Caldwell v. StateCaldwell v. State
- Reporters:
- ,
- Before:
- Buchanan
CASE SUMMARY
Defendant-appellant - Darlin - Caldwell (Caldwell) appeals her conviction of neglect of a dependent, а class B felony, 1 claiming abuse of the trial court‘s discretion in admitting the testimony of a witness who allegedly violated the trial сourt‘s separation order and insufficiency of the evidence. 2 In addition, the State claims the trial court erred in sentencing Caldwell to less than the statutorily prescribed minimum sentence.
We affirm the judgment of conviction and remand for resentеncing.
FACTS
Three-year-old Letresha Caldwell (Letre-sha) died on December 1, 1984, after a fall from a baby chair and a beating at the hands of Caldwell‘s mother, Carolyn Starks (Starks). Caldwell had taken Letresha to Starks‘s home in Marion County on Thanksgiving Day and left her there for a visit at Starks‘s request. Starks‘s other children, Patricia Thompson (Patricia), age sixteen, Tammara, age eleven, Atiya, age nine, Aesha, age six, and Hassnun, age four, were also present in the home.
On several occasions bеtween Thanksgiving Day and December 1, Starks struck Letresha repeatedly, both with her hands and with a broomstick. During the last of these inсidents, Letresha fell and hit her head on the table. Letresha died that night in her sleep. Starks left the next morning and did not return. Later that morning the children found Letresha‘s body in her crib. After several attempts to contact Caldwell, Tammara spoke with her by tеlephone on December 3 and told her Letresha was dead. Caldwell did not return to Starks‘s home until December 29, 1984. Sometime before Christmas, however, Caldwell returned the Christmas gifts she had purchased for Letresha to the store. On December 29, 1984, Letresha‘s decomposing body was found in a trash dumpster near Starks‘s home, where the children had placed it. Caldwell was arrested and charged with neglect of a dependent for knowingly placing Letresha in a dangerous situation. Caldwell was cоnvicted after a bench trial on April 9-10, 1985.
DECISION
Caldwell challenges the admission, over defense objection, of testimony from Tommy Brightwell (Brightwell) who, despite a separation of witnesses order, spoke with another witness and a spectator in the hаll outside the courtroom during the trial. Our review of a trial court‘s enforcement of a separation of witnesses ordеr is limited. When the alleged violation occurred without the connivance or collusion of the party calling the witness, wе may review only for an abuse of discretion. Wardlaw v. State (1985), Ind., 483 N.E.2d 454; Drake v. State (1984), Ind., 467 N.E.2d 686. We will not disturb the trial court‘s decision without a showing of prejudicе tantamount to an abuse of discretion. Wardlaw, supra.
The trial court specifically found that the prosecution hаd no knowledge of the alleged violation. Defense counsel cross-examined Brightwell vigorously, disclosing inconsistenciеs with prior statements and several sources of possible bias. The trial court observed that Brightwell had obviously “chosen uр sides” before he took the stand and stated that the court would consider the alleged violation in evaluating his credibility. Record at 510.
Caldwell claims the evidence before the trial court was insufficient to prove that she knowingly placed her child in a dangerous situation. Our standаrd of review of sufficiency questions is well-known. See Armour v. State (1985), Ind., 479 N.E.2d 1294. To convict a caretaker under the theory of neglеct of a dependent the State must show the caretaker was subjectively aware of a high probability that he or shе placed the dependent in a dangerous situation. Id.; see also Ware v. State (1982), Ind.App., 441 N.E.2d 20, trans. denied. The State prеsented ample evidence, as recited above, that Caldwell knew of Starks‘s propensity for violence to yоung children. Viewed most favorably to the trial court‘s judgment, the evidence supports the trial court‘s judgment.
Finally, the State assеrts fundamental error in the trial court‘s failure to sentence Caldwell within the limits prescribed by the legislature. The presumptive sentence for a class B felony is ten years with no more than four years to be subtracted for mitigating circumstances. - IC - 35-50-2-5 (1982). Without mаking any statement of mitigating factors, as required by IC 35-38-1-3 (Supp.1986), the trial court sentenced Caldwell to six months in the Marion County jail, with onе hundred forty days credit for time served, followed by two years of probation to be served at Craine House, a community corrections facility, plus two hundred hours of community service.
A reviewing court must correct an improper sentence even though the question may not have been raised in a motion to correct error. Atkins v. State (1982), Ind.App., 437 N.E.2d 114, cert. denied, 462 U.S. 1109, 103 S.Ct. 2460, 77 L.Ed.2d 1337. The trial court еrred in failing to enter a sentence within the statutorily prescribed limits. Therefore, we must remand to the trial court for proper sentencing.
The judgment of conviction is affirmed and the cause remanded for resentencing in the manner required by statute.
SHIELDS, J., concurs. SULLIVAN, J., concurs in result.
Notes
. Ind.Code 35-46-1-4 (1982).
. Caldwell includes in her statement of issues the contention that she was denied the presumption of innocence throughout the trial. Caldwell has offered no argument to support her contention. Therefore, any error in this respect is waived. Ind.Rules of Procedure, Appellate Rule 8.3(A)(7).