*1 NYBO, Appellant-Defendant, Indiana, Appellee-Plaintiff. STATE
No. 71A03-0303-CR-81. Appeals Court Indiana.
Dec. *2 IN, General, Attorneys Indianapolis,
ney Appellee. for
OPINION
DARDEN, Judge. THE CASE
STATEMENT OF ("Lacie") her Nybo appeals A. Lacie neglect depen- for maximum sentence dent as a class C reverse and remand. We
ISSUE was
Whether Lacie tenced.
FACTS 2001, living with February Lacie was ("Michael"), husband, Nybo her Michael adopted and their thirteen-month-old nu- Bend. On daughter, Mikayla, South Michael occasions Laciе observed merous 23, February Mikayla. Specifically, hit on Mi- observed Michael strike Lacie appear kayla causing with a belt bruises At no time did Lacie her buttocks. on Mikay- stop Michael's abuse attempt 10, 2001, Then, Mikayla was la. on March Lacie observed when crying playpen throw her Mikayla up and pick Michael head Mikayla struсk her onto the floor. Para- gurgling. the floor and started on be- Lacie's home were called to medics breathing. Mikayla was not cause Hospital where to Memorial was taken after resuscitation pronounced dead was procedures failed. charged was
On March felony, D battery, a class with felony; a class C dependеnt, neglect of On with rourder. charged IN, Luber, Bend, At- South Anthony V. 29, 2001, a motion Lacie filed March torney Appellant. depen- neglect charge dismiss ambigu- alleging that Carter, of dent Attorney General Steve 30, 2001, April Stock, ous. On Indiana, Attor- Zachary Deputy J.
granted performed Lacie's motion and autopsy, allowed testified that he charge. State to amend the found opined skull fractures and that Mi- kayla injury died from blunt force to her On June the State amended head and brain that cccurred two to three battery Count to murder. Subse *3 hours before her death. Dr. Thomas quently, request the State filed a motion 1 Keucher, a neurosurgeon who reviewed ing immunity the trial court to use records, Mikayla's medical cоncluded to Lacie so that compelled she could be to that on the afternoon of her death she testify against hearing, Michael. After a shaken, she was then slammed granted the trial court the State's motion. something enough down onto hard to At Michael's Lacie testified that head, break the back of her that she Michael would beаt when he was immediately stopped breathing, may mood, grouchy in a and that she didn't seizure, have had a whether she did or yell intervene but would at Michael when a not, is irrelevant. However, beating occurred.2 she also tes developed She the brain swelling, Mikayla's tified that some of bruises were stayed in a coma acutely and died within Mikayla being frоm knocked into a coffee injury. minutes of the time of the by dog table or from other falls. Her 310). was often inconsistent with both (App. deposition and statement to po Subsequently, 18, 2002, on November addition, lice. In pho when shown fifteen the State amended neglect depen- tographs of bruises parts on various of Lacie, charge, allege dent to having Mikayla's body, Lacie testified that she care, custody, Mikayla, and control over didn't know where the bruises had come knowingly placed Mikayla in a situation examination, from. On direct she also endangering her "by failing pro- health to "nobody" stated that daughter. killed her tect her from battery by continued 387). (App. Nybo, and resulted in injury to the 67). ("Dr. Seall"), ..." dependent,. (App. Dr. On that same Richard Seall the at- tending emergency physician date, room plea agreement entered into a 10, 2001, testi- with the State. In plea agreement, treated on March fied that "multiple he noticed agreed bruises al- Lacie plead guilty to neglect of a 211). everywhere Mikayla. most on" (App. depеndent, as a felony, class C and the Dr. "injuries Seall also testified that the agreed State dismiss the murder [Mikayla] widespread, addition, were so that it charge. parties both agreed not consistent with an isolated event." to a recommendation that Lacie receive ("Dr. Dr. Joseph Prahlow presumptive years, sentence of four Prahlow"), thаt the suspended, sentence be pathologist and that forensic types immunity may granted "Three subsequent mitted him ain criminal exchange witness in testimony: for his Caito, prosecution." In re immunity: prohibits transactional (Ind.1984). 1182-1183 criminally State prosecuting the witness concerning transaction that to which 2. The record does not indicate on which dates testifies; immunity: the witnеss use where trial was held. the same testimony compelled of the witness presided trial court over Michael's trial and subsequent not be used at a proceed- criminal the trial court referred to Michael's trial at ing; immunity: derivative use where- Lacie's December hear- by any evidence obtained as a result of the ing. compelled tеstimony may witness' not be ad- factors; me to im- gating would bind period for a probation on placed Lacie be sentence; and, plea fur- pose suspended trial court took years. The of two ther, only year at impose under advisement bind me to two agreement Novem- 2002. On November probation. proposed held on The term facts, rejected the ignores only tence ber portion of The relevant agreement. aspects and rehabilitative punitive rejection order reads court's Accordingly, accept can not law. follows: Agreement.... the Plea pre- ... I have had the 72) original). (emphasis involving the defen- the case
side over
*4
and,
husband,
Nybo,
dant's
a
on December
Lacie
At
such,
that I would not
aware of facts
am
plea
and the
entered into another
State
any plea
have before me
normally
essentially
same
agreement containing
the
the
facts concern
Those
proceeding.
plea
court took Lacie's
terms. The trial
at Mi-
testimony by
personnel
medical
а sen-
under advisement and scheduled
history of the
the
Nybo's
chael
for December
tencing hearing
inflicted,
of this
testimony
injuries
court noted
sentencing hearing,
At the
trial, and the factual
at the
defendant
(1)
cireumstances
that Lacie
mitigating
on No-
by this defendant
provided
basis
(2)
history;
would "re-
had no criminal
that the
2002. I also note
vember
affirmatively
probation
or short-
spond
matter,
being to
that
entered
this
(8) would be "unlike-
imprisonment";
term
as a class C
Dependent,
of a
Neglect
(4)
crime";
gen-
ly
commit another
was
injury;,
felony, ignores the serious
(5)
remorseful;
pled guilty.
had
uinely
and
death,
upon
inflicted
namely
which was
145-6).
circum-
aggravating
As
bodily inju-
Nybo. This "serious
stances,
noted
that Lacie was
the court
elevating the
ry"
support
could
treatment
that
of "rehabilitative
need
B
I am also aware
to a class
by commitment to
provided
can be best
law, specifi-
current Indiana
that under
a "re-
facility";
imposing
that
penal
parties
to the
cally
provided
the case law
would de-
suspended sentence[ ]
duced or
31, 2002, that the
July
my
letter dated
offense";
of the
the seriousness
preciate
may not be sustaina-
charge of Murder
infant who
was an
and
That, however, is an issue which
ble.
infirm."
"mentally
physically
after
at trial and
only
can
be determined
the full
the State has had
addition,
sentencing court stated
all of its evidence.
present
testimony,
I
have to consider
in this matter
Agreement
The Plea
considered,
making
am
I
have
of
the defendant to be convicted
calls for
record,
Nybo's
Mrs.
part
this a
of the
C
Dependent,
as Class
Neglect
Nybo's trial.
testimony at Michael
only
liability
eriminal
felony (imposing
it was
situa-
And
do that because
bodily injury and not serious
causing
time where Mr.
point
at that
tion
and, further,
seeks to bind
bodily injury)
custody,
longer
no
Nybo was in
only
length
аs to the
the Court
nonetheless
Nybo. And
threat to Mrs.
By
also as to its nature.
sentence but
un-
Maciejezyk while
by Mr.
questioning
imposition
"pre-
of the
calling for the
oath,
pages will
and the
der
year sentence this Plea
sumptive" four
record,
677 to
pages
this
include for
accepted,
preclude
if
Agreement,
knowing
denied
again
and over
miti-
over
aggravating and
weighing
me from
Prahlow[,]
injuries
pathologist,]
Joseph
all of these
anything about
Keucher,
expert
and Thomas
wit-
sustained,
at all.
had no idea
she had
of the
ness who testified on behalf
page 618 of that
tran-
And then on
state....
said,
Maciejezyk
Mr.
"Who killed
seript
150-8).
your daughter?"
evidence,
considering the
the sen-
After
was, "Nobody."
your
And
answer
court fоund that
tencing
con-
speaks
I think that
that factor
outweighed
mitigators
cireumstances
trary,
contrary
or at least a little
to the
maximum
and sentenced Lacie to the
term
mitigating cireumstances that this was a
eight years.
relationship that
result of an abusive
of,
Nybo
get
couldn't
herself out
Ms.
DECISION
way
act in
she did
acted or failed to
appeals
Lacie
her maximum sentence.
Nybo.
was afraid of Michael
because she
First,
argues
a chance to set the
Because here was
considered
straight,
Nybo
where Mr.
could not
facts
under
any way.
at all in
have harmed her
And
immunity. Secondly,
argues
use
*5
yet
a little different version
we have
sentencing
court considered the testi-
trial at the
frоm his
end
trial,
in
mony of witnesses Michael's
which
that
factor basis and statements
are
she did not have the
to cross-
end of 2002. ...
made now towards the
Finally,
argues
examine.
that
objects
counsel
to the court's
[Lacie's
reasoning
trial court's
demonstrates that it
testimony.]
use of Lacie's
improperly relied on evidence Michael's
that,
I
I
understand
think it is still
trial, namely
the death of
and her
consider,
something that I can
and will
justify
dependent,
imposing
status as a
objection
it
consider over
as well.
maximum sentence.
guess finally,
probable
And I
and
Sentencing decisions are within
importantly,
most
I have to consider the
the trial court's discretion and will not be
facts and cireamstances of this offense.
an
сan
reversed unless
abuse of discretion
And
I'm on think [sic]
whether
ice or
State,
be
Flammer v.
786 N.E.2d
shown.
not, I don't know.
(Ind.Ct.App.2003),
293
trans. denied. This
plea actually
But as I said the
involves decision includes the determination of
February,
the conduct on the 24th of
whether to
presumptive penalties,
increase
happen
and the death did not
until
supported by single
whiсh can be
aggra
March 10th. But I don't think I can
Id;
State,
vating circumstance.
Bocko v.
just
simply
spot
treat
that date as
one
(Ind.Ct.App.2002),
1151
the miti-
aggravators outweigh
that
amine them.
it is well settled
The trial court's sen-
that a
gators." Id. at 296.
defendant that enters a valid guilty
at the sen-
tencing
order and statements
waives the constitutional
right
are examined to determine
tencing
cross-examine witnesses. Moore v.
(Ind.1985).
adequately explained
the court
whether
As
such,
for the sentence.
Id.
will
the reasons
We
was not an abuse of discretion for
imposed by
affirm the sentence
the trial court to consider the testimony of
appro-
court if we find that the sentence is
medical experts from
re-
priate
light
garding injuries Mikayla.
of the nature of the offense
Appel-
and character of the offender.
Ind.
argues
Lacie next
that the trial
7(B).
late Rule
considered
aggrava-
addressing
argument
Lacie's
Mikayla's age,
tors
a material element of
court improperly
con
offense,
murder,
and her
with which
impos
sidered her immunized
Here,
charged.
Laciе was not
sentence,
ing her
we find that she is cor
court did consider as an aggravating factor
§
provides
rect. "Indiana Code 85-37-3-3
an
generally
infant.
It is
for the
of use and derivative use
true that a material element of a charged
immunity for a witness in a trial Once
offense
not be used as an aggravating
immunized, 'any evidence that the witness
Bocko,
sentencing.
factor at
769 N.E.2d
gives, or
derived from that
evidence
evi
§
Indiana Code
35-46-1-4 provides
dence, may
used in
criminal
person
knowingly
who
or intention
"
proceeding against that witness." Brown
ally places
dependent
in a
situation
(Ind.2000)
endangers
dependent's
health or life
*6
added).
(emphasis
The
clearly
statute
bodily injury
in
results
commits a
given
states that
еvidence
or derived
felony.
class
A -dependent
C
is an un-
against
from that
cannot
evidence
be used
emancipated person
age
under the
of 18 or
in any
that witness
criminal proceeding,
person
mentally
physically
who is
or
sentencing
which
include a
hearing.
disabled, and we find that the sentencing
State,
Campbell
See
v.
court
Moreover,
supreme
death,
our
place.
for which the first
Mikayla's
nous nature
judge's desire to
held that a trial
court has
convicted,
had
tried
been
political
enhancing
personal philosophical
reason for
send
the central
it became
aggra
proper
not a
reason
message
know-
is
Even
Lacie's sentеnce.
State,
v.
ice,
Gregory-Bey
thin
the trial court
vate
sentence.
that it was on
ing
(Ind.1996),
154,
overruled
159
impact
of 669 N.E.2d
upon
disregarded
relied
recognized by
Grin
testimony,
grounds
on other
Lacie's trial
using
(Ind.1997);
State,
immunity, to
v.
have discretion whether wide room under our stat- amply gave the court reject Jennings accept guilty plea. an enhanced sen- utory impose scheme to (Ind.Ct.App. tence. would affirm. displeased If the trial court was it had the plea agreement, with Lacie's hand, reject it. the other
discretion to On accept plea agreement, then it cannot Lacie at for the State's punish