Daniel Miller v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 16 2020, 8:34 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Justin R. Wall Curtis T. Hill, Jr.
Wall Legal Services Attorney General
Huntington, Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel Miller, September 16, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2895
v. Appeal from the
Wells Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff Kenton W. Kiracofe, Judge
Trial Court Cause No.
90C01-1809-F3-5
Vaidik, Judge.
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Case Summary
[1] Daniel Miller was convicted of Level 3 felony domestic battery resulting in
serious bodily injury to a person less than fourteen years old, Level 3 felony
neglect of a dependent resulting in a serious bodily injury, Level 6 felony
intimidation, and Level 5 felony battery resulting in bodily injury to a person
less than fourteen years of age. He appeals the domestic-battery, neglect, and
battery convictions, challenging the sufficiency of the evidence. He also appeals
his eighteen-year sentence, asserting that it is inappropriate given the nature of
the offenses and his character. We affirm.
Facts and Procedural History
[2] Austin and Courtney Burkholder had two children together, H.B., born in June
2012, and R.B., born in March 2018. Shortly after R.B.’s birth, Courtney
moved out of the family home, and Austin initiated divorce proceedings.
Courtney then began dating Miller, and the two moved in together. Austin was
granted provisional physical and legal custody of the children, with Courtney
having supervised parenting time. However, after Austin died of a heart attack
in late June 2018, Courtney assumed custody of H.B and R.B. Throughout the
month of July 2018, the children stayed with numerous family members and
friends besides Courtney and Miller. Most often, the children stayed with their
paternal grandmother, Jessica Lough.
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[3] From July 27 to July 31, Courtney and Miller had care of four-month-old R.B.
Courtney worked most of those days, leaving Miller as the sole caretaker of
R.B. On July 31, Courtney went to work around 6 a.m., leaving H.B. and R.B.
alone with Miller until late afternoon. Around 6:30 p.m., Lough picked up the
children and noticed R.B. had an injury to his lip, which she asked Courtney
about and Courtney stated it was caused by R.B. scratching himself.
Throughout that evening, Lough felt R.B. was “not acting himself” and
appeared listless and quiet. Tr. Vol. II p. 166. She phoned Courtney and spoke
with Miller, who told her R.B. had vomited earlier in the day. When Lough
went to change R.B.’s diaper, she found bruises on his penis, feet, and legs. At
that point, she and the child’s great-grandmother, Becky Everett, phoned the
Department of Child Services (DCS) and took R.B. to the hospital.
[4] At Adams Memorial Hospital, a physical examination of R.B. showed bruising
to his lip, back, arm, ear, penis, and roof of his mouth. R.B. vomited twice at
the hospital, prompting doctors to order a CT scan. The CT scan revealed R.B.
suffered a subdural hematoma. Due to the severity of his injury, R.B. was
transferred to Riley Hospital for Children that night. There, a skeletal survey
showed fractures to three of R.B.’s right ribs and fractures to two bones in his
lower right leg. DCS caseworker Lindsey Eads also examined R.B. and spoke
with doctors and family members. R.B. was later adjudicated to be a child in
need of services.
[5] Detective Cliff Thomas of the Bluffton Police Department interviewed both
Courtney and Miller about R.B.’s injuries. Miller stated that the bruising to
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R.B.’s penis occurred when he was holding R.B. and “his arm gave out,”
causing him to almost drop R.B. and catch him under the groin area. Tr. Vol.
III p. 197. Miller stated the injury to R.B.’s mouth occurred when he discovered
R.B. with a string in his mouth and had to stick “two fingers down [R.B.’s]
throat” to get it out. Id. at 199. Detective Thomas also interviewed many of the
family members and friends who had watched R.B. that month, including
Brittany Bleeke, Courtney’s friend and fiancée to Matt Burkholder, R.B.’s
paternal uncle. After her interview, Bleeke received a phone call from Miller, in
which he threatened to “kill [her] in front of [her] children” if he discovered she
had talked to law enforcement. Id. at 171.
[6] The State charged Miller with Level 3 felony domestic battery resulting in
serious bodily injury to a person less than fourteen years old (for the subdural
hematoma), Level 3 felony neglect of a dependent resulting in a serious bodily
injury, Level 6 felony intimidation (for the threat against Bleeke), and Level 5
felony battery resulting in bodily injury to a person less than fourteen years of
age (for the bruising to the penis).
[7] At trial, Dr. John Wagel, the emergency-room physician who treated R.B. at
Adams Memorial, and Dr. Shannon Thompson, a Riley Hospital pediatrician
and child-abuse expert, both gave similar testimony: R.B.’s injuries could not
have been self-inflicted, given he was four months old and lacked the mobility
and body strength to cause such injuries; the injuries were not consistent with
an accident, nor did the injuries appear to have been caused in the ways Miller
described; and the injuries indicated child abuse. Dr. Wagel testified that a
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caregiver of a four-month-old would be expected to know that “there was [a
head] injury, and that they needed to seek medical attention.” Id. at 80. Dr.
Thompson stated that a caregiver who caused a head injury would notice
something “significantly different in that baby initially”—sudden crying or
silence, acting stunned, lethargic or listless, abnormal breathing, vomiting, or
loss of appetite. Id. at 99.
[8] Much of the doctors’ testimony focused on when the injuries occurred. While
difficult to date, both doctors opined that all the injuries—the rib fractures, leg
fractures, bruises, and subdural hematoma—would have been inflicted within
the last month based on healing time. Specifically referring to the subdural
hematoma, Dr. Thompson testified it was an “acute” injury that likely occurred
“immediately up to three to five days” of the CT scan, while Dr. Wagel stated
the injury likely occurred “very shortly before presentation” given R.B.’s
vomiting earlier that day, a symptom which would have occurred “within
hours” of the initial head injury. Id. at 81-82, 100, 101.
[9] Other witnesses testified about their interactions with Miller. Sarah Anderson,
with whom Miller and Courtney briefly resided earlier in July 2018, stated that
Miller would often become “short-tempered” and “quickly frustrated” with
R.B. Id. at 148. Anderson testified that she had witnessed Miller shake R.B. in a
manner she felt was “too hard,” albeit seemingly in a playful manner. Id. at
149. Detective Thomas testified about his interviews with Miller, during which
Miller admitted he has been diagnosed with “intermittent explosive rage
disorder,” which causes him to “get mad about stupid sh** that [he] shouldn’t
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get mad about.” Id. at 203. Finally, Bleeke testified about the phone call in
which Miller threatened to kill her in front of her kids.
[10] The jury found Miller guilty on all four counts. At sentencing, two DCS
workers testified about their interactions with Miller throughout the
corresponding CHINS case: he was “domineering,” “aggressive,” and
“threatening” with workers; he refused to participate in offered services; and he
interfered with Courtney’s communications with DCS and her participation
with their services. Tr. Vol. IV p. 36. The trial court identified several
aggravating factors: (1) Miller has a criminal history, including two juvenile
adjudications for battery and criminal convictions for misdemeanor battery,
misdemeanor criminal mischief, felony intimidation, and a federal conviction
for felon in possession of a firearm; (2) R.B. was only four months old at the
time of the offenses; (3) Miller was on federal supervised release for felon in
possession of a firearm at the time of the offenses; and (4) he was in a position
of care, custody, and control of R.B. The court found no mitigating factors and
sentenced Miller to twelve years for domestic battery, twelve years for neglect,
two years for intimidation, and four years for battery. The court ordered the
domestic-battery and neglect sentences to be served concurrent to each other
but consecutive to the other sentences, for an aggregate term of eighteen years.
[11] Miller now appeals.
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Discussion and Decision
[12] Miller raises two issues on appeal. He contends that the evidence is insufficient
to support three of his convictions and that his sentence is inappropriate.
I. Sufficiency of the Evidence
[13] Miller challenges the sufficiency of the evidence for three of his convictions:
domestic battery, neglect of a dependent, and battery.1 Our standard of review
for sufficiency claims is well settled. We do not reweigh evidence or assess the
credibility of witnesses. Gray v. State, 903 N.E.2d 940, 943 (Ind. 2009). Rather,
we look to the evidence and reasonable inferences drawn therefrom that support
the verdict and will affirm the conviction if there is probative evidence from
which a reasonable factfinder could have found the defendant guilty beyond a
reasonable doubt. Id.1
While Miller says in his Summary of Argument that he is challenging the sufficiency of the evidence “for
each and every Count,” Appellant’s Br. p. 18, the only place he addresses the intimidation conviction is in a
single sentence in the Conclusion section of his brief, with no citation to the record or any legal authority, id.
at 28 (“In regards to the intimidation Count, Miller notes that the statements he made were in the heat of the
moment and there was no intention to intimidate the person.”). As such, he has waived any challenge to that
conviction. See Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of the appellant
on the issues presented, supported by cogent reasoning. Each contention must be supported by citations to
the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on, in accordance with
Rule 22.”); see also Lyles v. State, 834 N.E.2d 1035, 1050 (Ind. Ct. App. 2005) (holding appellant had waived
argument due to his failure to develop the arguments and support it with citations to authority and the
record), reh’g denied, trans. denied.
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[14] The State charged Miller with domestic battery resulting in serious bodily injury
based on R.B.’s subdural hematoma. Miller’s argument is that the State failed
to show he was “directly responsible” for this injury because numerous other
individuals could have inflicted it. Appellant’s Br. p. 21. This is consistent with
his defense at trial, which the jury clearly found unpersuasive. Both doctors
testified that the subdural hematoma was a recent injury, which would have
been followed by a variety of symptoms, including vomiting and personality
changes, both of which were observed in R.B. on the evening of July 31. Miller
was the sole caretaker of R.B. for most of that day. The State acknowledged at
trial that Courtney, Lough, and Everett also had access to R.B. that day.
However, the State presented plenty of evidence for the jury to conclude that—
out of the four people—Miller is the one who inflicted this injury. R.B. never
exhibited unexplained injuries outside the month he lived with Miller. Miller
was diagnosed with intermittent explosive rage disorder and was known to be
short tempered and easily frustrated with R.B. Finally, Miller admitted to
causing several of R.B.’s other injuries, and although he claims they were
accidental, both doctors believed they were intentionally inflicted. The above
evidence was sufficient for the jury to conclude Miller caused the subdural
hematoma.
[15] To obtain a conviction for Level 3 felony neglect of a dependent resulting in
serious bodily injury as charged here, the State must have proven Miller (1) had
the care of R.B. and (2) knowingly and intentionally (3) placed R.B. in a
situation endangering his life or health (4) resulting in serious bodily injury.
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Ind. Code § 35-46-1-4(a)(1); Appellant’s App. Vol. II p. 45. The State argued at
trial that Miller—having caused the subdural hematoma—knew R.B. had a
head injury but failed to seek medical treatment, endangering R.B.’s life or
health. Miller argues that the State failed to prove he “caused the brain bleed”
and “should have sought out immediate medical treatment” for R.B.
Appellant’s Br. p. 23. We disagree. The State provided sufficient evidence for
the jury to conclude Miller caused the subdural hematoma. Furthermore, Dr.
Thompson and Dr. Wagel both testified that, due to R.B.’s young age and
immobility, such trauma could not have occurred without the caregiver’s
knowledge, and a reasonable caregiver would have known such trauma
required medical attention. Both doctors also testified this trauma would have
an immediate impact on the child: the child would stop or start crying; appear
dazed or confused; vomit; breathe irregularly; or have personality changes.
Upon picking up R.B. on the evening of July 31, Lough immediately noticed he
was not acting like himself and was lethargic and listless. R.B. also threw up
multiple times that day, at least once in the presence of Miller. Therefore, given
the doctor’s timeline and R.B.’s symptoms, it was reasonable for the jury to
conclude that Miller was negligent in failing to seek immediate medical
treatment for R.B.
[16] Finally, Miller was convicted of Level 5 felony battery for causing the bruising
to R.B.’s penis. Miller admitted to Detective Thomas he caused this bruising
but claimed it was accidental. Both Dr. Thompson and Dr. Wagel testified this
bruising was not consistent with Miller’s explanation of events, but rather
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indicative of abuse. Whether the bruising was caused by abuse or an accident
was a question for the jury. This is a request to reweigh evidence or reassess
witness credibility in Miller’s favor, which we may not do. See Gray, 903
N.E.2d at 943.
[17] There is sufficient evidence for all three of the challenged convictions.
II. Sentence
[18] Miller next contends that his eighteen-year sentence is inappropriate and asks
us to reduce it pursuant to Indiana Appellate Rule 7(B), which provides that an
appellate court “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” “Whether a sentence is inappropriate ultimately turns on the
culpability of the defendant, the severity of the crime, the damage done to
others, and a myriad of other factors that come to light in a given case.”
Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the
judgment of trial courts in sentencing matters, defendants have the burden of
persuading us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d
1041, 1044-45 (Ind. Ct. App. 2016).
[19] Miller was convicted of two Level 3 felonies, a Level 5 felony, and a Level 6
felony. A person who commits a Level 3 felony shall be imprisoned for a fixed
term of between three and sixteen years, with an advisory sentence of nine
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years. Ind. Code § 35-50-2-5. A person who commits a Level 5 felony shall be
imprisoned for a fixed term of between one and six years, with an advisory
sentence of three years. Ind. Code § 35-50-2-6. A person who commits a Level 6
felony shall be imprisoned for a fixed term of between six months and two-and-
a-half years, with an advisory sentence of one year. Ind. Code § 35-50-2-7. The
court sentenced Miller to an above-advisory sentence for each of the four
counts: twelve years each for the Level 3 felonies, to be served concurrently;
four years for the Level 5 felony; and two years for the Level 6 felony.
[20] Regarding the nature of the offenses, Miller acknowledges that R.B.’s injuries
are “particularly egregious.” Appellant’s Br. p. 25. At just four months old,
R.B. had such a “constellation” of injuries that multiple doctors immediately
suspected abuse. Tr. Vol. III p. 116. R.B. suffered bruises all over his body, rib
and leg fractures, and a dangerous brain bleed. Despite these alarming injuries
and being in a position of care and control of R.B., Miller sought no medical
attention. Furthermore, when a family friend spoke to law enforcement about
the case, he threatened to kill her in front of her children.
[21] Additionally, Miller’s character justifies this sentence. Miller has a criminal
history—two juvenile adjudications for battery and criminal convictions for
misdemeanor battery, misdemeanor criminal mischief, felony intimidation, and
a federal conviction for felon in possession of a firearm. He was on probation
for the federal conviction when he committed the current offenses. And two
DCS workers testified at the sentencing hearing that Miller exhibited
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threatening and aggressive behavior toward them, refused to participate in
rehabilitative services, and prevented the child’s mother from doing so as well.
[22] Nothing about Miller’s actions or his character has convinced us his sentence is
inappropriate.
[23] Affirmed.
Bailey, J., and Baker, Sr. J., concur.
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