ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
Jill M. Denman Steve Carter
John W. Bailey Attorney General of Indiana
Matheny, Michael, Hahn
& Bailey, LLP ADAM M. DULIK
Huntington, Indiana Deputy Attorney General
June 17, 2002
While appellant April M. Brown sat and watched, her husband Levohn (Lee) Brown
struck their three-year-old daughter with a blow that proved fatal because the parents
let her go for a week without any medical attention. A jury
found April Brown guilty of aiding in murder and neglect of a dependent
causing serious bodily injury. We affirm the latter, and remand for a
new trial on the former.
To convict April of aiding in murder, the State had to prove beyond
a reasonable doubt that she (1) knowingly or intentionally (2) aided, induced, or
caused Lee (3) to murder MicKenzie.
See Ind. Code Ann. §§ 35-41-2-4,
35-42-1-1(1) (West 1998).
The particular facts and circumstances of each case must be considered in determining whether a person participated in the commission of an offense as an accomplice. Peterson v. State, 699 N.E.2d 701 (Ind. Ct. App. 1998). Certain factors have long been considered probative in that determination, including: (1) presence at the scene of the crime; (2) companionship with another engaged in criminal activity; (3) failure to oppose the commission of the crime; and (4) a defendants course of conduct before, during, and after the occurrence of the crime. Johnson v. State, 490 N.E.2d 333, 334 (Ind. 1986).
April does not dispute her presence at the scene of the crime, and
her marriage to Lee clearly constituted companionship. This companionship continued for a
period of time even after MicKenzies death.
The facts most favorable to the verdict indicate that April heard Lee tell
MicKenzie, youre going to listen to me or Im going to beat it
into you just prior to the beating. (R. at 491-92.) She
also heard Lee ask MicKenzie, Do you want me to put you through
this wall[?] (
After hearing these threats, April joined Lee in the bedroom to find him
holding MicKenzie against a wall by her pajamas. (
Id.) He again
was threatening to put her through the wall. (Id.) April sat
down and watched Lee strike MicKenzie in the back of the head with
a large wooden paddle.
Lee then asked April, [H]ave I gone too far? (R. at 632.)
She replied, [Y]ou are too easy on her, she was she
is she will be fine. (
Id.) She also said that
she was sick of [Lee] treating MicKenzie like a porcelain doll. (R.
at 632-33.) April made similar comments to Lee before the day of
this incident. (Id.)
After the attack, April cleaned up MicKenzies blood that had splattered on surrounding objects for fear that someone would realize what had occurred. (R. at 361, 377.) Over the next few days, April realized MicKenzie was having trouble standing, walking, moving her left arm, focusing her eyes, and controlling her bowels. (R. at 517.) MicKenzie also suffered numerous bruises to her entire body. (R. at 339-40, 517.) During this time, April would watch as Lee knocked MicKenzie on her head and slapped her in the face. (R. at 518.) Two days after the beating, April saw Lee slap MicKenzie hard enough that [her] head would jolt back and cause her to fall to the ground. (R. at 519.)
From Monday until Thursday, the four days preceding MicKenzies death, April was the
sole parent in the home, (R. at 637), and she recognized the need
for medical treatment, (R. at 339-40, 343-45, 347, 517). She requested the
advice of a friend, who upon seeing MicKenzie was so alarmed at the
childs condition that he offered to take them to the hospital. (R.
at 347, 615-17, 621.) April declined and instead did nothing. (
On the morning of February 11, MicKenzie stopped breathing. Only after speaking
with Lee did April call 911. The fireman who first responded to
the emergency call testified about MicKenzies visibly protruding forehead and the bruises that
covered her body. He also described MicKenzies rigid and swollen torso, which
was the result of massive bleeding in her stomach.
While doctors and emergency technicians attempted to save MicKenzies life, April frustrated their
efforts. She concocted stories of MicKenzie suffering from the flu, experiencing respiratory
problems, and taking adult doses of medication.
Even after MicKenzies death, April continued to cover up the crime by lying
to the authorities on numerous occasions. (R. at 300, 305-07, 314, 324, 328-31,
337-38, 354-55, 376.) It was only after Lee admitted striking MicKenzie with
the paddle that April told authorities about the circumstances surrounding the incident.
(R. at 356-66.)
Aprils failure to oppose MicKenzies continued abuse and to seek medical treatment is
particularly probative because she owed a parental duty to protect.
v. State, 227 Ind. 335, 85 N.E.2d 489 (1949). In Mobley, this
Court confronted an eerily similar case of child abuse. Three-year-old Alice Mobley
died from cerebral injuries caused by repeated acts of violence committed by her
mothers boyfriend. 227 Ind. at 340-41, 85 N.E.2d at 491.
Although it was unclear whether any of Alices mothers acts caused the brain
injuries, it was undisputed that the child was in the exclusive control of
the mother and her boyfriend for the weeks preceding her death.
In discussing the possibility that none of the mothers acts contributed to
the childs death, Justice Young wrote:
While it is true that the mere presence of a person at the scene of a crime is insufficient to constitute him a principal therein, in the absence of anything in his conduct showing a design to encourage, incite, aid, abet or assist in the crime, the trier of the facts may consider failure of such person to oppose the commission of the crime in connection with other circumstances and conclude therefrom that he assented to the commission of the crime, lent his countenance and approval thereto and thereby aided and abetted it. This, it seems to us, is particularly true when the person who fails to interfere owes a duty to protect as a parent owes to a child.
Mobley, 85 N.E.2d at 492, 227 Ind. at 344 (internal citations omitted).
This rationale is particularly pertinent to the instant case.
Our review of these multiple factors, including Aprils presence at the scene of
the crime, her continued companionship with Lee, her statements of encouragement for harsher
punishment both before and after the skull-fracturing blow, her failure to render or
seek medical treatment despite its obvious necessity, her status as the sole caregiver
for much of the week prior to MicKenzies death, her failure to oppose
continued abuse after the initial injury, her repeated lies to medical personnel and
authorities about the cause of MicKenzies death, and especially her duty to protect
the child, all lead us to conclude that she assented to the commission
of the crime, lent h[er] countenance and approval thereto and thereby aided and
The State presented sufficient evidence to convict April of aiding in MicKenzies murder.
A. Exclusion of Lees Testimony. The defense called Lee to the
stand during its case-in-chief and asked him what his intent was in administering
the blow to MicKenzies head. The State objected, arguing that Lees intent
was irrelevant. The trial court did not allow Lee to answer.
The defense subsequently made an offer of proof that Lee would have testified
that he did not intend to cause MicKenzies death and that the strike
to the head was an accident. (R. at 666.)
Claims of error in the exclusion or admission of evidence are reviewed for
an abuse of discretion.
McCarthy v. State, 749 N.E.2d 528 (Ind. 2001).
An error is harmless if its probable impact on the jury, in
light of all of the evidence in the case, is sufficiently minor so
as not to affect a partys substantial rights. Stewart v. State, 754
N.E.2d 492 (Ind. 2001).
The evidence in question bore directly on Lees state of mind in striking
MicKenzie. Without the finding of a knowing or intentional killing by Lee,
the State could not have proven that April aided him in the murder.
See Johnson v. State, 687 N.E.2d 345, 350 (Ind. 1997) (citation omitted)
(An accomplice may be tried and convicted when the proof of the underlying
crime is sufficient.). While it is true, as the State has argued,
that it could obtain a conviction without proving that Lee intended to cause
death (by showing that he knowingly caused the death), his level of intentionality
was an important element of proof in Aprils crime as charged.
Our review of the record convinces us that this error was not harmless.
The defense did elicit testimony from Lee that he was going to
spank MicKenzie for her defiance, (R. at 627, 629), but Lee was not
otherwise allowed to explain his intent in striking MicKenzie. Given a different
set of facts on the issue of accomplice liability, we might rule this
error harmless. But considering the closeness of the evidence on this charge,
the exclusion of this evidence requires reversal.
B. Lesser Included Instructions. April also argues that the trial court
erred by refusing a jury instruction on the lesser included offenses of aiding
in reckless homicide and aiding in voluntary manslaughter.
To determine whether to instruct the jury on a lesser included offense of
a charged crime, the court must employ the analysis outlined in
State, 658 N.E.2d 563 (Ind. 1995). First, the court must compare the
statute defining the charged crime with the statute defining the lesser included offense
to determine whether the lesser included offense is "inherently included" in the crime
charged. Id. at 566.
Where the only element distinguishing the crimes is the degree of culpability, as
is the case between reckless homicide and murder, the lesser included offense is
See Miller v. State, 720 N.E.2d 696, 702-03 (Ind. 1999);
accord Taylor v. State, 587 N.E.2d 1293, 1303-04 (Ind. 1992). Therefore,
aiding in a reckless homicide is an inherently included lesser offense of aiding
in a murder.
Having satisfied the first requirement, the trial court must then evaluate the evidence
presented by both parties.
Wright, 658 N.E.2d at 567. If there
is a serious evidentiary dispute about the elements distinguishing the greater offense from
the lesser offense and a jury could conclude that the lesser offense was
committed but not the greater, then it is reversible error for a trial
court not to give an instruction, when requested, on the inherently or factually
included lesser offense." Id. If, on the other hand, there is
no meaningful evidence from which the jury could properly find the lesser offense
was committed, the court should not give the lesser included offense instruction.
Our analysis of this requirement is complicated by the trial courts exclusion of Lees testimony regarding his intent in striking MicKenzie. Had the trial court properly allowed the testimony, he would have testified that he accidentally struck MicKenzie in the head and that he did not intend to kill her. (R. at 665-66.) In support of this statement, Lee testified that prior to striking MicKenzie, he told April that he was going to give MicKenzie a couple swats on the behind. (R. at 629.)
This evidence would have created a serious evidentiary dispute as to whether Lee
committed murder, reckless homicide or voluntary manslaughter. Had the jury believed this
assertion, it could not have properly convicted April of aiding in murder because
conviction of an accomplice requires sufficient proof of the underlying crime.
Sanquenetti v. State, 727 N.E.2d 437, 441 (Ind. 2000). As such, the
trial courts refusal to instruct the jury on the lesser included offenses of
aiding in reckless homicide or in voluntary manslaughter was reversible error.
After recognizing MicKenzies dire medical condition, April and Lee, rather than taking their
three-year-old to a doctor, attempted therapy. They bathed MicKenzie in an Epsom
salt bath only to watch as her head repeatedly rolled to the side,
filling her mouth with water. (R. at 349.) When this therapy
failed, April watched as Lee attempted to make MicKenzie stand on her own.
(R. at 350.) Each time he would release MicKenzie, she would
fall to the ground, sometimes hitting her head. (R. at 350-51.)
Furthermore, the State presented testimony from Dr. Scott Wagner, who said that children
are resilient to head injuries and that MicKenzies chances for survival were good
had she received prompt medical treatment. (R. at 422.) Though Dr.
Wagner could not pinpoint when MicKenzie became untreatable, he testified that her medical
condition would have worsened with each passing day and the sooner the treatment,
the better chance MicKenzie would have had to live. (R. at 419-22.)
Dr. Wagner further testified that MicKenzie would not have appeared normal just
after the blow, would have frequently been unconscious, and would have continued to
get worse before her eventual death. (R. at 419-21.)
This tale of maternal neglect is so shocking that the customary words of
legal analysis seem inadequate to the task. Simply put, overwhelming evidence proves
April knew MicKenzie desperately needed medical treatment and that MicKenzie would still be
alive had she received it promptly. We affirm Aprils conviction of neglect
of a dependent causing serious bodily injury.
A. Aggravating and Mitigating Factors. The trial court found five aggravators:
(1) Aprils lack of remorse; (2) her need for correctional or rehabilitative
treatment; (3) imposition of a reduced sentence or suspension of the sentence would
depreciate the seriousness of the crime; (4) the victims age; and (5) the
nature and circumstances of the crime. The trial court found one mitigator,
Aprils lack of criminal history.
April first argues that her need for rehabilitation best served by incarceration was
not supported by the record. The State concedes that this aggravating factor
was improper. The remaining aggravators, however, may serve to enhance Aprils sentence.
April also contends that the trial court erred in failing to consider two
mitigating factors: (1) the likelihood that the offense would never re-occur because
April and Lee subsequently divorced; and (2) that the need for supervision is
low. Though the trial court must identify all significant mitigating factors, it
is not required to accord them the weight defendant requests.
State, 721 N.E.2d 1238, 1243 (Ind. 1999).
April claimed she did not seek medical treatment for MicKenzie because she feared
reprisal from Lee. (R. at 347, 355-56, 520-21.) Though April was
no longer married to Lee by the time of her sentencing, her trial
testimony revealed a history of abusive relationships. (R. at 441-68.) In
light of this evidence, the trial court did not abuse its discretion in
rejecting Aprils contention that she was unlikely to neglect a dependent again.
It was also within the courts discretion to reject as a significant mitigating
factor Aprils claim that she needed little supervision. Though April correctly points
out that the risk assessment instrument prepared for the pre-sentence report indicates relatively
low risk, Aprils own contributions to the report could rightly have given Judge
McIntosh pause on this point. Asked what type of sentence she thought
she should receive, April replied, I dont feel I deserve anything [f]or a
crime I didnt commit. [Seven] months has already been taken from my
children, my family, and myself unjustly. (Appellants App. at 49.)
B. Manifestly Unreasonable. April also argues that her sentence is manifestly
unreasonable. In light of the nature of Browns neglect and her stunning
lack of remorse following the incident, a twenty-year sentence is hardly unreasonable.
Dickson, Sullivan, and Rucker, JJ., concur.
Boehm, J., concurs in part and dissents in part with separate opinion.