MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 22 2016, 9:47 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Laura Paul Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dereck Worthington, July 22, 2016 Appellant-Defendant, Court of Appeals Case No. 84A05-1510-CR-1829 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Michael J. Lewis, Appellee-Plaintiff Judge Trial Court Cause No. 84D06-1403-FB-794
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016 Page 1 of 7 [1] Dereck Worthington appeals the sentence imposed by the trial court after he
pleaded guilty to class C felony Neglect of a Dependent. Worthington argues
that the trial court made improper evidentiary rulings during his sentencing
hearing. Finding no error, we affirm.
Facts
[2] At some point after 2011, Regina Warren married Kyle Poynter; the couple had
one child, Z.P. Warren eventually divorced Poynter. She then rekindled a past
relationship with Worthington. In December 2013, Worthington moved in
with Warren and her three children, including Z.P., who was seven months old
at the time. Worthington cared for the children when Warren was not at home.
[3] Shortly after Worthington began caring for the children, Warren noticed Z.P.’s
behavior change. According to Warren, Z.P. was no longer social, did not
smile or laugh, was lethargic, whimpered when held, did not eat, had lost two
pounds, missed developmental milestones, and was afraid of strangers touching
her. Although Poynter had visitation privileges with Z.P. during this time,
Warren and Worthington were Z.P.’s only caregivers.
[4] On March 18, 2014, Worthington notified Warren that Z.P. had a knot on her
head. When Warren took Z.P. to the doctor for a scheduled wellness visit, Z.P.
was directly admitted to the hospital and was evaluated for signs of child abuse.
[5] The evaluation revealed that Z.P. had multiple injuries: abrasions and bruising
on her head and neck; bruising and fractures in both legs; bruising on her upper
Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016 Page 2 of 7 buttocks; traumatized nail beds; fractures in multiple places in both arms; a
broken collar bone; and severe, life-threatening head trauma. The evaluation
concluded that Z.P.’s injuries were caused by abuse and that the injuries had
occurred at different times and were in different stages of healing.
[6] On March 26, 2014, Worthington was charged with class B felony aggravated
battery, class B felony neglect of a dependent resulting in serious bodily injury,
and class D felony battery. On July 9, 2015, Worthington pleaded guilty to
neglect of a dependent resulting in serious bodily injury as a class C felony in
exchange for the dismissal of the other charges. The plea agreement left
sentencing open to the trial court’s discretion. The stipulated factual basis of
Worthington’s guilty plea provided that Worthington had care of Z.P.
sometime between December 2013 and March 2014; that Worthington
knowingly or intentionally placed Z.P. in a situation that endangered her life or
health, resulting in bodily injuries to Z.P.’s head, arms, and legs; and that
Worthington failed to seek medical attention for Z.P. Tr. p. 10.
[7] At Worthington’s September 23, 2015, sentencing hearing, Warren testified
about her continued concern for Z.P.’s health. Warren could not identify any
instance in which she believed Worthington had harmed Z.P.; when questioned
about how the infant might have been injured, Warren testified that she once
saw Worthington holding Z.P. and “stretching” Z.P.’s arms back. Z.P. was
crying as he did this. Tr. p. 26. According to Warren, when she asked what he
was doing, Worthington replied that he was stretching Z.P. out of concern that
Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016 Page 3 of 7 she was experiencing growing pains. Worthington did not object to this
testimony.
[8] Worthington then cross-examined Warren, asking her about Poynter. Warren
testified that Poynter had been charged with domestic battery in the past. The
State objected to further testimony regarding Poynter’s prior history with
Warren, arguing that it was irrelevant for the purpose of sentencing
Worthington on the neglect of a dependent conviction. The trial court
sustained the objection, stating that “this is the sentencing of Dereck
Worthington, I’m not going to try somebody else on this case.” Tr. p. 46.
[9] In sentencing Worthington, the trial court found Z.P.’s severe injuries and
Worthington’s criminal history to be aggravating circumstances. While it
found Worthington’s remorse to be a mitigating factor, the trial court held that
the aggravating factors outweighed the mitigating factor and sentenced
Worthington to eight years in the Department of Correction. Worthington now
appeals.
Discussion and Decision
[10] Worthington raises two arguments on appeal: first, that the State should not
have been permitted to introduce Warren’s testimony regarding the incident in
which she saw him “stretching” Z.P.; second, that, even if such evidence was
properly admitted, he should have been permitted to introduce evidence of
Poynter’s past domestic battery conviction.
Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016 Page 4 of 7 [11] When reviewing a trial court’s sentencing order, we may reverse only 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.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on
reh’g, 875 N.E. 2d 218. It is well established that when a trial court makes a
sentencing decision, the rules of evidence, other than those concerning matters
of privilege, do not apply. E.g., White v. State, 756 N.E.2d 1057, 1061 (Ind. Ct.
App. 2001); see also Ind. Evidence Rule 101(d)(2) (providing that the Rules of
Evidence do not apply to sentencing proceedings).
[12] Worthington argues that the trial court should not have permitted Warren to
testify about the occasion in which she saw him “stretching” Z.P., maintaining
that this evidence relates to the battery charges that had been dismissed.
Initially, we observe that Worthington did not object to this testimony.
Consequently, he has waived this argument.
[13] Waiver notwithstanding, we note that this evidence was directly relevant to the
charge of neglect of a child resulting in serious bodily injury, as it was stipulated
in the plea agreement that Worthington placed Z.P. in a situation that
endangered her health, resulting in bodily injuries to the infant. The State is
entitled to present evidence regarding the nature and circumstances of the crime
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 22 2016, 9:47 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Laura Paul Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dereck Worthington, July 22, 2016 Appellant-Defendant, Court of Appeals Case No. 84A05-1510-CR-1829 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Michael J. Lewis, Appellee-Plaintiff Judge Trial Court Cause No. 84D06-1403-FB-794
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016 Page 1 of 7 [1] Dereck Worthington appeals the sentence imposed by the trial court after he
pleaded guilty to class C felony Neglect of a Dependent. Worthington argues
that the trial court made improper evidentiary rulings during his sentencing
hearing. Finding no error, we affirm.
Facts
[2] At some point after 2011, Regina Warren married Kyle Poynter; the couple had
one child, Z.P. Warren eventually divorced Poynter. She then rekindled a past
relationship with Worthington. In December 2013, Worthington moved in
with Warren and her three children, including Z.P., who was seven months old
at the time. Worthington cared for the children when Warren was not at home.
[3] Shortly after Worthington began caring for the children, Warren noticed Z.P.’s
behavior change. According to Warren, Z.P. was no longer social, did not
smile or laugh, was lethargic, whimpered when held, did not eat, had lost two
pounds, missed developmental milestones, and was afraid of strangers touching
her. Although Poynter had visitation privileges with Z.P. during this time,
Warren and Worthington were Z.P.’s only caregivers.
[4] On March 18, 2014, Worthington notified Warren that Z.P. had a knot on her
head. When Warren took Z.P. to the doctor for a scheduled wellness visit, Z.P.
was directly admitted to the hospital and was evaluated for signs of child abuse.
[5] The evaluation revealed that Z.P. had multiple injuries: abrasions and bruising
on her head and neck; bruising and fractures in both legs; bruising on her upper
Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016 Page 2 of 7 buttocks; traumatized nail beds; fractures in multiple places in both arms; a
broken collar bone; and severe, life-threatening head trauma. The evaluation
concluded that Z.P.’s injuries were caused by abuse and that the injuries had
occurred at different times and were in different stages of healing.
[6] On March 26, 2014, Worthington was charged with class B felony aggravated
battery, class B felony neglect of a dependent resulting in serious bodily injury,
and class D felony battery. On July 9, 2015, Worthington pleaded guilty to
neglect of a dependent resulting in serious bodily injury as a class C felony in
exchange for the dismissal of the other charges. The plea agreement left
sentencing open to the trial court’s discretion. The stipulated factual basis of
Worthington’s guilty plea provided that Worthington had care of Z.P.
sometime between December 2013 and March 2014; that Worthington
knowingly or intentionally placed Z.P. in a situation that endangered her life or
health, resulting in bodily injuries to Z.P.’s head, arms, and legs; and that
Worthington failed to seek medical attention for Z.P. Tr. p. 10.
[7] At Worthington’s September 23, 2015, sentencing hearing, Warren testified
about her continued concern for Z.P.’s health. Warren could not identify any
instance in which she believed Worthington had harmed Z.P.; when questioned
about how the infant might have been injured, Warren testified that she once
saw Worthington holding Z.P. and “stretching” Z.P.’s arms back. Z.P. was
crying as he did this. Tr. p. 26. According to Warren, when she asked what he
was doing, Worthington replied that he was stretching Z.P. out of concern that
Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016 Page 3 of 7 she was experiencing growing pains. Worthington did not object to this
testimony.
[8] Worthington then cross-examined Warren, asking her about Poynter. Warren
testified that Poynter had been charged with domestic battery in the past. The
State objected to further testimony regarding Poynter’s prior history with
Warren, arguing that it was irrelevant for the purpose of sentencing
Worthington on the neglect of a dependent conviction. The trial court
sustained the objection, stating that “this is the sentencing of Dereck
Worthington, I’m not going to try somebody else on this case.” Tr. p. 46.
[9] In sentencing Worthington, the trial court found Z.P.’s severe injuries and
Worthington’s criminal history to be aggravating circumstances. While it
found Worthington’s remorse to be a mitigating factor, the trial court held that
the aggravating factors outweighed the mitigating factor and sentenced
Worthington to eight years in the Department of Correction. Worthington now
appeals.
Discussion and Decision
[10] Worthington raises two arguments on appeal: first, that the State should not
have been permitted to introduce Warren’s testimony regarding the incident in
which she saw him “stretching” Z.P.; second, that, even if such evidence was
properly admitted, he should have been permitted to introduce evidence of
Poynter’s past domestic battery conviction.
Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016 Page 4 of 7 [11] When reviewing a trial court’s sentencing order, we may reverse only 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.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on
reh’g, 875 N.E. 2d 218. It is well established that when a trial court makes a
sentencing decision, the rules of evidence, other than those concerning matters
of privilege, do not apply. E.g., White v. State, 756 N.E.2d 1057, 1061 (Ind. Ct.
App. 2001); see also Ind. Evidence Rule 101(d)(2) (providing that the Rules of
Evidence do not apply to sentencing proceedings).
[12] Worthington argues that the trial court should not have permitted Warren to
testify about the occasion in which she saw him “stretching” Z.P., maintaining
that this evidence relates to the battery charges that had been dismissed.
Initially, we observe that Worthington did not object to this testimony.
Consequently, he has waived this argument.
[13] Waiver notwithstanding, we note that this evidence was directly relevant to the
charge of neglect of a child resulting in serious bodily injury, as it was stipulated
in the plea agreement that Worthington placed Z.P. in a situation that
endangered her health, resulting in bodily injuries to the infant. The State is
entitled to present evidence regarding the nature and circumstances of the crime
for which the defendant is being sentenced, and this evidence falls squarely
within that category of information.
Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016 Page 5 of 7 [14] Next, Worthington contends that, even if Warren’s testimony was properly
admitted, he should have been able to cross-examine her regarding the incident
that led to Poynter’s domestic battery charge. It is well established that
evidence which a defendant seeks to put forward at sentencing “must be
relevant to the consideration and would not include facts concerning a
defendant’s innocence which is the focus of the trial process.” Rabadi v. State,
541 N.E.2d 271, 277 (Ind. 1989).
[15] We agree with the trial court that evidence regarding an alleged prior battery by
Poynter on Warren was irrelevant for the purpose of sentencing Worthington
on neglect. Worthington had already pleaded guilty to neglect of a dependent,
admitting that he cared for Z.P. for four months, endangered her life or health,
resulting in bodily injuries, and failed to seek medical attention when Z.P.
needed it. Whether or not Poynter had battered Warren in the past is entirely
irrelevant to the trial court’s sentencing decision with respect to Worthington.
Moreover, because innocence is not the focus of a sentencing hearing, it was
improper for Worthington to bring in Poynter’s domestic battery charge as a
way to prove his own innocence as to Z.P.’s injuries.1 Therefore, we find no
error on this basis.
1 Worthington argues that the State presented evidence regarding the battery charges when it introduced Warren’s testimony regarding the “stretching” incident and that, consequently, he should have been permitted to introduce evidence rebutting the alleged contention that he had battered Z.P. As noted above, however, this evidence related to the nature and circumstances of the neglect charge and was not introduced to establish that Worthington had battered the infant. Therefore, this argument is unavailing.
Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016 Page 6 of 7 [16] The judgment of the trial court is affirmed.
May, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016 Page 7 of 7