MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing FILED the defense of res judicata, collateral May 18 2017, 9:13 am
estoppel, or the law of the case. CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer L. Koethe Curtis T. Hill, Jr. LaPorte, Indiana Attorney General of Indiana
Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Casey Mae Measles, May 18, 2017 Appellant-Defendant, Court of Appeals Case No. 46A03-1607-CR-1635 v. Appeal from the LaPorte Circuit Court State of Indiana, The Honorable Thomas Alevizos, Appellee-Plaintiff. Judge Trial Court Cause No. 46C01-1509-F3-775
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 46A03-1607-CR-1635 | May 18, 2017 Page 1 of 17 Case Summary [1] On August 27, 2015, Appellant-Defendant Casey Mae Measles shook her infant
son with enough force to cause him to suffer significant injuries. As a result of
this “shaking,” Measles was charged with Level 3 felony aggravated battery and
Level 3 felony battery. She subsequently pled guilty to and was convicted of
Level 3 felony aggravated battery. In exchange for Measles’s plea, Appellee-
Plaintiff the state of Indiana (“the State”) agreed to dismiss the remaining
battery charge. The parties also agreed that Measles’s sentence would be
capped at eleven years. The trial court accepted Measles’s guilty plea and
sentenced her to an eleven-year term of imprisonment in the Department of
Correction (“DOC”).
[2] On appeal, Measles contends both that the trial court abused its discretion in
sentencing her and that her sentence is inappropriate in light of the nature of her
offense and her character. Because we disagree, we affirm.
Facts and Procedural History [3] In August of 2015, then-eighteen-year-old Measles lived in a home with her
boyfriend; the couple’s newborn son, B.; and her boyfriend’s father. Measles
struggled to care for B. without help from others because B. suffered from “colic
really bad.” Tr. Vol. II, p. 21.
[4] On the afternoon of August 27, 2015, Measles was alone with B. because
“everyone else had to work.” Tr. Vol. II, p. 21. Measles subsequently
Court of Appeals of Indiana | Memorandum Decision 46A03-1607-CR-1635 | May 18, 2017 Page 2 of 17 explained that on this afternoon, “[B.] just wouldn’t stop crying and I didn’t
have anybody to ask for help and I was getting really, really stressed out, so I
shook him; and then I didn’t -- I didn’t know how bad it would turn out to be.”
Tr. Vol. II, pp. 21-22. Measles further explained that after she shook B., “[h]e
just -- he fell asleep and then [Measles’s boyfriend] came home. That’s when
we found out that he wouldn’t wake up. He wouldn’t eat, wouldn’t cry.” Tr.
Vol. II, p. 22. Measles and her boyfriend then took B. to the hospital.
[5] On September 2, 2015, the State charged Measles with Level 3 felony
aggravated battery and Level 3 felony battery. The parties subsequently entered
into a plea deal, pursuant to the terms of which (1) Measles agreed to plead
guilty to the Level 3 felony aggravated battery charge, (2) the State agreed to
dismiss the remaining Level 3 felony battery charge, and (3) the parties agreed
that they “shall argue sentencing with a minimum cap of five (5) years and with
a maximum cap of 11 years.” Appellant’s App. Vol. II, pp. 54.
[6] The trial court conducted a sentencing hearing on June 9, 2016. During the
sentencing hearing, the State presented evidence regarding Measles’s initial lack
of remorse, the seriousness of the injuries suffered by B., and the life-long effects
of Measles’s actions on B. Kimberly Gordon, the DCS case manager assigned
to B.’s case, testified that, at least initially, Measles showed no remorse for her
actions.
[7] Gordon further testified that immediately upon being admitted to the hospital,
B. “was experiencing severe seizures and he was in a lifeless state.” Tr. Vol. II,
Court of Appeals of Indiana | Memorandum Decision 46A03-1607-CR-1635 | May 18, 2017 Page 3 of 17 p. 5. Doctor’s explained to Gordon that B.’s condition was “due to the severe
trauma that he had experienced to his head and the swelling that was going on
at the time within the brain, and they noticed brain damage when they brought
him in as well, that he was almost to the point of death.” Tr. Vol. II, p. 5. On
August 31, 2015, B. “was placed on life support.” Tr. Vol. II, p. 5.
Approximately ten days later, doctors “had finally got him stabilized enough to
a point that he was able to move to a special needs foster home that could
manage his skills -- or his problems.” Tr. Vol. II, p. 5. Doctors indicated to
Gordon that B.
would need to have a two-parent home because he had to have someone with him 24/7. He needed individuals who were trained on being able to administer the special medications that he had to have, and they had to be given at specific times everyday so -- he would not be able to go into relative care or anything else.
Tr. Vol. II, p. 6.
[8] Since leaving the hospital, B. has suffered from daily seizures, some of which
have been severe.
[B.] is still now having seizure activity. He continually has seizure activity all the time. When [doctors] do EEGs he has seizure activity constantly going on even though it may not be visible to the average person. As far as what we’re seeing right now, anywhere from one to three times a day he is having seizures that are visible. They are not as intense. It’s more like -- it looks like if somebody like scares you or jumped out and scared you, he’ll get like that shaked [sic] look and then that will be it. It’s not as intense. But he has what they call infantile Court of Appeals of Indiana | Memorandum Decision 46A03-1607-CR-1635 | May 18, 2017 Page 4 of 17 spasms which are -- as the doctor described it in the beginning, they are some of the more dangerous types of spasms. Those are reducing some, but they [have] not totally gone away. He has -- they say he has epilepsy. It covers a wide range of the different types of seizure activity that he has going on in his brain. They haven’t specified other than saying he has infantile spasms, what other specific type of individual ones they’re seeing on the EEG. He has been taken off of -- or he’s being weened off of the medication Sabril which was a medication they put him on for the infantile spasms because they had gotten so bad.[1]
Tr. Vol. II, p. 7. Doctors believe that B. will continue to suffer from seizures for
the rest of his life. B. has suffered “irreversible” brain damage, which has
caused “severe developmental delays.” Tr. Vol. II, p. 8. Doctors are unsure of
the extent of this damage because they have not be able to assess “how bad it’s
going to be when he starts growing up and starts accessing those other areas of
his brain that are damaged.” Tr. Vol. II, p. 8.
[9] B. has also experienced a problem with his left eye. The eye “tends to look
straight at you. He can’t -- he has trouble following and tracking with that eye.”
Tr. Vol. II, p. 8. “At this point, [doctors are] not able to tell” whether B. is
partially (or fully) blind in that eye or merely suffers from an inability to focus.
Tr. Vol. II, p. 8.
[10] B. is also “totally behind” on his developmental milestones. Tr. Vol. II, p. 9.
1 B.’s treatment remains fluid because he has suffered a number of side effects, some severe, from his medications.
Court of Appeals of Indiana | Memorandum Decision 46A03-1607-CR-1635 | May 18, 2017 Page 5 of 17 [B.’s] over a year old. He is not crawling yet. He is just now being able to get up on his arms, but he stiffens his hands. He doesn’t open them up to try to crawl. They work with him in getting him up on his fours, but he doesn’t -- he can’t figure out what to do with them. As far as sitting goes -- like I said, he’s over a year old. At this point he should be sitting on his own. He is not able to do that. If you try to sit him in a position, he, within a couple of seconds, will fall over if someone is not holding him or adjusting his back or something of that nature. As far as -- he is just now starting to babble a little bit, but otherwise he’s basically behind on the whole scale; and also his growth has also been – he’s on the low -- very low end of everything on his growth chart.
Tr. Vol. II, p. 9. As for B.’s head development, “he’s only in the third
percentile” and he is “within the 25th percentile or less in his other areas.” Tr.
Vol. II, p. 9.
[11] B. also suffered physical ailments to his neck and shoulders as a result of the
trauma inflicted upon him.
From the trauma, for the longest time -- when he first came home, you know, he was about three months old. He had to be treated just like a newborn baby. He -- you had to hold his head. He could not hold -- move his head up or have the strength to hold his head. He did not have the muscle strength or anything in his neck muscles or his shoulders. It has taken quite some time to be able to -- just like I mentioned -- to get to the point where he can even put his arms up to try to hold himself and lift his head. We’re just now getting to that, and it’s been about a year -- or, well, you know, he’s a little over a year now, so he did have severe trauma to the neck and to the muscles from the trauma.
Court of Appeals of Indiana | Memorandum Decision 46A03-1607-CR-1635 | May 18, 2017 Page 6 of 17 Tr. Vol. II, pp. 9-10.
[12] At the conclusion of the sentencing hearing, the trial court made the following
statement:
The Court finds the following aggravating factors: The factor is that this -- one, that this aggravated battery was a result of shaken baby syndrome, now known as AHT. The defendant was a person having care, custody, or control over the victim in the offense. The defendant had recently violated the conditions of bond and that she was out on bond for a theft charge in LaPorte Superior Court 3 at the time of the offense. The victim of this offense was less than 12 years of age, in fact, was somewhere around three or four months of age.
On the mitigating side, she has accepted responsibility and plead guilty to the highest charge.
The aggravators far outweigh the mitigators. If this were a blind plea without indication, she would be going to the [DOC] for 14 years. That’s what I would -- what my balance scale says. Since I’m capped at 11, my question now becomes do I even accept this plea or do I force you guys to go to trial or come up with a different plea. I don’t think it’s worth all of that hassle for the three years and the trauma that other people will have to revisit as a result of this.
I accept your plea and I sentence you to 11 years in the [DOC]; credit for 67 days in Credit Class B; fine and court costs of record only. You’re remanded to the custody of the sheriff to complete the balance of your executed sentence.
Tr. pp. 38-39. This appeal follows.
Court of Appeals of Indiana | Memorandum Decision 46A03-1607-CR-1635 | May 18, 2017 Page 7 of 17 Discussion and Decision [13] Measles contends on appeal both that the trial court abused its discretion in
sentencing her and that her sentence is inappropriate in light of the nature of her
offense and her character. We will address each contention in turn.
I. Abuse of Discretion [14] 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).
One way in which a trial court may abuse its discretion is failing to enter a sentencing statement at all. Other examples include entering a sentencing statement that explains reasons for imposing a sentence-including a finding of aggravating and mitigating factors if any-but 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. Under those circumstances, remand for resentencing may be the appropriate remedy 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.
Court of Appeals of Indiana | Memorandum Decision 46A03-1607-CR-1635 | May 18, 2017 Page 8 of 17 Id. at 490-91. A single aggravating factor may support an enhanced sentence.
Fugate v. State, 608 N.E.2d 1370, 1374 (Ind. 1993).
[15] In sentencing Measles, the trial court found the following aggravating factors:
(1) the aggravated battery was the result of shaken baby syndrome; (2) Measles
was a person having care, custody, or control over the victim in the offense; (3)
Measles had recently violated the conditions of bond and was out on bond for a
theft charge in LaPorte Superior Court 3 when she committed this offense; and
(4) the victim of this offense was less than twelve years of age, in fact, was
somewhere around three or four months of age. The trial court also found the
fact that Measles accepted responsibility and pled guilty to be mitigating factors.
[16] In challenging her sentence, Measles claims that the trial court abused its
discretion by finding both that (1) the crime was the result of shaken baby
syndrome and (2) the victim was less than twelve years of age to be aggravating
factors, arguing that these factors should have been merged together because the
first factor encompasses the second. Measles also claims that the trial court
abused its discretion by failing to find her lack of criminal history to be a
mitigating factor.
A. Aggravating Factors [17] Measles argues that the trial court abused its discretion by finding both that (1)
the crime was the result of shaken baby syndrome and (2) the victim was less
than twelve years of age to be aggravating factors. Measles does not allege that
either of these factors constituted an invalid aggravating factor, instead arguing
Court of Appeals of Indiana | Memorandum Decision 46A03-1607-CR-1635 | May 18, 2017 Page 9 of 17 that these factors should have been merged together because the first factor
encompasses the second. Measles has not cited to any authority in support of
this argument. While the fact that a victim suffers from shaken baby syndrome
logically indicates that the victim was under fourteen years old, we are
unpersuaded by Measles’s unsupported claim that both factors cannot be
considered at sentencing to be aggravating factors to a crime.
[18] The Indiana Supreme Court has previously held that “even where the age of the
victim is an element of the offense, the very young age of the child can support
an enhanced sentence as a particularized circumstance of the crime.”
Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (citing Buchanan v. State,
767 N.E.2d 967, 971 (Ind. 2002)). In light of the Indiana Supreme Court’s
holding in Kimbrough, it seems nonsensical to us that a trial court could not
consider both the nature of the offense, i.e., that the victim suffered from shaken
baby syndrome, and the very young age of the victim when sentencing a
criminal defendant. Measles, therefore, has failed to convince us that the trial
court abused its discretion in this regard.
B. Mitigating Factors [19] Although a sentencing court must consider all evidence of mitigating factors
offered by a defendant, the finding of mitigating factors rests within the court’s
discretion. Henderson v. State, 769 N.E.2d 172, 179 (Ind. 2002). A trial court is
neither required to find the presence of mitigating factors, Fugate, 608 N.E.2d at
1374 (citing Graham v. State, 535 N.E.2d 1152, 1155 (Ind. 1989)), nor obligated
Court of Appeals of Indiana | Memorandum Decision 46A03-1607-CR-1635 | May 18, 2017 Page 10 of 17 to explain why it did not find a factor to be significantly mitigating. Sherwood v.
State, 749 N.E.2d 36, 38 (Ind. 2001) (citing Birdsong v. State, 685 N.E.2d 42, 47
(Ind. 1997)). “A court does not err in failing to find mitigation when a
mitigation claim is highly disputable in nature, weight, or significance.”
Henderson, 769 N.E.2d at 179 (internal quotations omitted). Furthermore, while
Indiana law mandates that the trial judge not ignore facts in the record that
would mitigate an offense, and a failure to find mitigating factors that are
clearly supported by the record may imply that the trial court failed to properly
consider them, id., an allegation that the trial court failed to find a mitigating
factor requires the defendant to establish that the mitigating evidence is both
significant and clearly supported by the record. Carter v. State, 711 N.E.2d 835,
838 (Ind. 1999).
1. Lack of Criminal History
[20] Measles argues that the trial court should have found her relatively minimal
criminal history to be a mitigating factor. Although a lack of criminal history
may be considered to be a mitigating factor, trial courts are not required to give
significant weight to a defendant’s lack of criminal history. Townsend v. State,
860 N.E.2d 1268, 1272 (Ind. Ct. App. 2007), trans. denied. This is especially so
“‘when a defendant’s record, while felony-free, is blemished.’” Id. (quoting
Stout v. State, 834 N.E.2d 707, 712 (Ind. Ct. App. 2005), trans. denied).
[21] While it is true that prior to the instant conviction, Measles did not have any
criminal convictions on her criminal record, her record was not unblemished.
As the trial court found, Measles had “recently violated the conditions of bond” Court of Appeals of Indiana | Memorandum Decision 46A03-1607-CR-1635 | May 18, 2017 Page 11 of 17 and “was out of bond for a theft charge in LaPorte Superior Court 3” at the
time she committed the instant offense. Tr. Vol. II, p. 38. The trial court
clearly considered Measles’s other criminal behavior in sentencing her.
[22] Measles was eighteen years old when she committed the instant offense. At
that young age, she committed the instant offense and was facing theft charges.
As of sentencing, Measles had also demonstrated a lack of regard for the
criminal justice system as is evidence by her violation of “conditions of bond.”
Tr. Vol. II, p. 38. As such, Measles’s lack of criminal history was of disputable
nature, weight, and significance. The trial court, therefore, did not abuse its
discretion in failing to find Measles’s lack of a criminal history to be a
significant mitigating factor.
2. Additional Alleged Mitigating Factors
[23] We note that in her appellate brief, Measles also mentions the fact that the trial
court did not find her claimed remorse and alleged mental health issues to be
mitigating factors. However, she did not present a specific argument that the
trial court abused its discretion in failing to find either of these factors to be
mitigating. Measles only presents the specific argument that the trial court
abused its discretion in failing to find her lack of criminal history to be a
[24] However, to the extent that Measles can be said to be challenging the trial
court’s failure to find her claimed remorse to be a mitigating factor, the record
demonstrates that such remorse is disputed. We have previously concluded
Court of Appeals of Indiana | Memorandum Decision 46A03-1607-CR-1635 | May 18, 2017 Page 12 of 17 that “a trial court’s determination of a defendant’s remorse is similar to its
determination of credibility: without evidence of some impermissible
consideration by the trial court, we accept its decision.” Sandleben v. State, 29
N.E.3d 126, 136 (Ind. Ct. App. 2015) (citing Pickens v. State, 767 N.E.2d 530,
535 (Ind. 2002)), trans. denied. Measles presents no evidence on appeal of any
impermissible consideration by the trial court with regard to her claimed
remorse. As such, we accept the trial court’s apparent decision that Measles’s
claimed remorse did not amount to a significant mitigating factor. See id.
[25] Likewise, to the extent that Measles can be said to be challenging the trial
court’s failure to find her alleged mental illness to be a mitigating factor,
Measles has failed to make the showing necessary to prove that alleged mental
illness should be considered significant. In Smith v. State, 929 N.E.2d 255 (Ind.
Ct. App. 2010), we explained that the question of whether alleged mental illness
should be considered a significant mitigating factor depends on:
1) the extent of the defendant’s inability to control his or her behavior due to the impairment; 2) overall limitations on functioning; 3) the duration of the mental illness; and 4) the extent of any nexus between the impairment and the commission of the crime.
929 N.E.2d at 259 (citing Williams v. State, 840 N.E.2d 433, 439 (Ind. Ct. App.
2006)). Measles presents no evidence or argument relating to the above-listed
factors on appeal. As such, she has failed to establish that her claimed mental
illness should have been given significant mitigating weight.
Court of Appeals of Indiana | Memorandum Decision 46A03-1607-CR-1635 | May 18, 2017 Page 13 of 17 II. Appropriateness of Sentence [26] Measles also contends that her eleven-year executed sentence is inappropriate.
In raising this contention, however, Measles concedes that the “circumstances
surrounding this case are nothing short of tragic” and that the “injuries caused
by the shaking were devastating.” Appellant’s Br. p. 12.
[27] Indiana Appellate Rule 7(B) provides that “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.” In analyzing such claims, we “‘concentrate
less on comparing the facts of [the case at issue] to others, whether real or
hypothetical, and more on focusing on the nature, extent, and depravity of the
offense for which the defendant is being sentenced, and what it reveals about
the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.
2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.
denied). The defendant bears the burden of persuading us that his sentence is
inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
[28] With respect to the nature of Measles’s offense, the record demonstrates that
Measles shook B. with enough force to cause serious injury to B. As is detailed
above, when B. was admitted to the hospital, he “was experiencing severe
seizures and he was in a lifeless state.” Tr. Vol. II, p. 5. His condition was
determined to be the result of “the severe trauma that he had experienced to his
head and the swelling that was going on at the time within the brain, and they
Court of Appeals of Indiana | Memorandum Decision 46A03-1607-CR-1635 | May 18, 2017 Page 14 of 17 noticed brain damage when they brought him in as well, that he was almost to
the point of death.” Tr. Vol. II, p. 5. In addition, his condition was such that
he had to be placed on life support and remained in the hospital for
approximately ten days. After leaving the hospital B., required, and continues
to require, around-the-clock care.
[29] In addition, as a result of the trauma inflicted by Measles, B. suffers numerous
seizures daily and doctors believe that he will continue to suffer from seizures
for the rest of his life. B. has suffered “irreversible” brain damage, which has
caused “severe developmental delays.” Tr. Vol. II, p. 8. B. is also “totally
behind” on his developmental milestones. Tr. Vol. II, p. 9. Again,
[B.’s] over a year old. He is not crawling yet. He is just now being able to get up on his arms, but he stiffens his hands. He doesn’t open them up to try to crawl. They work with him in getting him up on his fours, but he doesn’t -- he can’t figure out what to do with them. As far as sitting goes -- like I said, he’s over a year old. At this point he should be sitting on his own. He is not able to do that. If you try to sit him in a position, he, within a couple of seconds, will fall over if someone is not holding him or adjusting his back or something of that nature. As far as -- he is just now starting to babble a little bit, but otherwise he’s basically behind on the whole scale; and also his growth has also been – he’s on the low -- very low end of everything on his growth chart.
Tr. Vol. II, p. 9. As for B.’s head development, “he’s only in the third
percentile” and he is “within the 25th percentile or less in his other areas.” Tr.
Court of Appeals of Indiana | Memorandum Decision 46A03-1607-CR-1635 | May 18, 2017 Page 15 of 17 [30] B. suffered physical ailments to his neck and shoulders as a result of the trauma
inflicted upon him. He has experienced a problem with his left eye. It is not
yet known whether the issue with B.’s left eye has resulted in full or partial
blindness. To say the least, Measles’s heinous acts against B. have had a
catastrophic and life-changing impact on her son.
[31] As for her character, the fact that Measles is capable of inflicting the above-
described injuries on her own son does not reflect favorably upon her character.
Neither does the fact that, at least initially, she failed to demonstrate remorse
for her actions. While Measles had suffered from anger control issues for much
of her young life, even to the point of blacking out and demonstrating violent
behavior, she failed to address these issues prior to committing the underlying
offense. Further, while Measles has had only minimal contacts with the
criminal justice system, she had “recently violated the conditions of bond” and
“was out of bond for a theft charge in LaPorte Superior Court 3” at the time she
committed the instant offense. Tr. Vol. II, p. 38. Upon review, we conclude
that Measles has failed to prove that her sentence is inappropriate in light of the
nature of her offense and her character.
Conclusion [32] In sum, we conclude that (1) the trial court acted within its discretion in
sentencing Measles and (2) Measles has failed to prove that her eleven-year
sentence is inappropriate in light of the nature of her offense and her character.
Court of Appeals of Indiana | Memorandum Decision 46A03-1607-CR-1635 | May 18, 2017 Page 16 of 17 [33] The judgment of the trial court is affirmed.
Robb, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 46A03-1607-CR-1635 | May 18, 2017 Page 17 of 17