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Holmes v. State

Court of Appeals of Indiana

October 18, 2017

Katherine Shuwan Holmes, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

         Appeal from the Lake Superior Court, Criminal Division IV Trial Court Cause No. 45G04-1607-F1-0006 The Honorable Samuel L. Cappas, Judge.

          Attorney for Appellant P. Jeffrey Schlesinger Office of the Public Defender Crown Point, IN

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, IN

          Vaidik, Chief Judge.

         Case Summary

         [¶1] Katherine Shuwan Holmes was sentenced to an aggregate term of forty years for one count of Level 1 felony neglect of a dependent resulting in death and five counts of Level 6 felony neglect of a dependent. She now appeals, arguing that the trial court erred by not recognizing three mitigators and that her sentence is inappropriate. We affirm her sentence.

         Facts and Procedural History

         [¶2] The facts, as taken mostly from the stipulated factual basis, show that Holmes is the mother of all six victims in this case. In 2016, Holmes, Jarod McMillan (the father of Holmes's three youngest children), Holmes's brother, and Holmes's six children lived in a one-bedroom apartment in Gary. On March 31, 2016, twenty-seven-year-old Holmes gave birth to K.M., the youngest of her six children. K.M. was 5 pounds, 5 ounces at birth. Holmes and K.M. were discharged from the hospital on April 2, with orders to follow-up with Dr. Hoess, a pediatrician, in 5-7 days. Holmes, however, did not take K.M. to the pediatrician as instructed. Instead, Holmes took K.M. to the pediatrician about two weeks later, on April 21. At the appointment, Dr. Hoess noted K.M.'s low weight and sent them home with specific feeding instructions. Dr. Hoess said that if K.M. did not gain any weight by the next day, she would admit him to the hospital. When Holmes and K.M. returned to the pediatrician the next day, K.M. had gained 4 ounces. Dr. Hoess told Holmes to continue feeding K.M. As instructed and to return on April 26. Holmes, however, did not return for this appointment.

         [¶3] Over two months later, on Friday, July 1, Holmes spoke with Dr. Hoess on the phone and said that K.M. was again not gaining any weight. Dr. Hoess told Holmes to bring K.M. to the clinic on Tuesday, July 5 and to take him to the emergency room if he had any problems in the meantime.

         [¶4] Holmes did not take K.M. to the emergency room over the weekend, nor did she take him to the clinic on July 5. Instead, on July 5, Holmes and McMillan left their apartment around 10:00 a.m. and returned home around 4:30 p.m., at which point they found K.M. unresponsive. K.M. was taken by ambulance to the hospital, where he was pronounced dead at 5:37 p.m. K.M., who was three months old, weighed just 5.9 pounds. According to medical records, K.M. appeared to be neglected, he had no body fat, his groin and perineum were burned (mostly likely from urine), and he was covered in dirt. The cause of death was malnutrition and dehydration.

         [¶5] In addition, the apartment in which Holmes, McMillan, Holmes's brother, and the six children lived was roach, flea, and bedbug infested, and there was garbage littered throughout it. There was not a single bed in the apartment. When DCS removed Holmes's other children a few days later, they "reeked of a foul odor and were all in need of baths." Appellant's App. Vol. II p. 53.

         [¶6] The State charged Holmes with one count (Count I) of Level 1 felony neglect of a dependent resulting in death (K.M.) and seven counts (Counts II-VIII) of Level 6 felony neglect of a dependent (two counts for K.M. and one count for each of the other five children). In March 2017, Holmes and the State entered into a plea agreement. Id. at 48. Holmes agreed to plead guilty to all of the charges. In addition, the parties agreed that they were "free to fully argue their respective positions as to the sentence to be imposed by the Court" and that the sentence for Count I would run concurrent to the sentences for Counts II-VIII. Id. at 49. The parties also stipulated to a factual basis. Id. at 50, 52-53. The court found that a factual basis existed and set the matter for sentencing.

         [¶7] At the April 2017 sentencing hearing, the State admitted twenty-eight photographs into evidence. Some of the photographs depicted the condition of Holmes's apartment when the children were removed, but most of them showed K.M.'s body. See Exs. 16-28. In short, the photographs are "disturbing." Sent. Tr. p. 5. A homicide detective with the Lake County Sheriff's Department saw K.M. at the hospital and described the photographs at the hearing. For example, one of the photographs showed K.M.'s diaper, which had fungus growing in it. Other photographs showed fungus growing under K.M.'s armpits and dirt underneath his fingernails. The more disturbing photographs showed K.M.'s sunken and discolored stomach and his skin "removed all the way down to the muscle" in his groin and buttocks areas, including skin "missing from the edge of his phallic area." Id. at 30, 31. In addition, the detective said that he spoke with the pathologist, who said that K.M. likely died 12-16 hours before he was taken to the hospital "due to the discoloration of his stomach noting that he had already begun to decay." Id. at 32.

         [¶8] Holmes's aunt testified that Holmes grew up in "deplorable conditions" and compared the conditions Holmes grew up in to those of her apartment. Id. at 39. Holmes's aunt also testified that Holmes had completed schooling to be a certified nursing assistant (CNA); however, she had not received her license and was working two jobs-at "JJ Fish" and Rally's. Id. at 42, 52; Appellant's App. Vol. II p. 90 (PSI). Finally, Holmes testified as follows:

This has been very hard. And I hate myself every day because of this. I love my kids with everything in me, despite of what happened. All six of them I love, because they are all I have in this world. Because I knew that they loved me. That's all I got. Now, I probably will never see them again.
And I'm sorry. I thought I was trying my best and I know it was bad, but I was trying to make it better. This is not something I intentionally did. I didn't intentionally try to hurt my baby, because I loved him just as much as I loved my other kids. I just don't want to lose my relationship with . . . my other five kids. I don't want them to think that their momma just didn't care about them, because of what anybody might say. ...

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