MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 24 2019, 7:44 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald J. Frew Curtis T. Hill, Jr. Ft. Wayne, Indiana Attorney General of Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Cornell Montgomery May 24, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2487 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff. Judge Trial Court Cause No. 02D05-1711-F3-65
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 1 of 33 Case Summary and Issues [1] After a period during which Cornell K. Montgomery, Jr. was alone with his
then seven-month old daughter, A.M., he dropped A.M. off at the home of her
maternal grandmother, Aundria Allison. Allison noticed A.M. was acting
unusually and as if she was in extreme pain. A.M. was taken to the emergency
room where she was diagnosed with a broken femur and further x-rays showed
A.M.’s left ankle was healing from an older fracture. Following an
investigation by the Indiana Department of Child Services (“DCS”) which
ruled out accidental causes, Montgomery was charged with battery resulting in
serious bodily injury and neglect of a dependent resulting in serious bodily
injury, both Level 3 felonies.
[2] During jury selection, Montgomery raised a Batson objection to the State’s
attempt to strike an African American from the jury pool. The trial court
denied the Batson objection, the prospective juror was stricken, and a jury found
Montgomery guilty as charged. Montgomery was sentenced to two twelve-year
sentences to be served concurrent with each other but consecutive to his
sentence in another cause. Montgomery now appeals his convictions and
sentence, raising three issues for our review which we expand and restate as
four: (1) whether the trial court violated his constitutional right to an impartial
jury by denying his Batson objection and allowing the State to strike a
prospective African-American juror; (2) whether the evidence was sufficient to
support his convictions; (3) whether the sentence was inappropriate in light of
the nature of the offenses and his character; and (4) whether the trial court
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 2 of 33 abused its discretion in ordering his concurrent sentences to be served
consecutive to his sentence in another cause. Concluding that the trial court did
not violate Montgomery’s constitutional right to an impartial jury, the State
presented sufficient evidence to support his convictions, his sentence is not
inappropriate, and the trial court did not abuse its discretion in ordering
consecutive sentences, we affirm.
Facts and Procedural History 1
[3] Around 6:30 a.m. on May 23, 2017, Allison Facetimed with her daughter,
Khashira Jones, and A.M. for a little over a half an hour. A.M. was acting
“just normal” and bouncing in her bouncy seat during the Facetime call.
Transcript, Volume 2 at 99. After the call ended, Montgomery placed A.M. in
her car seat and drove Jones to work by 8:00 a.m. Within an hour,
Montgomery called Jones at work stating that he had an outstanding arrest
warrant. Montgomery told Jones to contact Allison so that she could babysit
A.M.
[4] Around 9:00 a.m., Jones called Allison and informed her that Montgomery was
going to drop A.M. off at her house so that she could babysit A.M. because
Montgomery “had to take care of something.” Id. at 92. Montgomery arrived
at Allison’s house while Allison was still on the phone with Jones.
1 We heard oral argument in this case on April 15, 2019, at DePauw University. We commend counsel for their advocacy and thank DePauw’s faculty, staff, and students for their participation and hospitality.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 3 of 33 Montgomery sat A.M., who was still in her car seat, on a futon. About ten
minutes later, Allison went to remove A.M. from the car seat and A.M. began
to cry abnormally. Allison noticed that A.M. only cried when she was moving
and would stop crying if she was held still. Montgomery stated that he did not
know what had happened to A.M.
[5] Jones left work early to attend to A.M. When Jones arrived, she sat A.M. on
Montgomery’s lap and took off A.M.’s pants. A.M.’s “leg was just dangling.
You could tell something was wrong cause [sic] it was just . . . hanging there
limp.” Id. at 96. Jones decided to take A.M. to the hospital and called a friend
for a ride. Montgomery stayed at Allison’s house and did not accompany them
to the hospital.
[6] A.M. was brought to the emergency room at Parkview Hospital Randallia,
where Dr. Sara Brown noted swelling in the middle of A.M.’s right thigh and
that A.M. would cry and scream in pain if the leg was moved. Dr. Brown
ordered an x-ray and pain medication for A.M. The x-ray revealed that A.M.
had suffered a mid-shaft femur fracture, with the break extending completely
through the bone such that the bone was displaced and angulated, meaning it
was broken in two and the two ends overlapped each other. Due to the nature
of the injury and the lack of patient history indicating accidental trauma, Dr.
Brown diagnosed A.M.’s injury as the result of abuse or non-accidental trauma.
Dr. Brown ordered a “skeletal survey” to see if A.M. had any other broken
bones. Id. at 135. The skeletal survey revealed a buckle fracture at A.M.’s left
ankle. A.M. was then transferred to the trauma center at Parkview Regional
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 4 of 33 Medical Center (“Parkview Regional”) so that she could be treated by
physicians specializing in trauma, pediatrics, and orthopedics. Dr. Brown also
reported the case to DCS.
[7] A.M. was admitted to Parkview Regional to have a surgical procedure that
entailed placing a cast on A.M. from her chest to her lower ankle in order to
immobilize her broken leg and facilitate healing. A.M. was placed under
anesthesia for the procedure. Unfortunately, she aspirated and went into
cardiac arrest. CPR was performed, and A.M. had to be intubated and placed
on a ventilator. The doctors were able to stabilize A.M.’s breathing. Once they
had done so, the surgical procedure was completed successfully.
[8] DCS opened an investigation into A.M.’s injuries. A pediatric specialist
reviewed A.M.’s file and, after noting the absence of accidental trauma and the
fact that A.M. did not have any relevant preexisting conditions, she opined the
injury occurred due to child abuse. Based upon the specialist’s opinion, DCS
removed A.M. from the home.
[9] After initial attempts to locate Montgomery failed, a DCS caseworker
interviewed Montgomery at the child in need of services (“CHINS”) hearing
held on May 25, 2017. Montgomery stated that A.M. was “fine” on the
morning in question and that he suspected A.M. had broken her femur in the
“jumper that she played in and jumped around in.” Id. at 179. When asked
why he did not take A.M. to the hospital, Montgomery stated that “his vehicle
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 5 of 33 wasn’t in good shape and that he only used it for emergency purposes[.]” Id. at
180.
[10] Following the CHINS hearing, Montgomery was arrested on an outstanding
warrant and transported to the police station where he was interviewed
regarding A.M.’s injuries. Montgomery admitted that A.M. had been fine
leading up to May 23, 2017, but claimed he did not notice anything unusual
about her behavior until she was removed from her car seat at Allison’s house
later that morning. Montgomery explained he was surprised that A.M. never
cried as if in pain and again explained that he did not take A.M. to the hospital
because his car was unreliable, and he only drove it in emergencies.
Montgomery also recalled that A.M.’s leg had become stuck in her crib a few
weeks before as a possible explanation for her injuries.
[11] The State charged Montgomery on November 14, 2017, with battery resulting
in serious bodily injury and neglect of a dependent resulting in serious bodily
injury, both Level 3 felonies. A three-day jury trial commenced on August 7,
2018. During voir dire, Montgomery raised a Batson objection to the State’s
attempt to strike an African American from the jury pool. The trial court
denied the Batson objection, and the prospective juror was stricken.
[12] At the conclusion of the trial, a jury found Montgomery guilty as charged. A
sentencing hearing was conducted on September 14, 2018. The trial court
imposed two twelve-year sentences for the battery and the neglect of a
dependent convictions to be served concurrently but consecutive to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 6 of 33 Montgomery’s sentence in another cause. Montgomery now appeals his
convictions and sentence. Additional facts will be supplied as necessary.
Discussion and Decision I. Batson Claim [13] Montgomery first argues that the trial court erred when it allowed the State to
use a peremptory challenge to strike an African-American potential juror in
violation of the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution. Due to the alleged fault of the trial court,
Montgomery asks this court to “vacate” the trial court’s decision and “remand[]
for further proceedings[.]” Brief of Appellant at 16.
A. Underlying Facts [14] During jury selection at Montgomery’s trial, the State commenced voir dire by
asking the first venire panel of twelve prospective jurors if they could give both
the State and Montgomery a fair trial. The State then engaged in the following
colloquy:
[State]: The information in this case is a battery. That’s when someone knowingly and intentionally touches another person and that results in injury. In this case it’s serious bodily injury. And in this case the victim is well under the age of fourteen (14) and the defendant is over the age of eighteen (18). Based on that charge, is there any of the twelve (12) of you that believe that you could not sit and listen to the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 7 of 33 evidence that’s presented . . . and apply that to the law?
[Jurors]: (Several Jurors raise hands).
[State proceeded to ask Jurors 42, 139, and 175 follow-up questions]
[State]: Okay. And there was someone in the back. Oh, this gentleman here.
[Juror 78]: (Inaudible).
[State]: Okay. Based on the nature of the charge or?
Tr., Vol. 2 at 21, 22-23. Defense counsel then proceeded to conduct voir dire.
[Defense]: Juror number 78, . . . , when [the State] asked you . . . about the nature of the offense and the allegations you said you might not be able to be fair, is that correct?
[Juror 78]: I said I’m a single parent with custody of a child, so.
[Defense]: Gotcha. I didn’t hear that, sir, so I appreciate your reiteration then, thank you. So[,] to underscore do you think you could be fair then to Mr. Montgomery?
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 8 of 33 [Juror 78]: Um, that’s based on the circumstances. Like if you’re hearing certain situations it hits home, so I mean I honestly (inaudible).
[Defense]: Thank you for your honesty, sir, I appreciate that. . . .
Id. at 37.
[15] At the end of voir dire on the first venire panel, the State moved to strike Juror
78 for cause.
[The State]: When I was questioning him[,] I thought that he made it clear when I was questioning him that it was that he didn’t think he could be fair. And then I think when [the defense was] questioning him he kind of rehabilitated a little bit.
[The Court]: Umhuh (affirmative response).
[The State]: So that – that was my reason for that cause, cause I – I thought he said he couldn’t, but then he –
[The Court]: And you gave him –
[Defense]: Yeah, I asked him, he said well it would just be personal, it would be tough basically. That’s what I get for not hearing the first time.
[The Court]: Do you want to take him as a preemptory? I don’t think you got [sic] cause[,] [defense counsel] fixed it for you.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 9 of 33 [The State]: Uh, I’ll go ahead and do a preemptory.
[The Court]: Okay.
[Defense]: May we ask for Batson – for Batson reason, cause he’s –
[The State]: (Inaudible).
[Defense]: Just to make my record. He is African American, as is my client.
[The State]: I – for the reason I stated earlier why I asked for it as cause. He indicated that he – I thought he said he couldn’t be fair. The other reason would be that, um, he had, uh – he does have operation while suspended, two (2) of them which are crimes. Now I – that’s why I was trying to –
[Defense]: How does the State know that?
[The Court]: She looked it up.
[Defense]: I don’t have his name.
[The Court]: You have access, just like they have access, to his name. I’ll grant the challenge, but I’ll note that you made the objection.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 10 of 33 Id. at 40-41.2
B. Standard of Review [16] “Upon appellate review, a trial court’s decision concerning whether a
peremptory challenge is discriminatory is given great deference[] and will be set
aside only if found to be clearly erroneous.” Forrest v. State, 757 N.E.2d 1003,
1004 (Ind. 2001). And under certain circumstances, which are not present here,
we may review a Batson claim under the more rigorous standard of fundamental
error. Cartwright v. State, 962 N.E.2d 1217, 1221 (Ind. 2012); see, e.g., Addison v.
State, 962 N.E.2d 1202, 1213 (Ind. 2012).
C. Montgomery’s Batson Objection [17] Before we address Montgomery’s Batson claim, we initially note that, while we
are convinced that Montgomery’s challenge to the peremptory strike of Juror 78
has been adequately preserved for appellate review, the trial court did not afford
the parties ample opportunity to present formal arguments regarding the State’s
peremptory strike and Montgomery’s subsequent objection. Instead of
entertaining formal arguments, the trial court solicited comments from the State
as to whether the State intended to use a peremptory challenge and then
interjected comments of its own, specifically: “Do you want to take him as a
preemptory? I don’t think you got [sic] cause[,] [defense counsel] fixed it for
2 Although the record is not entirely clear, it does appear that defense counsel was unaware that Juror 78 had a criminal record.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 11 of 33 you.” Tr., Vol. 2 at 40. When the State offered its reason for the challenge,
that the juror had committed crimes, and defense counsel inquired as to how
the State obtained the information, the trial court stated: “She looked it up. . . .
You have access, just like they have access, to his name.” Id. at 41.
[18] It is well settled that colloquial comments do not amount to evidence, and
attorney comments during trial do not constitute evidence. See, e.g., Campania
Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 843, 853 (7th Cir. 2002) (stating that
“it is universally known that statements of attorneys are not evidence”). And,
we are mindful that it was ultimately Montgomery’s responsibility to provide us
an adequate record to permit meaningful review of this matter. See Wilhoite v.
State, 7 N.E.3d 350, 354-55 (Ind. Ct. App. 2014). Nevertheless, we take this
opportunity to caution the trial court that the better course of action here would
have been for the court to allow the parties to present formal arguments
regarding the peremptory strike and the subsequent objection. We now address
Montgomery’s Batson claim.
D. Montgomery’s Batson Claim [19] “Purposeful racial discrimination in selection of the venire violates a
defendant’s right to equal protection because it denies him the protection that a
trial by jury is intended to secure.” Batson v. Kentucky, 476 U.S. 79, 86 (1986).
The exclusion of even a sole prospective juror based on race, ethnicity, or
gender violates the Fourteenth Amendment’s Equal Protection Clause. Snyder
v. Louisiana, 552 U.S. 472, 478 (2008).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 12 of 33 [20] Batson adopted a procedure for “ferreting out discrimination in the exercise of
peremptory challenges[.]” Davis v. Ayala, 135 S.Ct. 2187, 2208 (2015).
First, the party contesting the peremptory challenge must make a prima facie showing of discrimination on the basis of race. Second, after the contesting party makes a prima facie showing of discrimination, the burden shifts to the party exercising its peremptory challenge to present a race-neutral explanation for using the challenge. Third, if a race-neutral explanation is proffered, the trial court must then decide whether the challenger has carried its burden of proving purposeful discrimination.
Killebrew v. State, 925 N.E.2d 399, 401 (Ind. Ct. App. 2010) (citation omitted),
trans. denied.
[T]his procedure places great responsibility in the hands of the trial judge, who is in the best position to determine whether a peremptory challenge is based on an impermissible factor. This is a difficult determination because of the nature of peremptory challenges: They are often based on subtle impressions and intangible factors.
Davis, 135 S.Ct. at 2208.
Step 1
[21] Montgomery argues that he satisfied the first step in the Batson process “because
the juror was African[]American as is [Montgomery].” Br. of Appellant at 14.
The State, however, argues that Montgomery “never established a prima facie
case of racial discrimination” because the “only record made by [Montgomery]
was that the peremptory strike he now challenges was used against an [African-
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 13 of 33 American] juror and that he was also [African American;]” “[t]his was the first
peremptory strike used by the State[;] and [Montgomery] made no other record
as to the number of African[-]American jurors in the panel being questioned or
the jury pool as a whole.” Brief of Appellee at 17-18.
[22] We note that the record before us does not provide how many African
Americans were in the jury pool, and that, standing alone, the removal of some
African-American jurors by peremptory challenge does not raise an inference of
discrimination. McCormick v. State, 803 N.E.2d 1108, 1111 (Ind. 2004) (citing
Kent v. State, 675 N.E.2d 332, 340 (Ind. 1996)). However, in this case, we need
not decide whether Montgomery established a prima facie showing of
discrimination. “[W]here, as here, a prosecutor has offered a race-neutral
explanation for the peremptory challenge and the trial court has ruled on the
ultimate question of intentional discrimination, the preliminary issue of
whether the defendant had made a prima facie showing of purposeful
discrimination becomes moot.” Cartwright, 962 N.E.2d at 1222; accord
Hernandez v. New York, 500 U.S. 352, 359 (1991) (plurality opinion) (recognizing
that in the Batson context, “where the defendant has done everything that would
be required of him if the plaintiff had properly made out a prima facie case,
whether the plaintiff really did so is no longer relevant” (internal citations and
brackets omitted)).
Step 2
[23] At the second step, if the first-stage showing has been satisfied, the burden shifts
to the prosecution to “‘offer a race-neutral basis for striking the juror in Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 14 of 33 question.’” Addison, 962 N.E.2d at 1209 (quoting Snyder, 552 U.S. at 477).
“[T]he race-neutral explanation must be more than a mere denial of improper
motive, but it need not be persuasive, or even plausible. [T]he issue is the facial
validity of the prosecutor’s explanation.” McCormick, 803 N.E.2d at 1110
(internal quotations and citation omitted). “A neutral explanation means an
explanation based on something other than the race of the juror.” Id. at 1111
(internal quotations and citation omitted). “Unless a discriminatory intent is
inherent in the prosecutor’s explanation, the reason offered will be deemed race
neutral.” Addison, 962 N.E.2d at 1209 (internal quotations and citation
omitted).
[24] Here, the prosecutor gave two reasons for striking Juror 78: because “[h]e
indicated that he – I thought he said he couldn’t be fair[,]” and because “he
does have operation while suspended [sic], two (2) of them which are crimes.”
Tr., Vol. 2 at 41. These reasons are based on something other than the race of
the juror, and, therefore, on its face are racially neutral. See, e.g., Cartwright, 962
N.E.2d at 1223 (Ind. 2012) (State’s proffered reasons for using peremptory
strike against only African-American prospective juror, including that juror had
been convicted of conversion, were race-neutral). The prosecutor did not run
afoul of Batson for striking Juror 78 based on his criminal history.
Step 3
[25] In the final step of the Batson process, the trial court “must determine whether
the defendant has shown purposeful discrimination.” Addison, 962 N.E.2d at
1209. This is a “duty” of the trial judge. Id. at 1210. The trial court must Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 15 of 33 evaluate the persuasiveness of the justification, and “[i]t is then that implausible
or fantastic justifications may (and probably will) be found to be pretexts for
purposeful discrimination.” Id. (internal quotation omitted).
[26] On this step,
[Montgomery] respectfully alleges that a responsible inquiry by the trial court should have required the [State] to provide more information about how [it] obtained the basis for alleging that the juror had two convictions for Operation [sic] While Suspended or permitted more voir dire on the topic with this potential juror regarding the issue of having some sort of a criminal history.
Br. of Appellant at 14. Montgomery further argues
that the justifications given by the State remain “implausible or fantastic” when [(1)] the prosecutor did not say that the witness couldn’t be fair but said “I thought he said he couldn’t be fair[,]” and [(2)] her representation about two crimes for Operation [sic] While Suspended were not confirmed by her own representation to the court that she looked up the information, or provid[ed] relevant cause numbers, etc.
Id. at 15. However, Montgomery’s argument appears to confuse which party
bears the burden of production and persuasion.
[27] At the third stage, the defendant may offer additional evidence to demonstrate
that the proffered justification was pretextual, and the trial court assesses the
credibility of the State’s race-neutral explanation “in light of all evidence with a
bearing on it.” Addison, 962 N.E.2d at 1210. Although this third step involves
the trial court evaluating “the persuasiveness of the justification” proffered by
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 16 of 33 the State, “the ultimate burden of persuasion regarding racial motivation rests
with, and never shifts from, the opponent of the strike.” Highler v. State, 854
N.E.2d 823, 828 (Ind. 2006).
[28] Here, Montgomery failed to offer additional evidence or argument to
demonstrate the proffered justification was pretextual. Rather, Montgomery’s
argument focuses on the trial court’s failure to require the State to provide more
information on how it obtained Juror 78’s criminal history and the trial court’s
failure to allow for additional voir dire on the topic. Given these
circumstances, the deference to the trial court’s superior position to weigh the
reasons offered, and the defendant’s burden to demonstrate pretext, we cannot
conclude that the trial court committed clear error in overruling
Montgomery’s Batson objection to the State’s peremptory strike of Juror 78.
We therefore affirm the trial court’s ruling on Montgomery’s Batson challenge.
II. Sufficiency of the Evidence A. Standard of Review [29] When considering the sufficiency of evidence, “a reviewing court does not
reweigh the evidence or judge the credibility of the witnesses.” McHenry v.
State, 820 N.E.2d 124, 126 (Ind. 2005). We must affirm “if the probative
evidence and reasonable inferences drawn from the evidence could have
allowed a reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt.” Id. at 126 (internal quotations omitted). It is well
established that a verdict may be sustained based upon circumstantial evidence
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 17 of 33 alone if that circumstantial evidence supports an inference of guilt beyond a
reasonable doubt. Houston v. State, 730 N.E.2d 1247, 1248 (Ind. 2000).
B. Whether the Evidence Was Sufficient [30] Montgomery admits that he was around A.M. at the time of her injuries, and
he does not challenge the sufficiency of the evidence to prove that the battery or
neglect of dependent offenses occurred. Rather, Montgomery:
respectfully maintains that there was no direct evidence or sufficient circumstantial evidence to justify a finding that he is in fact that person that touched A.M. causing her injuries and therefore placing her in a situation endangering or [sic] life or health.
Br. of Appellant at 17.
[31] Montgomery was convicted of battery resulting in serious bodily injury and
neglect of a dependent resulting in serious bodily injury, both Level 3 felonies.
To obtain a conviction for the Level 3 battery charge, the State was required to
prove beyond a reasonable doubt that Montgomery (1) was a person at least
eighteen years of age (2) and knowingly or intentionally (3) touched (4) a
person under fourteen years of age (5) in a rude, insolent or angry manner (6)
resulting in serious bodily injury to the child. Ind. Code § 35-42-2-1(c)(1), (j).
To obtain a conviction for the Level 3 neglect of a dependent charge, the State
was required to prove beyond a reasonable doubt that Montgomery (1) had the
care of a dependent and (2) knowingly or intentionally (3) placed
the dependent in a situation endangering the dependent’s life or health (4)
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 18 of 33 resulting in serious bodily injury. Ind. Code § 35-46-1-4(a)(1), (b)(2). The
accused must have been subjectively aware of a high probability that he or she
placed the dependent in a dangerous situation. Armour v. State, 479 N.E.2d
1294, 1297 (Ind. 1985).
[32] The State produced evidence that Montgomery was alone with A.M. on May
23 from around 8:00 a.m., when he dropped Jones off at work, to around 9:00
a.m., when he brought A.M. to Allison’s home. Allison, who had Facetimed
with A.M. before she was left alone with Montgomery, testified that A.M. was
acting “just normal” sitting on Jones’ lap and at one point was in “her little
bouncy toy.” Tr., Vol. 2 at 99. Jones also testified that A.M. was “perfectly
fine” before she arrived at work that morning and that she did not break A.M.’s
leg. Tr., Vol. 3 at 16.
[33] The State also presented evidence that A.M.’s injuries could not have been the
result of an accident. Dr. Brown, the emergency room physician who initially
treated A.M., testified that her injuries were the result of non-accidental trauma.
The State produced the testimony of Dr. David Goertzen, an orthopedic
trauma surgeon, who also testified that A.M.’s injuries were consistent with
non-accidental trauma. Dr. Cortney Demetris, a pediatric hospitalist3 and a
child abuse pediatrician, opined that in order for the femur to have been broken
3 Dr. Demetris testified that a pediatric hospitalist is “a Pediatric . . . doctor who takes care of only children who are hospitalized, but for any medical condition, not exclusively just around potential child abuse or neglect.” Tr., Vol. 2 at 225.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 19 of 33 in half, “significant force” would have had to have been applied to the leg and
that a child of A.M.’s age would have been incapable of accidentally injuring
themselves in such a way. Tr., Vol. 2 at 232.
[34] Moreover, the State presented evidence that the nature of A.M.’s injury would
have prompted her to scream out in extreme pain and to do so at any time with
even the slightest movement of her leg. A broken femur would have made a
cracking sound loud enough to hear, and Montgomery would have felt the bone
pop. However, Montgomery maintained that his vehicle was unreliable and
that he only used it in emergencies as the reason he did not immediately bring
A.M. to the hospital, even though he used the vehicle to bring Jones to work
that morning and then later to bring A.M. to Allison’s home.
[35] The facts presented here are similar to those of Lindhorst v. State, 90 N.E.3d 695
(Ind. Ct. App. 2017), wherein a child suffered an injury in the care of her
babysitter. The child’s father recalled that the child appeared normal and
healthy that morning when he dropped the child off for day care. A few hours
later, the babysitter informed the child’s mother that the child fell on a wooden
floor an hour before and that she was taking the child to the hospital. A CAT
scan revealed the child had a fractured skull and cerebral bleeding, which
numerous healthcare professionals opined could not have been the result of a
fall onto a wooden floor. Further evidence was presented that the injury would
have been obvious to the babysitter and that the babysitter delayed seeking
necessary medical attention. The babysitter was convicted of battery and
neglect of a dependent as Level 3 felonies. On appeal, the babysitter argued the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 20 of 33 evidence was insufficient to support her convictions. A panel of this court
concluded:
It is perhaps possible that [the child’s] injury was caused by an unusual “freak” accident, as described by [the babysitter]. But the finder of fact determined otherwise, and we may not reweigh the evidence as [the babysitter] requests. There is sufficient evidence to support the trial court’s determination that [the babysitter] knowingly or intentionally inflicted the injury upon [the child] and that [the babysitter] knowingly or intentionally placed [the child] in a dangerous situation by delaying medical assistance. See Hughes v. State, 508 N.E.2d 1289, 1296 (Ind. Ct. App. 1987) (affirming conviction for battery on a child; sufficient circumstantial evidence established defendant battered the victim, despite defendant’s claim the victim fell out of a crib), trans. denied; Sample v. State, 601 N.E.2d 457, 459-60 (Ind. Ct. App. 1992) (evidence sufficient to support conviction of neglect of a dependent; defendant unreasonably delayed getting medical help for infant in her care).
Id. at 702-03 (record citation omitted).
[36] Here too, we conclude that sufficient evidence was presented to permit a
reasonable jury to find that Montgomery knowingly or intentionally inflicted
the injury upon A.M. and that Montgomery knowingly or intentionally placed
A.M. in a dangerous situation by delaying medical assistance. Montgomery’s
arguments to the contrary are little more than invitations to reweigh the
evidence, which we will not do. McHenry, 820 N.E.2d at 126.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 21 of 33 III. Inappropriate Sentence [37] Montgomery next argues his sentence is inappropriate in light of the nature of
his offenses and his character. The trial court imposed two twelve-year
sentences for the battery and the neglect of a dependent convictions to be served
concurrently but consecutive to Montgomery’s sentence in another case.
Montgomery contends that the imposition of sentences “above the advisory
sentence” was inappropriate. Br. of Appellant at 18.
A. Standard of Review [38] We may review and revise criminal sentences pursuant to the authority derived from Article 7, Section 6 of the Indiana Constitution. Indiana Appellate Rule 7(B) empowers us to revise a sentence “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.” Because a trial court’s judgment “should receive considerable deference[,]” our principal role is to “leaven the outliers.” Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind. 2008). “Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant’s character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The defendant bears the burden to persuade this court that his or her sentence is inappropriate, Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006), and we may look to any factors appearing in the record for such a determination, Stokes v. State, 947 N.E.2d 1033, 1038 (Ind. Ct. App. 2011), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 22 of 33 Reis v. State, 88 N.E.3d 1099, 1101-02 (Ind. Ct. App. 2017). The question under
Appellate Rule 7(B) analysis is “not whether another sentence is more
appropriate” but rather “whether the sentence imposed is inappropriate.” King
v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Whether a sentence is
inappropriate “turns on our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other factors that
come to light in a given case.” Cardwell, 895 N.E.2d at 1224.
[39] We begin with the advisory sentence in determining the appropriateness of a
sentence. The advisory sentence for a Level 3 felony is nine years, with a
minimum sentence of three years and a maximum sentence of sixteen years.
Ind. Code § 35-50-2-5(b). Montgomery was sentenced to two twelve-year
sentences to be served concurrently. Both of Montgomery’s sentences were
three years longer than the advisory sentence but four years shorter than the
maximum sentence.
B. Nature of the Offenses [40] Notably, Montgomery has not offered an argument regarding the nature of his
offenses, but they are egregious. While A.M. was in his care, Montgomery
inflicted an extremely painful injury on the helpless infant, i.e., he broke her
femur in two. According to doctors’ testimony, the force required to break the
bone, and the “crack[ing]” sound that would have accompanied the break, was
such that Montgomery must have been aware that he hurt A.M., yet he
unnecessarily delayed seeking medical treatment for the child. Upon her
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 23 of 33 eventual arrival at the hospital, it was determined that A.M. required pain
medication and surgery, as she screamed in pain whenever she was moved.
Due to the severity of the injury and the necessity for surgery, A.M.
experienced a near-fatal-episode when, during the surgical procedure, she
aspirated, went into cardiac arrest, required CPR, and had to be placed on a
ventilator. To allow her bone to heal, A.M. had to be placed in a special
immobilizing cast that “goes from the chest on the nipple line down to the
lower leg, up to the ankle.” Tr., Vol. 2 at 202. Given the nature of the offenses,
we find that Montgomery’s sentence is not inappropriate.
C. Character of the Offender [41] As to his character, Montgomery argues that he is a high school graduate; he
was categorized as having a low risk to reoffend on the Indiana Risk
Assessment tool; he lacks a juvenile offender history; and his “only adult
[criminal ] history was from [cause number 02D04-1705-F6-560 (“F6-560”)[.]”
Br. of Appellant at 18. Under cause number F6-560, Montgomery was charged
with resisting law enforcement and criminal recklessness as Level 6 felonies, as
well as the following offenses as misdemeanors: carrying a handgun without a
license, leaving the scene of an accident, and refusal to identify self.
[42] However, when Montgomery hurt A.M. he was twenty-five years old, and, as
the trial court noted at sentencing, “You’re clearly old enough to know better. .
. . [Y]ou are six foot two (6’2”) a hundred and seventy-five (175) pounds,
clearly no match for a little seven (7) month old baby.” Tr., Vol. 3 at 78.
Montgomery violated a position of trust with A.M. Instead of caring for his Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 24 of 33 seven-month-old daughter, he seriously injured her. As the trial court further
noted, “You promised her to protect her and to keep her safe[,] and in State’s
Exhibit 5, this is your handy work, Mr. Montgomery. You put her on a
ventilator and broke her femur. That’s hardly protecting your daughter.” Id.
Montgomery must have been aware that he inflicted the injury and caused his
child a significant amount of pain, yet he feigned ignorance regarding the
injury, delayed medical treatment, and did not accompany A.M. to the
hospital. Regarding cause number F6-560, Montgomery’s “only adult
[criminal] history[,]” Montgomery was eventually convicted of Level 6 felony
resisting law enforcement, misdemeanor carrying a handgun without a license,
and misdemeanor refusal to identify self – offenses he committed just one week
prior to committing the battery and neglect offenses against A.M. Br. of
Appellant at 18. Montgomery’s character does not warrant a reduction in his
sentence.
[43] Given the nature of Montgomery’s offenses and his character, we conclude that
Montgomery’s sentence is not inappropriate. We decline to revise it under
Appellate Rule 7(B).
IV. Abuse of Discretion [44] Finally, interspersed within his inappropriate sentence argument, Montgomery
argues the trial court abused its discretion at sentencing. When sentencing
Montgomery, the trial court discussed mitigating and aggravating
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 25 of 33 circumstances and then imposed the sentence. The trial court stated, in relevant
part, as follows:
Your Attorney has asked that I consider mitigating circumstances, Mr. Montgomery. He’s asked that I consider that you’re likely to respond affirmatively to probation or community supervision. I decline to do that. He’s also asked that I consider your age of twenty-five (25) as being a mitigator. Well I decline to do that, Mr. Montgomery. You’re twenty-five (25) years old. You’re clearly old enough to know better. Um, you are six foot two (6’2”) a hundred and seventy-five (175) pounds, clearly no match for a little seven (7) month old baby. He’s also asked that I consider that you’re – as your character you’re unlikely to commit more crime. Based on the comments of Detective Sutphin and the after trial numerous iPad messages I decline to do that as well.[4] I do find as an aggravating circumstance is the extreme young age of the victim being seven (7) months old. I realize that neglect of a dependent, any dependent under fourteen (14) is considered a dependent, but this little girl was only seven (7) months old. You have a prior criminal record. I agree with your Attorney it’s a felony and a couple of misdemeanor convictions that happened at the same time, but you do have a criminal record. And you violated the position of trust that you have with your daughter. You promised her to protect her and to keep her safe and in State’s Exhibit 5, this is your handy work, Mr. Montgomery. You put her on a ventilator and broke her femur. That’s hardly protecting your daughter. It’s therefore ordered that the defendant be committed to the Indiana Department of Correction for classification and confinement for a period of twelve (12) years on Count I, and a period of twelve
4 Testimony was presented at trial, indicating that through jail house phone calls and iPad messages, Montgomery attempted to “[manipulate] Khashira Jones, the mother of the victim, uh, attempting to steer her away from her family who would support her in this situation. And it appears that he is trying to manipulate her towards his own agenda in still attempting to get out of what he is responsible for in this situation.” Tr., Vol. 3 at 74.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 26 of 33 (12) years on Count II. Order those to be served concurrently, but consecutive to [F6-560].
Tr., Vol. 3 at 78-79.
A. Standard of Review [45] 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). 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. The trial court can abuse its discretion by (1) issuing an
inadequate sentencing statement, (2) finding aggravating or mitigating factors
that are not supported by the record, (3) omitting factors that are clearly
supported by the record and advanced for consideration, (4) or by finding
factors that are improper as a matter of law. Laster v. State, 956 N.E.2d 187, 193
(Ind. Ct. App. 2011).
B. Mitigators [46] Montgomery first contends that the trial court erred when it “declined” to
consider the following mitigating circumstances that, according to Montgomery
were “justified[,]” particularly: Montgomery had not previously been provided
the opportunity to participate in probation; he was perhaps likely to respond
well to short-term imprisonment, community supervision, or probation; he was
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 27 of 33 young, twenty-five years old, when he committed the offenses; and he was
unlikely to commit more crimes. Br. of Appellant at 20.
[47] The finding of mitigating factors is not mandatory and rests within the
discretion of the trial court, and the trial court is not required to accept the
defendant’s arguments as to what constitutes a mitigating factor. Flickner v.
State, 908 N.E.2d 270, 273 (Ind. Ct. App. 2009). Further, the trial court is not
required to give the same weight to proffered mitigating factors as the defendant
does, nor is it obligated to explain why it did not find a factor to be significantly
mitigating. Id. On appeal, a defendant must show that the proposed mitigating
circumstance is both significant and clearly supported by the record. Rawson v.
State, 865 N.E.2d 1049, 1056 (Ind. Ct. App. 2007) (internal citations omitted),
[48] Here, the record demonstrates that the trial court carefully considered
Montgomery’s proposed mitigating circumstances and determined that they
deserved no weight. Montgomery has not shown that his proposed mitigators
are both significant and clearly supported by the record, and he has failed to
point us to any error sufficient to overcome the trial court’s discretion on this
point. Accordingly, we find the trial court did not abuse its discretion in
determining that Montgomery’s proposed mitigating circumstances were not
significant.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 28 of 33 C. Aggravators [49] Montgomery also contends that the trial court erred in finding A.M.’s young
age and Montgomery’s criminal history as aggravating circumstances when it
decided the sentence.
1. Age of Victim
[50] Generally, where the age of the victim is a material element of the crime,
the age of the victim may not be used as an aggravating circumstance. Kien v.
State, 782 N.E.2d 398, 414 (Ind. Ct. App. 2003) (citing Stewart v. State, 531
N.E.2d 1146, 1150 (Ind. 1988)), trans. denied. “However, the trial court may
properly consider the particularized circumstances of the material elements of
the crime” to be an aggravating factor. Id. For example, a trial court may
properly consider as aggravating the age of the victim when the trial court
considers that the victim was of a “tender age.” Id. Moreover, the provisions
of Indiana Code section 35-38-1-7.1(a)(3) state that whether the victim was less
than twelve or more than sixty-five years old is an aggravating circumstance the
sentencing court may consider.
[51] Here, the trial court noted that Montgomery is “six foot two (6’2”) a hundred
and seventy-five (175) pounds, clearly no match for a little seven (7) month old
baby” and that “I do find as an aggravating circumstance . . . the extreme
young age of the victim being seven (7) months old. I realize that neglect of a
dependent, any dependent under fourteen (14) is considered a dependent, but
this little girl was only seven (7) months old.” Tr., Vol. 3 at 78. It is clear that
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 29 of 33 the trial court’s finding concerning A.M.’s age was linked to the particular
circumstances of this case, i.e., A.M.’s “extreme” young age. Id. As such, the
trial court did not abuse its discretion by identifying A.M.’s age as an
aggravating circumstance. See, e.g., Reyes v. State, 909 N.E.2d 1124, 1128 (Ind.
Ct. App. 2009) (finding no error in the trial court’s use of the nine-year-
old victim’s age as an aggravating circumstance).
2. Criminal History
[52] Regarding the trial court’s use of Montgomery’s criminal history as an
aggravating circumstance, his challenge is nothing more than a request to
review the weight that the trial court applied to this aggravating circumstance,
which we will not do. See Anglemyer, 868 N.E.2d at 491 (explaining that
relative weight given to aggravating and mitigating factors is not subject to
review). Thus, we conclude that the trial court did not abuse its discretion by
considering Montgomery’s criminal history as an aggravating factor.
D. Consecutive Sentences [53] Lastly, Montgomery argues that the trial court erred in ordering his sentence in
the instant case to be served consecutive to the sentence imposed in cause
number F6-560 because he was not on bond for cause number F6-560 when he
committed the instant offenses.
[54] Montgomery’s presentence investigation report indicated (apparently
inaccurately) that he was on bond for the prior case when he committed the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 30 of 33 instant offense and that, therefore, under Indiana Code section 35-50-1-2(e),5
the trial court would have been required to order consecutive sentences.
However, at the sentencing, Montgomery argued that he was not in fact on
bond at the time the instant offenses were committed because the case that
would become F6-560 had been dismissed before the date Montgomery
committed the instant offenses and was re-filed afterward. The trial court
appeared to accept Montgomery’s explanation; the State then requested
consecutive sentences “regardless[,]” Tr., Vol. 3 at 65, and the trial court
imposed consecutive sentences. .
[55] While Montgomery contends that the trial court abused its discretion by
imposing consecutive sentences, he has failed to offer any cogent argument in
support of this assertion. Consequently, he has waived the argument. See,
e.g., Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006); Ind. Appellate Rule
46(A)(8)(a). Waiver notwithstanding, in order to impose consecutive sentences,
the trial court must find at least one aggravating circumstance. Marcum v.
State, 725 N.E.2d 852, 864 (Ind. 2000). Here, the trial court found three:
Montgomery’s criminal history, the “extreme young age of the victim[,]” and
his violation of a position of trust. Tr., Vol. 3 at 78. We, therefore, conclude
that the trial court did not abuse its discretion by imposing consecutive
5 Indiana Code section 35-50-1-2(e) provides in relevant part as follows: “If, after being arrested for one (1) crime, a person commits another crime: . . . while the person is released: . . . on bond; the terms of imprisonment for the crimes shall be served consecutively, regardless of the order in which the crimes are tried and sentences are imposed.”
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 31 of 33 sentences. See Ind. Code § 35-38-1-7.1 (listing violation of a position of trust,
age of victim, and criminal history as aggravating factors).
E. Probation Department’s Recommended Sentence [56] Montgomery also appears to argue that the trial court abused its discretion
when it declined to accept the probation department’s recommended sentence
provided in the presentence investigation report, i.e., that Montgomery be
committed to the Indiana Department of Correction for twelve years, with ten
years executed, two years suspended, and two years served on probation with
no objection to alternative sentencing, if eligible. The State “concur[red]” with
the probation department’s recommendation, but “vehemently oppose[d]
alternative sentencing . . . .” Tr., Vol. 3 at 76. However, the trial court is under
no obligation to base its sentencing determination on the presentence
investigation report or on the probation department’s sentencing
recommendation. Fugate v. State, 516 N.E.2d 75, 80 (Ind. Ct. App. 1987). And,
in any event, the court’s deviation from the sentence recommended by the
probation department was not significant as the trial court ultimately sentenced
Montgomery to concurrent twelve-year sentences, to be served consecutive to
Montgomery’s one year and 183 day sentence in cause number F6-560. We
cannot say the trial court abused its discretion on this issue.
Conclusion [57] In conclusion, the trial court did not violate Montgomery’s constitutional right
to an impartial jury, the State presented sufficient evidence to support his Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 32 of 33 convictions, his sentence is not inappropriate, and the trial court did not abuse
its discretion at sentencing or in ordering consecutive sentences.
[58] Affirmed.
Najam, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2487 | May 24, 2019 Page 33 of 33