Opinion
Court of Appeals Case No. 20A-CR-2135
05-11-2021
Curtis COLLMAN, II, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Attorney for Appellant: Lisa D. Manning, Danville, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana
Attorney for Appellant: Lisa D. Manning, Danville, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana
MEMORANDUM DECISION
Bradford, Chief Judge.
Case Summary
[1] On June 21, 2018, Curtis Collman's eight-year-old son C.C. III, also known as L.C., died while in Collman's care. A witness offered to call for medical assistance for L.C. prior to his death, but did not because Collman threatened to kill her and L.C. The State subsequently charged Collman with, inter alia , Level 1 felony neglect of a dependent resulting in death and Level 5 felony intimidation. The State also alleged that Collman was a habitual offender. Following a jury trial, Collman was found guilty and was determined to be a habitual offender. The trial court imposed a forty-year sentence, enhanced by twenty years by virtue of Collman's status as a habitual offender, for an aggregate sixty-year sentence. Collman contends on appeal that the trial court abused its discretion in sentencing him. We affirm.
Facts and Procedural History
[2] During the evening hours on June 20, 2018, Collman picked up L.C. from Collman's parents’ home. The next morning, at approximately 10:00 a.m., L.C. indicated that he was hungry and Collman told him that there was no food. Hungry with no food, L.C. ate some methamphetamine that Collman had at the residence.
[3] Soon thereafter, L.C. became ill. Collman texted his friend, Sara Doty, at 10:09 a.m. that said "Help me." Tr. Vol. III p. 20. Doty, who was at her boyfriend Tyler Waskom's home, answered a minute later asking, "What's wrong?" Tr. Vol. III p. 22. Collman, referring to L.C., answered "Curtis." Tr. Vol. III p. 22. Doty asked, "Are you okay?" and Collman answered, "No, he ain't." Tr. Vol. III p. 23. Collman called Doty, who put the call on speaker. She and Waskom heard L.C. screaming in the background, saying "Dad." Tr. Vol. III p. 24, 61.
[4] Collman did not answer when Doty asked what was going on. Doty asked what Collman wanted her to do and he said "Nothing." Tr. Vol. III p. 27. At 10:36 a.m., Doty sent Collman a text saying "Don't hurt him. Don't let nobody hurt him. I'm coming to get him right now. I'm coming from, he's going with me." Tr. Vol. III p. 27. Doty continued to text Collman for the next few minutes asking, "What the heck is going on" and indicating that she would be there in a minute. Tr. Vol. III p. 28. Eventually Collman told Doty that L.C. had ingested something, saying "He ingested sh[**]. A bunch." Tr. Vol. III p. 28. Doty passed the information on to Waskom, who told Doty to "Take him to the ER right away." Tr. Vol. III p. 29.
[5] Upon arriving at Collman's apartment, Doty saw L.C. "laying on the ground having [ ] seizures" and convulsing. Tr. Vol. III p. 32. L.C.’s entire body was twitching, including his arms, legs, and head. L.C., who was hot to the touch, told Doty that he could not see. Doty stated that they needed to call 911, but when she picked up her phone to call for help, Collman took her phone from her. Collman, who was panicking and angry, stated that he "wasn't going back to prison." Tr. Vol. III p. 34. He then pulled out a handgun, pointed it at Doty, and stated that he would kill all three of them.
[6] Doty remained at Collman's apartment for over an hour. During all but the first few short minutes, Collman kept his gun pointed at her. Doty spent the duration of her stay sitting next to L.C., holding him, and trying to calm him down. Collman made it clear that he was angry that Doty had been with Waskom when he called. Eventually, Doty escaped when Collman left the room, leaving L.C. behind. Doty later explained that she did not take L.C. with her because she did not believe that she could escape Collman with L.C. Doty did not have the opportunity to retrieve her phone before leaving Collman's apartment.
[7] Upon arriving at her home, Doty contacted Waskom via Facebook Messenger and asked him to call 911. As it happens, Waskom was asleep and did not receive the message until later that day. Doty remained afraid for her safety, concluding that if Collman would not act to save his son, she could not know what he might do to her.
[8] A neighbor saw Collman standing at in his home with the door open at approximately 11:00 a.m. Some time later, she observed Collman carry L.C. to his car. At the time, L.C.’s arms and legs were moving and Collman indicated that L.C. was having a seizure and that he was taking him to the hospital. Collman, however, never took L.C. to the hospital.
[9] After leaving his apartment, Collman's whereabouts were unknown for about two hours. Sometime after 1:00 p.m., he took L.C. back to his parents’ home. Collman's brother woke up at 1:42 p.m. and saw Collman standing near L.C., who was lying on the floor of the living room, seizing, shaking, and convulsing. Collman's brother called 911 at 1:47 p.m. Collman's brother asked if L.C. had gotten into Collman's drugs, and Collman acknowledged that he was missing about seven grams of methamphetamine. Collman then left the home.
[10] When law enforcement responded to Collman's parents’ home around 2:00 p.m., Collman's brother reported that L.C. had stopped breathing. Responding officers found L.C. on the floor, hot to the touch, without a pulse, smelling of urine, not breathing, and naked, but for a wet towel and white sheet. L.C. had black or blue circles around his eyes, his fists were clenched, and the position of his arms indicated that he had been holding them near his stomach. The responding officers attempted CPR and attempted to apply a defibrillator, but it read "no shock," meaning that there was no heartbeat. Tr. Vol. III p. 94. L.C. was taken to the emergency room and was pronounced dead at 2:43 p.m.
[11] Collman eventually went to Waskom's home and asked for Doty, who was not there. Collman indicated that he needed "to get a hold of" Doty because L.C. was "dead." Tr. Vol. III p. 59. Collman left and Waskom called 911. Police located Collman approximately five and a half hours later. Upon being taken into custody, Collman was in possession of $2276.87. Police obtained and executed a search warrant for Collman's residence, discovering three samples of methamphetamine, weighing 11.12 grams, 8.54 grams, and 0.92 grams, respectively. Upon being transported to L.C.’s funeral a few days later, Collman asked the transporting officer how much methamphetamine they found in his home, indicating that they should have found about one and a half ounces.
[12] L.C.’s autopsy revealed that his skin was blanching, and he had ligne noir in his eyes, blood-tinged mucus, and white foam in his mouth. The white foam, which is typical in overdose deaths, was the result of a pulmonary edema. L.C. also suffered multiple blunt force trauma injuries, including scattered abrasions and contusions to his head a neck, fifteen small forehead abrasions, a contusion below the left eye, an abrasion below the right eye, ten small abrasions between his nose and lips, contusions to the chin, intra-oral contusions inside the mouth, and a sub-galeal hemorrhage to the forehead. All of these minor injuries, none of which contributed to the cause of his death, were consistent with L.C. beating and scratching his own head and face, with his own hands, while suffering from the impact of the large amount of methamphetamine in his eight-year-old body. L.C. also had abrasions to the right arm, both knees, and right ankle; again, none of which contributed to his cause of death. L.C.’s stomach contained no food.
"Linge Noir" means "black line." Tr. Vol. III p. 225.
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[13] Toxicological analysis revealed the presence of amphetamine and fentanyl in his system, consistent with the methamphetamine overdose. L.C.’s body contained 18,000 nanograms of methamphetamine per milliliter of blood. One hundred (100) nanograms per milliliter begins the lethal threshold, meaning that L.C.’s body contained 180 times the lethal dosage of methamphetamine needed to kill the average person. The quantity of methamphetamine was the largest quantity of methamphetamine found in a body that either of the doctors who worked on L.C.’s autopsy had seen in their entire careers. The cause of L.C.’s death was ruled acute methamphetamine intoxication.
[14] On June 26, 2018, the State charged Collman with Count 1 – Level 1 felony neglect of a dependent resulting in death, Count 2 – Level 5 felony intimidation, Count 3 – Level 4 felony possession of methamphetamine, Count 4 – Level 6 felony failure to register as a sex or violent offender, Count 5 – Class A misdemeanor theft, and Count 6 – Class A misdemeanor pointing a firearm. The State also alleged that Collman was a habitual offender. At some point prior to trial, Count 4 was severed from the remaining counts.
[15] Following trial, the jury found Collman guilty of the remaining counts and found him to be a habitual offender. The trial court subsequently merged Collman's conviction in Count 6 into Count 2 and sentenced him to forty years on Count 1, enhanced by twenty years by virtue of his status as a habitual offender; six years on Count 2, twelve years on Count 3, and one year on Count 5. The trial court ordered that the sentences for Counts 2, 3, and 5 run concurrent to the sentence for Count 1, for an aggregate term of sixty years.
Discussion and Decision
[16] Collman contends that the trial court abused its discretion in sentencing him. Indiana Code section 35-50-2-4(b) provides that "a person who commits a Level 1 felony ... shall be imprisoned for a fixed term of between twenty (20) and forty (40) years, with the advisory sentence being thirty (30) years." Indiana Code section 35-50-2-8(i) provides that "[t]he court shall sentence a person found to be a habitual offender to an additional fixed term that is between: [ ] six (6) years and twenty (20) years, for a person convicted of murder or a Level 1 through Level 4 felony." Thus, in sentencing Collman to an aggregate sixty-year term, the trial court imposed a maximum sentence for the Level 1 felony charge.
[17] Sentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Anglemyer v. State , 868 N.E.2d 482, 490 (Ind. 2007), modified on other grounds on reh'g , 875 N.E.2d 218 (Ind. 2007). "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 to be drawn therefrom." Id. (quotation omitted).
We review for an abuse of discretion the court's finding of aggravators and mitigators to justify a sentence, but we cannot review the relative weight assigned to those factors. When reviewing the aggravating and mitigating circumstances identified by the trial court in its sentencing statement, we will remand only if the record does not support the reasons, or the sentencing statement omits reasons that are clearly supported by the record, and advanced for consideration, or the reasons given are improper as a matter of law.
Baumholser v. State , 62 N.E.3d 411, 416 (Ind. Ct. App. 2016) (internal citation and quotation omitted).
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.
Id. at 417 (internal quotation omitted).
[18] In sentencing Collman, the trial court found the following aggravating factors: (1) L.C. was substantially under the age of twelve, (2) Collman violated a position of trust, (3) Collman's criminal history, (4) the amount of suffering that L.C. endured far exceeded the elements necessary to prove the crime, and (5) Collman threatened L.C. and Doty. Generally, "[a] fact which compromises a material element of a crime may not also constitute an aggravating circumstance to support an enhanced sentence." Id. at 416. Collman challenges his sentence, arguing that the trial court abused its discretion in finding L.C.’s age, that he violated a position of trust, and that he threatened L.C. and Doty to be aggravating factors, claiming that the factors were material elements of his crimes.
A. Age of Victim
[19] While the trial court may generally consider the victim's age to be an aggravating factor if the victim was less than twelve years of age, see Indiana Code § 35-38-1-7.1(a)(3), the Indiana Supreme Court has previously held that "[w]hen the age of a victim constitutes a material element of the crime, then the victim's age may not also constitute an aggravating circumstance to support an enhanced sentence." McCarthy v. State , 749 N.E.2d 528, 539 (Ind. 2001). "However, the trial court may properly consider the particularized circumstances of the factual elements as aggravating factors." Id. ; see also Edwards v. State , 842 N.E.2d 849, 855 (Ind. Ct. App. 2006) (finding no abuse of discretion when it was apparent from the record that the trial court here considered the victim's age in relation to the nature and circumstances of the crime).
[20] Again, Collman was convicted of Level 1 felony neglect of a dependent resulting in death. Indiana Code section 35-46-1-4(b)(3) provides that a person, being at least eighteen years old, who, having care of a dependent less than fourteen years old, places the dependent in a situation that endangers the dependent's life commits Level 1 felony neglect of a dependent. Thus, because age is a material element of the crime, the trial court could only consider L.C.’s age to be an aggravating factor if it considered L.C.’s age in relation to the nature and circumstances of the crime.
[21] In this case, the record reveals that the trial court considered L.C.’s age in relation to the nature and circumstances of Collman's crime. The evidence established that L.C. ingested 180 times the lethal dosage of methamphetamine for the average person. The evidence also established that L.C. suffered significantly before dying. In sentencing Collman, the trial court stated "I have never seen a neglect case so outrageous as this. The amount of suffering that you caused to your son is unimaginable.... How any person could be as lost as you were on that day to literally watch your son suffer for hours and all you could think about was yourself." Tr. Vol. IV p. 147. The trial court further stated "[y]ou denied your son that day any chance of life.... You had countless opportunities to save that little boy and you chose each and every time to think of yourself." Tr. Vol. IV pp. 147–48. The trial court also stated "[w]hen you can watch something suffer and care nothing, that's evil. You watched your son, over and over, suffer." Tr. Vol. IV p. 148. The trial court's collective statements clearly establish that the trial court did not merely consider L.C.’s age, but rather considered L.C.’s age in relation to the nature and circumstances of Collman's crime. As such, we conclude that the trial court did not abuse its discretion in finding L.C.’s age to be an aggravating factor. See Edwards , 842 N.E.2d at 855.
B. Position of Trust
[22] "Abusing a position of trust is, by itself, a valid aggravator that may support a maximum sentence." Baumholser , 62 N.E.3d at 417. Collman argues that "In the case of a minor dependent, the accused necessarily sits in a position of trust with the child. As such, without particularized circumstances, it is [an] abuse of discretion for the court to aggravate Collman's sentence based on this material element." Appellant's Br. p. 14. For its part, the State argues that as with L.C.’s age, the trial court properly found the violation of a position of trust to be aggravating because it considered the violation together with the nature and particularized circumstances of the crime.
[23] In relation to Collman's violation of a position of trust, the trial court stated the following:
And that little boy needed someone that day who loved him. How you can watch a child scratch his eyes, bang his head off the floor, urinate on himself and cared [about] nothing [ ] other than you avoiding jail, how you could point a gun at someone who wanted to help save your son and threaten her life and the life of the child that is suffering is beyond me. This case is outrageous.... You denied your son that day any chance of life until the very end when your son stopped breathing, all of a sudden then you allowed your family to call medical assistance. Of course you had removed the kid so far away from the hospital by the time anybody would've got there they couldn't've saved him anyway. You had countless opportunities to save that little boy and you chose at each and every time to think of yourself.
Tr. Vol. IV pp. 47–48. Again, the trial court's statements clearly establish that the trial court did not merely consider the violation of a position of trust, but rather considered the violation in relation to the nature and circumstances of Collman's crime. As such, we conclude that the trial court did not abuse its discretion in finding the violation of a position of trust to be an aggravating factor. See Edwards , 842 N.E.2d at 855.
C. Threat to Victim and Witness
[24] In charging Collman with intimidation, the State alleged that Collman drew a weapon and communicated a threat to Doty with the intent that she be placed in fear of retaliation if she called 911 to request medical assistance for L.C. Collman argues that it was "improper for the trial court to aggravate" his sentence based upon this threat because he "was tried and found guilty of intimidation with a deadly weapon because of this threat" and the State "presented no evidence that [he] made other threats" to L.C. or Doty. Appellant's Br. p. 14.
[25] Upon review, we agree that it was improper for the trial court to find Collman's threat to Doty to be an aggravating factor at sentencing because the same threat made up a material element of his intimidation conviction. This impropriety, however, is harmless and, given the trial court's finding of other valid aggravating factors, two of which Collman does not challenge, does not require us to remand for resentencing. See Kayser v. State , 131 N.E.3d 717, 722 (Ind. Ct. App. 2019). "If a trial court abuses its discretion by improperly considering an aggravating circumstance, we need to remand for resentencing only ‘if we cannot say with confidence that the trial court would have imposed the same sentence had it properly considered reasons that enjoy support in the record.’ " Id. (quoting Anglemyer , 868 N.E.2d at 491 ).
[26] Again, we concluded above that the trial court did not abuse its discretion in considering either L.C.’s age or Collman's violation of a position of trust to be aggravating factors. In addition to these factors, the trial court also found Collman's criminal history, which included four prior felony convictions and five prior misdemeanor convictions, and the fact that L.C.’s suffering far exceeded the elements necessary to prove the crime to be aggravating factors. Collman does not challenge these two additional aggravating factors on appeal. Given the proper and unchallenged factors, we are confident that the trial court would have imposed the same sentence even without reference to the threat to Doty in its list of aggravating factors. As such, we conclude that the trial court's reliance of the threat was at most harmless and did not amount to an abuse of the trial court's discretion. See Baumholser , 62 N.E.3d at 417 ("When a trial court improperly applies an aggravator but other valid aggravating circumstances exist, a sentence enhancement may still be upheld.").
[27] The judgment of the trial court is affirmed.
Vaidik, J., and Brown, J., concur.