Auralea Till v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 20, 2019
• Docket: 19A-CR-808
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 20 2019, 9:24 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Stanley L. Campbell Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General

Megan M. Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Auralea Till, September 20, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-808 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff Judge Trial Court Cause No. 02D05-1710-F3-54

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019 Page 1 of 12 Case Summary [1] Auralea Till appeals her conviction, following a jury trial, for level 3 felony

neglect of a dependent. Till asserts that the trial court abused its discretion in

admitting certain evidence and that the State presented insufficient evidence to

support her conviction. She also claims that the twelve-year sentence imposed

by the trial court is inappropriate in light of the nature of the offense and her

character. We find no abuse of discretion, and we conclude that the State

presented sufficient evidence. We further conclude that Till has not met her

burden to demonstrate that her sentence is inappropriate. Accordingly, we

affirm.

Facts and Procedural History [2] Till had two children with Daniel Lopresti. The first child, D.L., was born on

May 15, 2015, and the second child, V.L., was born on October 6, 2016. On

June 3, 2017, Till awoke to care for the two young children around 8:00 a.m.,

and she began drinking alcohol before 10:30 a.m. Lopresti left the home after

11:30 a.m. to go to run errands and to pick up some fast-food for the family.

Sometime later that day after Lopresti returned, Till was outside with the

children while Lopresti worked in the yard repairing a small swimming pool.

[3] At around 8:00 p.m., Lopresti asked Till to take the children inside because

D.L. was interfering with his work on the pool. Till went inside with the

children. She turned a movie on for D.L. in the living room, and she laid

seven-month-old V.L. on the cluttered floor. Till went into the kitchen, poured

Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019 Page 2 of 12 a glass of juice, washed dishes, and pulled dinner out of the refrigerator. She

then went outside to talk to Lopresti and to smoke a cigarette.

[4] When Till returned inside, she observed that V.L. had a blanket over his head.

She removed the blanket and discovered that he had a plastic bag wrapped

around his head. Till grabbed the baby and ran outside carrying him in her

arms and screaming. Lopresti saw that V.L. was not breathing and that he had

already turned blue. Till put V.L. down in the grass and began CPR while

Lopresti called 911. Lopresti took over performing CPR because he realized

that Till was just blowing air over V.L.’s face rather than blowing air into his

mouth.

[5] Emergency personnel arrived on the scene and found Lopresti administering

CPR. V.L. was still not breathing and had no heartbeat, so the paramedics

began chest compressions and placed a bag and a mask over V.L.’s mouth to

provide “positive-pressure ventilation.” Tr. Vol. 2 at 219. The paramedics were

eventually able to resuscitate V.L., and he was transported by ambulance to the

hospital. Lopresti accompanied V.L. in the ambulance while Till stayed home.

[6] Police officers and a Department of Child Services investigator arrived on the

scene and observed that Till was exhibiting signs of intoxication and smelled of

alcohol. Lopresti’s brother-in-law, Timothy Wolford, who had come to the

home to pick up D.L., noticed that when he hugged Till that she “reeked” of

alcohol. Tr. Vol. 3 at 93. Till was behaving frantically and told officers

Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019 Page 3 of 12 inconsistent stories about the circumstances surrounding what happened to

V.L.

[7] V.L. spent several weeks in a local hospital before being transferred to Riley

Children’s Hospital Rehabilitation. He had sustained a severe hypoxic brain

injury caused by a “prolonged … low-oxygen” event. Tr. Vol. 2 at 240. He

needed a feeding tube and he suffered from nerve storming.1 V.L. has

permanent brain damage and was ultimately diagnosed with cerebral palsy,

epilepsy, and numerous developmental delays.

[8] The State charged Till with level 3 felony neglect of a dependent. On

November 27, 2017, the State filed its notice of intent to present Indiana

Evidence Rule 404(b) evidence, to which Till responded with a written

objection. The State sought to introduce evidence of Till’s alcohol use while

pregnant with V.L. and her three older children, her alcohol use while caring

for V.L. and her three older children, her inattentiveness to V.L., her

unhappiness about being pregnant with V.L., and her desire to abort V.L. The

trial court held a hearing and subsequently issued its order denying the State’s

request to present evidence of Till’s “prior incidents of alcohol use resulting in

her children being placed at risk and her alcohol use while pregnant … unless

the door is opened” by defense counsel. Appellant’s App. Vol. 2 at 44.

1 Nerve storming or “neuro storm” is what happens after a “prolonged hypoxic event” when “nerves just start firing randomly[,]” causing agitated behavior, muscle twitches, and high fevers. Tr. Vol. 2 at 240-41.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019 Page 4 of 12 However, the trial court ruled that Till’s “alcohol use/inattention to the victim

in this case after his birth is relevant and admissible.” Id.

[9] During trial, Lopresti testified, over Till’s objection, that Till became

intoxicated regularly while caring for V.L. and D.L., requiring him to often take

the children to his sister’s house so that his sister could care for them.

Lopresti’s sister, Nichole Wolford, testified, over Till’s objection, that she

observed Till leave V.L. unattended on numerous occasions and that she had

discussed this dangerous behavior with Till. At the conclusion of the trial, the

jury found Till guilty of level 3 felony neglect of a dependent. The trial court

imposed a twelve-year aggregate sentence. This appeal ensued.

Discussion and Decision

Section 1 – The trial court did not abuse its discretion in admitting certain evidence. [10] Till challenges the trial court’s admission of evidence. The appellate court

affords the trial court wide discretion in ruling on the admissibility of evidence.

Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012). “We review evidentiary

decisions for abuse of discretion and reverse only when the decision is clearly

against the logic and effect of the facts and circumstances.” Id.

[11] Till claims that the trial court abused its discretion in admitting certain

testimony that she was inattentive to V.L. while also using alcohol on prior

occasions. Specifically, Till argues that the testimony was inadmissible

character evidence pursuant to Indiana Evidence Rule 404(b). The State

Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019 Page 5 of 12 responds that the challenged evidence was admissible to prove Till’s intent and

to also show that what happened to V.L. was not simply an accident.

[12] Indiana 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.

However, such evidence may be admissible to prove “motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.” Ind. Evidence Rule 404(b)(2). In assessing the admissibility of Rule

404(b) evidence, (1) 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, and (2) the court must balance the

probative value of the evidence against its prejudicial effect pursuant to

Evidence Rule 403. Whatley v. State, 908 N.E.2d 276, 281 (Ind. Ct. App. 2009),

trans. denied.

[13] Here, the challenged testimony that Till often used alcohol while caring for

V.L., that she had exhibited a pattern of leaving him unattended, and that she

had been warned of the dangers of doing so, was relevant and admissible to

show her intent and lack of accident. Indeed, the trial court held a full hearing

prior to trial to consider the entirety of the State’s proposed 404(b) evidence and

specifically limited the admissible evidence to the above-mentioned type of

testimony based upon the court’s determination that such evidence was highly

probative of Till’s intent. Moreover, Till concedes that her defense at trial was

that what happened to V.L. was an accident, and it is well settled that lack of

Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019 Page 6 of 12 accident is a subset of intent. See Fairbanks v. State, 119 N.E.3d 564, 568 (Ind.

2019) (the State may offer other-bad-acts evidence of lack of accident when an

accident defense is raised or the defendant places accident at issue at trial).

[14] Nevertheless, Till maintains that the trial court should have excluded the

testimony because its probative value was substantially outweighed by its

prejudicial effect. The trial court has wide latitude in weighing the probative

value of the evidence against the possible prejudice. Prairie v. State, 914 N.E.2d

294, 298 (Ind. Ct. App. 2009). Contrary to Till’s assertions, the prejudicial

effect of the evidence of her prior alcohol use, inattentiveness to V.L., and

warnings about the same, did not substantially outweigh its probative value.

Although such evidence certainly did not paint Till in a good light, any

prejudice was outweighed by the evidence’s highly probative value to show that

V.L.’s injuries were not simply accidental as claimed by Till but the result of

Till’s knowing behavior. The trial court did not abuse its discretion in

admitting the challenged evidence.

Section 2 – The State presented sufficient evidence to support Till’s conviction. [15] Till next challenges the sufficiency of the evidence to support her conviction.

When reviewing a claim of insufficient evidence, we neither reweigh the

evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495, 499 (Ind.

2015). We look to the evidence and reasonable inferences drawn therefrom that

support the conviction, and will affirm if there is probative evidence from which

a reasonable factfinder could have found the defendant guilty beyond a

Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019 Page 7 of 12 reasonable doubt. Id. In short, if the testimony believed by the trier of fact is

enough to support the conviction, then the reviewing court will not disturb it.

Id. at 500.

[16] To convict Till of level 3 felony neglect of a dependent, the State was required

to prove that Till, a person having the care of V.L., knowingly or intentionally

placed V.L. in a situation that endangered his life or health, which resulted in

serious bodily injury to V.L. Ind. Code § 35-46-1-4(b)(2). A “knowing” mens

rea in this regard requires a subjective awareness of a high probability that a

dependent had been placed in a dangerous situation. Villagrana v. State, 954

N.E.2d 466, 468 (Ind. Ct. App. 2011) (citing Ind. Code § 35-41-2-2(b)).

[17] Till concedes that, as V.L.’s mother, she was charged with his care. She also

concedes that V.L. suffered serious bodily injury. She contends, however, that

the State failed to establish that she knowingly placed V.L. in a situation

endangering his life or health. That is, she argues that the State presented

insufficient evidence that she was subjectively aware of a high probability that

V.L. had been placed in a dangerous situation when she left him unattended on

the cluttered living room floor.

[18] In most child neglect cases, a finding of a knowing mens rea requires the

factfinder to infer the defendant’s mental state. Pierson v. State, 73 N.E.3d 737,

741 (Ind. Ct. App. 2017), trans. denied. Thus, this Court must look to all the

surrounding circumstances of a case to determine if a guilty verdict is proper.

Id. Here, the jury heard testimony from several witnesses that Till exhibited

Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019 Page 8 of 12 signs of intoxication when V.L. was injured, and that she gave inconsistent

stories regarding why and for how long she left V.L. unattended. The medical

evidence indicated that V.L. was left unattended for a prolonged period.

Moreover, the jury saw multiple pictures of the area where Till discovered V.L.

unresponsive. Those pictures showed an area completely covered with toys,

clothes, cups, blankets, plastic bags, trash, and all sorts of debris that could

undoubtedly be extremely dangerous to an unattended small child with even

the slightest mobility.

[19] Till directs us only to her self-serving testimony that she did not see anything

dangerous around the area where she left V.L. unattended. This is simply a

request for us to reweigh the evidence, and we cannot. There was sufficient

evidence from which a reasonable jury could infer that Till acted knowingly, as

she was “aware of facts that would alert a reasonable parent, under the

circumstances, to take affirmative action to protect the child.” Hastings v. State,

560 N.E.2d 664, 667 (Ind. Ct. App. 1990). The State presented sufficient

evidence to support Till’s conviction.

Section 3 – Till has not met her burden to demonstrate that the trial court imposed an inappropriate sentence. [20] Finally, Till requests that we reduce the twelve-year sentence imposed by the

trial court pursuant to Indiana Appellate Rule 7(B), which provides that we

may revise a sentence authorized by statute if, after due consideration of the

trial court's decision, we find that the sentence “is inappropriate in light of the

nature of the offense and the character of the offender.” The defendant bears

Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019 Page 9 of 12 the burden to persuade this Court that his or her sentence is inappropriate.

Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Indiana’s flexible

sentencing scheme allows trial courts to tailor an appropriate sentence to the

circumstances presented, and the trial court’s judgment “should receive

considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008).

The principal role of appellate review is to attempt to “leaven the outliers.” Id.

at 1225. Whether we regard a sentence as inappropriate at the end of the day

turns on “our sense of the culpability of the defendant, the severity of the crime,

the damage done to others, and myriad other facts that come to light in a given

case.” Id. at 1224. “The question under Appellate Rule 7(B) is not whether

another sentence is more appropriate; rather, the question is whether the

sentence imposed is inappropriate.” Fonner v. State, 876 N.E.2d 340, 344 (Ind.

Ct. App. 2007).

[21] Regarding the nature of the offense, the advisory sentence is the starting point

that the legislature has selected as an appropriate sentence for the crime

committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range

for a level 3 felony is between three and sixteen years, with an advisory

sentence of nine years. Ind. Code § 35-50-2-5(b). The trial court here imposed

a twelve-year sentence, which is above the advisory but well below the

maximum allowable sentence.

[22] Till maintains that an enhanced sentence is inappropriate based upon the nature

of her offense because “[t]he fact that the child sustained injuries as a result of

what happened” is already contemplated by level 3 felony charge and that

Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019 Page 10 of 12 “[n]othing about the injury would be a cause for aggravating it beyond the

advisory sentence[.]” Appellant’s Br. at 29. Till attempts to minimize the

egregiousness of her behavior and ignores that V.L. did not just suffer serious

bodily injury, he suffered extensive and lifelong brain damage. He has been

diagnosed with cerebral palsy, epilepsy, and numerous developmental delays,

and he currently spends twelve to fourteen hours per week in various therapies.

The trial court noted the “extraordinary impact” Till’s neglect had on V.L. due

to the seriousness of his injuries and the fact that he will “never have a normal

life.” Tr. Vol. 4 at 173-74. Till has not persuaded us that the nature of the

offense warrants a sentence reduction.

[23] Till fares no better when we consider her character. The character of the

offender is found in what we learn of the offender’s life and conduct. Croy v.

State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). While we acknowledge that

Till does not have a prior criminal history, the trial court found that Till has a

long history of exhibiting several other negative character traits. She has a

history of alcohol abuse and admits to drinking alcohol while pregnant. She

lost custody of two of her older children after they were diagnosed with fetal

alcohol syndrome. Even after that tragic outcome, she did not change her

behavior, as her next two children were also diagnosed with fetal alcohol

syndrome. As the trial court observed, despite the intervention of those

involved in social services, Till has made “miserable efforts” toward recovery

and reformation. Tr. Vol. 4 at 173. She currently does not have custody of any

of her five children, and she is permitted only supervised visitation with three of

Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019 Page 11 of 12 them. Moreover, Till is more than $25,000 behind in her child support

obligation. None of this reflects positively on her character.

[24] Till points to her recent attendance at Alcoholics Anonymous meetings to

demonstrate her commitment to change. However, even after V.L. was

injured, Till continued to abuse alcohol, reportedly frequenting bars and

proudly posting her escapades on social media. As noted by the trial court,

Till’s recent “efforts at recovery have been too little and far too late.” Id. at 174.

Under the circumstances, Till has not met her burden to demonstrate that a

twelve-year sentence is inappropriate in light of the nature of the offense and

her character. Therefore, we affirm the sentence imposed by the trial court.

[25] Affirmed.

Baker, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-808 | September 20, 2019 Page 12 of 12