ALLEN v. STATE (2026)

MEMORANDUM DECISION

[1] Michael T. Allen, Jr. (“Allen”) appeals following his convictions of Level 1 felony neglect of a dependent resulting in death ¹ and Level 1 felony aggravated battery resulting in death.² Allen raises two issues on appeal. First, he argues the State failed to present sufficient evidence to support his conviction of Level 1 felony neglect of a dependent resulting in death. Second, Allen argues that the trial court abused its discretion when it ordered a forty-year sentence for each of the two convictions, to be served consecutively, for an aggregate sentence of eighty years. Because the facts most favorable to the trial court support the jury's verdict, and because the trial court did not abuse its discretion when it sentenced Allen, we affirm.

Facts and Procedural History

[2] Allen, his seventeen-month-old daughter, K.V., and K.V.’s mother Kayla Vachon (“Vachon”) lived together in a mobile home park in Allen County. On February 24, 2021, around 3:00 p.m., Allen and K.V. dropped Vachon off at work for her shift as a forklift driver. K.V. had been vomiting the day before, but a walk-in clinic and K.V.’s pediatrician's office advised Vachon to monitor her symptoms. Over the course of the day, K.V.’s condition improved. Vachon did not have any concerns for K.V.’s health on the afternoon of February 24th, and she described K.V. as “fine” and “happy” when Vachon exited the car for work. (Tr. Vol. 2 at 189.)

[3] After dropping Vachon at work, Allen and K.V. ran errands before returning home around 6:00 p.m. Around 8:30 or 9:00 p.m., Allen and K.V. drove to a nearby gas station and returned home a short time later. Sometime between 6:00 p.m. and approximately 12:52 a.m. on February 25th, K.V. sustained “blunt force injuries of the abdomen.” (Tr. Vol. 3 at 77.) At some point after midnight, Allen decided to drive K.V. to the hospital. On his way, at 12:52 a.m., Allen called 911. Instead of continuing to the hospital, Allen stopped at a nearby fire station around 12:56 a.m. to seek assistance.

[4] At the fire station, Allen told a police officer who responded to the 911 call that “he went to check on [K.V.], and she was stiff, and she had been vomiting earlier, and she wasn't responding[.]” (Id. at 5.) Upon bringing K.V. into the station, a firefighter paramedic observed that “she was not breathing at all on her own” and “had no pulse.” (Tr. Vol. 2 at 216.) The paramedic also noted that K.V.’s “arms and legs were cool to the touch, but her body was still warm[,]” (id. at 218), and “her pupils were fixed and dilated[,]” (id.), which demonstrated “there was no brain activity happening.” (Id. at 219.) Nonetheless, the responders in the fire station performed CPR on K.V. until the ambulance arrived to transport her to the hospital.

[5] While at the fire station, Allen phoned Vachon and told her that something was wrong with K.V., she might be dead, and he was being arrested. A police officer took Allen's phone and instructed Vachon to go to the fire station. When Vachon arrived at the fire station, she was informed that K.V. was transported to the hospital. Upon arrival at the hospital, Vachon saw hospital employees trying to resuscitate K.V., but their efforts were unsuccessful. K.V. was pronounced dead at the hospital at 2:05 a.m.

[6] The following day, a forensic pathologist performed an autopsy on K.V. The forensic pathologist found that K.V.’s death was the result of a non-accidental “traumatic injury” (Tr. Vol. 3 at 78) caused by “a tremendous amount of force directed in one area.” (Id. at 65.) Further, the forensic pathologist indicated that K.V.’s injuries occurred within “a couple of hours” of her death and that she would have lost consciousness within ten to fifteen minutes of when the injury occurred. (Id. at 66.)

[7] On March 3, 2021, Allen was charged with Level 1 felony neglect of a dependent resulting in death and Level 1 felony aggravated battery resulting in death. Allen was found guilty of both charges on June 5, 2025. At Allen's sentencing hearing on August 15, 2025, the trial court explained to Allen its findings regarding both aggravating and mitigating factors:

The Court does find as aggravating circumstances your juvenile and adult criminal record with failed efforts at rehabilitation and the fact that you were on probation at the time of these offenses. Your criminal record covers a period of time from 2003 to 2025, where you have two adjudications as a juvenile with informal adjustments, probation, operational supervision, violence counseling, community service, the detention alternative program multiple times, home detention, and time in the Allen County Juvenile Center. As an adult, you have six misdemeanor convictions and four prior felony convictions with short, intermediate, and longer jail sentences, unsupervised probation services through Criminal Division Services. You've been ordered to perform community service. You've been on active adult probation. You committed new offenses while you were on bond. In this case, I find the victim's tender age and the violation of the position of trust that you were in with her to be specific separate aggravating circumstances. You've had your sentences modified five times, and your driving privileges are currently suspended. You've been found in contempt of this court for violation of the Court's orders as it relates to discovery and the despicable demonstration of your behavior on the internet and displaying all of these photographs of your child on an autopsy table, which was beyond the pale.

(Id. at 246.)³ The trial court imposed sentences of forty years for each of his two convictions and ordered them to be executed consecutively for an aggregate sentence of eighty years.

Discussion and Decision

1. Sufficiency of the evidence for neglect of a dependent

[8] Allen argues the State failed to present sufficient evidence to sustain his conviction of Level 1 felony neglect of a dependent resulting in death. Sufficiency of the evidence claims prompt a deferential standard of review in which we “neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury.” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018)). A conviction is supported by sufficient evidence if “there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Id. (quoting Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015)). Our review considers “only the evidence that supports the jury's determination, not evidence that might undermine it.” Id.

[9] To convict Allen of neglect of a dependent resulting in death, the State was required to prove that Allen, an adult, had the care of K.V., a child under the age of fourteen, that he knowingly placed K.V. “in a situation that endanger[ed] [her] life[,]” and that K.V.’s death resulted. Ind. Code § 35-46-1-4(a)(1). Allen argues that the State failed to present sufficient evidence that he placed K.V. in a dangerous situation.

[10] Vachon testified that K.V. was “fine” and “happy” when Allen dropped Vachon at work around 3:00 p.m. (Tr. Vol. 2 at 189.) Allen admitted he was K.V.’s sole caregiver beginning at 3:00 p.m. until they arrived at the fire station in the early hours of the following day. When Allen arrived at the fire station, a firefighter found she “was not breathing and did not have a pulse[,]” (id. at 216), had no brain activity, and her “arms and legs were cool[,]” (id. at 218), though her “core body temperature felt warm.” (Id.) A forensic pathologist testified that K.V.’s injuries occurred within “a couple of hours” of her death and that K.V. would have lost consciousness within ten to fifteen minutes. (Tr. Vol. 3 at 66.) Thus, the jury could reasonably infer that K.V.’s injuries were sustained while she was in Allen's care. Further, the forensic pathologist explained that K.V.’s injuries were not accidental, but “a traumatic injury” (id. at 78) caused by “a tremendous amount of force directed in one area” (id. at 65), and the manner of K.V.’s death was homicide. Based on this evidence, the jury could reasonably conclude that Allen caused K.V.’s fatal injuries. See Myers v. State, 221 N.E.3d 694, 699 (Ind. Ct. App. 2023) (holding that the jury could reasonably infer that the defendant inflicted victim's injuries when evidence established the injuries occurred while the victim was alone with the defendant). Because a reasonable jury could determine that Allen caused K.V.’s injuries, thus placing her in a situation that endangered her life, we conclude that the State provided sufficient evidence to support Allen's conviction.

2. Exercise of Sentencing Discretion

[11] Allen argues that the trial court abused its discretion when it imposed a fully-executed aggregate sentence of eighty years, consisting of a forty-year sentence for each of Allen's two convictions to be served consecutively.⁴ Specifically, Allen argues the trial court abused its discretion by (1) considering the victim's age and Allen's violation of a position of trust as aggravating factors when determining his sentence; (2) sentencing him to the maximum penalty allowed by law, and (3) ordering that his sentences be served consecutively.

[12] “Sentencing decisions lie within the sound discretion of the trial court, and a trial court has discretion to sentence a defendant to consecutive or concurrent terms of imprisonment.” Weaver v. State, 189 N.E.3d 1128, 1132 (Ind. Ct. App. 2022), trans. denied. Therefore, we will not modify a sentence unless the trial court abused its discretion and its decision was “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.” Id. (quoting Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014), trans. denied).

[13] Allen first asserts that, because K.V.’s age and Allen's position of trust with K.V. were material elements of the offenses for which he was convicted, they cannot be considered as aggravating factors for purposes of sentencing. “Where a trial court's reason for imposing a sentence greater than the advisory sentence includes material elements of the offense, absent something unique about the circumstances that would justify deviating from the advisory sentence, that reason is ‘improper as a matter of law.’ ” Gomillia v. State, 13 N.E.3d 846, 852-53 (Ind. 2014) (quoting Anglemyer v. State, 868 N.E2d 482, 491 (Ind. 2007), clarified on reh'g 875 N.E.2d 218 (Ind. 2007)).

[14] To convict Allen of Level 1 felony neglect of a dependent, the State was required to prove, in pertinent part, that Allen was at least eighteen years old and that his actions resulted in the death “of a dependent who is less than fourteen (14) years of age[.]” Ind. Code § 35-46-1-4(b)(3). Likewise, to convict Allen of Level 1 felony aggravated battery, the State had to demonstrate that Allen was an adult whose conduct resulted “in the death of a child less than fourteen (14) years of age[.]” Ind. Code § 35-42-2-1.5. Thus, Allen argues, because both offenses include the victim's age as a material element, it was improper for the trial court to consider the victim's age as an aggravating factor for the purposes of sentencing.

[15] “Generally, where the age of the victim is a material element of the offense, the age of the victim may not be used as an aggravating factor. However, the trial court may properly consider the particularized circumstances of the material elements of the crime to be an aggravating factor.” Harris v. State, 163 N.E.3d 938, 955 (Ind. Ct. App. 2021) (internal citation omitted), trans. denied. While the victim's age was a material element of both of Allen's offenses, the trial court's finding that K.V.’s age of seventeen months was “tender” is a particularized circumstance of the material element, and the trial court did not abuse its discretion in relying on it as an aggravating factor. (Tr. Vol. 3 at 247.) See Kimbrough v. State, 979 N.E.2d 625, 628 (Ind. 2012) (“[E]ven where the age of the victim is an element of the offense, the very young age of a child can support [a sentence greater than the advisory sentence] as a particularized circumstance of the crime.”).

[16] Allen also argues that the trial court's consideration of Allen's violation of his position of trust with K.V. as an aggravating factor was an abuse of discretion. Neglect of a dependent required that Allen “hav[e] the care of a dependent, whether assumed voluntarily or because of a legal obligation[.]” Ind. Code § 35-46-1-4(a). The statute requires that an offender is necessarily in a position of trust by virtue of having the care of a dependent. Thus, because Allen's position of trust with K.V. was a material element of the offense, and there is no evidence of a particularized circumstance to consider, it was improper for the trial court to rely on Allen's position of trust with K.V. as an aggravating factor.

[17] However, “[a] single aggravating circumstance may be sufficient to enhance a sentence. When a trial court improperly applies an aggravator but other valid aggravating circumstances exist, a sentence [greater than the advisory sentence] may still be upheld.” Baumholser v. State, 62 N.E.3d 411, 417 (Ind. Ct. App. 2016) (quoting Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999)). Here, the trial court considered numerous aggravating circumstances beyond Allen's position of trust with K.V., including Allen's extensive criminal record, his failed efforts at rehabilitation, the fact that he was on probation at the time he committed these offenses, and the victim's tender age. Because “we are confident the trial court would have imposed the same sentence even if it had not found the improper aggravator[,]” we find that the trial court's consideration of Allen's position of trust with K.V. was a harmless error, and the trial court did not abuse its discretion. Id.

[18] Second, Allen challenges that he received the maximum sentence for his crimes. Allen was convicted of two Level 1 felonies, which require imprisonment “for a fixed term of between twenty (20) and forty (40) years, with the advisory sentence being thirty (30) years.” Ind. Code § 35-50-2-4(b). Allen argues that the trial court abused its discretion when it sentenced him to the maximum penalty allowed by law for each of his offenses, because “[m]aximum sentences are generally reserved for the worst offenders.” (Appellant's Br. at 21.) However, this observation by our Supreme Court is not “a guideline to determine whether a worse offender could be imagined. Despite the nature of any particular offense and offender, it will always be possible to identify or hypothesize a significantly more despicable scenario.” Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002).

[19] Indiana Code section 35-38-1-1.3 states that “the court shall issue a statement of the court's reasons for selecting the sentence that it imposes” after it has pronounced a sentence for a felony conviction. Here, the trial court identified numerous aggravating factors that it considered when determining Allen's sentence for each of his convictions and found only Allen's remorse as a mitigating factor, which it did not weigh “terribly heavily[.]” (Tr. Vol. 3 at 247.) Thus, because “sentencing decisions rest within the sound discretion of the trial court[,]” Anglemyer, 868 N.E.2d at 490, and Allen's sentence did not exceed the statutory maximum penalty, we hold the trial court did not abuse its discretion.

[20] Finally, Allen argues that the trial court abused its discretion when it mandated that he serve his sentences consecutively. In determining whether a sentence should be served concurrently or consecutively, the trial court may consider both aggravating and mitigating circumstances. Ind. Code § 35-50-1-2(c) (2020). “In order to impose consecutive sentences, the trial court must find at least one aggravating circumstance.” Gross v. State, 22 N.E.3d at 870. Here, the trial court found multiple aggravating circumstances that could justify consecutive sentences.

[21] Allen asserts his sentences should have been concurrent because “there was one victim on both counts and the events occurred during one event[.]” (Appellant's Br. at 21.) Indiana Code section 35-50-1-2(c) (2020) does limit the length of consecutive sentences that may be entered “for felony convictions arising out of an episode of criminal conduct[.]” See also Ind. Code § 35-50-1-2(d) (2020) (listing lengths based upon most serious crime). However, that rule explicitly does not apply to sentences for “crimes of violence,” Ind. Code § 35-50-1-2(c) (2020), and the statute designates “Aggravated battery (IC 35-42-2-1.5)” as a crime of violence to which the sentencing limits do not apply. Ind. Code § 35-50-1-2(a)(8) (2020). Accordingly, Allen has not demonstrated an abuse of discretion by the trial court.

Conclusion

[22] The State presented sufficient evidence to support Allen's conviction of neglect of a dependent resulting in death, and the trial court did not abuse its discretion when it imposed consecutive forty-year-sentences for Allen's two Level 1 felony convictions.

Affirmed.

FOOTNOTES

1.   Ind. Code § 35-46-1-4(a)(1) & (b)(3).

2.   Ind. Code § 35-42-2-1.5.

3.   We quote from the trial transcript rather than the written sentencing order, as the handwriting on the order is too small and cluttered to read clearly. We recommend typewritten text to ensure clarity and legibility.

4.   Though Allen's brief references Indiana Rule of Appellate Procedure 7(B), he does not argue that his “sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. App. R. 7(B). Thus, Allen waives the issue of whether his sentence was inappropriate, and we review his sentence using the abuse of discretion standard.

May, Judge.

Mathias, J., and Felix, J., concur.