MCNUTT v. STATE (2022)

MEMORANDUM DECISION

STATEMENT OF THE CASE

[1] Appellant-Defendant, Tiffany McNutt (McNutt), appeals her conviction for neglect of a dependent resulting in death, a Level 1 felony, Ind. Code § 35-46-1-4(b)(3), and neglect of a dependent, a Level 6 felony, I.C. § 35-46-1-4(a)(1).

[2] We affirm.

ISSUES

[3] McNutt presents this court with two issues on appeal, which we restate as the following:

(1) Whether the State presented sufficient evidence beyond a reasonable doubt to support her conviction for Level 1 felony neglect of a dependent resulting in death; and

(2) Whether McNutt's sentence is inappropriate in light of the nature of the offenses and her character.

FACTS AND PROCEDURAL HISTORY

[4] In 2018, McNutt, her husband, Daniel Jones (Jones), and their two children, A.J., aged two, and L.J., four months old, lived in a two-bedroom house in Alexandria, Indiana. McNutt's first cousin, Cody Smyer (Smyer), and Smyer's girlfriend, Brooke Street (Street), also lived in that house. Smyer and Street shared one bedroom, while the other bedroom housed animals, including four dogs and five to seven cats. L.J. was supposed to sleep in a portable crib in the dining room, but it was full of trash and clothing and could not be used for sleeping. As a result, four-month-old L.J. co-slept on the couch with the rest of his family.

[5] On February 27, 2018, Smyer and Street left for work at 4:00 a.m., and Jones left around 5:00 a.m. At about 6:00 a.m., McNutt fed L.J. formula and held L.J. close to her chest while she slept. Upon waking up again at around 8:00 a.m., McNutt found L.J.’s face wedged “in the crack between the cushions.” (Appellant's App. Conf. Vol. II, p. 29). As soon as McNutt noticed that L.J. was not breathing and was unresponsive, she ran next door to seek assistance. Margaret Ballard (Ballard) opened the door and saw that L.J. was not breathing, and that his body was cold to the touch. Ballard set L.J. on the floor and began performing CPR. Upon being asked if she had called 911, McNutt replied that she had not but was trying to get in touch with her own mother. After reaching for McNutt's phone, Ballard called 911 and continued administering CPR on L.J.

[6] The first officer to arrive was Officer Joe Heath (Officer Heath) of the Alexandria Police Department. Ballard handed Officer Heath the responsibility of administering CPR to L.J. While Officer Heath was providing aid to L.J., McNutt repeatedly stated, “Oh my God, I killed my baby.” (Tr. Vol. I, p. 167). After a short while, emergency medical technicians arrived, and L.J. was taken to Community Hospital in Anderson, Indiana. As soon as Jones heard about L.J.’s condition, he left work and rushed to the hospital.

[7] Before transporting her to the hospital, Officer Heath accompanied McNutt back to her house to gather preliminary information, such as how McNutt found L.J., which he would relay to the hospital staff. An overwhelming odor of urine greeted Officer Heath as he approached the threshold of McNutt's door. Officer Heath quickly gathered the information because the smell in McNutt's house “was making [him] sick to [his] stomach.” (Tr. Vol. I, p. 173).

[8] Despite additional efforts at resuscitation, L.J. was pronounced dead at 9:00 a.m. Department of Child Services (DCS) staff spoke with McNutt and Jones while at the hospital. In the presence of a detective, McNutt recounted how she had discovered L.J. Both McNutt and Jones were tested for drugs, but no illicit substances were detected. DCS then traveled to McNutt's home to conduct an investigation, and several officers were present when they arrived. That same day, when McNutt contacted Smyer and Street, she forewarned them not to return “to the house because the cops were there and [L.J.] had passed away.” (Tr. Vol. II, p. 136).

[9] While waiting for a search warrant, the police contacted animal control to contain the animals and Madison County Hazardous Materials (MCHM) to “check out the ammonia level” because the smell emanating from McNutt's home “was pretty bad.” (Tr. Vol. II, p. 247). The door had to be left open for a while before the ammonia test could be conducted. According to MCHM, McNutt's home had reduced oxygen levels, so while the officers and DCS staff could conduct their investigation, they were advised not to stay inside for more than eight hours at a time and to wear “white gowns” for protection while on site. (Tr. Vol. II, p. 247).

[10] Despite being familiar with safe sleep practices, which McNutt had been advised on after she gave birth to L.J. and which required L.J. to sleep on his back in a crib, DCS found that she did not adhere to that requirement. Four-month-old L.J. slept on the couch with the rest of his family because his portable crib was stuffed with clothing and trash. Additionally, DCS found McNutt's house to be unsanitary and not babyproofed. For instance, there were electrical cords everywhere, items were haphazardly stacked on cabinets, and the baby formula was near an open container of alcohol and cleaning products.¹ Officer Jeff Richwine (Officer Richwine), one of the officers who processed the scene, described McNutt's home as filthy, with dirty diapers and animal feces and urine strewn throughout.

[11] L.J.’s autopsy was performed at the hospital at around 5:30 p.m. The report revealed that he had a bloody discharge in his right nostril and conjunctival petechiae, which is a “phenomenon” commonly associated with asphyxia deaths or resuscitative efforts. (Tr. Vol. II, p. 15). In addition, L.J. had “pulmonary edema,” a fluid buildup in the lungs which is common with “overdose deaths”. (Tr. Vol. II, p. 15). L.J.’s blood was also drawn during his autopsy for toxicology testing.

[12] When McNutt spoke with Ballard several days after L.J.’s passing, she informed Ballard that L.J.’s toxicology report was pending. At first, McNutt claimed L.J.’s death was consistent with sudden infant death syndrome, but later changed her mind, claiming it was drug-related and blaming Smyer. Specifically, McNutt stated that “the only possible toxicology, or something [ ] would've been” from Smyer. (Tr. Vol. I, p. 128). Smyer had a “reputation” as a drug user in his family. (Tr. Vol. II, p. 194). The toxicological analysis revealed that L.J. possessed a “very particular metabolite”, 6 monoacetylmorphine, in his body, which is only present when heroin is injected or absorbed through “mucosal membranes” like the inside of a person's cheek. (Tr. Vol. II, p. 27). The cause of L.J.’s death was ruled heroin intoxication.

[13] In an interview with the police on March 22, 2018, McNutt expressed her shock over the toxicology report. She did not understand how heroin entered L.J.’s system since neither she nor Jones were drug users. On the same day, the police questioned Smyer and Street, who denied knowing how L.J. could have had heroin in his system, denied any drug use on their part, and denied that McNutt and Jones were drug users. Several days later, the police served limited warrants on McNutt and Jones for “the collection of hair, urine, blood, [and] photos of possible injection sites on their bodies.” (Appellant's App. Vol. II, p. 31). No illegal drugs, including opiates, were found in the tests. While both Street and Smyer failed similar tests for cocaine, no heroin was found on either of them. (Appellant's App. Vol. II, p. 32). A closer review of the photographs taken from McNutt's house revealed a rolled-up dollar bill and a “white powdery substance on a [ ] TV tray” in Smyer's and Street's bedroom. (Tr. Vol. I, p. 202).

[14] On January 10, 2019, the State filed an Information, charging McNutt with Level 1 felony neglect of a dependent resulting in death and Level 6 felony neglect of a dependent. McNutt's jury trial was held on September 13 through 16, 2021. Doctor Amanda Paul (Dr. Paul), the pathologist who completed L.J.’s autopsy and interpreted the toxicology report, stated that L.J. suffered from a bloody discharge in his right nostril and conjunctival petechiae, which is commonly associated with asphyxia deaths or resuscitative efforts. She added that L.J. also had pulmonary edema, a fluid buildup in the lungs, which is common with overdose deaths. Regarding L.J.’s toxicology report, Dr. Paul she stated that L.J. had a unique metabolite for heroin, 6 monoacetylmorphine, in his body. She explained that heroin does not produce that metabolite when consumed, and she ruled out the prospect of the baby formula being laced with heroin. However, she explained that 6 monoacetylmorphine appears only when heroin is injected intramuscularly or absorbed through the mucous membrane. Dr. Sheila Arnold (Dr. Arnold), a forensic toxicologist with the Indiana Department of Toxicology, explained that metabolite 6 monoacetylmorphine causes heroin's effects, namely, “constricted pupils, slurred speech, slowed information processing,” and “respiratory suppression” that would lead one to cease breathing and eventually result in death. (Tr. Vol. III, p. 144). Once absorbed in the bloodstream, metabolite 6 monoacetylmorphine remains in the body for 100 minutes to 150 minutes.

[15] As heroin is not natural to find in a child who is only four months old, Dr. Paul postulated that it would have entered L.J.’s body either through injection or through L.J.’s mucous membrane such as his nose, cheek, or gums. She determined that L.J. probably encountered heroin within an hour or three hours of his death. Based on the presence of metabolite 6 monoacetylmorphine in L.J.’s body, she concluded that L.J. succumbed to heroin intoxication, otherwise known as a heroin overdose.

[16] McNutt's mother, Cherly Oglesbee (Oglesbee) testified that her nephew Smyer, had a family reputation of being a drug user, and that Smyer had in the past bragged about using marijuana, ecstasy, heroin, and cocaine. Despite Smyer's claim at trial that he used drugs after L.J. died and after he had moved out of McNutt's home, there was the presence of drug paraphernalia such as a rolled-up dollar bill and a white powdery substance on a TV tray in his bedroom when the police processed the scene. McNutt's subjective knowledge of the presence of drugs in her home was also presented through Ballard's testimony that McNutt had confessed to Ballard several days after L.J. died, that any drugs from the toxicology report would be from Smyer.

[17] At the close of the evidence, the jury found McNutt guilty as charged. On October 25, 2021, the trial court sentenced McNutt to concurrent terms of twenty years for the Level 1 felony and six months for the Level 6 felony, with ten years executed, and ten years to be served in home detention.

[18] McNutt now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence

[19] McNutt claims that the State failed to present sufficient evidence to sustain her Level 1 felony neglect of a dependent resulting in death. It is well-established that when reviewing a claim of insufficient evidence, we do not reweigh evidence or assess the credibility of witnesses. Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013). Instead, we consider all of the evidence, and any reasonable inferences that may be drawn therefrom, in a light most favorable to the verdict. Id. We will uphold the conviction “ ‘if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)).

[20] In 2018, Indiana defined the offense of neglect of a dependent resulting in death as follows:

(a) A person having the care of a dependent, whether assumed voluntarily or because of a legal obligation, who knowingly or intentionally:

(1) places the dependent in a situation that endangers the dependent's life or health;

commits neglect of a dependent, a Level 6 felony.

* * * *

(b) However, the offense is

(3) a Level 1 felony if it is committed under subsection (a)(1) ․ by a person at least eighteen (18) years of age and results in the death or catastrophic injury of a dependent who is less than fourteen (14) years of age ․

I.C. § 35-46-1-4. “A person engages in conduct knowingly if, ‘when he engages in the conduct, he is aware of a high probability that he is doing so.’ ” Villagrana v. State, 954 N.E.2d 466, 468 (Ind. Ct. App. 2011) (quoting Ind. Code § 35-41-2-2(b)). The mens rea under the Neglect Statute, requires the defendant to have a “ ‘subjective [ ] aware[ness] of a high probability that he placed the dependent in a dangerous situation.’ ” Perryman v. State, 80 N.E.3d 234, 250 (Ind. Ct. App. 2017) (quoting Gross v. State, 817 N.E.2d 306, 308 (Ind. Ct. App. 2004)). Our court has repeatedly held that the Neglect Statute “must be read as applying only to situations that expose a dependent to an ‘actual and appreciable’ danger to life or health.” Scruggs v. State, 883 N.E.2d 189, 191 (Ind. Ct. App. 2008), trans. denied (citation omitted). In Scruggs, we reiterated:

[T]hat to be an “actual and appreciable” danger for purposes of the neglect statute when children are concerned, the child must be exposed to some risk of physical or mental harm that goes substantially beyond the normal risk of bumps, bruises, or even worse that accompany the activities of the average child. This is consistent with a “knowing” mens rea, which requires subjective awareness of a “high probability” that a dependent has been placed in a dangerous situation, not just any probability.

Id. (citation omitted). In order to determine whether a guilty verdict is appropriate, we look at all the circumstances surrounding the case to determine the defendant's mental state. See Villagrana, 954 N.E.2d at 468.

[21] McNutt makes several arguments, and which she begins by claiming that the State's only evidence regarding her knowledge that drugs existed in her home came from Oglesbee testifying that Smyer was a known drug user, a fact she claims to be unaware of, as well as her own statement to Ballard that the drugs detected in the toxicology report were Smyer's. She argues that, even assuming that she knew of Smyer's drug use, which she claims the record does not support, it is unreasonable to presume that she subjectively placed L.J. in a dangerous situation by living in the same home with Smyer.

[22] Our supreme court has held that “the knowing exposure of a dependent to an environment of illegal drug use poses an actual and appreciable danger to that dependent and thereby constitutes neglect regarding the endangerment requirement of the offense.” White v. State, 547 N.E.2d 831, 836 (Ind. 1989). This court has found that “the phrase ‘results in the death of a dependent’ ” as employed in Indiana Code section 35-46-1-4(b)(3) “implicates proximate causation.” Patel v. State, 60 N.E.3d 1041, 1052 (Ind. Ct. App. 2016). This standard requires the State to prove beyond a reasonable doubt that the death of a dependent would not have occurred “but for” the neglectful act. Id.

[23] In this case, four-month-old L.J. was completely dependent upon McNutt to keep him safe. L.J.’s autopsy determined that L.J. died of heroin intoxication. Dr. Paul hypothesized that heroin probably entered L.J.’s body either through intramuscular injection or through mucous membranes such as his nose, cheek, and gums. Ultimately, Dr. Paul determined that L.J. probably came into contact with heroin within an hour to three hours of his death.

[24] While McNutt was not a drug user, the State presented evidence that Smyer, McNutt's first cousin, had a family reputation as a drug user. As a matter of fact, Smyer boasted about his heroin, marijuana, ecstasy, and cocaine usage to his aunt, Oglesbee. Moreover, despite McNutt's claim that she was unaware of any drugs or drug use in the house, a rolled-up dollar bill and a white powdery substance on a TV tray were observed in Smyer's bedroom and presented as evidence of open drug use. In addition, on the day that L.J. died, McNutt forewarned Smyer and Street and told them that the police were at the house and cautioned them not to return. Again, in spite of McNutt's assertions that she was unaware of drug use or the presence of drugs in her house, when she spoke to Ballard a few days after L.J. had died, the toxicological analysis was still pending, and L.J.’s cause of death had yet to be determined. Yet, she outrightly told Ballard that if drugs appeared in the report, it would be attributable to Smyer.

[25] McNutt adds that “[v]irtually every single witness that the State relied upon spoke at length about the dirty, cluttered, messy conditions of her home” and that the State “took great lengths to indoctrinate the jury” with the fact that she did not adhere to safe sleep practices for L.J. and that her home was not babyproofed. (Appellant's Br. p. 26). She maintains that while that evidence supported the Level 6 felony neglect of a dependent charge, it did not “come close to satisfying all the elements” for the Level 1 felony neglect of a dependent resulting in death. (Appellant's Br. p. 26).

[26] Despite the voluminous evidence supporting the Level 6 felony neglect of a dependent based on the deplorable conditions of McNutt's home, the only question we have with regards to the Level 1 felony neglect of a dependent resulting in death is whether McNutt placed L.J. in a dangerous situation. As it pertains to the Neglect Statute, we have stated that “the only link in the chain of causality with which we are concerned” is the act of placing a dependent in a dangerous situation. Marksberry v. State, 185 N.E.3d 437, 444 (Ind. Ct. App. 2022), trans. denied. Further, we reiterate that our role on appeal is to examine all of the evidence and determine whether an inference may reasonably be drawn from it to support the verdict. Davis, 813 N.E.2d at 1178.

[27] Looking at all surrounding circumstances, even though McNutt was not a drug user, the record indicates that she was aware that Smyer was a drug user when she spoke to Ballard, she exposed L.J. to an environment in which drugs were openly abused, and L.J. died of a heroin overdose. Based on the foregoing, we conclude that the State presented sufficient evidence beyond a reasonable doubt to support McNutt's conviction for Level 1 felony neglect of a dependent resulting in death.

II. Inappropriate Sentence

[28] Finally, McNutt contends that her sentence is inappropriate in light of the nature of the offenses and her character.

Under Indiana Appellate Rule 7(B), we may revise a sentence if, after due consideration of the trial court's decision, we find the sentence inappropriate considering the nature of the offense and the character of the offender. Whether a sentence is inappropriate turns on the culpability of the defendant, the severity of the crime, the damage done to others, and other factors that come to light in a given case. We defer to the trial court's decision, and our goal is to determine whether an appellant's sentence is inappropriate, not whether some other sentence would be more appropriate. Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character. In reviewing a sentence, we seek to leaven the outliers rather than to achieve a perceived correct result in each case.

McFarland v. State, 153 N.E.3d 369, 374 (Ind. Ct. App. 2020) (internal quotations and citations omitted), trans denied.

[29] The advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016, 1019 (Ind. 2012). For the conviction of Level 1 felony neglect of a dependent resulting in death, McNutt faced a sentence of twenty to forty years, with an advisory term of thirty years. I.C. § 35-50-2-4. For her Level 6 felony neglect of a dependent, McNutt faced a sentence of six months and to two and one-half years, with an advisory sentence of one year. I.C. § 35-50-2-7. Here, the trial court imposed concurrent sentences of twenty years for the Level 1 felony conviction with ten years executed, and ten years suspended to home detention, and six months for the Level 6 felony conviction.

[30] As for the nature of the offenses, McNutt's home was in a deplorable state, was not babyproofed such that DCS could not allow McNutt to return to the home since they deemed it unsafe for the surviving child. Moreover, Smyer, a known drug user, was living in the home openly using drugs, and he had in the past boasted about his heroin, marijuana, ecstasy, and cocaine usage. In fact, Smyer's drug use was well known to McNutt when she spoke with Ballard because she implied that if drugs were found in L.J.’s system, Smyer would be to blame. L.J., was exposed to heroin and died as a result.

[31] “The character of the offender is found in what we learn of the offender's life and conduct.” Croy v. State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Turning to McNutt's character, we note that she has led a law-abiding life prior to the death of L.J. Although her good character is indeed redeeming, it does not diminish the severity of the charges. McNutt shared her home with a known drug user who bragged about using heroin, L.J. was exposed to heroin, and he died in McNutt's care. After due consideration of the evidence presented at trial, we cannot say that the sentence imposed by the trial court is inappropriate. We, therefore, affirm the sentence imposed by the trial court.

CONCLUSION

[32] In sum, we conclude that the State presented sufficient evidence beyond a reasonable doubt to convict McNutt of her Level 1 felony neglect of a dependent resulting in death, and that her sentence is not inappropriate in light of the nature of the offenses and her character.

[33] Affirmed.

FOOTNOTES

1.   Following a walkthrough of McNutt's home, DCS deemed it unsafe for four-year-old A.J. McNutt advised DCS that they would be staying at her parents’ (Grandparents) home in Frankton, Indiana. After DCS inspected Grandparents’ home they found the home to be appropriate and safe for A.J.

Riley, Judge.

[34] May, J. and Tavitas, J. concur