NOT FOR PUBLICATION

MEMORANDUM DECISION

BAILEY, Judge.

Case Summary

Kimberly A. Kelley ("Kelley") appeals her convictions and sentences for Neglect of a Dependent1 and Battery,2 as Class A felonies. We affirm the conviction for Neglect of a Dependent, revise the sentence to the advisory sentence, and remand to the trial court with instructions to vacate the conviction and sentence for Battery.

Issues

Kelley presents for review the following consolidated and restated issues:

Facts and Procedural History

In 2008, Kelley was living with Keith Wisniewski ("Wisniewski") in Hobart, Indiana. On July 25, 2008, their son, Nathan Wisniewski ("Nathan"), was born. Soon thereafter, the relationship deteriorated (in part because of arguments over Kelley's alcohol use) such that Kelley and Wisniewski planned to go their separate ways. They drafted an informal agreement contemplating Kelley's relocation, a division of personal property, and a 50/50 split of parenting time with Nathan. However, the agreement was not signed and submitted to the court during paternity proceedings. Rather, on November 3, 2008, Wisniewski obtained temporary physical custody of Nathan.

Pending a hearing scheduled for November 21, 2008, Kelley was permitted parenting time upon the condition that she refrain from drinking alcohol during the parenting time. On the evening of the temporary custody hearing, Kelley walked into Wisniewski's residence (from which she had then been evicted), took Nathan from his crib, and lay down on a mattress with him. Police were summoned; however, in the absence of documentation of the temporary custody order, they refused to require Kelley to surrender Nathan to Wisniewski. Kelley left with Nathan and took him to the residence of Kent Kreischer ("Kreischer") for an overnight visit. The next day, Kelley returned Nathan to Wisniewski and resumed a schedule of frequent daytime visits with Nathan at Wisniewski's residence.

Kelley became aware that Wisniewski was planning to travel to Chicago on November 12 and would leave Nathan overnight with a relative. Kelley requested overnight parenting time with Nathan instead, and Wisniewski agreed. During the day of November 12, Kelley took Nathan with her as she did errands; by the early evening they had returned to Kreischer's home. As Kreischer cooked dinner, Kelley had some beer and a "half-shot" of whiskey. (Tr. 1253.) After dinner, Kreischer and his roommate, David Klish ("Klish"), left to go to a neighborhood bar. Kelley was tending to Nathan and Kreischer's dog while organizing the possessions she had just moved into the residence.

Near midnight, Kreischer and Klish returned from the bar and "grabbed some beer" at home. (Tr. 286.) Shortly thereafter, Kreischer went to bed while Kelley and Klish stayed up. Around the same time that her roommates came home, Kelley gave Nathan a bottle, walked around with him until he fell asleep, and placed him in his bassinet. Kelley and Klish continued drinking. According to Kelley's testimony, her consumption of alcohol over the evening was five beers and one shot.

Around 3:00 a.m., Kelley placed a call to Wisniewski. Their one and one-half hour conversation "ran the gamut." (Tr. 137.) Kelley expressed her opinion that the current custody arrangement was unfair. She also referenced the death of her premature baby daughter some years before, telling Wisniewski that she had a connection to that baby's father. Kelley questioned Wisniewski "what if Nathan had died tonight through no fault of her own" and claimed that Wisniewski "would not understand" unless he had experienced the death of a child. (Tr. 140.)

By the end of the conversation, Kelley and Wisniewski had agreed that Kelley would bring Nathan over to Wisniewski's residence and have some family time or cuddle time together. Kelley prepared a bottle, wrote a note for Kreischer to advise him of her leaving, and went to retrieve Nathan from his bassinet. The baby was face-down in his bassinet and was not breathing.

Kelley's screams awakened Kreischer and he called 9-1-1. However, responding paramedics noted that Nathan's body was already in rigor mortis. Nothing could be done to revive him. A subsequent forensic autopsy revealed that Nathan had died from "asphyxiation due to extrinsic compression." (Tr. 498.)

Kelley was charged with Murder, Neglect of a Dependent, and Battery. At the conclusion of a jury trial, she was convicted of the latter two charges. The jury was unable to reach a verdict on the murder charge. The trial court concluded that there was an implied acquittal of murder, and dismissed the charge with prejudice. Kelley was given concurrent sentences of thirty-seven and one-half years for each Class A felony conviction. She now appeals.

Discussion and Decision

I. Sufficiency of the Evidence

The offense of Neglect of a Dependent, absent a resulting injury, is defined as a Class D felony. Ind. Code § 35-46-1-4(a). It is a Class C felony when it "results in bodily injury" or "consists of cruel confinement or abandonment," a Class B felony when it "results in serious bodily injury," and a Class A felony when it "results in the death of a dependent who is less than fourteen years of age." Ind. Code §§ 35-46-1-4(b)(1) — 4(b)(4).

In order to convict Kelley of Neglect of a Dependent, as charged, the State was required to establish beyond a reasonable doubt that Kelley, having the care of Nathan, her dependent under age fourteen, knowingly or intentionally placed Nathan in a situation that resulted in his death. See Ind. Code § 35-46-1-4(b)(3). The State was not required to show that Kelley "caused" her child's death. See Reynolds v. State, 783 N.E.2d 357, 359 (Ind. Ct. App. 2003). Rather, "the State must show the accused was subjectively aware of a high probability that [s]he placed the dependent in a dangerous situation." Dexter v. State, 945 N.E.2d 220, 224 (Ind. Ct. Ap. 2011), trans. denied. Kelley claims that there is a lack of evidence that she had an awareness of a high probability that she placed her child in a dangerous situation.

When reviewing the sufficiency of the evidence to support a conviction, we will consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. Id.

Dr. John Cavanaugh, who had performed the forensic autopsy, testified that Nathan's cause of death was asphyxiation due to extrinsic compression. The compression had prevented Nathan's lungs from expanding properly. Dr. Cavanaugh had observed the presence of pulmonary edema, blood loss into air sacs, and pinpoint hemorrhages into one adrenal gland and various organs (lungs, thymus, heart, liver, kidneys, and spleen). In the opinion of Dr. Cavanaugh, this had required more pressure than the baby's own weight. Dr. Cavanaugh explained that the lung capacity was "acutely decreased" and that there had been "acute hemorrhage at or immediately before the time of death." (Tr. 502.) Nathan's body also exhibited an abrasion around the sacrum (in the area of the tailbone) and abrasions of the nose, chin, face, and eyelid. The lividity3 of the body was noticeably more pronounced on one side.

Officer Matt Luke, who had responded to the 5 a.m. emergency call, testified that he had detected the odor of alcohol when questioning Kelley. Despite a history of alcohol abuse and a court order that she refrain from drinking alcohol while providing care for Nathan, Kelley drank with her roommates (whom she barely knew) while exercising overnight parenting time. She claimed that she had dressed Nathan in "pajama clothes" and placed him in his bassinet on his back. (Tr. 1262.) However, Nathan was discovered face-down in his bassinet and wearing a "onesie" garment that Kelley had dressed him in before running errands the day before. Nathan's bassinet had four blankets and a pillow in it. Kelley denied "throwing" extra blankets in the bassinet. (Tr. 1440.) Forensic evidence indicated that Nathan had likely been face-down four hours after his death.

Kelley testified that Nathan could not roll over yet and denied knowing what had happened. However, even as Kelley disclaimed personal responsibility for compressing Nathan, her testimony did not foreclose a scenario in which Nathan could have been suffocated while in her care. She testified:

(Tr. 1422.) There is sufficient evidence from which the jury could conclude that Kelley knowingly or intentionally placed Nathan in a situation that resulted in his death.

Kelley also challenges the sufficiency of the evidence to support her conviction of Battery. However, we observe that the proof adduced by the State established a single harm to a single victim and, because of its fundamental nature, sua sponte raise the issue of whether there is a Double Jeopardy violation.

The Double Jeopardy Clause states that no person "shall be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This clause "yields three protections: (1) protection from reprosecution for the same offense after an acquittal; (2) protection from reprosecution for the same offense after conviction; and (3) protection from multiple punishments for the same offense." Kennedy v. State, 674 N.E.2d 966, 967 (Ind. 1996).

Without embellishment, the Information alleged that Kelley "knowingly or intentionally placed Nathan Wisniewski in a situation that endangered his life or health which resulted in death" and that Kelley "did knowingly or intentionally touch Nathan Wisniewski in a rude, insolent or angry manner which resulted in death to Nathan Wisniewski." (App. 7.) Although at trial the evidence suggested alternative factual scenarios surrounding Nathan's death — purposely inflicted compression or an overlay of an adult body crushing the infant as he lay in an unsafe sleeping position — death nonetheless occurred from one act of compression.4

Multiple convictions are not permissible upon proof of a single act causing the harm alleged. See Howard v. State, 481 N.E.2d 1315, 1318 (Ind. 1985) (observing that "the only difference between the two charges is that neglect could be found even though there was no purposeful intent to cause harm whereas battery requires a knowing and intentional act" and holding that Howard could not be convicted of both neglect and battery charges when the convictions were based upon a one day episode of abuse resulting in injury to the child). See also Smith v. State, 408 N.E.2d 614, 622 (Ind. Ct. App. 1980) (holding that the defendant could not be convicted of the greater offense of involuntary manslaughter and the included offense of neglect of a dependent).5 Accordingly, we instruct the trial court on remand to vacate the conviction and sentence for Battery. Because we dispose of the battery charge on double jeopardy grounds, it is unnecessary to discuss sufficiency as to that charge. See Howard, 481 N.E.2d at 1317.

II. Limitation of Cross-Examination

Kelley argues that her cross-examination of Wisniewski was unduly restricted such that she was not able to demonstrate his bias in favor of the prosecution, consistent with Indiana Evidence Rule 616, which provides that "evidence of bias, prejudice and interest of a witness is admissible in a court of law." Kelley sought to elicit evidence that Wisniewski had been charged with battery upon Kelley but the State had dismissed the charge. According to Kelley, the dismissal provided Wisniewski with motivation to curry favor with the State and testify against her.

The right to cross-examine witnesses is guaranteed by the Sixth Amendment to the United States Constitution and is a fundamental right of our criminal justice system. Washington v. State, 840 N.E.2d 873, 886 (Ind. Ct. App. 2006), trans. denied. "However, this right is subject to reasonable limitations imposed at the discretion of the trial judge." Logan v. State, 729 N.E.2d 125, 134 (Ind. 2000). Only an abuse of discretion warrants reversal. Tolliver v. State, 922 N.E.2d 1272, 1285 (Ind. Ct. App. 2010), trans. denied. An abuse of discretion will be found when the trial court controls the scope of cross-examination to the extent that a restriction substantially affects the defendant's rights. Zawacki v. State, 753 N.E.2d 100, 102 (Ind. Ct. App. 2001), trans. denied.

Wisniewski testified that police had been called to his residence on multiple occasions, sometimes at his instance and sometimes at Kelley's instance. During an offer of proof, he acknowledged one particular occasion that gave rise to criminal charges. Police had been summoned and although he was not arrested, Wisniewski later received a summons indicating that he had been charged with Battery and with Conversion (regarding an item of Kelley's personal property). The charges were dismissed.

The trial court ruled that Kelley could inquire about the allegation of battery, but could not elicit evidence regarding filing of or the disposition of the criminal case. Kelley refused to conduct the limited cross-examination, contending that the restricted inquiry would not adequately develop evidence of Wisniewski's bias in favor of the State. Accordingly, the jury heard only that police responded to a dispute over the baby on one occasion and that the police were called on multiple occasions. Nonetheless, the jury was undoubtedly aware that Wisniewski was biased toward the State in its efforts to convict Kelley. It was evident from his testimony that he suspected Kelley had killed his son; potential bias arising from a dismissed charge of battery pales in comparison. We cannot conclude that the restriction of cross-examination substantially affected Kelley's rights. Thus, we find no abuse of discretion.

III. Instruction on Adverse Inference from Discarded Clothing

The forensic examination of Nathan's body revealed that the word "mommy" was imprinted on Nathan's chest. According to Kelley, the question of whether this imprint formed from extrinsic pressure against his garment or from lividity remained unanswered at trial. Nathan's "onesie" with the embroidered letters spelling "mommy" was photographed but not preserved for exhibition at trial. Kelley claims that "crucial evidence" was discarded and thus she was entitled to have the jury instructed consistent with one of her alternate tendered instructions:

(Tr. 1495-96.)

"The purpose of a jury instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict." Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001). The trial court has broad discretion in the giving or refusing of jury instructions. Snell v. State, 866 N.E.2d 392, 395 (Ind. Ct. App. 2007). We review the refusal of a tendered jury instruction by determining whether the tendered instruction correctly states the law, whether there was evidence in the record to support the giving of the instruction, and whether the substance of the tendered instruction is covered by other instructions. Evans v. State, 571 N.E.2d 1231, 1236 (Ind. 1991). A defendant is entitled to a reversal only if he or she affirmatively demonstrates that the instructional error prejudiced his or her substantial rights. Washington, 840 N.E.2d at 888.

Kelley argues that the refusal to instruct the jury on discarded evidence deprived her of due process under the Fourteenth Amendment of the United States Constitution and Art. 1, § 12 of the Indiana Constitution, in that she was unable to develop her defense. Kelley concedes that she cannot prove the materiality of the missing garment to her defense, but argues that "the burden should be upon the State to prove the clothing was not material and that its loss did not prejudice" her. Appellant's Brief at 23.

Evidence is materially exculpatory if it possesses exculpatory value that was apparent before the evidence was destroyed, and the defendant would be unable to obtain comparable evidence by other reasonably available means due to the nature of the destroyed evidence. State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010) (citing Noojin v. State, 730 N.E.2d 672, 675-76 (Ind. 2000)). Exculpatory evidence is that which tends to establish a criminal defendant's innocence. Id. A prosecutor's duty to preserve exculpatory evidence is limited to evidence that might be expected to play a significant defense role. Id. Failure to preserve material exculpatory evidence violates due process regardless of whether the State's actions were taken in good or bad faith. Id.

Evidence is merely "potentially useful" if "no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." Arizona v. Youngblood, 488 U.S. 51, 57 (1988). The State's failure to preserve potentially useful evidence does not constitute a violation of due process rights unless the defendant shows bad faith on the part of the police. Blanchard v. State, 802 N.E.2d 14, 26-27 (Ind. Ct. App. 2004).

Kelley makes no such allegation of bad faith. Moreover, there is no indication that subjecting the garment to testing would have yielded exculpatory evidence. At most, some of the State's witnesses agreed that the baby garment should have been preserved, without explaining why.

Although the garment was missing by the time of trial, Dr. Cavanaugh testified that he had seen Nathan's clothing at the autopsy. He recalled that the embroidery was raised on the outside of the "onesie" and that there was a corollary indentation on the inside. He denied that the phenomenon of lividity would cause the blood to "settle down into those indented letters" if Nathan lay face-down after death. (Tr. 516.) This was because of the opposing phenomenon of blanching.6 He stated that the chest impression was "due to compression and blanching as well as lividity." (Tr. 516.)

Thus, contrary to Kelley's assertion, the potential for lividity to have caused the chest impression was not a realm of evidence left unexplored because of the missing garment. It does not follow logically that the failure of the police to preserve the "onesie" would give rise to an inference adverse to the State. Accordingly, Kelley's instructions are not supported by evidence and were properly refused. See Nettles v. State, 565 N.E.2d 1064, 1069 (Ind. 1991) (where nothing in the record indicated bad faith in the failure to preserve specimens of human blood, the trial court properly refused an instruction that the jury could infer that evidence destroyed or permitted to deteriorate by the State would have been unfavorable to the State and beneficial to the accused); Jewell v. State, 672 N.E.2d 417, 426 (Ind. Ct. App. 1996) (due process rights, whether derived from the United States or the Indiana Constitution, were not compromised by the trial court's refusal of the tendered instruction that the jury could draw an inference adverse to the State from its destruction of or failure to preserve evidence), trans. denied.

IV. Sentence

Upon conviction of a Class A felony, Kelley faced a sentencing range of twenty years to fifty years, with the advisory sentence being thirty years. See Ind. Code § 35-50-2-4. Having received a sentence seven and one-half years in excess of the advisory sentence, Kelley presents two sentencing challenges, first arguing that the trial court abused its discretion in the finding of aggravating circumstances, and second arguing that her sentence is inappropriate.

Aggravating Circumstances

"So long as the sentence is within the statutory range, it is subject to review only for abuse of discretion." Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on other grounds, 875 N.E.2d 218 (Ind. 2007). This includes the finding of an aggravating circumstance and the omission to find a proffered mitigating circumstance. Id. at 490-91. When imposing a sentence for a felony, the trial court must enter "a sentencing statement that includes a reasonably detailed recitation of its reasons for imposing a particular sentence." Id. at 491.

The trial court's reasons must be supported by the record and must not be improper as a matter of law. Id. However, a trial court's sentencing order may no longer be challenged as reflecting an improper weighing of sentencing factors. Id. A trial court abuses its discretion if its reasons and circumstances for imposing a particular sentence are clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Hollin v. State, 877 N.E.2d 462, 464 (Ind. 2007).

Here, the trial court identified three aggravators: the harm to Nathan was significant, Nathan was under the age of twelve, and Kelley was in the position of having care, custody, or control of Nathan. These are circumstances which comprised the elements of the crime. The offense of Neglect of a Dependent includes as a requisite element "having the care of" the victim. Ind. Code § 35-46-1-4. Kelley's offense was elevated to a Class A felony because Nathan died and because he was under fourteen years of age.

Circumstances that comprise the very essence of a crime cannot properly serve as aggravating circumstances. See Johnson v. State, 687 N.E.2d 345, 347 (Ind. 1997). However, "the particularized individual circumstances may be considered as a separate aggravating factor." Williams v. State, 619 N.E.2d 569, 573 (Ind. 1993). To the extent that the trial court considered that Nathan was much younger than the age required for elevation of the offense, it properly considered a particularized circumstance. Otherwise, the alleged aggravating circumstances were improper.

Appropriateness of Sentence.

Under Indiana Appellate Rule 7(B), this "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." In performing our review, we assess "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). A defendant `"must persuade the appellate court that his or her sentence has met th[e] inappropriateness standard of review."' Anglemyer, 868 N.E.2d at 494 (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).

The nature of the offense is found in the details and circumstances of the commission of the crime and the defendant's participation. See Treadway v. State, 924 N.E.2d 621, 642 (Ind. 2010). Regarding the nature of the offense, "we start with the Legislature's specification" of an advisory sentence for a Class A felony of thirty years. Horton v. State, No. 48S04-1106-CR-386, slip op. at 4 (Ind. June 28, 2011). Here, a three-month-old infant sustained external compression until his lung capacity was decreased and he died.

The character of the offender is found in what we learn of the offender's life and conduct. See Lindsey v. State, 916 N.E.2d 230, 241-42 (Ind. Ct. App. 2009), trans. denied. As to the character of the offender, Kelley chose to use alcohol during parenting time in violation of a court order. However, she has no prior criminal history other than a misdemeanor reckless driving offense. "[L]ack of criminal history is a significant mitigating factor." McElroy v. State, 865 N.E.2d 584, 592 (Ind. 2007).

In sum, our review of the nature of the offense and the character of the offender persuades us that the advisory sentence of thirty years is appropriate.

Conclusion

Sufficient evidence supports Kelley's conviction of Neglect of a Dependent as a Class A felony. Because of Double Jeopardy concerns, her conviction and sentence for Battery must be vacated. She has demonstrated no abuse of discretion in the trial court's evidentiary rulings or instruction of the jury. We revise her sentence to the thirty-year advisory sentence.

Affirmed in part, reversed in part, and remanded with instructions to vacate the Battery conviction and sentence.

FRIEDLANDER, J., and BROWN, J., concur.