*1 LAMPHIER, Jeffery Appellant, A. Indiana, Appellee.
STATE of
No. 34S00-8711-CR-1105.
Supreme Court Indiana. 23, 1989.
Feb. Otterman, Deputy De-
Merrill W. Public fender, Kokomo, appellant. Pearson, Atty. Mary E. Linley Gen. and Gen., Dreyer, Atty. Indianapolis, Deputy appellee. GIVAN, Justice.
juryA trial in a conviction Dependent Re- Neglect of sulting Bodily Injury, B Serious a Class felony, for which he received sentence (10) (10) years years enhanced ten ten aggravating by reason circumstances (20) twenty years; a total Involuntary Manslaughter, conviction C for which received Class (5) en- presumptive years, sentence of five (3) years aggravating hanced three circumstances, served the sentences consecutively. Moore, Appellant, facts Tim are: Dowler, Causey, three
Doyle Terry and his case, age children, Lucas, the victim this months, Levi, three, age seventeen six, locat- Larry, age resided house all Moore, Kokomo, Appellant, Indiana. ed Dowler, employed sporad- Causey Although Causey heavily. drank ically and his wife and had sole separated from boys, frequent- custody of his three leaving his away from children ly home living men care of the other relatives of the Nearby residents and boys undern- three noticed ourished, unkempt and seen Neighbors had also scrapes on them. boys. hit and mistreat the men of the home testified The other residents appellant strike they had seen *2 700 situation in the case of Appellant would slam the was
decedent. throwing baby him Ind., child into his bed. (1984), N.E.2d v. State 936. In form of engaged He television- also case, neglect that the showed the evidence type he wrestling in which would stand peri- the continued a of had over into the jump the and air and land bed od of months and that death from decedent, striking infant beside the the injury during a force which occurred blunt upper arm and elbow. He would his the last of the victim’s life. two weeks sill, put also on a window place the child his such a This Court held that under factual rod, and the curtain then let the hands on jeopardy circumstance it not double to was long- he baby hang in midair until could no neglect the of convict Beans of both er he would to the hold on. When fall is dependent and Such the floor, appellant discipline then would in situation the case at bar. evidence autopsy showed that the child had An clearly distinguishable establishes two and body, his that extensive over entire separate did not crimes. The trial court err malnourished, dehydrated he and and was passing sentence on both convictions. that cause of the the immediate death was injury to his infliction of a blunt-force abdo- Appellant is claims there insuffi ruptured an intestine which support finding the cient evidence to that peritonitis. the The doctor testified that charges guilty he the of either of injuries consistent with child abuse were so, doing he In was convicted. he roughhouse not consistent with recognizes principle of the established law playing. facts, reweigh the that this Court will not argues the Appellant verdict Ind., citing (1985), v. N.E. Manns State bodily guilty neglect However, proceeds argue 2d 918. to injury contrary Appellant to law. was in this that the who testified case witnesses legislature did not the claims the intend credibility their are so devoid of that testi encompass neglect to child mony should the of his not be basis convic which results in the death points the tion. He to the fact that other Ind., child. He cites Hall v. State child; men in the the house also abused 433, claiming reasoning that the N.E.2d thus, testimony he maintains their that it precludes that case conviction for greatest inflicted the was who neglect resulting bodily injury in serious injuries not be believed. should bodily injury results in when the remedy that for the lies the exclusive State However, matters were these statutes. with the homicide jury for their determi- before the However, clearly case is distin- the Hall jury’s prerogative nation. the to Hall, guishable from the case at bar. In weigh determine this and to evidence deceased reli- parents of the child had truth of the situation. Graves v. State gious mandating per- ill convictions that an (1984),Ind., jury 190. The son not receive medical attention testimony right to to the and to listen only healing attempted should be but that any part reject disbelieve and thereof. parents pro- to through prayer. failed (1984), Ind., McBrady N.E.2d State during the child's vide medical treatment ample 719. There more than evidence in days. five The child’s lasted illness which verdict of support this record to continuing pattern from the death resulted jury- THE TRIAL IS AFFIRMED. COURT bar, although
In case at the child was abuse, subjected period to a testimony that immediate PIVARNIK, J., concurs. ruptured intestine cause of death was DICKSON, J., in result with concurs blunt-object from a severe
which resulted
opinion.
separate
A nearly
blow the abdomen.
identical
to
prevail
if
did not
on
SHEPARD, C.J.,
Even
concurs
construction,
statutory
separate opinion which
the issue
dissents with
J.,
prevail
DeBRULER,
ultimately
on his double
concurs.
ardy
claim. The
treats this claim
DICKSON, Justice, concurring in result.
though it
as the statu
same
infer
I find it unreasonable
it,
tory
rejects
issue and
as
construction
cre-
legislature intended
serting that the facts in this case are near
*3
death deserves
risk of
ates a substantial
ly identical to those Bean v. State
that if
a class B
but
punishment as
Ind.,
are not Those crimes are dies. victim
which the Code sections of the by the covered
instead Accordingly, I find
on homicide. reversing his conviction