive history of criminal and

delinquent activity; the defendant's need for correctional or

rehabilitative treatment and the failure of previous rehabilitation;[10]

the heinous nature and circumstances of the crime; and the victim's age of

six years. See Ind. Code § 35-38-1-7.1. The trial court found two

mitigating factors: the defendant's remorse; and the defendant's mental

health condition.

The trial court considered these factors and determined that the

aggravating circumstances outweighed the mitigating circumstances. The

trial court imposed a sentence of sixty-five years[11] and suspended five

years, for a total executed term of sixty years.[12] Any error by the

court in using the factor of depreciation of the seriousness of the crime

as an aggravating circumstance is overcome because several valid

aggravating circumstances were found, including the age of the victim, the

heinous nature and circumstances of the crime, and the defendant's lengthy

history of criminal and delinquent activity. See Blanche, 690 N.E.2d at

715; Isaacs, 673 N.E.2d at 765 n.6 ("[T]he improper use of th[e depreciate

the seriousness of the crime] aggravating circumstance does not invalidate

a sentence enhancement where other valid aggravating circumstances are

found."). We find no reversible error on this issue.

Modification of the Defendant's Sentence

In its brief, the State contends that the trial court improperly

granted the defendant's motion to correct her erroneous sentence. The

State does not argue that the trial court or the defendant failed to follow

the prescribed procedure. Rather, the State argues that the defendant's

convictions and sentences for murder and class B felony neglect of a

dependent do not violate the double jeopardy protection against multiple

punishments for the same offense. Thus, the State claims that the trial

court erroneously found that the defendant's convictions and sentences for

murder and class B felony neglect of a dependent violated double jeopardy.

Indiana Code section 35-38-1-15 permits a defendant to file a motion

to correct sentence. See Reffett v. State, 571 N.E.2d 1227, 1228-29 (Ind.

1991). Under the statute, the trial court may correct an erroneous

sentence. Ind. Code § 35-38-1-15. In Jones v. State, this Court held that

a motion to correct sentence is appropriate where the sentence is erroneous

on its face and that facial error occurs when the sentence violates express

statutory authority. 544 N.E.2d 492, 496 (Ind. 1989). If a sentence

violating express statutory authority is facially erroneous, a sentence

violating double jeopardy is also facially erroneous and may be attacked by

a motion to correct erroneous sentence. Cf. Reffett, 571 N.E.2d at 1228-29

("[A] sentence that violates the express terms of a plea agreement is . . .

facially erroneous, and [it] may be attacked by a motion to correct

erroneous sentence.").

A trial court's ruling upon a motion to correct sentence is subject to

appeal by normal appellate procedures. Thompson v. State, 270 Ind. 677,

680, 389 N.E.2d 274, 276-77 (1979). While this Court will defer to the

trial court's factual finding, reviewing only for abuse of discretion, we

will review a trial court's legal conclusions under a de novo standard of

review. Cf. Champlain v. State, 681 N.E.2d 696, 700 (Ind. 1997).

In this case, the defendant filed a motion to correct sentence in

writing and a supporting memorandum of law, specifically identifying a

violation of the protections against double jeopardy found in the Fifth

Amendment to the U.S. Constitution and Article I, Section 14 of the Indiana

Constitution as the defect in the original sentence. After the State filed

its response, the trial court granted the defendant's motion and corrected

the defendant's conviction for class B felony neglect of a dependent,

modifying the conviction to class D felony neglect and entering a new

sentence of three years.

Recently, in Richardson v. State, 717 N.E.2d 32 (Ind. 1999), we

explained that two tests apply to determine whether multiple offenses

constitute the same offense under the Indiana Double Jeopardy Clause:

[T]wo or more offenses are the "same offense" in violation of Article

I, Section 14 of the Indiana Constitution, if, with respect to either

the statutory elements of the challenged crimes or the actual evidence

used to convict, the essential elements of one challenged offense also

establish the essential elements of another challenged offense.

Id. at 49. Under the statutory elements test, A[e]ach offense must contain

at least one element which is separate and distinct from the other offense

so that the same evidence is not necessary to convict for both offenses.@

Id. at 52. Murder requires a knowing or intentional killing, which is not

required for class B felony neglect. Class B felony neglect requires

knowingly or intentionally placing a dependent in a situation that may

endanger the dependent's life or health, which is not required for murder.

The offenses are not the same under the statutory elements test.

Even though these offenses are not the same offenses under the

statutory elements test, we also apply the following actual evidence test:

[T]he actual evidence presented at trial is examined to determine

whether each challenged offense was established by separate and

distinct facts. To show that two challenged offenses constitute the

"same offense" in a claim of double jeopardy, a defendant must

demonstrate a reasonable possibility that the evidentiary facts used

by the fact-finder to establish the essential elements of one offense

may also have been used to establish the essential elements of a

second challenged offense.

Id. at 53. In Richardson, we noted that the trial court's instructions to

the jury and the presentations of counsel to the jury can be helpful to the

reviewing court in analyzing the actual evidence to determine whether the

jury used the same evidence to establish multiple offenses. Id. at 54

n.48. To convict the defendant of class B felony neglect, the State had to

prove that the neglect resulted in serious bodily injury. Ind. Code § 35-

46-1-4(a).

In this case, in the trial court's preliminary and final instructions

to the jury, the court read the charges in the murder count, which alleged

that the defendant's striking of Emporia caused Emporia to die. The court

also read the charges in the neglect count, which alleged that the

resulting serious bodily injury to Emporia was death. In its closing

argument, the State focused the jury's attention on evidence that showed

that the defendant caused Emporia's death when she severely beat her with a

wooden rod, striking the six-year-old more than fifty times on the head,

arms, back, and legs, and that the defendant knew there was a high

probability that the actions she took would result in Emporia's death. The

State also noted that, after the beating and the next morning when Emporia

was unresponsive, the defendant failed to get medical attention for

Emporia, even though she may have still been alive at that time.

Because the evidence offered to prove the resulting serious bodily

injury was the same evidence offered to prove the knowing killing, there is

a reasonable possibility that the evidentiary facts used by the fact-finder

to establish that the defendant knowingly killed Emporia may also have been

used to establish that the defendant's neglect resulted in serious bodily

injury, an element required to prove class B felony neglect. The trial

court did not err in correcting the defendant's sentence because of double

jeopardy considerations.

Conclusion

The judgment of the trial court is affirmed.

SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.

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

[1] Ind. Code § 35-42-1-1.

[2] Ind. Code § 35-46-1-4.

[3] The defendant dates these incidents on or about November 6, 1996.

[4] We have held that a trial before an impartial judge is an

essential element of due process. Timberlake, 690 N.E.2d at 256 (citing

Abernathy v. State, 524 N.E.2d 12, 13 (Ind. 1988)); Harrington v. State,

584 N.E.2d 558, 561 (Ind. 1992). In Kennedy v. State, this Court refused

to foreclose a defendant's claim of improper judicial intervention, even

though the defendant had failed to object at trial, because "[a] fair trial

by an impartial judge and jury is an essential element in due process."

Kennedy, 258 Ind. at 218, 280 N.E.2d at 615. The Indiana Court of Appeals

has considered the fundamental error doctrine in cases when a defendant

claims improper judicial intervention, even when the defendant failed to

object at trial. See, e.g., Taylor v. State, 602 N.E.2d 1056, 1059 (Ind.

Ct. App. 1992) (regarding a trial judge's comments and questioning of a

witness); Ware, 560 N.E.2d at 539 (regarding a trial judge's comments and

interruptions); Spaulding v. State, 533 N.E.2d 597, 603 (Ind. Ct. App.

1989) (regarding a trial judge's remarks allegedly impeaching or

discrediting witness testimony); Decker v. State, 515 N.E.2d 1129, 1131-32

(Ind. Ct. App. 1987) (regarding a trial judge's questioning of a witness).

[5] The defendant also claims that the admission of the photographs

resulted in the pathologist testifying about "fresh" injuries. The

defendant argues that, from the use of these photographs, the jury was

allowed to make impermissible inferences that some of the injuries in the

picture were not fresh or that they were old or stale. The defendant notes

that, pursuant to her motion in limine, the judge had ruled any reference

to "old" injuries as inadmissible. The State contends that the defendant

never objected at trial to this characterization of the injuries.

At trial, after the pathologist had been sworn to testify, defense

counsel offered to stipulate the cause of death and expressed concern

regarding the extent of the pathologist's testimony and the nature of the

photographs. Defense counsel argued that "there are indications in these

photos of both old injuries and new injuries. The old injuries having

previously been Limined out in the Motion in Limine." Record at 828.

Defense counsel also explained that "the very fact that the jury is not

going to be able to tell old injuries from new injuries in the photograph

is what makes it crucial that we deal with this issue because they're going

to assume that all injuries are due to this particular situation. And

that's not the case." Record at 829. Defense counsel then requested that

the defendant be allowed to advise the jury that the defendant was willing

to stipulate the cause of death. The trial court admitted the photographs.

Referring to State exhibit numbers 19 and 26, the pathologist testified as

to "fresh" injuries depicted in the photographs and post-mortem changes to

the body. However, the defendant did not specifically object to the

characterization as the pathologist testified.

The defendant has waived this issue by failing to make a timely

objection at trial to the pathologist's characterization of the evidence.

Harrison v. State, 707 N.E.2d 767, 788 (Ind. 1999); Stevens v. State, 691

N.E.2d 412, 420 (Ind. 1997); Henderson v. State, 544 N.E.2d 507, 510 (Ind.

1989); Frith v. State, 452 N.E.2d 930, 931 (Ind. 1983).

[6] In the court's preliminary and final instructions to the jury,

the court instructed that "[a] person engages in conduct 'knowingly' if,

when he engages in this conduct, he is aware of a high probability that he

is doing so. If a person is charged with knowingly causing a result by his

conduct, he must have been aware of a high probability that his conduct

would cause the result." Record at 349, 386, 632, 996.

[7] Under the statute, the state of mind required to commit the crime

of neglect of a dependent is not negligence. Rather, a knowing or

intentional state of mind is required.

[8] The offense is a class D felony if no resulting serious bodily

injury is proven. Id. The jury returned a verdict of guilty on the charge

of class B felony neglect, and the trial court initially entered judgment

convicting the defendant of class B felony neglect. However, the trial

court later corrected its conviction and sentence for neglect, reducing the

conviction to a class D felony because of double jeopardy considerations.

See infra section discussing modification of the defendant's sentence.

[9] Courts have held that, in those cases where a defendant has been

found to possess the requisite subjective awareness, the circumstances

demonstrated that the defendant had actual knowledge that a dangerous

situation existed for the dependent. See, e.g., White, 547 N.E.2d at 836

(the defendant's knowing exposure of dependent to an environment of illegal

drug use posed danger to the dependent); Kellogg, 636 N.E.2d at 1266

(because the defendant had actual knowledge that he had consumed a

substantial quantity of alcohol and that his child was a passenger in his

vehicle, the jury could have reasonably inferred that the defendant had

actual knowledge that a dangerous situation existed); Sample v. State, 601

N.E.2d 457, 459 (Ind. Ct. App. 1992) (because the defendant had actual

knowledge of a "bump" on child's head which was later discovered to be a

skull fracture, the jury could infer that the defendant was aware she

placed child in danger by failing to obtain prompt medical treatment); Fout

v. State, 575 N.E.2d 340, 342 (Ind. Ct. App. 1991) (the jury could infer

the defendant's subjective knowledge that he placed the defendant in a

dangerous situation when the defendant was specifically informed of two

conditions of child which required immediate medical attention).

[10] In her brief, the defendant does not challenge the trial court's

use of the defendant's need for correctional and rehabilitative treatment

as an aggravator. We have held that a trial court, in using this

aggravator, must explain why the defendant is in need of treatment in a

penal facility for a period longer than the presumptive sentence. Berry v.

State, 703 N.E.2d 154, 158 (Ind. 1998); Taylor v. State, 695 N.E.2d 117,

122 (Ind. 1998); Blanche, 690 N.E.2d at 715. Although the trial court did

not articulate any reasons, the court did state that "prior attempts at

rehabilitation through probation and imprisonment in the past have all

failed." Record at 1097. Any error by the court in failing to explain its

reasons for finding that the defendant was in need of correctional and

rehabilitative treatment that could best be provided by a period of

incarceration in excess of the presumptive term is harmless considering the

other aggravating factors, including the age of the victim and the

defendant's lengthy history of criminal and delinquent activity. See

Blanche, 690 N.E.2d at 715.

[11] At the time of the murder, the presumptive sentence for murder

was fifty-five years, with not more than ten years added for aggravating

circumstances. Ind. Code § 35-50-2-3.

[12] For the neglect conviction, the trial court weighed the same

aggravating and mitigating circumstances, sentenced the defendant to twenty

years, and suspended two years, for a total executed sentence of eighteen

years. The trial court ordered this sentence to run concurrently with the

sentence for murder. Because of double jeopardy considerations, the trial

court later corrected the defendant's sentence for neglect, reducing the

conviction from a class B felony to a class D felony and sentencing the

defendant to three years with no years suspended and with the sentences

running concurrently. See infra section discussing the modification of the

defendant's sentence.