Opinion
22A-CR-1392
06-20-2024
Elijah Mills, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Michael Frischkorn Brand & Morelock Greenfield, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Courtney Staton 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case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 Hamilton Circuit Court The Honorable Paul A. Felix, Judge Trial Court Cause No. 29C01-1911-F1-9633
ATTORNEY FOR APPELLANT
Michael Frischkorn Brand & Morelock Greenfield, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General
Courtney Staton Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
VAIDIK, JUDGE
Case Summary
[¶1] Elijah Mills was convicted of Level 1 felony neglect of a dependent resulting in catastrophic injury or death and Level 3 felony battery resulting in serious bodily injury, and he was sentenced to thirty-nine years in prison. He appealed, arguing, among other things, that his convictions constitute double jeopardy under Wadle v. State, 151 N.E.3d 227 (Ind. 2020). We rejected all of Mills's arguments and affirmed his convictions and sentence. Our Supreme Court granted Mills's petition to transfer, vacated our opinion, and remanded the case to us to reconsider Mills's double-jeopardy argument in light of its opinion in A.W. v. State, 229 N.E.3d 1060 (Ind. 2024), which clarified the test established in Wadle. We ordered supplemental briefing, and the State now concedes that Mills's convictions constitute double jeopardy under Wadle, as clarified by A.W. We accept the State's concession, reverse Mills's conviction for the Level 3 felony, and remand for resentencing on the Level 1 felony.
Facts and Procedural History
[¶2] L.M., born in January 2015, was the biological son of Mills and Brittany Pearson. In 2018, L.M. lived with Mills and his girlfriend, Taylor Abrams, with Pearson exercising parenting time. In March of that year, Pearson noticed bruises on L.M.'s back, buttocks, and thighs and took him to the hospital. The Department of Child Services (DCS) was notified, and Ne'Cole Whyde, a DCS case manager, investigated. Whyde spoke with Mills, who admitted he "whooped" L.M. with a belt for saying "damn." Tr. Vol. II p. 14. Whyde concluded Mills caused the bruising, substantiated the claim of physical abuse, and removed L.M. from the home. A few days later, Mills retracted his statements and told Whyde that the bruising was caused by a "fall down the stairs." Tr. Vol. III p. 149. L.M. was returned to Mills's care in April.
[¶3] In September, Pearson noticed bruises on L.M.'s lower abdomen and thighs. The next month, DCS Family Case Manager (FCM) Thomas Brown investigated, but Mills initially refused to speak with him without an attorney. Based on the timing of the injuries, Brown determined L.M. received them while in Mills's care. Mills later suggested to Brown that this bruising may have occurred when L.M. was playing with another child. Nonetheless, Brown had "severe concerns with [L.M.'s] safety in the care of [Mills] and [Abrams]" and made a formal report raising claims of physical abuse against them. Id. at 173. However, the claims were never substantiated, and the matter was closed a few weeks later.
[¶4] In the summer and fall of 2019, Pearson again began noticing bruises on L.M. and that he was getting "skinnier." Id. at 113. Around this time, several other people expressed concern about L.M. Rumer Beck, Mills's friend, was asked to babysit L.M., and when she arrived Abrams said that L.M. was being punished and had to stand in the corner with his arms raised. When Beck expressed concern about the punishment, she was told "that was what they wanted for their child." Tr. Vol. IV p. 127. Later that night, Mills returned home "angry" and "[f]rustrated" and took L.M. into a bedroom, where Beck heard "swat[ting]" and "smacking" sounds and L.M. "crying out for his mother" for about "25 minutes." Id. at 115-16, 213.
[¶5] In August, law enforcement conducted a welfare check at Mills's apartment after Austin Murrell, who lived in the apartment below Mills, reported hearing "a kid screaming for help" from Mills's apartment and a male voice "yelling [L.M.'s] name" several times. Id. at 168, 169. Officers noted nothing of concern during the check. In October, Tamara Hodgkin, another friend of Mills, became so concerned about L.M. that she made a report to DCS. She reported that Mills and Abrams withheld food and water from L.M. as punishment and would taunt him with food and that L.M. had bruises on his face and was limping. DCS attempted to investigate these claims, but Mills was uncooperative and would not allow photographs or for L.M. to talk to DCS.
[¶6] Around 7:00 a.m. on November 12, the Noblesville Police Department received a call regarding a child who was in cardiac arrest at Mills's home. Officers arrived to find Mills performing chest compressions on L.M., who was unresponsive and lying on his back on the living-room floor. Abrams was also in the home and had called 911. When medical personnel arrived, they noted L.M. had bruising across his face, torso, and inner thighs, all at various stages of healing, as well as abrasions to his knees and scarring "all over his body." Tr. Vol. III p. 73. L.M., who was nearly five years old, appeared severely malnourished and weighed only twenty-nine pounds, approximately the size of a two-year-old.
[¶7] L.M. was taken to Riverview Hospital, where he was placed on a breathing tube and then quickly transferred to Riley Hospital for Children due to the severity of his injuries. After "extensive" testing, doctors determined he suffered "subdural hematomas overlying both hemispheres of his brain," bleeding outside the spinal cord, retinal hemorrhages, heterotopic ossification on his thighs and back, and a "healing injury" of the left forearm. Id. at 236-37. Doctors determined he was "critically ill," his likelihood of "meaningful neurological and developmental recovery was very low," and it was "unlikely that he would survive." Tr. Vol. IV pp. 4-5.
Heterotopic ossification refers to "bone growth or bone development . . . in areas of the body where it shouldn't be" such as in soft tissue or muscle. Tr. Vol. III p. 237.
[¶8] Mills gave various explanations for L.M.'s injuries. He told medical personnel who first responded to the home that L.M. had not experienced any trauma or accidents that could explain his injuries. He told FCM Holly McCombs, who went to Riley Hospital after a report was filed with DCS, that he had spanked L.M. that morning for wetting himself and that-as forms of discipline-he "pinch[ed]" L.M. on the thigh and forced him to exercise. Id. at 230. When interviewed by police at the hospital, he claimed L.M. had been experiencing headaches and had recently fallen in the home and at the park. The next day, Mills called Detective Michael Haskett of the Noblesville Police Department and gave more information about the time leading up to the 911 call. He stated that morning he forced L.M. to run as a punishment, that L.M. fell while running and hit his head, that this happened several times, and that Mills made L.M. continue to run even after the falls. He also stated he "popped" L.M. on the head when he refused to run anymore. Ex. 86, 2:38. Later in the call, the two discussed what could have caused the injuries, and Detective Haskett told Mills to let him know if he could think of anything else. Mills then reiterated that L.M. fell "on his face" while running. Id. at 8:09.
[¶9] The State charged Mills with Level 1 felony neglect of a dependent resulting in catastrophic injury or death and Level 3 felony battery resulting in serious bodily injury to a person less than fourteen years old.
The State charged Abrams with Level 1 felony neglect of a dependent resulting in catastrophic injury or death and Class B misdemeanor failure to make a report. These charges were still pending at the time of Mills's trial. Abrams later pled guilty to Level 3 felony neglect of a dependent resulting in serious bodily injury and received a nine-year sentence.
[¶10] L.M. spent almost two months at Riley Hospital, and his condition improved enough that he could breathe on his own. In January 2020, he was released from the hospital and placed in foster care. However, he never regained the ability to walk, talk, or eat, his neurological function did not improve, and he suffered from seizures and often struggled to breathe on his own. In November, L.M. contracted pneumonia and was placed on a ventilator. He continued to deteriorate, and doctors at Riley Hospital determined aggressive medical care would not be in L.M.'s best interests, given his poor quality of life and limited life span. L.M.'s breathing tube was removed on December 13, 2020, and soon after he died. L.M.'s cause of death was listed as respiratory failure with traumatic brain injury as an underlying condition. Thereafter, the State amended the charging information to add a count of Level 2 felony battery resulting in death to a person less than fourteen years old.
[¶11] In September 2021, the State filed notice of its intention to present evidence of the 2018 DCS investigations. Mills objected under Indiana Evidence Rule 404(b). Both parties submitted briefs on the issue, and a hearing was held. In part, the State argued that the evidence was relevant to show that L.M.'s injuries were not the result of an accident. The trial court then issued an order permitting the introduction of the evidence to disprove Mills's contentions that L.M. "accidentally was injured." Appellant's App. Vol. II p. 158.
[¶12] A jury trial was held in April 2022. Over Mills's objections, multiple witnesses testified about the March and October 2018 DCS investigations. Dr. Ralph Hicks, a pediatrician specializing in child abuse at Riley Hospital, testified that he was asked by DCS in March 2018 to opine on the cause of the bruising on L.M.'s buttocks, thighs, and lower back. Dr. Hicks testified that Mills's explanation for the bruising-that L.M. had fallen down the stairs-was not consistent with the injuries and that the bruising appeared to have been caused by trauma with an object and was consistent with "inflicted injury." Tr. Vol. III p. 222. He also testified that in October 2018 he was asked to consult on L.M.'s case and again opined that the amount of bruising and its location did not match Mills's explanation.
[¶13] Finally, Dr. Hicks testified about the injuries sustained by L.M. in November 2019. He noted the injuries to L.M.'s thighs and back were caused by "significant or repeated trauma" and that these injuries and the forearm injury were likely older as they had partially healed. Tr. Vol. IV p. 3. As for the bleeding in L.M.'s brain, spine, and eyes, Dr. Hicks stated these injuries were caused by "forceful" blunt trauma and could not be explained by L.M. falling. Tr. Vol. III p. 247. Dr. Hicks also testified that when admitted to Riley Hospital L.M. had "chronic, ongoing malnutrition." Id. at 238. Ultimately, Dr. Hicks opined that L.M.'s injuries "were characteristic of nonaccidental inflicted trauma." Tr. Vol. IV p. 7.
[¶14] Several witnesses also testified about their interactions with Mills on November 11 and 12. Beck testified that Mills, Abrams, and L.M. ate at the restaurant where she worked on the evening of November 11 and that L.M. seemed fine. She further testified that she called Mills around 2:00 a.m. the next morning, he said he was punishing L.M. for "soil[ing] himself," and she could hear L.M. "running" and "whimper[ing]" in the background. Id. at 120. Murrell, Mills's downstairs neighbor, testified that around 2:00 a.m. that morning he heard "a kid running back and forth" while "crying and screaming" in Mills's apartment. Id. at 173. He then heard a male voice telling the child to "shut the f*ck up." Id. at 174.
[¶15] The State also presented the phone call between Mills and Detective Haskett in which Mills admitted that he punished L.M. in the early morning of November 12 by making him run laps in his soiled clothing and that he hit L.M. on the head. Finally, the State played a jail call between Mills and a friend in which Mills talked about the case and stated, "I'm not totally innocent here." Ex. 78, 0:32-0:34.
[¶16] The jury found Mills guilty of all three counts. At sentencing, Mills asked the court to enter judgment only on Level 1 felony neglect of a dependent resulting in catastrophic injury or death, arguing that double jeopardy precluded convictions for all three offenses because Level 2 felony battery resulting in death and Level 3 felony battery resulting in serious bodily injury are "lesser included[s]" of the Level 1 felony. Tr. Vol. V p. 136. The State agreed that the Level 2 felony battery should merge into the Level 1 felony neglect but contended that both the Level 1 felony neglect and Level 3 felony battery could stand. The court agreed and entered judgment as to Level 1 felony neglect of a dependent resulting in catastrophic injury or death and Level 3 felony battery resulting in serious bodily injury. The court sentenced Mills to thirty years for the Level 1 felony and nine years for the Level 3 felony, to be served consecutively, for a total sentence of thirty-nine years.
[¶17] Mills now appeals.
Discussion and Decision
I. The trial court did not abuse its discretion by admitting evidence of the 2018 DCS investigations
[¶18] Mills contends the trial court erred in admitting evidence about the March and October 2018 DCS investigations in violation of Evidence Rule 404(b). A trial court has broad discretion in ruling on the admissibility of evidence, and we will disturb its ruling only on a showing of abuse of discretion. Corbett v. State, 179 N.E.3d 475, 489 (Ind.Ct.App. 2021), trans. denied. When reviewing a decision under an abuse-of-discretion standard, we will affirm if there is any evidence supporting the decision. Id.
[¶19] Evidence Rule 404(b) provides that evidence of a crime, wrong, or other act "is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character," but it "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." The law governing the admissibility of other-acts evidence for "other purposes" requires a trial court to make three findings. D.R.C. v. State, 908 N.E.2d 215, 223 (Ind. 2009). First, the court must "determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act." Id. (citation omitted). Second, the court must determine that the proponent has sufficient proof that the person who allegedly committed the act did, in fact, commit the act. Id. And third, the court must balance the probative value of the evidence against its prejudicial effect pursuant to Evidence Rule 403. Id. Mills challenges all three of these findings.
[¶20] Mills first argues evidence of the 2018 DCS investigations should not have been admitted to show "lack of accident" because he claimed L.M.'s injuries were caused by an accident resulting from "L.M.'s conduct, not Mills' conduct." Appellant's Br. p. 26. In other words, Mills argues that Rule 404(b) evidence can be admitted only to show lack of accident when the defendant is alleging the charged harm was an accident caused by his own conduct (such as swinging his arm and accidentally striking the victim), rather than by some other source (such as the victim falling). But the State argues Rule 404(b) evidence may be admitted to show lack of accident whenever a defendant asserts that the charged harm was caused accidentally, regardless of who caused the accident. We need not determine that issue here, because the record sufficiently shows that Mills made statements giving the State reliable assurance that he would place accident at issue, and that the alleged accident occurred at least in part due to his actions.
[¶21] The State may admit evidence to prove lack of accident under Rule 404(b) only where (1) the State has "reliable assurance that an accident defense will be raised" or (2) after the defendant places accident at issue at trial. Fairbanks v. State, 119 N.E.3d 564, 568 (Ind. 2019). Here, a day after L.M. was taken to Riley Hospital, Mills called Detective Haskett, and the two discussed Mills's actions on November 12 and possible causes of L.M.'s injuries. In this call, Mills admits he "popped" L.M. on the head shortly before L.M. collapsed and medical personnel were called. He also stated that on the morning of November 12 he forced L.M. to run laps and that L.M. fell several times while running and hit his head, but each time Mills forced him to get up and continue running. Each of these actions-hitting L.M. in the head and forcing him to run even after he had fallen and hit his head-was performed by Mills. And given these statements and the context of the conversation, the State had reliable assurance that Mills would place accident at issue.
[¶22] Mills also argues there is insufficient proof he caused the injuries described in the 2018 DCS investigations. There must be sufficient proof from which a reasonable jury could find the uncharged conduct proven by a preponderance of the evidence. Caldwell v. State, 43 N.E.3d 258, 264 (Ind.Ct.App. 2015), trans. denied. Direct evidence that the defendant perpetrated the uncharged act is not required; rather, substantial circumstantial evidence of probative value is sufficient. Id. The injuries noted in the March 2018 investigation were bruises down L.M.'s back, buttocks, and legs. During that time, Mills was L.M.'s primary caretaker and admitted to a DCS employee that he spanked L.M. with a belt. Later, however, he claimed the injuries resulted from a fall. Dr. Hicks testified the pattern of the bruises suggested non-accidental injuries, and DCS substantiated abuse against Mills. The October 2018 investigation involved bruises to L.M.'s abdomen. Based on the timeline, these injuries were sustained while L.M. was in Mills's care. Mills explained these injuries, but Dr. Hicks testified these explanations were not consistent with the bruising. FCM Brown testified that, after investigating the issue, he felt compelled to make a formal report of child abuse. This is sufficient circumstantial evidence from which a jury could find Mills committed these acts by a preponderance of the evidence.
[¶23] Finally, Mills argues the evidence should have been excluded under Evidence Rule 403, which permits the trial court to exclude relevant evidence "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." The trial court is afforded wide latitude in weighing probative value against prejudice under Rule 403. Freed v. State, 954 N.E.2d 526, 531 (Ind.Ct.App. 2011). We will reverse the court's decision to admit only upon a showing of an abuse of discretion. Id. Trial courts may consider a broad range of factors in balancing probative value against the risk of unfair prejudice, including the similarity between the past crime and the charged crime. Id.
[¶24] Mills argues this evidence has low probative value because the injuries occurred over a year before the charged incident and were relatively minor. We disagree. The key issue in the case was whether L.M.'s injuries were caused by Mills or by some other source. Therefore, evidence that Mills had previously injured L.M. and claimed the injuries were caused by accidents is highly probative. He also argues that evidence of the prior uncharged conduct may have misled or confused the jury, and that such evidence "inflamed the jurors' passions." Appellant's Br. p. 28. Again, we cannot agree. As Mills points out, the injuries involved in the 2018 investigations were relatively minor compared to those sustained in November 2019; thus, any chance of confusing the issues or unfair prejudice is low. We cannot say the trial court erred in determining the probative value of the evidence is not substantially outweighed by the dangers enumerated in Rule 403. See Ceaser v. State, 964 N.E.2d 911, 917-18 (Ind.Ct.App. 2012) (court did not err in admitting evidence of prior abuse against child where it was highly probative, given the defendant was being accused of battering the same child in a similar way within a year timespan and was not substantially outweighed by the threat of unfair prejudice associated with violence against a child), trans. denied.
[¶25] The trial court did not abuse its discretion in admitting evidence of the 2018 DCS investigations.
II. The evidence is sufficient to support Mills's conviction for neglect of a dependent
[¶26] Mills next argues the evidence is insufficient to support his conviction for Level 1 felony neglect of a dependent resulting in catastrophic injury or death. When reviewing sufficiency-of-the-evidence claims, we neither reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). We only consider the evidence supporting the verdict and any reasonable inferences that can be drawn from the evidence. Id. A conviction will be affirmed if there is substantial evidence of probative value to support each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.
Mills also challenges the sufficiency of the evidence supporting his conviction for Level 3 felony battery resulting in serious bodily injury, but because we reverse that conviction on double-jeopardy grounds, we need not address this argument.
[¶27] To convict Mills of Level 1 felony neglect, the State had to prove beyond a reasonable doubt that Mills, being at least eighteen years old and having the care of L.M., a dependent less than fourteen, knowingly placed L.M. in a situation that endangered his life or health, and which resulted in catastrophic injury or death. Ind. Code § 35-46-1-4; Appellant's App. Vol. II p. 24. Mills argues the State did not prove that he placed L.M. in a dangerous situation because "[n]o witness observed Mills inflict such trauma." Appellant's Br. p. 30. But such direct evidence is not required, as "a conviction may be sustained based on circumstantial evidence alone." Lindhorst v. State, 90 N.E.3d 695, 701 (Ind.Ct.App. 2017). And here, there is plenty of circumstantial evidence that Mills endangered L.M.
[¶28] L.M. sustained serious injuries, including bilateral subdural hematomas, which Dr. Hicks testified were caused by blunt force trauma and were intentionally inflicted. L.M. received these injuries while in the sole care of Mills and his girlfriend, and two witnesses-Beck and Murrell-heard Mills punishing L.M. in the early morning of November 12. Mills gave inconsistent statements about how L.M. received these injuries, including falling at their home and at the park, but according to Dr. Hicks these explanations would not account for the severity of L.M.'s injuries. Mills later admitted to punishing L.M. in various ways on the morning of November 12, including "popping" L.M. on the head, and acknowledged in a jail call that he was "not totally innocent." This is sufficient circumstantial evidence linking him to L.M.'s injuries. See Rohr v. State, 866 N.E.2d 242, 249 (Ind. 2007) (evidence sufficient to show father battered son where son was in father's sole custody when the injuries occurred, the severity of the injuries did not match father's explanation, and father made incriminating statements).
[¶29] The evidence is sufficient to support Mills's conviction.
III. The State concedes that Mills's convictions constitute double jeopardy
[¶30] Mills also argues that his convictions for both Level 1 felony neglect of a dependent resulting in catastrophic injury or death and Level 3 felony battery resulting in serious bodily injury constitute double jeopardy under Wadle v. State, 151 N.E.3d 227 (Ind. 2020). We rejected this argument in our original opinion. Mills v. State, 211 N.E.3d 22 (Ind.Ct.App. 2023). Mills filed a petition to transfer with our Supreme Court. While his petition was pending, the Court decided A.W. v. State, 229 N.E.3d 1060 (Ind. 2024), which clarified the test established in Wadle. The Court then granted Mills's transfer petition and directed us to reconsider the double-jeopardy issue in light of that clarification. Mills v. State, 228 N.E.3d 1081 (Ind. 2024).
[¶31] In its supplemental brief, the State concedes that Mills's convictions constitute double jeopardy under Wadle, as clarified by A.W. We accept the State's concession, reverse Mills's conviction for the Level 3 felony, and remand for resentencing on the Level 1 felony. See Shultz v. State, 115 N.E.3d 1280, 1285 n.10 (Ind.Ct.App. 2018) (vacating one conviction on double-jeopardy grounds and remanding for resentencing on remaining convictions, noting that "trial courts often fashion individual sentences with an eye toward reaching a desired final cumulative sentence"). And because we are remanding for resentencing, we will not address Mills's fourth argument-that his original sentence is inappropriate and should be revised under Appellate Rule 7(B).
[¶32] Affirmed in part, reversed in part, and remanded.
Tavitas, J., and Foley, J., concur.