Dennis Price v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 16, 2017
• Docket: 49A05-1604-CR-910
• 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 Feb 16 2017, 6:09 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Karen Celestino-Horseman Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Larry D. Allen Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dennis Price, February 16, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1604-CR-910 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Marc T. Appellee-Plaintiff Rothenberg, Judge Trial Court Cause No. 49G02-1408-MR-41046

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-910| February 16, 2017 Page 1 of 9 Case Summary [1] Dennis Price appeals his convictions for murder and level 1 felony neglect of a

dependent resulting in death, stemming from the beating death of his four-year-

old son D.J. He maintains, and the State concedes, that his convictions violate

his constitutional protection against double jeopardy. Price also asserts that his

eighty-three-year sentence is inappropriate in light of the nature of the offense

and his character. We affirm his sentence and remand for entry of his neglect

of a dependent conviction as a level 6 felony.

Facts and Procedural History [2] In August 2014, Price was living with his girlfriend and their three-year-old

daughter D.A. in Indianapolis. Four-year-old D.J., Price’s son from another

relationship, had been staying at Price’s home for a couple months. Because

Price was serving home detention for a previous offense, he often cared for

D.A. and D.J. while his girlfriend worked.

[3] On August 23, 2014, Price was watching television when he heard a noise

coming from D.A.’s bedroom. When he entered D.A.’s room, he noticed that

D.J. had D.A. pinned down and was on top of her. Price became angry,

grabbed D.J., and “flung him” into a corner of the room. Tr. at 292. He then

“popped” D.J. in his face, lip, and side. Id. Later that day, Price noticed that

“something was wrong with [D.J.]” and gave him half an ibuprofen tablet. Id.

at 299. After that, Price noticed that D.J. “was acting funny … different … he

wasn’t acting [himself].” Id. at 301. He gave D.J. milk and some water mixed

Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-910| February 16, 2017 Page 2 of 9 with a charcoal briquette to induce vomiting. According to Price, after D.J.

drank the mixture, he just went “downhill.” Id. at 302. Price called his

girlfriend, and she told him to call 911.

[4] When emergency personnel arrived, Price was outside holding D.J. in his arms.

According to one of the paramedics, “[D.J.] was very ashen and gray, lifeless.”

Id. at 146. Price told the paramedics that D.J. had fallen down from ingesting

too much ibuprofen.1 While the paramedics attempted to revive D.J., they also

noticed that the severe bruising on his body and face was inconsistent with

falling down from a standing position. Immediately thereafter, they transported

D.J. to a nearby hospital, where he was pronounced dead. The attending

emergency room physician, Dr. Geoffrey Billows, observed that D.J. had

multiple blunt force traumas all over his body and had signs of blood in his

stomach. An autopsy revealed that in addition to massive bruising, D.J. had

suffered two fractured ribs with bleeding around them, a perforation in his small

intestine that caused fecal matter to seep into his abdomen, hemorrhaging

under his scalp, and a skull fracture. D.J.’s cause of death was determined to be

multiple blunt-force traumas.

[5] Police arrested and Mirandized Price, and during a lengthy interview, Price

admitted to Detective Chris Craighill that he had “repeatedly whipped and

1 Evidence technicians discovered that only two pills were missing from the bottle of ibuprofen. Dr. Geoffrey Billows later noted that this small amount of ibuprofen would not have caused D.J.’s cardiac arrest.

Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-910| February 16, 2017 Page 3 of 9 punched D.J. in the head and on his body that day.” Id. at 208; State’s Ex. 40.

The State charged Price with murder, level 1 felony neglect of a dependent

resulting in death, and level 2 felony battery resulting in the death of a child

under the age of fourteen. The State subsequently amended the information to

add a habitual offender count. A jury found Price guilty as charged. Price

waived a jury trial for the habitual offender count, and the trial court found him

to be a habitual offender, attaching the enhancement to his murder conviction.

The trial court merged the battery conviction with the murder conviction and

sentenced Price to concurrent terms of sixty-four years for murder and thirty-

five years for neglect, with an additional nineteen years for the habitual offender

count, for an aggregate sentence of eighty-three years.

[6] Price now appeals. Additional facts will be provided as necessary.

Discussion and Decision

Section 1 –Price’s conviction for level 1 felony neglect of a dependent resulting in death must be reduced and entered as level 6 felony neglect of a dependent. [7] Price contends that the trial court erred in entering judgment on both murder

and level 1 felony neglect of a dependent causing death. “Under the rules of

statutory construction and common law that constitute one aspect of Indiana’s

double jeopardy jurisprudence, where one conviction is elevated … based on

the same bodily injury that forms the basis of another conviction, the two

cannot stand.” Montgomery v. State, 21 N.E.3d 846, 865 (Ind. Ct. App. 2014)

(quoting Strong v. State, 870 N.E.2d 442, 443 (Ind. 2007)) (quotation marks Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-910| February 16, 2017 Page 4 of 9 omitted), trans. denied (2015). This means that Price may not be convicted and

punished for an enhanced version of neglect of a dependent (level 1 felony,

“resulting in death”) where the enhancement is imposed for the very same harm

(D.J.’s death) as another crime for which he has been convicted and punished

(murder). The State concedes this point and asks that we remand for entry of

Price’s neglect of a dependent conviction as a level 6 felony. Price’s knowing

failure to seek immediate medical treatment for D.J. after he beat him is

sufficient to support such a finding. Ind. Code § 35-46-1-4(a)(3); see also, Mallory

v. State, 563 N.E.2d 640, 643 (Ind. Ct. App. 1990) (explaining that knowingly or

intentionally “depriv[ing] the dependent of necessary support” includes actively

depriving dependent of necessary medical treatment), trans. denied (1991).

Accordingly, we remand with instructions to enter judgment of conviction for

neglect of a dependent as a level 6 felony instead of as a level 1 felony and

resentence him on that count. This will not affect Price’s aggregate sentence,

and the trial court need not conduct a new sentencing hearing on remand.

Section 2 – Price’s sentence is not inappropriate in light of the nature of the offenses and his character.2 [8] Price also asks that we review and revise his sentence pursuant to Appellate

Rule 7(B), which states that we “may revise a sentence authorized by statute if,

2 Price characterizes his sentence as manifestly unreasonable. We remind him that we have not reviewed sentences under this standard since Appellate Rule 7(B) was revised in 2003. We also remind Price’s counsel that our supreme court disciplined an attorney who persisted in invoking this standard. See In re Schlesinger, 53 N.E.3d 417 (Ind. 2016). Because Price’s sentencing argument is essentially an inappropriateness argument pursuant to Appellate Rule 7(B), we review it as such.

Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-910| February 16, 2017 Page 5 of 9 after due consideration of the trial court’s decision, [this] Court finds that the

sentence is inappropriate in light of the nature of the offense and the character

of the offender.” When a defendant requests appellate review and revision of

his sentence, we have the power to affirm or reduce the sentence. Akard v. State,

937 N.E.2d 811, 813 (Ind. 2010). In conducting our review, we may consider

all aspects of the penal consequences imposed by the trial court in sentencing,

i.e., whether it consists of executed time, probation, suspension, home

detention, or placement in community corrections, and whether the sentences

run concurrently or consecutively. Davidson v. State, 926 N.E.2d 1023, 1025

(Ind. 2010). We do not look to see whether the defendant’s sentence is

appropriate or if another sentence might be more appropriate; rather, the test is

whether the sentence is “inappropriate.” Fonner v. State, 876 N.E.2d 340, 344

(Ind. Ct. App. 2007). A defendant bears the burden of persuading this Court

that his sentence meets the inappropriateness standard. Anglemyer v. State, 868

N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218.

[9] In considering the nature of Price’s offenses, “the advisory sentence is the

starting point the Legislature selected as appropriate for the crime committed.”

Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). When determining the

appropriateness of a sentence that deviates from an advisory sentence, we

consider whether there is anything more or less egregious about the offense as

committed by the defendant that “makes it different from the typical offense

accounted for by the legislature when it set the advisory sentence.” Holloway v.

State, 950 N.E.2d 803, 807 (Ind. Ct. App. 2011). The trial court sentenced Price

Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-910| February 16, 2017 Page 6 of 9 to an aggregate term of eighty-three years, comprising sixty-four years for

murder, a concurrent term for neglect of a dependent, and an additional

nineteen years for the habitual offender finding. The sentencing range for

murder is forty-five to sixty-five years, with an advisory term of fifty-five years.

Ind. Code § 35-50-2-3. The range for a habitual offender enhancement is six to

twenty years for those convicted of murder. Ind. Code § 35-50-2-8(i)(1).3

[10] Price’s violent offenses are exacerbated by the age and identity of his victim:

his own four-year-old son. Also troubling, Price committed his offenses against

his young son while in the presence of his young daughter. The medical

evidence shows that D.J. suffered a sustained beating involving multiple blows.

Emergency room physician Dr. Billows observed extensive bruising as well as

signs of blood in D.J.’s stomach. The gruesome photographic exhibits depict

bruising and swelling all over D.J.’s body and head. In addition to the readily

observable injuries, the autopsy revealed that D.J. suffered extensive internal

injuries, including broken ribs with internal bleeding in his chest cavity, a

perforated intestine causing feces to seep into his abdominal cavity,

hemorrhaging in his scalp, and a skull fracture. Perhaps most troubling was

Price’s decision not to seek medical help, which prolonged D.J.’s suffering for

hours. Simply put, the extreme circumstances went well beyond the elements

of the offense and militate toward a sentence above the advisory term. See Ind.

Code § 35-42-1-1(1) (“A person who … knowingly or intentionally kills another

3 The trial court attached Price’s habitual offender enhancement to his murder conviction pursuant to Indiana Code Section 35-50-2-8(j).

Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-910| February 16, 2017 Page 7 of 9 human being … commits murder, a felony.”). In fact, the circumstances

include three statutory aggravating factors that would justify a sentence of life

imprisonment without parole or the death penalty, i.e., Price was serving home

detention for felony theft when he committed his offenses; the victim was under

the age of twelve; and the offenses involved a felony battery offense (of which

the jury convicted Price but which the trial court merged). Ind. Code § 35-50-2-

9(b)(9), -(12), -(13)(A).

[11] As for Price’s character, we conduct our review by engaging in a broad

consideration of his qualities. Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App.

2014), clarified on other grounds on reh’g, 11 N.E.3d 571. Price has repeatedly

demonstrated a disrespect for the law, as evidenced by his extensive criminal

record beginning at age twelve and spanning seventeen years. As a juvenile, he

had true findings for conduct amounting to conversion, disorderly conduct, and

carrying a firearm without a license, if committed by an adult. His adult

criminal history extends well beyond the two predicate felony offenses used to

establish his habitual offender status and includes six felony and four

misdemeanor convictions, several of which involved violence and/or weapons.

See Appellant’s App. at 150-54 (showing Price’s record to include felony

convictions for battery with deadly weapon, theft, auto theft, dealing in

marijuana, intimidation, and criminal recklessness while armed with deadly

weapon). Price also has failed to respond positively to previous lenient

treatment, as evidenced by his history of probation violations. In fact, he

committed the instant offenses while on home detention for felony theft.

Court of Appeals of Indiana | Memorandum Decision 49A05-1604-CR-910| February 16, 2017 Page 8 of 9 [12] Additionally, Price violated his position of trust and care, having savagely

beaten one of his children in the presence of another while babysitting them.

Then, having observed indications that D.J. was in an impaired and precarious

condition, Price made D.J. drink a ground-up charcoal briquette mixture to

induce vomiting instead of calling for medical help. Even when he did call,

Price demonstrated dishonesty, telling a variety of false stories to medical

personnel, such as that D.J. fell down due to an ibuprofen overdose and that

D.J. slammed his head on the door frame, as well as telling D.J.’s mother that

he was in a car accident. Only after a prolonged statement to police did he

finally admit that he repeatedly struck D.J. and threw him against the wall.

[13] Price asserts that his low IQ militates toward a lower sentence. He bases this

argument on school records from his childhood indicating that he had an IQ of

73, a borderline mental disability. Notwithstanding, we agree with the trial

court that his responses to court and law enforcement questions and his ability

to concoct false accounts of his conduct indicate that he was cognizant of its

wrongfulness.

[14] In short, Price has failed to meet his burden of demonstrating that his sentence

is inappropriate in light of the nature of the offenses and his character.

Consequently, we affirm his sentence.

[15] Affirmed and remanded.

Riley, J., and Altice, J., concur.

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