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Wert v. State

Court of Appeals of Indiana

April 11, 2019

Trevor Wert, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Noble Superior Court The Honorable Robert E. Kirsch, Judge Trial Court Cause No. 57D01-1811-MR-4

          Attorney for Appellant Kimberly A. Jackson Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana

          Vaidik, Chief Judge.

         Case Summary

         [¶1] Trevor Wert appeals his sixty-five-year murder sentence for beating to death a two-year-old child in his care. We affirm Wert's sentence but remand for the trial court to correct an error in its written sentencing order.

         Facts and Procedural History

         [¶2] In October 2018, forty-two-year-old Wert and his ex-wife, Samantha, lived together in Noble County with their young son. Misty Matson had two daughters, K.M. and two-year-old Railee Ewing. Misty worked third shift at a factory, and Samantha watched K.M. and Railee overnight two or three times a week while Misty worked. On October 28, Samantha started working with Misty at the factory, thereby making Wert the sole caregiver for K.M. and Railee when Misty and Samantha were at work.

         [¶3] On October 31, Misty dropped off her daughters at Wert's house and went to work. Wert and his young son were home. When Misty arrived at Wert's house to pick up her daughters on the morning of November 1, Wert told her that Railee had been injured "during the night" when she fell and hit her face on the bathtub. Appellant's App. Vol. II p. 43. Misty called 911 to say that she was driving Railee, who was limp, to the hospital. EMS met Misty on the way and transported Railee the rest of the way to the hospital, where she was pronounced dead at 7:47 a.m. See Ex. 1 (hospital records stating that Railee was "clearly dead on arrival"). The emergency-room physician observed "extensive bruising over [Railee's] entire body" and noted that the bruising was "to[o] extensive" to even document. Id. The physician also observed blood in Railee's diaper and that there "appear[ed] to be oozing and lacerations to both the vaginal orifice and anus." Id.

         [¶4] Wert was interviewed by detectives several times on November 1 and 2. Wert told the detectives that in the early-morning hours of November 1, he was awakened by Railee crying and found her in the bathroom running bath water. According to Wert, he became "enraged" and struck Railee multiple times with his "fists" and "legs." Tr. p. 16; Appellant's App. Vol. II p. 44. When Railee tried to leave the bathroom, Wert kicked her in the buttocks, slamming her into the door frame. Railee fell silent. Wert then changed Railee's diaper and covered her body and head with a bathrobe.

         [¶5] An autopsy was performed on November 2. Because of the injuries to Railee's vagina and anus, a sexual-assault nurse attended the autopsy. According to the nurse, Railee's injuries included "everything under the sun," such as "significant anal injury," "significant vaginal injury," abrasions, lacerations, bruising, petechiae, and blunt-force trauma. Tr. pp. 23-24. The nurse said she had "never seen anything like this ever." Id. at 23. According to the forensic pathologist, the cause of Railee's death was multiple blunt-force traumatic injuries. Ex. 1.

         [¶6] On November 5, the State charged Wert with murder and Level 1 felony child molesting. Exactly one month later, Wert and the State entered into a plea agreement. According to the agreement, Wert would plead guilty to murder, and the State would dismiss the child-molesting charge. Wert's sentence was left to the discretion of the trial court as follows:

Upon the Defendant's plea . . . to [murder], the parties shall be free to argue to the Court as to the appropriate sentence deemed appropriate [sic], subject to the following:
The parties agree that the sentencing range must, by law, be between 45 and 65 years, and that no portion of the sentence less than 45 years may be suspended. The State agrees that neither the death penalty nor life without parole shall be imposed. Any other terms of the sentence, including any special terms and conditions of probation (if probation is ...

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