Opinion
23A-CR-2764
08-07-2024
Samantha Jo Burris, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Yvette M. LaPlante Gonterman & Meyer, LLC Evansville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Posey Circuit Court Trial Court Cause No. 65C01-1810-F3-443 The Honorable Craig S. Goedde, Judge
ATTORNEY FOR APPELLANT Yvette M. LaPlante Gonterman & Meyer, LLC Evansville, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Crone, Judge
Case Summary
[¶1] Samantha Jo Burris appeals the sixteen-year enhanced sentence imposed by the trial court following her guilty plea to level 3 felony neglect of a dependent resulting in serious bodily injury. Burris asserts that the court abused its discretion in considering aggravating and mitigating circumstances and that her sentence is inappropriate in light of the nature of the offense and her character. Finding no abuse of discretion and that she has not met her burden to demonstrate that her sentence is inappropriate, we affirm.
Facts and Procedural History
[¶2] In May 2018, twenty-four-year-old Burris lived in an apartment in Mount Vernon with her boyfriend, Richard Kennedy. She had lived with Kennedy for around two years. She and Kennedy were the parents of thirteen-month-old K.K., and Burris was three months pregnant with their second child. Sometime that month, Kennedy strangled Burris in K.K.'s presence. Kennedy was arrested and charged with battery and strangulation, but Burris recanted her allegations and provided false documentation purporting to show that she was not pregnant. Kennedy pled guilty to the charges and was sentenced. By October 2018, Kennedy was again living in the apartment with Burris.
We take judicial notice of the pleadings and orders contained in the trial court's record as found in Odyssey under cause number 65C01-1805-F5-244. See Ind. Evidence Rule 201(a)(2)(C) (providing that a court may judicially notice the existence of records of a court of this state).
[¶3] Burris's best friend at that time, Jamie Brantley, was the mother of fourteen-month-old N.B., whom Burris often babysat on multiple days during the week. On October 1, 2018, Burris agreed to babysit N.B. When Brantley dropped off N.B. at Burris's home around 5:00 p.m., N.B. appeared "normal[,]" was "in perfect health[,]" and had no injuries aside from a fading bruise she had received the week before when K.K. hit her on the head with a plastic toy. Ex. Vol. 3 at 5, 7. Burris and Brantley left N.B. and K.K. in Kennedy's care for approximately thirty minutes, while the two friends traveled to a nearby grocery store.
[¶4] Burris returned, and the children napped that afternoon and ate dinner that evening. Burris put the children to bed after 10:00 p.m. N.B. slept in a crib located in the bedroom adjacent to the bedroom in which Burris and Kennedy slept. K.K. slept with his parents. The children slept through the night without incident.
[¶5] The next day, October 2, Brantley contacted Burris and asked if Burris could watch N.B. one more night. Burris agreed. That day, N.B. behaved normally, but she and K.K. began to show flu-like symptoms. That evening, N.B. became "a little fussy," and Burris tried unsuccessfully to get N.B. to sleep. Tr. Vol. 2 at 67. N.B. fell asleep around 1:00 a.m. on October 3. N.B. slept in her crib; K.K. slept with Burris and Kennedy. Around 3:00 a.m., N.B. woke up crying. Burris checked on her and noticed that she had vomited. Burris cleaned N.B. and "offered her a bottle[,]" but "she didn't want it, so [Burris] just rocked [N.B.] until she fell back to sleep" and then placed her back in the crib. Id. at 66.
[¶6] Sometime between 10:00 a.m. and 11:30 a.m., Burris fed the children breakfast. N.B. ate scrambled eggs and appeared normal. After breakfast, however, N.B. became "lethargic" and "ended up falling back to sleep[.]" Id. at 71. Burris placed N.B. on the living room couch, and N.B. vomited. Burris cleaned N.B. but was unable to awaken her. Meanwhile, at 12:13 p.m., Kennedy sent a text message to his mistress, telling her, "[Burris] just woke me up freaking out about [N.B.; N.B.'s] like knocked out[.]" Ex. Vol. 3 at 13.
[¶7] At 12:38 p.m., Burris called Brantley and told her that N.B. was not "acting right." Id. at 5. Burris and Brantley exchanged text messages regarding N.B.'s poor health. Kennedy left the apartment and spent the afternoon and evening with his mistress. When the mistress asked Kennedy what happened to N.B., Kennedy replied, "[Burris] might have thrown [N.B.] on the couch[.]" Id. at 10.
[¶8] Brantley arrived at Burris's apartment around 1:30 p.m. with Mark Gold, her boyfriend and N.B.'s father. The delay between Burris's call to Brantley and Brantley and Gold's arrival was due to Gold being at work when Burris called and Brantley needing to "wait for him to come home to get her." Id. at 9. However, during that time, Burris did not seek any medical attention for N.B. She "did not see [N.B.] being injured in any way, . . . [and at] no sort of time . . . did [she] think ... [N.B.] was critically injured and that [she] need[ed] to seek medical attention" for the child. Tr. Vol. 2 at 74.
[¶9] Brantley and Gold picked up N.B. and attempted to transport her to the hospital. However, because their vehicle was low on gas, they pulled into the parking lot of a fast-food restaurant and called 911. Gold knew "immediately" that "something was wrong" with N.B. because she "wouldn't do anything, she wasn't responsive at all." Id. at 28. Police officers responded to the dispatch, and one officer attempted CPR and checked to see if N.B. was choking. N.B. was unresponsive, and her eyes had "rolled to the back of her head." Id. N.B. was taken by ambulance to an Evansville hospital. Brantley rode in the ambulance with N.B., and Gold followed behind.
[¶10] N.B. arrived at the hospital at 2:30 p.m., and "not long after that" she "went into surgery[.]" Ex. Vol. 3 at 11. Her head scan revealed a large subdural hematoma, meaning "a collection of blood between the skull and the brain[,]" that had caused a midline shift and extensive injury. Appellant's App. Vol. 2 at 137. She also suffered strokes on both sides of her brain and bruising to her upper right arm. After she was medically stabilized, she was transported to a children's hospital in Cincinnati, Ohio, for postoperative care. At the Cincinnati hospital, treating physicians determined that N.B.'s forehead contained small healing scabs, and she had developed a form of diabetes because of the head injury.
[¶11] N.B. died at 8:54 p.m. on October 6, 2018. An autopsy report listed N.B.'s cause of death as "[c]omplications of a physical assault involving the head[.]" Id. at 127. Dr. Tara Holloran, a child abuse pediatrician with Riley Hospital for Children in Indianapolis, was asked to compile a report on N.B.'s injuries and treatment. Dr. Holloran reported that N.B.'s "head injuries progressed to her death"; she suffered from abusive head trauma; her injuries required "an amount of force a reasonable caregiver would be expected to recognize as dangerous for a small child, and far beyond what the other child in the home[, K.K.,] could generate"; "after the event, [N.B.] would have been immediately symptomatic"; and "[h]ad medical attention been sought immediately after the event in which [N.B.] was injured and an accurate history disclosed," N.B. might have survived. Id.
[¶12] On October 4, 2018, the State charged Burris with one count of level 3 felony neglect of a dependent. The charging information alleged that Burris failed to "obtain appropriate medical care ...and/or [failed] to appropriately supervise" N.B., which resulted in serious bodily injury. Id. at 44. On August 16, 2019, the State amended the information and charged Burris with one count of level 1 felony neglect of a dependent resulting in death. In April 2023, in a separate case, Kennedy pled guilty to level 1 felony neglect of a dependent resulting in death and was sentenced to thirty years executed in the Indiana Department of Correction (DOC).
We take judicial notice of the pleadings and orders contained in the trial court's record as found in Odyssey under cause number 65C01-1810-F3-442. See Ind. Evidence Rule 201(a)(2)(C) (providing that a court may judicially notice the existence of records of a court of this state).
[¶13] On August 16, 2023, Burris and the State entered into a plea agreement and a sentencing agreement. Under the plea agreement, Burris agreed to plead guilty to level 3 felony neglect of a depending resulting in serious bodily injury. Under the sentencing agreement, the parties agreed that the trial court would determine Burris's sentence after evidence and argument had been presented at the sentencing hearing.
[¶14] Burris's sentencing hearing was held on October 23. The State presented testimony from Brantley, Gold, and N.B.'s grandmother. Burris offered testimony from her aunt, uncle, and sister, and she testified on her own behalf.
[¶15] After closing arguments were presented, the trial court sentenced Burris to sixteen years executed in the DOC. In reaching its determination, the trial court told Burris:
There's no doubt in my mind, ma'am, that you loved this little girl[.] Uh, that you watched this child quite a bit[.] I would like to believe that that love supersedes any love that you had for Mr. Kennedy at the time, and that you would not be trying to hide something for him, I can't say that I know that to be true here today. Uh, what I do know, ma'am, is that you somewhat sacrificed yourself for Mr. Kennedy[.] I believe he deserves every
day of the thirty years I gave him, and I would do it again, to be quite honest with you. Uh, ma'am, if you had pled open to a thirty-year term, I don't know that you wouldn't have close to a thirty[-]year term coming to you after my review of all the evidence[.]Tr. Vol. 2 at 115.
[¶16] The court found numerous aggravating circumstances, including (relevant to this appeal) that (1) the harm caused was significant and greater than necessary to prove the elements of the offense; (2) the victim was less than twelve years old; (3) the offense was a crime of violence; (4) N.B. was in Burris's care and control when the offense was committed; and (5) Burris's guilty plea itself. The trial court found as a mitigating circumstance Burris's "very minimal" criminal history, which included an infraction for driving while suspended and an admission to smoking marijuana a few months before the sentencing hearing took place. Id. at 119. The court determined that the aggravating circumstances outweighed the mitigating circumstance. Burris now appeals.
Discussion and Decision
Section 1 - The trial court did not abuse its discretion in considering aggravating and mitigating circumstances.
[¶17] Indiana Code Section 35-50-2-5(b) provides that a "person who commits a Level 3 felony . . . shall be imprisoned for a fixed term of between three (3) and sixteen (16) years, with the advisory sentence being nine (9) years." In sentencing Burris to sixteen years executed in the DOC, the trial court imposed the maximum sentence permitted by statute. On appeal, Burris contends that the trial court abused its discretion by considering three allegedly inappropriate aggravating circumstances to enhance her sentence, namely, that Burris committed a crime of violence, that she pled guilty to a lesser-included offense, and that N.B. was in her care and control. Burris also contends that the trial court abused its discretion by not recognizing her alleged remorse as a significant mitigating factor.
[¶18] Sentencing decisions rest within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. As long as a defendant's sentence is within the statutory range, it is subject to review only for an abuse of discretion. Id. An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions drawn therefrom. Id. A trial court may abuse its discretion by failing to enter a sentencing statement, identifying aggravators and mitigators that are unsupported by the record, omitting reasons from the sentencing statement that are clearly supported by the record, or entering reasons in the sentencing statement that are improper as a matter of law. Id. at 490-91.
[¶19] When it comes to aggravating and mitigating factors,
[a] single aggravating circumstance may be sufficient to enhance a sentence. When a trial court improperly applies an aggravator but other valid aggravating circumstances exist, a sentence enhancement may still be upheld. The question we must decide is whether we are confident the trial court would have imposed the same sentence even if it had not found the improper aggravator.Baumholser v. State, 62 N.E.3d 411, 417 (Ind.Ct.App. 2016) (internal quotation omitted), trans. denied (2017).
[¶20] In the instant case, even assuming, without concluding, that the trial court erred by finding the abovementioned aggravating circumstances, we cannot say that the trial court abused its discretion by imposing the enhanced sentence. The court relied on the valid aggravating circumstance that the victim of the offense, N.B., was less than twelve years old. See Ind. Code § 35-38-1-7.1(3) (2019). This unchallenged circumstance alone supports an enhanced sentence. Moreover, based on the detailed statement that the trial court provided at sentencing, we are confident that the court would have imposed the same sentence without the disputed aggravators.
[¶21] As for Burris's argument regarding her alleged remorse, we acknowledge that "[o]ur courts have recognized remorse as a valid mitigating circumstance." Cotto v. State, 829 N.E.2d 520, 526 (Ind. 2005). However, "[a]n allegation that the trial court failed to identify or find a mitigating factor requires the defendant to establish that the mitigating evidence is both significant and clearly supported by the record." Anglemyer, 868 N.E.2d at 493. "A trial court is under no obligation to accept a defendant's alleged remorse as a mitigating circumstance." Phelps v. State, 969 N.E.2d 1009, 1020 (Ind.Ct.App. 2012), trans. denied. Further, "[w]here the trial court does not find the existence of a mitigating factor after it has been argued by counsel, the trial court is not obligated to explain why it has found that the factor does not exist." Id. at 1019.
[¶22] Burris's expression of remorse was in her response to her counsel's questioning on direct examination. She testified,
It is a gut-wrenching pain that I feel every single day. It feels like I lost one of my own. Like I said, me and [Brantley], we were best friends for a long time and any time she needed me to take [N.B.] in my care I would. I am devastated by her loss[.] She did not deserve it. And, like I said, if I could trade places with her I would. It has been the hardest thing I've ever had to deal with in my entire life and the sorrow I feel for the families and my neglectfulness to seek [N.B.] the help that she needed and not, and not knowing those signs, as a first[-]time mother you learn things along the way and, so not knowing those things I feel like a[n] idiot not seeing the signs that she needed help cause I, I would have seeked her the medical help to save her. I, I would trade places in a heartbeat with her[.]Tr. Vol. 2 at 61.
[¶23] Here, the trial court was in the best position to assess any remorse exhibited by Burris, and the court implicitly determined that it was not a mitigating factor. See Phelps, 969 N.E.2d at 1020 (the trial court "possesses the ability to directly observe a defendant and can best determine whether a defendant's remorse is genuine"). Accordingly, we find no abuse of discretion on the part of the trial court for not recognizing Burris's alleged remorse as a significant mitigating factor.
We note that even if the trial court is found to have abused its discretion in the process it used to sentence a defendant, the error is harmless if the sentence imposed was not inappropriate. Mendoza v. State, 869 N.E.2d 546, 556 (Ind.Ct.App. 2007), trans. denied. Because Burris has failed to establish that her sentence is inappropriate, any sentencing error is harmless.
Section 2 - Burris has failed to establish that her sixteen-year executed sentence is inappropriate in light of the offense and her character.
[¶24] Burris asks us to revise her sentence pursuant to Indiana Appellate Rule 7(B), which states, "The Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender." We apply a "holistic approach" to our 7(B) review. Lane v. State, 232 N.E.3d 119, 127 (Ind. 2024) (quoting Connor v. State, 58 N.E.3d 215, 219 (Ind.Ct.App. 2016)). In determining whether a sentence is inappropriate, we "'must consider' both factors, but the defendant need not 'necessarily prove' that the sentence is inappropriate on both counts." Id. at 126 (quoting Connor, 58 N.E.3d at 219). When reviewing a sentence, our principal role is to leaven the outliers rather than necessarily achieve what is perceived as the correct result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Burris bears the burden to show that her sentence is inappropriate. Anglemyer, 868 N.E.2d at 490.
[¶25] "[S]entencing is principally a discretionary function in which the trial court's judgment should receive considerable deference." Cardwell, 895 N.E.2d at 1222. "Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character)." Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). As we assess the nature of the offense and character of the offender, "we may look to any factors appearing in the record." Boling v. State, 982 N.E.2d 1055, 1060 (Ind.Ct.App. 2013). Ultimately, whether a sentence should be deemed inappropriate "turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case." Cardwell, 895 N.E.2d at 1224.
[¶26] The two prongs of 7(B) review are "separate inquiries to ultimately be balanced in determining whether a sentence is inappropriate." Lane, 232 N.E.3d at 126 (quoting Connor, 58 N.E.3d at 218). "[T]o the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief." Id. at 127.
[¶27] Regarding the nature of the offense, we observe that "the advisory sentence is the starting point the Legislature selected as appropriate for the crime committed." Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range for a level 3 felony is three to sixteen years, with the advisory sentence being nine years. Ind. Code § 35-50-2-5(b). Burris received the maximum sentence for her crime.
[¶28] Burris asserts that her sentence is inappropriate in light of the nature of the offense because she "did not cause the injuries that ultimately lead to N.B.'s death"; she "sought [medical attention for N.B.] through N.B.'s parents, but she was not responsive enough"; and, believing that N.B. was suffering from a "stomach bug[,]" she "fed N.B. and cared for her." Appellant's Br. at 21. However, the record reveals that Brantley placed her healthy fourteen-month-old daughter in Burris's care, and while in Burris's care, N.B. suffered abusive head trauma that caused blood to collect between her skull and brain, strokes on both sides of her brain, and a form of diabetes. N.B. would have been "immediately symptomatic" following the injury, and police officers who attended to N.B. observed that she was unresponsive, and her eyes had "rolled to the back of her head." Appellant's App. Vol. 2 at 127; Tr. Vol. 2 at 28. N.B. might have survived her injuries had medical attention been sought immediately. However, Burris waited hours before calling Brantley to inform her of N.B.'s condition, and while waiting for Brantley to pick up N.B., Burris did not call 911 or seek or render any type of medical attention for N.B. Burris presents us with no evidence portraying her offense in a positive light. In short, Burris has done nothing to persuade us that a sentence revision is warranted based on the nature of the offense.
[¶29] We reach a similar conclusion regarding Burris's character. We assess a defendant's character by engaging in a broad consideration of her qualities. Madden v. State, 162 N.E.3d 549, 564 (Ind.Ct.App. 2021). An offender's character is shown by her "life and conduct." Adams v. State, 120 N.E.3d 1058, 1065 (Ind.Ct.App. 2019). Burris stresses that she has a minimal criminal history, is now a mother of four children, has been "deeply impacted" by N.B.'s death, suffers from "anxiety, depression, and post-traumatic stress disorder due to N.B.'s death[,]" consistently appeared in court during the instant proceedings, and still is trusted by family and friends with the care of their children. Appellant's Br. at 22.
[¶30] We acknowledge that Burris has positive and negative character traits. However, in this case, Burris stood by and did nothing to help while a child in her care suffered from readily apparent symptoms and injuries sustained from a brutal assault on her head. Had Burris sought medical attention, N.B. might have survived. Burris's actions and inactions reflect exceedingly poorly on her character. Burris has not met her burden to demonstrate that her sixteen-year executed sentence is inappropriate in light of the nature of the offense or her character. Therefore, we affirm.
Affirmed.
Bradford, J., and Tavitas, J., concur.