Moyes v. State

Docket Number23A-CR-704
Decision Date22 December 2023
PartiesDana M. Moyes, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

ATTORNEY FOR APPELLANT Anne Medlin Lowe Fugate Gangstad Lowe LLC Carmel, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Nicole D. Wiggins Deputy Attorney General Indianapolis, Indiana

MEMORANDUM DECISION

BAILEY, JUDGE.

Case Summary

[¶ 1] Dana Moyes appeals her convictions and corresponding sentence for two counts of neglect of a dependent, as Level 6 felonies1] We affirm.

Issues

[¶ 2] Moyes presents four issues for our review:

1. Whether the trial court abused its discretion when it excluded certain evidence.
2. Whether the State presented sufficient evidence to support her convictions.
3. Whether the court abused its discretion when it sentenced her.
4. Whether her sentence is inappropriate in light of the nature of the offenses and her character.
Facts and Procedural History

[¶ 3] Moyes has eleven children, eight of whom resided with her. Those eight children are: G.G., V.G., L.F., D.M S.M., K.M., N.M, and I.B. See Ex. At 4. In addition, for several months in 2019, Moyes babysat a child, D.K., overnight during the week while D.K.'s mother, Cynthia Parker, worked. Parker would often drop D.K. off at Moyes' house at approximately 6:30 p.m. and would not see him again until after school the next day. It was Parker's "understanding" that "the older kids . . . would be walking with [D.K.] to the bus stop[.]" Tr. Vol. 1 at 200. At that time, Moyes and her children lived in a house in the small town of Alford.

[¶ 4] On the morning of March 5, 2019, seven-year-old D.K. walked alone from Moyes' house to his bus stop, which was a five- to six-minute walk away. At the time he left, Moyes was still asleep, but some of Moyes' children were awake. D.K. was "sure" he did not see Moyes that morning. Id. at 189. It was cold, and D.K. was wearing a "jacket," but no hat or gloves. Id. at 155. D.K. made it to the bus stop and waited, but the bus did not come. D.K. believed he had missed the bus, so he returned to Moyes' house. When he arrived back at the house, V.G. told D.K. to go back to the bus stop and wait for "five[,] ten minutes" in order to be sure he had missed the bus. Id. D.K. then walked back toward the bus stop.

[¶ 5] Sophomore Lilly Willis was driving to school when she saw D.K. walking alone by the side of the road. D.K.'s face and nose were "a little red," and it looked like he had been crying. Id. at 128. Willis stopped her car and offered D.K. a ride. D.K. agreed, and Willis drove D.K. to his school. Parker, who learned of the incident later that day, was "surprised" to learn "that D.K. was walking to the bus stop by himself." Id. at 201.

[¶ 6] The Indiana Department of Child Services ("DCS") was informed of the incident. On March 8, DCS Family Case Manager ("FCM") Raejean Foster spoke with Moyes. Moyes provided FCM Foster with two different explanations for where she had been when D.K. left for school alone. Moyes initially told FCM Foster that she had been in the shower, but she also told FCM Foster that she "was driving [V.G.] to school." Id. at 138. Moyes also reported to FCM Foster that D.K. had been wearing "a thick coat, mittens[,] and a hat" on the morning of March 5. Id. at 139. Moyes further stated that D.K. walked to the bus stop alone about "fifty percent of the time" and that either she or G.G. walked D.K. the other times. Id. at 141. DCS and Moyes then entered into a safety plan regarding D.K. Pursuant to the safety plan, Moyes agreed to ensure D.K. "gets to the bus stop and on the bus" and that "there is an age-appropriate person walking [D.K.] to the bus stop daily." Ex. at 6.

[¶ 7] At some point thereafter, Moyes and the children moved to a house in Petersburg. The house was near a "coal yard" and a highway that had "quite a bit of traffic," including semis and "coal truck traffic[.]" Tr. Vol. 1 at 236. On November 18, 2020, four-year-old K.M. got out of the house while under the care of G.G. and was found by a neighbor, who returned K.M. to his home with the help of a neighboring police officer. Following that incident, FCM Foster responded to Moyes' home. When FCM Foster arrived, there were no adults present, but G.G. let her into the home and called Moyes. FCM Foster learned that Moyes was on the way home from the hospital after having had a scheduled C-section to deliver I.B. Moyes arrived shortly thereafter.

[¶ 8] FCM Foster learned that G.G. and V.G. were home and watching the kids when K.M. got out. FCM Foster also observed that the house was equipped with a "doggie door" that was large enough for K.M. to use. Tr. Vol. 2 at 14. Moyes admitted to FCM Foster that K.M. "could get through the doggie door" and that he used it "often[.]" Id. at 15, 18. FCM Foster also learned that K.M. was able to unlock the front door and "walk out." Id. FCM Foster and Moyes "discuss[ed] the coal truck hazards and the traffic hazards as it relates to the smaller children." Id. at 17. And Moyes "acknowledge[d] that she understood that [it] was dangerous for the kids." Id. at 18.

[¶ 9] As a result of the incident, DCS and Moyes entered into another safety plan. In that safety plan, Moyes agreed that "her children are her responsibility" and that "their safety is crucial." Ex. at 22. Moyes also agreed to "place a lock on the outside doors" and on the "doggie door." Id. And Moyes agreed that "the younger children cannot be outside without an adult" or G.G. present. Id. FCM Foster returned to the home on December 16 and saw that Moyes had installed a chain lock "up high" for the exterior door as well as a board in front of the doggie door. Id. at 31.

[¶ 10] A few months later, on March 30, 2021, K.M. again got out of the house unsupervised and was found by another neighbor. Following that incident, FCM Stephanie Gilmour responded to Moyes' house. FCM Gilmour observed the "same hazards that were there from November." Id. at 78-79. FCM Gilmour learned that there was no adult present and that Moyes was in Vincennes, so she spoke to Moyes on the phone. Either during that phone conversation or during a subsequent in-person meeting at the DCS office, Moyes disclosed to FCM Gilmour that she had "taken the lock off the doggie door[.]" Id. at 80. After that incident, DCS and Moyes entered into an additional safety plan, whereby Moyes agreed that G.G. "is not the babysitter/caregiver for" K.M. and that "this is the second time since November 2020 [K.M.] has gotten out of the home while in the care of" G.G. Ex. at 24.

[¶ 11] On June 24, 2022, the State charged Moyes with multiple counts of neglect of a dependent, as Level 6 felonies2] In relevant part, one count alleged that Moyes had failed to adequately supervise K.M. on March 30, 2021, and one count alleged that Moyes had endangered D.K. when she allowed him to walk to the bus stop alone on March 5, 2019. On June 29, a representative from DCS called Moyes and informed her that the "police were looking for her at her house." Tr. Vol. 2 at 189. After she had learned about the charges against her, Moyes went to Virginia. Moyes returned to Indiana several days later, and, on July 5, FCM Foster located Moyes at a hospital in Vincennes. Moyes then turned herself in to the police.

[¶ 12] On September 13, DCS terminated FCM Gilmour's employment based on allegations of perjury related to testimony she had given during an earlier deposition in the instant case. On February 2, 2023, the State filed a motion in limine seeking to prohibit Moyes from questioning Gilmour about her termination from DCS. The State alleged that any discussion about the alleged perjury would be "offered for no permissible purpose" and that it would be a "profound waste of the court's time[.]" Appellant's App. Vol. 2 at 112.

[¶ 13] The court held a multi-day jury trial. Prior to the start of the second day of trial, the parties discussed the State's motion in limine. Moyes objected to the motion on the ground that "the fact that Ms. Gilmour was fired, even if only allegedly for actions relating to this case, is simply relevant information" that goes toward her bias. Tr. Vol. 1 at 77. The State responded and asserted that the allegations surrounding Gilmour's termination from DCS, for which she had an appeal pending, was a "waste of time" and had "nothing to do with whether or not Ms. Gilmour is telling the truth about the facts in this case." Id. at 78. The court took the matter under advisement.

[¶ 14] During the trial, V.G. testified that D.K. would walk alone to the bus stop "[p]retty much every time." Id. at 157. And he testified that it was usually his or G.G.'s responsibility to get D.K. to the bus stop. The State then called Gilmour as a witness. Moyes again objected to the State's motion in limine.

The court determined that Moyes could question Gilmour about her "prior employment and current employment," but not ask questions about her termination from DCS because "it would not be appropriate." Id. at 164. The court also concluded that "the probative value is clearly outweighed here by any prejudice." Id. Gilmour then testified that she had been a family case manager on March 5, 2019, and that it had been "seven degrees outside" when Willis picked D.K. up from the side of the road. Id. at 167.

[¶ 15] D.K. testified that he "[n]ormally went by himself" to the bus...

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