Diamond Miller v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 2, 2017
• Docket: 49A02-1610-CR-2364
• 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 court except for the purpose of establishing May 02 2017, 6:46 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Frederick Vaiana Curtis T. Hill, Jr. Voyles Zahn & Paul Attorney General of Indiana Indianapolis, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Diamond Miller, May 2, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1610-CR-2364 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark D. Stoner, Appellee-Plaintiff Judge Trial Court Cause No. 49G06-1411-F1-52295

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2364 | May 2, 2017 Page 1 of 8 [1] Diamond Miller appeals her conviction for Level 1 Felony Neglect of a

Dependent Resulting in Death,1 arguing that the evidence is insufficient.

Finding the evidence sufficient, we affirm.

Facts [2] Miller’s son, E.P., was born on February 5, 2013. In December 2013, Miller

and E.P. moved in with Miller’s boyfriend, Frank Larkins. Miller’s father,

William Miller, regularly helped with childcare while Miller was at work.

Between December 2013 and October 2014, William frequently observed

bruises on E.P.’s legs, hips, and face.

[3] On October 24, 2014, Miller took E.P. and her other child to William so that he

could babysit while she worked over the weekend. During the weekend, E.P.

ate normally, played with other children, and showed no signs of illness. On

October 27, 2014, around 4:30 p.m., Miller and Larkins retrieved E.P. and his

sibling. William observed Larkins look back at E.P. in the backseat and E.P.

was visibly “spooked” and looked “like he seen [sic] a ghost.” Tr. Vol. III p.

18-19. Larkins left with E.P. in his vehicle while William took Miller to work.

Miller believed that E.P. was fine when she left him with Larkins for the day.

[4] Miller returned home that evening at approximately 10:00 p.m. She called

William around 11:00 p.m. to ask what E.P. had eaten over the weekend,

1 Ind. Code § 35-46-1-4.

Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2364 | May 2, 2017 Page 2 of 8 telling William that E.P. had been complaining of stomach pain and did not

want to eat.

[5] E.P.’s symptoms worsened throughout the night of October 27 and the day of

October 28. He had severe stomach pain and vomited repeatedly; he could not

keep down any liquids. E.P. was in such pain that he attempted to avoid any

type of movement and could not sleep because of the pain. Miller heard him

groaning as he attempted to sleep; she fell asleep to the sound of her child

moaning in pain. Miller did not seek any medical treatment, hoping the

symptoms would subside by Wednesday.

[6] Around 7:30 a.m. the morning of Wednesday, October 29, Miller awoke to find

E.P. cold and limp. Emergency officials were called and a paramedic arrived to

find Larkins administering chest compressions on the child. The paramedic

discovered that E.P.’s body was cold and stiff, consistent with rigor mortis; the

child was dead. The paramedic testified that the extent of the child’s rigor

mortis led him to believe that E.P. had been dead for an extended period of

time.

[7] Dr. Thomas Sozio performed an autopsy on E.P.’s body. He noticed that

E.P.’s left cheek was swollen, he had a small abrasion around his chin, a bruise

on his right forearm, and a scratch on his chest. When Dr. Sozio conducted his

internal examination, he discovered that E.P.’s duodenum—the passage tube

leading from his stomach to his small intestine—had been severed. E.P.’s

pancreas had also suffered damage. As a result of the severing of the

Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2364 | May 2, 2017 Page 3 of 8 duodenum, bacteria from the intestines leaked into E.P.’s abdominal cavity,

causing an infection called peritonitis. E.P.’s abdominal lymph nodes were

enlarged and Dr. Sozio found blood in his abdominal cavity. The infection

eventually turned into sepsis, causing the toddler’s death.

[8] Dr. Sozio and Dr. Tara Harris—a board certified child abuse pediatrician for

Riley Hospital for Children—testified as to the cause of E.P.’s internal injuries.

Dr. Sozio stated that this type of injury is consistent with those suffered by

patients in high speed car accidents. Dr. Harris testified that a “really high

force trauma” to E.P.’s abdomen pushed his internal organs all the way back to

his spinal vertebrae, lacerating the connection between E.P.’s stomach and

intestines. Tr. Vol. II p. 84-85. Dr. Harris stated that this injury could not have

been caused by E.P. falling or engaging in normal toddler activities.

[9] Dr. Harris testified regarding the likely progression of E.P.’s symptoms after

suffering this trauma. Immediately after the impact, E.P. would have been

crying and indicating pain in his abdomen. The injury would have caused

increasing abdominal pain that would be amplified with any movement,

causing the child to try to be still to avoid any movement. E.P. would not have

been able to digest any substances, forcing vomiting, which would have caused

intensifying pain. The building infection would have caused his stomach to

increasingly bloat until it was very tense. Both Dr. Harris and Dr. Sozio

testified that if E.P. had received timely medical care, he could have had

surgery to repair his injuries and treat the infection. Dr. Harris testified that

E.P. should have received medical attention because his symptoms kept

Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2364 | May 2, 2017 Page 4 of 8 “getting worse, not better, that he was very thirsty but then couldn’t keep

anything down and progressively having abdominal distention, moaning,

becoming less engaged.” Tr. Vol. III p. 129-30.

[10] On November 20, 2014, the State charged Miller with two counts of Level 1

felony neglect of a dependent resulting in death and two counts of Level 5

felony neglect of a dependent resulting in serious bodily injury. The State later

dismissed the two Level 5 felony charges. Following a jury trial, the jury found

Miller guilty of one of the Level 1 felony charges and not guilty of the other.

On September 23, 2016, the trial court sentenced Miller to twenty years

imprisonment, with fifteen years to be served in the Department of Correction

and five years to be served on work release. Miller now appeals.

Discussion and Decision [11] Miller’s sole argument on appeal is that the evidence is insufficient to support

the conviction. When reviewing a claim of insufficient evidence, we will

consider only the evidence and reasonable inferences that support the

conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm

if, based on the evidence and inferences, a reasonable jury could have found

the defendant guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d

1003, 1005 (Ind. 2009).

[12] To convict Miller of Level 1 felony neglect of a dependent resulting in death,

the State was required to prove beyond a reasonable doubt that she knowingly

or intentionally placed E.P. in a situation that endangered his life or health,

Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2364 | May 2, 2017 Page 5 of 8 resulting in E.P.’s death. I.C. §§ 35-46-1-4(a), -4(b)(3). The jury found that

Miller’s failure to seek medical care for E.P. endangered his life and caused his

death. Miller contends that the evidence in the record does not establish that

she acted knowingly. In the context of a neglect conviction resulting from the

alleged failure to provide timely medical care, it has been established that

“[w]hen there are symptoms from which the average layperson would have

detected a serious problem necessitating medical attention, it is reasonable for

the jury to infer that the defendant knowingly neglected the dependent.”

Mitchell v. State, 726 N.E.2d 1228, 1240 (Ind. 2000), abrogated on other grounds,

924 N.E.2d 643 (Ind. 2010).

[13] Miller insists that the evidence establishes only that her child was vomiting and

feeling unwell, and that a reasonable parent would not necessarily have sought

medical attention within the first twenty-four hours of such symptoms. The

record readily reveals symptoms far beyond vomiting, however:

 Monday night, E.P. did not want to eat, was complaining of stomach pain, and was lethargic and sleepy.  Throughout the day on Tuesday, E.P.’s pain worsened. He was thirsty and attempted to drink fluids, but vomited up everything he took in.  Dr. Harris testified that throughout this time, E.P.’s pain and discomfort would have escalated, causing him to cry and try to be as still as possible, which Miller testified that, in fact, he did.  Tuesday night, Miller observed that E.P. could not sleep because of his pain and heard him groaning as he remained motionless to control the pain. She fell asleep that night to the sound of his moans.  Dr. Harris testified that throughout this period, E.P.’s abdomen would have become more and more bloated until it was visibly bloated and very

Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2364 | May 2, 2017 Page 6 of 8 tense. That was, in fact, the state of his abdomen when the paramedic found the child dead on Wednesday morning.

We agree with Miller that, if vomiting had been E.P.’s only symptom, a

conviction for neglect would likely be unwarranted. Here, however, the jury

reasonably rejected that argument, concluding that E.P. had many other

troubling symptoms that would have caused an average layperson to seek

medical treatment for the child.

[14] In McMichael v. State, we considered a very similar situation. 471 N.E.2d 726,

728-29 (Ind. Ct. App. 1984). In that case, a toddler died after exhibiting

symptoms of peritonitis—the same infection E.P. suffered—and the defendant

had failed to secure medical treatment. The child in that case exhibited nearly

identical symptoms to E.P.—consistent vomiting, no desire to eat, swelling

abdomen, and extraordinary stomach pain. Id. at 729. This Court held that,

given those symptoms, the defendant “was aware of a high probability that by

failing to obtain medical care, he was placing [his child] in a dangerous

situation.” Id. at 731. Here, likewise, the jury reasonably reached the same

conclusion.

[15] Ultimately, whether a parent’s failure to provide medical care for an ailing child

constitutes criminal neglect is a question for the jury to answer. Lush v. State,

783 N.E.2d 1191, 1198 (Ind. Ct. App. 2003). We must simply determine

whether their answer was reasonable. Given the evidence in the record here

regarding E.P.’s serious symptoms, we find that a reasonable jury could have

Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2364 | May 2, 2017 Page 7 of 8 found that Miller knowingly placed E.P. in a situation that endangered his life,

resulting in his death. The evidence is sufficient.

[16] The judgment of the trial court is affirmed and remanded with instructions to

ensure that the records in both Miller’s and Larkins’s cases are complete. 2

Barnes, J., and Crone, J., concur.

2 The State explains that Larkins and Miller were tried jointly (Larkins faced charges of murder, aggravated battery, battery resulting in death to a person less than fourteen, and two counts of neglect of a dependent resulting in death). In Miller’s case, the trial court admitted statements made by both Miller and Larkins, but the exhibit volume contains only the recording of Larkins’s statement. In the exhibit volume where Miller’s statement should have been placed is a notation indicating that the disk containing the statement was placed in the record of Larkins’s appeal, which is currently pending. Counsel for the State was able to obtain both statements for this appeal, but suggested that we remand the two exhibit volumes—from both cases—to the trial court so that it can ensure that both statements are present in the records of both cases. We agree, and so remand.

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