Mitchell Vanryn v. State of Indiana ( 2020 )

FILED
Sep 30 2020, 8:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stanley L. Campbell Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Josiah Swinney
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mitchell Vanryn, September 30, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1354
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1712-MR-11
Pyle, Judge.
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Statement of the Case
[1] Mitchell Vanryn (“Vanryn”) appeals his conviction by jury of Level 1 felony
aggravated battery1 and Level 2 felony domestic battery2 following the death of
his girlfriend’s (“Mother”) two-year-old son. He also appeals the aggregate
forty (40) year sentence imposed thereon. He argues that: (1) the trial court
abused its discretion in admitting evidence; (2) the trial court abused its
discretion in instructing the jury; (3) there is insufficient evidence to support his
conviction for Level 1 felony aggravated battery; and (4) his sentence is
inappropriate in light of the nature of the offenses and the character of the
offender. Concluding that: (1) the trial court did not abuse its discretion in
admitting evidence; (2) the trial court did not abuse its discretion in instructing
the jury; (3) there is sufficient evidence to support Vanryn’s Level 1 felony
aggravated battery conviction; and (4) Vanryn’s sentence is not inappropriate,
we affirm Vanryn’s convictions and sentence.
[2] We affirm.
Issues
1. Whether the trial court abused its discretion in admitting
evidence.
1
IND. CODE § 35-42-2-1.5.
2
I.C. § 35-42-2-1.3.
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2. Whether the trial court abused its discretion in instructing
the jury.
3. Whether there is sufficient evidence to support Vanryn’s
conviction for Level 1 felony aggravated battery.
4. Whether Vanryn’s forty (40) year sentence is
inappropriate.
Facts
[1] The facts most favorable to the verdict reveal that Mother is the parent of
daughter, K.H. (“K.H.”), who was born in 2011, and son, M.G. (“M.G.”), who
was born in February 2015 and who was the victim in this case. Mother began
dating twenty-seven-year-old Vanryn in January 2017, and Vanryn moved into
Mother’s house in June 2017. Vanryn, had a three-year-old son, J.V. (“J.V.”),
who spent the majority of his time with Vanryn while J.V.’s mother (“J.V.’s
mother”) worked. After moving into Mother’s house, Vanryn, who was not
employed, became the primary caregiver for the three children while Mother
worked a full-time job.
[2] Shortly after moving into Mother’s house, Vanryn began texting Mother at
work to complain about two-year-old M.G. For example, in June 2017,
Vanryn texted Mother that M.G. had “pissed and shit his bed again. [I don’t
know], he seems fine, he just keeps pooping and peeing in his diaper and not
saying anything to anyone about having to go to the potty.” (Tr. Vol. 2 at 200).
[3] In July 2017, Vanryn texted Mother that M.G. had “started screaming and
crying when he – we told him that he couldn’t have milk in his cereal[.] It’s . . .
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annoying and he’s a brat[.] [H]e fucking gets it everywhere and he’s two, he
doesn’t need milk in his cereal, . . . I’m the adult and I said so.” (Tr. Vol. 2 at
200). Later that month, Vanryn texted Mother as follows:
[M.G.]’s grounded for the rest of the day. He just shit his pants
for the second time today. He was literally sitting right next to
me and took a shit and didn’t say anything[.] I smelled shit and
was like, [t]here’s no way. He must have just farted. He
wouldn’t do that sitting right here. Well, sure enough. He keeps
saying, ‘[p]oop in toilet,’ but he doesn’t. I don’t get it. He knows
where to go and how to ask. I was sitting right next to him, for
Christ’s sake. This is the second time today[.] [H]e fucking
knows better[.] He knows it’s bad and he gets in trouble, but he
keeps doing it. I was right next to him on the couch. There’s no
fucking excuse[.] [I]f you want to keep making excuses for him,
I’ll just let him sit in it and every day after work you can come
home and deal with it. All you’ve done after shit – all you’ve
done after h[e’s] shit his pants day in and day out, two, even
three times a day some days, is making fucking excuses for him
and I’m over it. He knows better, point blank, period.
(Tr. Vol. 2 at 200-01).
[4] Also in July 2017, M.G. spent the day with Mother’s father (“Maternal
Grandfather”). Maternal Grandfather, who had previously noticed that M.G.
had begun having bruises when Vanryn had moved into Mother’s house, saw a
handprint-shaped bruise on M.G.’s buttocks. When Mother picked up M.G.,
Maternal Grandfather confronted her. She “made up an excuse and denied any
abuse.” (Tr. Vol. 2 at 35). Maternal Grandfather went to Mother’s house and
confronted Vanryn, who “came back at [Maternal Grandfather.]” (Tr. Vol. 2 at
35). Mother became angry and threatened to call the police. Thereafter,
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Mother changed her telephone number and “completely stopped talking to
[Maternal Grandfather].” (Tr. Vol. 2 at 35).
[5] Vanryn continued to text Mother at work about M.G. In August 2017, Vanryn
texted Mother that M.G. had “just got the belt pretty good[.] He’s in deep
fucking trouble[.]” (Tr. Vol. 2 at 201). Later that day, Vanryn texted Mother as
follows:
Well, M.G. just slipped and fell in the damn shower[.] This shit
is too much[.] [M.G.] busted his damn lip in the shower. I’ve
got a million kids running around, people are . . . shitting
themselves, falling in the shower. I need a fucking break. I don’t
know what exactly he hit, I just heard a thud, then him start
crying. I’m guessing he hit the ledge of the tub[.] [His lip is]
bleeding pretty good.
(Tr. Vol. 2 at 202).
[6] In October 2017, M.G.’s paternal great-grandmother (“Paternal Great-
Grandmother”) stopped by Mother’s home on a weekend afternoon to ask
Mother if Paternal Great-Grandmother could take M.G. for a visit with his
cousins. While at Mother’s home, Paternal Great-Grandmother noticed that
M.G. had dark circles under his eyes, a bruise on the right side of his face, and
marks around his neck. When Paternal Great-Grandmother left Mother’s
home, she contacted the police and DCS to request a welfare check on M.G.
[7] DCS case worker Amanda Treska (“Case Worker Treska”) went to Mother’s
home that same day. When Case Worker Treska arrived at Mother’s home, the
case worker noticed that M.G. had dark circles under his eyes, a bruise on his
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cheek, and a scratch on his neck. Case Worker Treska also noticed that M.G.,
who was very pale, had a cut on his upper lip that was in the process of healing.
Mother explained that M.G. had cut his lip when he had fallen in the shower.
Mother also told the case worker that the dark circles under M.G.’s eyes were
the result of an allergic reaction to laundry detergent. Case Worker Treska
recommended that Mother have M.G., who was very quiet while the case
worker was in the home, examined by a pediatrician. Both Mother and Vanryn
signed a safety plan wherein they agreed to “refrain from physical discipline
that result[ed] in marks or bruises.” (Tr. Vol. 2 at 117). M.G.’s case was later
closed as unsubstantiated.
[8] In early November 2017, Vanryn texted Mother that he was “done watching
the kids from now on. You need to find daycare. You need to find a sitter or
some kind of daycare[.] I’m not watching them tomorrow. I will leave before
you go to work if I have to.” (Tr. Vol. 2 at 203). On November 27, 2017,
Vanryn texted Mother as follows:
[M.G.] peed his pants again[.] He went in the bathroom and put
toilet paper in his underwear, trying to hide it, just like he did
with that curtain in your room[.] He’s in trouble for the rest of
the day. I’ve had to give him two baths, wash all his sheets and
blankets, both outfits he wore today. This is ridiculous.
(Tr. Vol. 2 at 203-04). None of the text messages that Vanryn sent to Mother
on November 27 and 28, 2017, mentioned that M.G. was ill.
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[9] On November 29, 2017, Mother left for work at 7:30 a.m., and K.H. left for
school shortly thereafter. Vanryn was at home with M.G. and J.V. until
approximately 1:00 p.m., when J.V.’s mother picked J.V. up. While at the
home, J.V.’s mother noticed that M.G. had a bruise on the side of his face.
After J.V. and his mother had left, Vanryn and M.G. were the only two people
at home for three hours until M.G.’s maternal great-grandmother (“Maternal
Great-Grandmother”) brought K.H. home from school at approximately 4:15
p.m. Maternal Great-Grandmother asked to see M.G., but Vanryn told her that
he was sleeping. After Maternal Great-Grandmother had left the house,
Vanryn told K.H. to go outside and jump on the trampoline. When K.H., who
was not wearing shoes or socks, asked to come in the house because her feet
were cold, Vanryn would not allow her back into the house. K.H. heard
Vanryn yelling at M.G. to wake up.
[10] At approximately 4:30 p.m., Vanryn ran out of the house with M.G. in his
arms. Vanryn ran to a nearby fire station, where he told the firefighters that he
had been unable to wake M.G. so he had placed the toddler in the shower.
Vanryn further told the firefighters that he had attempted to give M.G. mouth-
to-mouth resuscitation when the toddler had stopped breathing. Vanryn never
told the firefighters that he had given M.G. chest compressions or CPR.
[11] One of the firefighters placed M.G. on the firehouse’s kitchen table to evaluate
and attempt to treat him. The firefighter noticed that M.G. had bruises on his
hands, cheek, shoulder, back, and groin. Shortly thereafter, an ambulance
arrived to take M.G. to the hospital. The paramedic noticed that M.G. had
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several different bruises of different colors, which indicated that the bruises had
been inflicted at different times and were in different stages of healing. The
paramedic documented the bruises before she performed CPR on M.G.
[12] M.G. died shortly after he arrived at the hospital. The pediatric critical care
physician, who examined M.G. and who had been trained in the signs of child
abuse, was concerned about the placement and extent of M.G.’s bruises.
[13] Fort Wayne Police Department Detective Liza Anglin (“Detective Anglin”)
videotaped an interview with Vanryn shortly after M.G. had died. Vanryn told
Detective Anglin that M.G. had been sick for three days prior to his death and
had had frequent urination and defecation accidents during that time. Vanryn
also told Detective Anglin that M.G. had bruised easily. Vanryn explained that
M.G. had taken a nap that day after J.V. had gone home with his mother.
When Vanryn had attempted to wake M.G. at 4:15 p.m. after K.H. had
returned home, M.G. was unresponsive. Vanryn had attempted to wake M.G.
by shaking him, slapping his face, and putting him in the shower. According
to Vanryn, M.G.’s jaw had been clenched shut. Vanryn had tried to pry it open
so that he could give M.G. mouth-to-mouth resuscitation. Vanryn explained
that he had taken M.G. to a nearby fire station when he was unable to wake the
toddler. At the end of the interview, Detective Anglin told Vanryn that M.G.
had exhibited several indicators of abuse. Vanryn responded that DCS had just
closed its case and an autopsy would show that M.G. had not been abused.
Vanryn never mentioned during the interview that he had performed chest
compressions or CPR on M.G.
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[14] On November 30, 2017, Dr. Robert Wagner (“Dr. Wagner”) performed an
autopsy on M.G. Following the autopsy, Dr. Wagner identified the cause of
M.G.’s death as: “Hemoperitoneum due to a Laceration of Pancreas,
Duodenum, and Mesentery Due to Blunt Force Injury of the Abdomen.” (Ex.
Vol. at 139). Dr. Wagner identified the manner of M.G.’s death as a homicide.
[15] Also on November 30, 2017, Alysha Tun (“Tun”), who had known Mother for
ten to twelve years, heard about the toddler’s death and went to Mother’s
Facebook page to see if Mother had posted any information regarding the cause
of M.G.’s death. Tun saw that Mother had just posted a video of Mother and
M.G. In the Facebook post, Mother had identified the video as the last one
that she had taken of M.G. the night before he died. Tun watched the video
(“the Facebook video”) of M.G. and Mother and heard M.G. tell Mother that
Vanryn had hit M.G.’s head. Although Tun watched the video “before anyone
had even [been] accused [of] any sort of foul play or anything,” Tun was
concerned about what she had heard on the Facebook video. (Tr. Vol. 2 at
127). Tun told her father about the Facebook video and subsequently sent it to
her father’s friend, who worked at the police department.
[16] On December 1, 2017, forensic interviewer Patricia Smallwood (“Smallwood”)
interviewed six-year-old K.H. at the Dr. Bill Lewis Center for Children. K.H.
told Smallwood that M.G. had been afraid of Vanryn. According to K.H.,
every time M.G. had urinated or defecated in his pants, Vanryn had spanked
M.G. with Vanryn’s hand, a wooden spoon, or a black belt. K.H. further told
Smallwood that the spankings had left bruises on M.G.’s buttocks.
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[17] In December 2017, the State charged Vanryn with murder, Level 1 felony
aggravated battery, and Level 2 felony domestic battery. Vanryn’s three-day
jury trial began in March 2019. The jury heard the facts as set forth above and
watched the videos of Detective Anglin questioning Vanryn and Smallwood
questioning K.H.
[18] Also at trial, Vanryn objected when the State offered the Facebook video into
evidence during Tun’s testimony. Vanryn specifically argued to the trial court
in a sidebar conference that although Tun could “testify that she saw the video
on a certain day, we have no idea when the video was actually created.” (Tr.
Vol. 2 at 123). The State responded that “[y]ou c[ould] clearly see that the child
ha[d] a mark on his lip from the stitches . . . it ha[d] to have been taken after the
bathtub incident because he ha[d] a scar on his lip.” (Tr. Vol. 2 at 123). The
State also pointed out that Mother had said on her Facebook post that it was
the last video that she had taken of M.G. the night before he died. The trial
court admitted the Facebook video into evidence over Vanryn’s objection.
[19] Detective Anglin also testified at trial. During her testimony, she reviewed
photographs of M.G. and described M.G.’s injuries that she had seen at the
hospital and during his autopsy as follows:
[M.G. had] bruising on the left side of his face and on the left
forehead. On the heel of his foot there was bruising on his ankle.
There [were] bruises on his right arm, forearm. There [were]
bruises on his back, and the round bruises on his back and down
the center of his back and over on his left side. Right in the
center of his head, just about where his hairline changes, there
[was] a large bruise on the back of his head[.] There [was]
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bruising on his left shoulder[.] His belly was distended. It was
full. It looked like it was – it was just full. And there [was] a
bruise on his belly, as well[.] When they opened up [M.G.] at
the autopsy, his belly was full of blood, just pooled around all of
his organs and his internal midsection. There [was] more
bruising to his chest. Bruises on his hands, on the inside of his
hands. Bruising on his left shoulder[.] [B]ruising at the base of
the neck also.
(Tr. Vol. 2 at 214-15).
[20] In addition, Dr. Wagner’s trial testimony further explained that M.G.’s “belly
[was] distended” and full of blood because “a massive blunt force injury” to
M.G.’s abdomen had “ripped open” M.G.’s duodenum, or small intestine, and
his pancreas. (Tr. Vol. 3 at 88, 91, 92, 93). In addition, according to Dr.
Wagner, M.G.’s mesentery, which “holds everything together in your stomach”
was “shredded apart,” and M.G.’s liver was “ripped in half.” (Tr. Vol. 3 at 92).
Dr. Wagner further testified that the blunt force injury had also “torn apart” the
blood vessels in M.G.’s abdomen. (Tr. Vol. 3 at 92). In addition, Dr. Wagner
testified that this blunt force injury was consistent with having been caused by a
“a very hard kick, a very hard punch” or “a fall from a three-story building.”
(Tr. Vol. 3 at 100). According to Dr. Wagner, M.G. could not have survived
more than an hour or two after the blunt force injury had occurred. Dr.
Wagner also pointed out that the oval bruise patterns on M.G.’s lower back and
upper chest were consistent with the knuckle pattern of a fist. In addition, Dr.
Wagner testified that M.G. had a “large goose egg” on his scalp. (Tr. Vol. 3 at
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106). Dr. Wagner further opined that M.G.’s injuries were not consistent with
someone having performed CPR on the toddler.
[21] Vanryn testified that he had been a father figure to M.G. and that M.G. had
called him “dad.” (Tr. Vol. 3 at 141). Vanryn admitted that he had been
frustrated with M.G. in the days before M.G. died because “who likes cleaning
up a dirty . . . diaper?” (Tr. Vol. 3 at 143). Vanryn explained that, on
November 29, 2017, when M.G. had failed to respond to Vanryn’s attempts to
awaken him, Vanryn had attempted CPR on M.G. Vanryn specifically
explained as follows:
I haven’t had any kind of formal training, so I did things that I
kind of remembered from bits and pieces. I first started with a
couple compressions to the upper chest area. I then tried to
deliver a few breaths, but his jaw was clenched, it was clenched
shut. I tried to stick my pointer finger behind it to kind of pry it
open so I could give actual breaths, but I couldn’t, so I tried to
administer those breaths as best as I could. When I did this, out
of my peripheral I could see with every breath that his stomach
started to inflate. When that happened - I know that that’s not a
good thing and it’s not a good sign, so I moved my hands from
the chest area down to the abdominal area, figuring that if I had
some kind of pressure on that area, that that air would not go to
that area, and that’s when I started to deliver those same
compressions in that area.
(Tr. Vol. 3 at 155-56).
[22] Defense counsel asked Vanryn how he had applied CPR, and Vanryn
responded that he had “balled [his] hand up and [had given] the compressions.”
(Tr. Vol. 3 at 156). Vanryn did not know how much force he had used but he
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explained that he had been “in an excited state” and had felt “a sense of
urgency and panic.” (Tr. Vol. 3 at 156, 157).
[23] After the parties had presented their evidence, Vanryn tendered a reckless
homicide instruction and asked the trial court to instruct the jury on this lesser
included offense of murder. The trial court responded as follows to defense
counsel’s request:
Unfortunately, [defense counsel], you’re right, I’ve probably
presided over more murder cases than I care to count or recall,
and I think it’s been very helpful because the Supreme Court has
indicated to us that the three-part test of Wright is: Is it factually
included? Is it inherently included? And the Supreme Court’s
been very kind to tell us that it is a lesser included, period. So
reckless homicide is a lesser-included offense of murder. The
third step then: Is there a serious evidentiary dispute? I’m very
familiar with the case law cited by defendant that when it’s a
close call it is prudent to give it, I absolutely agree with that. In
this situation, however, I don’t see that there is a serious
evidentiary dispute.
(Tr. Vol. 3 at 188). Accordingly, the trial court refused to give Vanryn’s
tendered lesser included offense instruction.
[24] The jury convicted Vanryn of Level 1 felony aggravated battery and Level 2
felony domestic battery and acquitted him of murder.
[25] At the sentencing hearing, the State presented testimony that Vanryn had
previously beaten Mother with a pool stick and shoved her to the ground.
Vanryn had also punched and thrown the family’s dog. The State also
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presented evidence that Vanryn had previously been abusive to J.V.’s mother,
who had called the police multiple times during the course of their relationship
to report incidents of domestic violence. Vanryn’s PSI revealed that he had said
that he was “remorseful that by performing CPR[,] he caused [M.G.’s]
injuries.” (App. Vol. 2 at 114). Vanryn also stated that he believed that he
should have attempted to seek outside help before performing CPR on M.G.
[26] At the conclusion of the sentencing hearing, the trial court found the following
aggravating and mitigating factors and sentenced Vanryn as follows
[T]he Court finds the Defendant guilty of aggravated battery, a
[L]evel one felony, in count two; the Court finds the Defendant
guilty of domestic battery, a [L]evel two felony, in count three.
In the sentencing memorandum submitted to the Court, your
attorney has advanced several mitigating circumstances that he is
asking the Court to consider. He has asked that I consider that
the crime is a result of circumstances unlikely to recur. I
specifically decline to find that as a mitigating circumstance
based on the information contained in some of these police
reports and correspondence from your former wife. He has
further asked that I consider the fact that you have no history of
delinquent or criminal activity or you’ve led a law-abiding life for
a substantial period of time before the commission of the crime.
That is correct, you have no criminal activity on your record, so I
do find that specifically to be a mitigating circumstance. He has
asked that I consider that you are likely to respond affirmatively
to probation or a short term of imprisonment. I can’t read your
mind, Mr. Vanryn, I don’t know how you will respond. You
clearly didn’t respond to the State’s efforts on the pre-trial
diversion that you were offered, as referenced in the sentencing
memorandum, you clearly didn’t respond to the intervention of
the authorities in any of the police reports that were submitted by
the State of Indiana, and I decline to find that to be a mitigating
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circumstance. Your attorney has also asked that I consider your
remorse. You’ve indicated that you are sorry. Oftentimes,
remorse is pity for oneself and what oneself finds themself in, but
I will accept that as a mitigating circumstance. And your
attorney has finally asked that I consider that the character and
attitudes of yourself indicate that you are unlikely to commit
another crime. I can’t do that, Mr. Vanryn, based on the
information that I’ve received here in the sentencing hearing.
You are a powder keg likely to go off and that is a truly
frightening thing, sir. I do find as aggravating circumstances that
the victim was substantially younger than the statutory age of 14
for a [L]evel one felony and substantially younger than the
statutory aggravator of 12 years of age, this little boy was two
years old, that’s been considered by the higher courts of record as
an extremely tender age and I find that to be a significant
aggravator. You’re a grown man against a two-year-old child
who had no chance. You violated the position of trust you were
in. You were his caregiver while Mother was working, and
instead of taking care of him, you beat him to death. This was a
crime of violence that was committed in the presence or hearing
of a person less than 18 years of age. [K.H.] was outside, and
whether she knows what happened in that house or not, she
heard what happened in that house, and she told us what
happened in that house. I find that the nature and circumstances
of the crimes to be an aggravator. I’ve been on the bench 22
years, Mr. Vanryn, I’ve not seen such a horrific crime. Prior to
my time on the bench, I served in the criminal justice system and
saw very few crimes like this. To indicate in this courtroom,
after all of the medical evidence that was presented, that the
compressions that were applied to [M.G.’s] abdomen caused
these injuries is preposterous and ludicrous and insulting to the
intelligence of every person sitting in this room. Those
compressions would have had to have had the force of a fall from
a three-story building, sir. That clearly is not what happened in
that home, and I’ve heard no explanation yet, other than that of
Dr. Wagner, for the bruising that looked remarkably like the
knuckles of a grown man. It is therefore ordered that the
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Defendant be committed to the Indiana Department of
Correction for classification and confinement for a period of 40
years on count two and a period of 30 years on count three, order
those to be served concurrently.
(Tr. Vol. 4 at 3-5).
[27] Vanryn now appeals his convictions and sentence.
Decision
[28] Vanryn argues that: (1) the trial court abused its discretion in admitting
evidence; (2) the trial court abused its discretion in instructing the jury; (3) there
is insufficient evidence to support his conviction; and (4) his sentence is
inappropriate in light of the nature of the offense and the character of the
offender. We address each of his contentions in turn.
1. Admission of Evidence
[29] Vanryn first argues that the trial court abused its discretion in admitting
evidence. The admission of evidence is within the sound discretion of the trial
court, and we will reverse only for an abuse of that discretion. Rogers v. State,
897 N.E.2d 955, 959 (Ind. Ct. App. 2008), trans. denied. A trial court abuses its
discretion if its decision is clearly against the logic and the effect of the facts and
circumstances before the court or if the court has misinterpreted the law. Id.
[30] Vanryn specifically argues that the trial court abused its discretion when it
admitted the Facebook video in violation of Indiana Rule of Evidence 404(b).
Indiana Evidence Rule 404(b) prohibits a trial court from admitting evidence of
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another crime, wrong, or act “to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with the person’s
character.” Ind. Evidence Rule 404(b)(1). The purpose of the rule is to protect
against the forbidden inference that the defendant acted badly in the past, and
that the defendant’s present, charged actions conform with those past bad acts.
Erickson v. State, 72 N.E.3d 965, 973-74 (Ind. Ct. App. 2017), trans. denied.
[31] Evidence of crimes, wrongs, or other acts are admissible if offered for another
purpose, such as to prove “motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Evid. R.
404(b)(2). In assessing the admissibility of 404(b) evidence, we: (1) determine
whether the evidence of other crimes, wrongs, or acts is relevant to a matter at
issue other than the defendant’s propensity to commit the charged act; and (2)
balance the probative value of the evidence against its prejudicial effect
pursuant to Rule 403. Erickson, 72 N.E.3d at 974.
[32] Here, Vanryn does not argue that the Facebook video was prior bad act
evidence. Rather, he argues that the trial court abused its discretion when it
admitted the Facebook video because “the State failed to sufficient[ly] establish
the timeliness of the video.” (Vanryn’s Br. 28). In support of his argument,
Vanryn cites Pirnat v. State, 612 N.E.2d 153, 155 (Ind. Ct. App. 1993), abrogated
by Hicks v. State, 690 N.E.2d 215 (Ind. 1997), for the proposition that “evidence
must be similar enough and close enough in time to be generally relevant to the
charged offenses.” (Vanryn’s Br. 28). Pirnat applied the Seventh Circuit’s four-
part test for the admissibility of 404(b) evidence, which included a factor that
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“the other evidence must be similar enough and close enough in time to be
relevant to the matter in issue[.]” Pirnat, 612 N.E.2d at 155 (citing United States
v. Hudson, 884 F.2d 1016, 1018-19 (7th Cir. 1989), cert. denied 496 U.S. 939
(1990)).
[33] However, in Hicks, 690 N.E.2d at 219, the Indiana Supreme Court determined
that the requirement that the prior bad act must be similar and close in time to
the charged conduct in order to be relevant “unnecessarily restrict[ed] the
discretion of the trial court to determine whether 404(b) evidence [was]
relevant.” Rather, our supreme court determined that the trial court’s wide
discretion in ruling on the relevancy of evidence “includes determining the
significance of the similarity or remoteness of evidence.” Id. at 220. According
to our supreme court, although “[s]ome proffered evidence may be irrelevant
because it is too remote[,] an event occurring in the past can be critical.” Id.
Therefore, “admissibility hinges on relevance, not a litmus test based on an
isolated factor – remoteness, similarity, or anything else – that may bear on
relevance.” Id.
[34] We further note that the State established the timeliness of the Facebook video
in two respects. First, Mother stated in her Facebook post that it was the last
video that she had taken of M.G. the night before he died. In addition, the
video showed the scar on M.G.’s lip, which was caused by M.G.’s fall in the
shower and which was still healing just one month before M.G.’s death. The
trial court did not abuse its discretion when it admitted the Facebook video into
evidence.
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2. Jury Instructions
[35] Vanryn next argues that the trial court abused its discretion in instructing the
jury. Vanryn specifically contends that the trial court abused its discretion
when it declined to give his tendered lesser-included offense instruction for
reckless homicide on the murder count. In Wright v. State, 658 N.E.2d 563, 566
(Ind. 1995), the Indiana Supreme Court set forth a three-part test that trial
courts should perform when called upon by a party to instruct the jury on a
lesser-included offense to the crime charged. First, the trial court must compare
the statute defining the crime charged with the statute defining the alleged
lesser-included offense to determine if the alleged lesser-included offense is
inherently included in the crime charged. Id. Second, if the trial court
determines that an alleged lesser-included offense is not inherently included in
the crime charged under step one, then it must determine if the alleged lesser-
included offense is factually included in the crime charged. Id. at 567. If the
alleged lesser-included offense is neither inherently nor factually included in the
crime charged, the trial court should not give an instruction on the alleged
lesser-included offense. Id. Third, if a trial court has determined an alleged
lesser-included offense is either inherently or factually included in the crime
charged, “it must look at the evidence presented in the case by both parties” to
determine if there is a serious evidentiary dispute about the element or elements
distinguishing the greater from the lesser offense and if, in view of this dispute,
a jury could conclude that the lesser offense was committed but not the greater.
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Id. It is reversible error for a trial court not to give a requested instruction on
inherently or factually included lesser offenses if there is such an evidentiary
dispute. Id. We now apply this framework to the tendered lesser-included
offense instruction in this case.
[36] Reckless homicide is an inherently included lesser offense of murder. Id. The
only element distinguishing the two offenses is the defendant’s state of mind.
Id. Reckless homicide occurs when the defendant “recklessly” kills another
human being. IND. CODE § 35-42-1-5. Reckless conduct is action taken in
plain, conscious, and unjustifiable disregard of harm that might result. IND.
CODE § 35-41-2-2(c). In addition, the disregard involves a substantial deviation
from acceptable standards of conduct. Id.
[37] Murder, on the other hand, occurs when the killing is done “knowingly” or
“intentionally.” I.C. § 35-42-1-1. A person engages in conduct “knowingly” if
the person is aware of a high probability that he is doing so. I.C. § 35-41-2-2(b).
Accordingly, Vanryn was entitled to an instruction on reckless homicide if there
was a serious evidentiary dispute permitting the jury to find that he recklessly
but not knowingly killed M.G. See McEwen v. State, 695 N.E.2d 79, 85 (Ind.
1998).
[38] Here, our review of the evidence reveals that Vanryn inflicted severe blunt force
trauma to M.G.’s abdomen. This trauma, which nearly tore in half M.G.’s
duodenum and pancreas, shredded his mesentery, ripped his liver in half, and
tore apart his abdominal blood vessels, was consistent with a very hard punch
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or a fall from a three-story building. The Indiana Supreme Court has
previously held that the infliction of such severe blunt force trauma is evidence
of an awareness of a high probability that the victim will be killed. See Anderson
v. State, 681 N.E.2d 703, 708, 709 (Ind. 1997) (explaining that where the nearly
two-year-old victim “suffered severe blunt force injuries about the head, chest,
and abdomen [and] [t]he extreme injuries to the chest consisted of bruises or
contusions of the chest wall, as well as a rupture of the diaphragm . . . tears to
the esophagus . . . as well as tears in the stomach so that there was actually
gastric contents and blood in the chest cavity[,]” there was no serious
evidentiary dispute that when Anderson was hitting the toddler, Anderson was
aware of the high probability that his conduct would result in the toddler’s
death). Based on this evidence, there was no serious evidentiary dispute
permitting the jury to find that Vanryn recklessly killed M.G. See id.
Accordingly, the trial court did not abuse its discretion when it refused to give
the jury Vanryn’s tendered instruction on the lesser-included offense of reckless
homicide.
3. Sufficiency of the Evidence
[39] Vanryn also argues that there is insufficient evidence to support his conviction
for Level 1 felony aggravated battery. Our standard of review for sufficiency of
the evidence claims is well-settled. We consider only the probative evidence
and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d
144, 146 (Ind. 2007). We do not reweigh the evidence or judge witness
credibility. Id. We will affirm the conviction unless no reasonable fact finder
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could find the elements of the crime proven beyond a reasonable doubt. Id.
The evidence is sufficient if an inference may be reasonably drawn from it to
support the verdict. Id. at 147.
[40] In order to convict Vanryn of Level 1 felony aggravated battery, the State had
the burden to prove beyond a reasonable doubt that Vanryn knowingly or
intentionally inflicted injury on M.G. that resulted in M.G.’s death. See IND.
CODE § 35-42-2-1.5. The State also had to prove that M.G. was a child less
than fourteen years old and that Vanryn was at least eighteen years old. Id.
[41] Vanryn’s sole argument is that the State failed to establish beyond a reasonable
doubt that he intentionally inflicted injury on M.G. A person acts
“intentionally” when “it is his conscious objective to do so.” I.C. § 35-41-2-
2(a). Intent is a mental function. I.C. § 35-41-2-2(a). “Intent is a mental
function; and so, absent an admission, it ‘can be inferred from a defendant’s
conduct and the natural and usual sequence to which such conduct logically
and reasonably points.’” Heuring v. State, 140 N.E.3d 270, 275 (Ind. 2020)
(quoting Phipps v. State, 90 N.E.3d 1190, 1195-96 (Ind. 2018)). Intent may also
be inferred from the nature of the attack and the circumstances surrounding the
crime. Burns v. State, 59 N.E.3d 323, 328 (Ind. Ct. App. 2016) (finding
sufficient evidence that Burns intended to kill the victim), trans. denied. The
duration, brutality, and relative strengths of the defendant and victim are factors
that can be considered by the jury as indications of the defendant’s intent. Id.
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[42] Here, our review of the evidence reveals that while Vanryn and M.G. were
alone together in the home, twenty-seven-year-old Vanryn brutally inflicted
such severe trauma on two-year-old M.G.’s abdomen that the toddler’s
duodenum and pancreas were nearly torn in half, his mesentery was shredded,
his liver was ripped in half, and his abdominal blood vessels were torn apart.
These injuries were consistent with having been caused by a very hard punch or
a fall from a three-story building. This evidence, which is sufficient to establish
that Vanryn intentionally inflicted injury on M.G., is sufficient to support
Vanryn’s Level 1 felony aggravated battery conviction.
4. Inappropriate Sentence
[43] Vanryn also argues that his aggregate forty (40) year sentence is inappropriate.
According to Vanryn, “an appropriate sentence would have been thirty (30)
years.” (Vanryn’s Br. 36).
[44] Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized
by statute if, after due consideration of the trial court’s decision, we find that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender. The defendant bears the burden of persuading this Court that
his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.
2006). Whether we regard a sentence as inappropriate turns on the “culpability
of the defendant, the severity of the crime, the damage done to others, and
myriad other factors that come to light in a given case.” Cardwell v. State, 895
N.E.2d 1219, 1224 (Ind. 2008).
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[45] When determining whether a sentence is inappropriate, we acknowledge that
the advisory sentence is the starting point the Legislature has selected as an
appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081.
Here, Vanryn was convicted of Level 1 felony aggravated battery and Level 2
felony domestic battery. The sentencing range for a Level 1 felony is from
twenty (20) to forty (40) years, with an advisory sentence of thirty (30) years.
I.C. § 35-50-2-4. The sentencing range for a Level 2 felony is from ten (10) to
thirty (30) years, with an advisory sentence of seventeen and one-half (17½)
years. The trial court sentenced Vanryn to forty (40) years for the Level 1
felony and thirty (30) years for the Level 2 felony. The trial court further
ordered the sentences to run concurrently with each other, for an aggregate
forty (40) year sentence.
[46] With regard to the nature of the offense, Vanryn, whom M.G. called “dad,”
brutally inflicted such severe trauma on the toddler’s abdomen that the toddler’s
duodenum and pancreas were nearly torn in half, his mesentery was shredded,
his liver was ripped in half, and his abdominal blood vessels were torn apart.
These injuries were consistent with having been caused by a very hard punch or
a fall from a three-story building. In addition, the trial court stated during the
sentencing hearing that it had “not seen such a horrific crime.” (Tr. Vol. 4 at
5).
[47] With regard to Vanryn’s character, we note that Vanryn physically abused
M.G. for the six months preceding the toddler’s death. When two-year-old
M.G. urinated or defecated in his pants, Vanryn spanked M.G. with Vanryn’s
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hand, a wooden spoon, or a belt, leaving bruises on M.G.’s buttocks. Vanryn
also beat Mother with a pool stick and shoved her to the ground. In addition,
Vanryn punched and threw the family’s dog. Vanryn had also previously been
abusive to J.V.’s mother, who had called the police multiple times to report
incidents of domestic violence during the course of their relationship. We agree
with the trial court’s characterization of Vanryn as “a powder keg likely to go
off[.]” (Tr. Vol. 4 at 4).
[48] Based on the nature of the offense and his character, Vanryn has failed to
persuade this Court that his aggregate forty (40) year sentence is inappropriate.
[49] Affirmed.
May, J., and Crone, J., concur.
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