Saundra S. Wahl, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff
Appeal from the Hamilton Superior Court. The Honorable Gail Z. Bardach, Judge. Cause No. 29D06-1309-FD-7824.
ATTORNEY FOR APPELLANT: Lawrence D. Newman, Newman & Newman, P.C., Noblesville, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Michael Gene Worden, Deputy Attorney General, Indianapolis, Indiana.
Riley, Judge. Barnes, J. concurs. Bailey, J. dissents with separate opinion.
STATEMENT OF THE CASE
[¶1] Appellant-Defendant, Saundra Wahl (Wahl), appeals her conviction for involuntary manslaughter, a Class D felony, Ind. Code § 35-42-1-4 (2013).
[¶2] We affirm.
[¶3] Wahl raises four issues on appeal which we restate as:
(1) Whether the State presented sufficient evidence to sustain Wahl's involuntary manslaughter conviction;
(2) Whether the trial court abused its discretion in denying Wahl's motion to correct error regarding jury misconduct;
(3) Whether Wahl's sentence is appropriate; and
(4) Whether the trial court abused its discretion by ordering Wahl to pay restitution.
FACTS AND PROCEDURAL HISTORY
[¶4] In the spring of 2011, Danny (Danny) and Jocelyne DiRienzo (collectively, the DiRienzos) began searching for a daycare for their minor children, D.D., and A.D. The DiRienzos were referred to Wahl and her husband, Daniel Wahl (Daniel) (collectively, the Wahls) who ran a State-licensed daycare facility out of their home basement in Fishers, Indiana. After touring the daycare facility, the DiRienzos selected the Wahls to provide child care services to both of their children.
[¶5] Prior to June of 2013, Wahl had been working as a child care provider for approximately twenty-five years. In 2003, the Wahls built their home with the primary intention of operating a daycare facility from their basement. Shortly thereafter, the Wahls were licensed, and for ten years, they operated a daycare business under the name, Home Away from Home Child Care. In establishing their roles as child care providers, the Wahls determined that Wahl would be responsible for toddlers ranging from five months to two years, while Daniel would be responsible for the older children.
[¶6] In June of 2013, A.D. was a healthy, twenty-month-old toddler. On June 20, 2013, as usual for their day, Daniel had taken the older children to the backyard to eat and play. While Daniel was outside with the older children, Wahl remained inside with the toddlers for feeding. Due to the older children being outside, Wahl removed a compression gate between the kitchen area and the toddlers' sleeping area in the basement so as to allow the small children to move and play freely between the two rooms. In addition, Wahl also placed a child in a highchair in the kitchen for feeding and walked back to the kitchen sink to warm bottles.
[¶7] The record shows that in addition to the compression gate that divided the toddlers' sleeping area and a play area adjoining the kitchen, there was a white metal security gate positioned in the basement hallway that was used to prevent the children from accessing the stairway leading to the first floor. As Wahl was standing in the kitchen, she heard the white metal security gate being " jingled." (Transcript p. 405). Immediately, Wahl walked over to inspect. There, she found A.D. and another child playing with the gate. Wahl removed and placed both children across the room, admonished them, and returned to the kitchen to retrieve the child she had left in the highchair, and to grab a bottle.
[¶8] From the kitchen, only a portion of the white metal security gate was visible. As Wahl was lifting the child from the highchair, she saw the child that A.D. had been playing with had passed the white metal security gate. Wahl immediately placed the baby she was carrying on the floor and rushed towards the gate. Like the other toddler, A.D. had breached the white metal security gate; however, as A.D. was returning to the play area adjoining the kitchen, his head became trapped between the latch end of the gate and the wall. At first, Wahl thought A.D. was okay since his eyes were open. Wahl freed A.D. from the white metal security gate, and noticed that A.D. was unresponsive and not breathing. Promptly, Wahl began performing CPR on A.D. As she was doing that, she saw two older children who had been out in the yard, and she requested them to call Daniel. The children did not comprehend, so Wahl momentarily left A.D. on the floor, rushed to the base of the stairway, and yelled for assistance. Moments later, Daniel re-entered the basement, intercepted the CPR process and asked Wahl to call 911. Within minutes, the Fishers Police Department arrived followed by the paramedics. A.D. was then transported to Community North Hospital, where he was pronounced dead at 12:59 p.m. The following day, the autopsy showed that A.D. had died from asphyxiation.
[¶9] On September 19, 2013, the State filed an Information charging the Wahls with involuntary manslaughter, a Class D felony, I.C. § 35-42-1-4 (2013). At trial, Detective James Hawkins (Detective Hawkins), a criminal forensic investigator testified that after he received a call from another officer, he immediately drove the Wahls' residence to investigate. He stated that the white metal security gate situated in the Wahls' basement hallway had been anchored on the west wall. On the east wall, there were two independent anchors with latches for the gate to lock into. The security gate had been installed in 2003 and was maintained by Daniel. Detective Hawkins noted that the " top anchor" on the west wall appeared as if it had " been ripped out and then re-anchored back in." (Tr. p. 335). On the east wall, he noted that there were a " bunch of wear marks at the receiving end of the top latch" and applying minor pressure " like a tap" would cause the gate to open. (Tr. p. 338). According to Detective Hawkins, the white metal security gate would not come into contact with the latches, and it caused the gate to swing north and south while open. He further testified that he learned from Daniel that there was a " wooden rocking chair  on the north side of the gate," and a baby rocking swing on the south end. (Tr. p. 379). He added that both had been used to " keep the gate from moving when [the Wahls] wanted it shut." (Tr. p. 379). The wooden rocking chair had " a lot of wear marks on the  vertical rail directly adjacent to where" it would " make contact with the baby gate." (Tr. p. 381).
[¶10] Danny described his son as a healthy and happy baby. He testified that " approximately a month and a half to two months" prior to A.D.'s death, he was in the Wahls' home either to drop off or pick up his children. (Tr. p. 263). Danny recalled that Wahl discussed A.D.'s progress with him, and he recalled Wahl stating that A.D. " can even push his way through the baby gate downstairs." (Tr. p. 263).
[¶11] The forensic pathologist who conducted A.D.'s autopsy stated that while there are many variables that are considered in determining how long it takes to asphyxiate, for small children, he indicated that it may take " approximately 90 seconds to 120 seconds" for asphyxiation to ensue; and it would take " no more than 5 minutes" for a child to die. (Tr. p. 437). At the close of the evidence, the jury found the Wahls guilty as charged.
[¶12] Prior to sentencing, but after the jury returned a guilty verdict for the Wahls, the trial court received an email from Juror #7, which stated in part:
At the start of deliberation the alternate juror started to take over deliberation and at that point, I interjected and went to the part in our paperwork that stated the alternate juror was not to have any part in the deliberation. From that point I felt like there was tension in the room between the other jurors. The reason that I feel that the alternate juror influenced the other jurors is because he took items out of the envelope and took the parts to the gate and operated the gate. I had emphasized to the other jurors that what we were dealing with was a very serious charge. I asked the other jurors if they had ever been incarcerated before. I told the jurors that I had been incarcerated and it is a life changing experience. After saying this, the alternate juror let out a big sigh, rolled his eyes and shook his head as if he was disgusted. Also, at one point, the alternate juror stood up and went to the [DVD] player. When he was asked what he was doing, he said he wanted to see a particular part in the video. He repeatedly played it over and over and increased the volume each time until everyone was watching it.
(Court's Exh. 1). On June 6, 2014, the trial court scheduled a hearing to determine the alleged jury misconduct. At the hearing, the Wahls moved for a mistrial and after both parties had presented their arguments, the trial court took the matter under advisement. On June 11, 2014, the trial court denied the motion. Following a sentencing hearing held on June 30, 2014, the trial court sentenced the Wahls to 1095 days in the Department of Correction (DOC) with 730 days executed and placed them both on probation for 365 days. In addition, the trial court ordered the Wahls to jointly and severally pay the DiRenzos $22,353.72 in restitution with $20,232.52 of that amount being Danny's lost wages. In light of the jury misconduct, on July 29, 2014, the Wahls, through their appellate counsel, filed a motion to correct error and attached an affidavit from Juror #7 requesting the trial court to grant them a mistrial, or in the alternative, grant them a hearing to present evidence from Juror #7. Consequently, the State responded to the Wahls' motion on August 5, 2014, and on August 18, 2014, the trial court denied the Wahls' motion.
[¶13] Wahl now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Sufficiency of the Evidence