Smith v. State
| Citation | 718 N.E.2d 794 |
| Decision Date | 29 October 1999 |
| Docket Number | No. 55A01-9811-CR-407.,55A01-9811-CR-407. |
| Parties | Trina SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Steven C. Litz, Monrovia, Indiana, Attorney for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, Thomas D. Perkins, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
Appellant-defendant Trina Smith appeals her conviction and sentence on two counts of Neglect of a Dependent Resulting in Serious Bodily Injury,1 as a Class B felony, and one count of Neglect of a Dependent,2 as a Class D felony. Smith raises multiple issues and sub-issues, which we restate as five. Smith first asserts that the trial court erred in allowing the State to amend the charges to add eight new counts of neglect after it had dismissed a single count of neglect covering Smith's child's lifetime. Second, Smith argues that the court erred in using the existence of the severed charges as an aggravating factor and in failing to merge the neglect convictions, resulting in the maximum possible sentence of thirty-three years. Third, Smith contends that the trial court should have granted a resentencing hearing after allegedly admitting to bias against her. Fourth, Smith asserts multiple errors in the trial court's evidentiary rulings, which we will consider individually below. Finally, Smith argues that the evidence is insufficient to convict her of neglect of a dependent.
The facts most favorable to the verdict reveal that B.N.S. was born to Smith on July 11, 1997. On April 29, 1998, when B.N.S. was nine months old, Morgan County Sheriff Deputy Brian Ringer was sent to Smith's apartment to investigate the death of B.N.S. When he arrived, Deputy Ringer noted that B.N.S.'s body was cool to the touch and that there was noticeable bruising on her face, head, hands, forearms, and over the rest of her body. B.N.S.'s cause of death, according to the coroner's report, was a subdural hematoma secondary to a skull fracture that occurred approximately forty-eight hours prior to her death.
Smith claimed that her three-year-old son K.C. had awakened her on April 29, 1998 because B.N.S. had been crying. Smith also told Deputy Ringer that her son had tried to pick up B.N.S. but had dropped her and B.N.S. then stopped breathing. Smith stated that she then called 911. Prior to B.N.S.'s death, Smith told a neighbor that K.C. had reported to her that her co-habiting boyfriend, Tim McSchooler, had spanked B.N.S. and thrown her against the wall.
The coroner's report revealed that, in addition to the injury which caused her death, B.N.S. had suffered fractures to both her right and left shins sometime between two weeks and two months prior to her death, a right hand fracture a week to a month prior to her death, and also a torn trachea, a lacerated glottis, and a torn spleen. In addition, she was malnourished.
On April 30, 1998, the State charged Smith with Murder4 and one count of Neglect of a Dependent Resulting in Serious Bodily Injury, covering the entire length of B.N.S.'s life. Smith moved to dismiss the latter charge because it did not state the offense with sufficient certainty to allow her to present a defense, and the trial court granted Smith's motion. The court subsequently permitted the State to amend the information to include eight separate counts of neglect. Smith requested that all eight neglect counts be dismissed or, alternatively, that they be severed from the murder charge. The trial court permitted Smith to make additional objections to the amended information and ultimately allowed five counts to be severed because they were chronologically removed from the three remaining neglect counts.5 Thus, Smith was tried on one count of murder and the following counts: first, that Smith had the care of B.N.S., a dependent, and knowingly deprived her of necessary support by failing to seek medical attention which resulted in serious bodily injury, namely death; second, that Smith knowingly placed B.N.S. in a situation which was dangerous to her life or health and which resulted in a skull fracture; and third that Smith had failed to provide proper nourishment for B.N.S. In addition to the motion to sever charges, Smith filed a series of pre-trial motions concerning evidentiary matters. In response, the trial court refused to admit certain statements of Tim McSchooler, allowed Smith to redact certain portions of the statement she gave to police on the day of B.N.S.'s death, and granted a gag order directing the parties not to discuss counsel's theory that McSchooler was the murderer. An extensive hearing was held pertaining to evidence of injuries which B.N.S. suffered and which formed the basis for the severed counts, after which the court held that such evidence was admissible, not for showing Smith's propensity to commit the crime, but to demonstrate "intent, knowledge, identity and absence of mistake or accident on the part of [Smith]." Record at 276.
At Smith's jury trial, which commenced on July 17, 1998, the trial court denied Smith's renewed motion for severance of all the neglect charges and Smith's request to present some twenty-one witnesses who would testify regarding McSchooler's prior verbal and physical expressions of hostility toward B.N.S. On July 30, 1998, the jury acquitted Smith of murder and convicted her of the three neglect charges. Counsel for Smith instructed Smith's probation officer not to talk to Smith about the case, after which the trial court directed the officer to attempt to speak to Smith. Smith refused any communication. Based on the trial court's instruction to the probation officer, Smith filed a motion to recuse, which the trial court denied.
Smith's sentencing hearing was held on August 27, 1998. Smith renewed her motion for recusal, which the court denied. After hearing evidence on sentencing, the trial court addressed Smith:
R. at 2227-28. The court went on to note as mitigating factors that Smith had no prior criminal convictions or arrests, that Smith was young, and that, because she has a dependent, incarceration would present a hardship. The court noted as aggravating factors that the victim, who was under one year old, was mentally and physically infirm; that Smith needed correctional and rehabilitative treatment; and that she lacked remorse. Additionally, the trial court considered as an aggravating factor the other injuries to B.N.S. which formed the basis for the severed charges, "only in that those injuries were so severe that I do not ... I cannot comprehend how you, as a mother, did not understand that the child needed to see a doctor for multiple injuries ... that child had to have given you indications." R. at 2230.
The trial court sentenced Smith to a twenty-year sentence for each of the two Class B felonies, to run consecutively. The court then acknowledged the limitation imposed on the consecutive sentences by I.C. § 35-50-1-2(c), which provides in relevant part that:
the court shall determine whether terms of imprisonment shall be served concurrently or consecutively.... However,... the total of the consecutive terms of imprisonment ... to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the presumptive sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.
The presumptive sentence for a Class A felony, one class higher than Smith's Class B felony convictions, is thirty years. I.C. § 35-50-2-4. Therefore, the trial court imposed the maximum sentence possible for the two Class B felonies of thirty years. It then ordered Smith's three-year sentence for the Class D felony to run consecutively to the other two for a total of thirty-three years. Smith now appeals.
Smith first contends that the trial court erred in allowing the amendment of the information. Specifically, she argues that the State...
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