Dereck Worthington v. State of Indiana

At some point after 2011, Regina Warren married Kyle Poynter; the couple had

one child, Z.P. Warren eventually divorced Poynter. She then rekindled a past

relationship with Worthington. In December 2013, Worthington moved in

with Warren and her three children, including Z.P., who was seven months old

at the time. Worthington cared for the children when Warren was not at home.

[3] Shortly after Worthington began caring for the children, Warren noticed Z.P.’s

behavior change. According to Warren, Z.P. was no longer social, did not

smile or laugh, was lethargic, whimpered when held, did not eat, had lost two

pounds, missed developmental milestones, and was afraid of strangers touching

her. Although Poynter had visitation privileges with Z.P. during this time,

Warren and Worthington were Z.P.’s only caregivers.

[4] On March 18, 2014, Worthington notified Warren that Z.P. had a knot on her

head. When Warren took Z.P. to the doctor for a scheduled wellness visit, Z.P.

was directly admitted to the hospital and was evaluated for signs of child abuse.

[5] The evaluation revealed that Z.P. had multiple injuries: abrasions and bruising

on her head and neck; bruising and fractures in both legs; bruising on her upper



Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016 Page 3 of 7

buttocks; traumatized nail beds; fractures in multiple places in both arms; a

broken collar bone; and severe, life-threatening head trauma. The evaluation

concluded that Z.P.’s injuries were caused by abuse and that the injuries had

occurred at different times and were in different stages of healing.

[6] On March 26, 2014, Worthington was charged with class B felony aggravated

battery, class B felony neglect of a dependent resulting in serious bodily injury,

and class D felony battery. On July 9, 2015, Worthington pleaded guilty to

neglect of a dependent resulting in serious bodily injury as a class C felony in

exchange for the dismissal of the other charges. The plea agreement left

sentencing open to the trial court’s discretion. The stipulated factual basis of

Worthington’s guilty plea provided that Worthington had care of Z.P.

sometime between December 2013 and March 2014; that Worthington

knowingly or intentionally placed Z.P. in a situation that endangered her life or

health, resulting in bodily injuries to Z.P.’s head, arms, and legs; and that

Worthington failed to seek medical attention for Z.P. Tr. p. 10.

[7] At Worthington’s September 23, 2015, sentencing hearing, Warren testified

about her continued concern for Z.P.’s health. Warren could not identify any

instance in which she believed Worthington had harmed Z.P.; when questioned

about how the infant might have been injured, Warren testified that she once

saw Worthington holding Z.P. and “stretching” Z.P.’s arms back. Z.P. was

crying as he did this. Tr. p. 26. According to Warren, when she asked what he

was doing, Worthington replied that he was stretching Z.P. out of concern that



Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016 Page 4 of 7

she was experiencing growing pains. Worthington did not object to this

testimony.

[8] Worthington then cross-examined Warren, asking her about Poynter. Warren

testified that Poynter had been charged with domestic battery in the past. The

State objected to further testimony regarding Poynter’s prior history with

Warren, arguing that it was irrelevant for the purpose of sentencing

Worthington on the neglect of a dependent conviction. The trial court

sustained the objection, stating that “this is the sentencing of Dereck

Worthington, I’m not going to try somebody else on this case.” Tr. p. 46.

[9] In sentencing Worthington, the trial court found Z.P.’s severe injuries and

Worthington’s criminal history to be aggravating circumstances. While it

found Worthington’s remorse to be a mitigating factor, the trial court held that

the aggravating factors outweighed the mitigating factor and sentenced

Worthington to eight years in the Department of Correction. Worthington now

appeals.

Discussion and Decision

[10] Worthington raises two arguments on appeal: first, that the State should not

have been permitted to introduce Warren’s testimony regarding the incident in

which she saw him “stretching” Z.P.; second, that, even if such evidence was

properly admitted, he should have been permitted to introduce evidence of

Poynter’s past domestic battery conviction.



Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016 Page 5 of 7

[11] When reviewing a trial court’s sentencing order, we may reverse only if the

“decision is 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.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

reh’g, 875 N.E. 2d 218. It is well established that when a trial court makes a

sentencing decision, the rules of evidence, other than those concerning matters

of privilege, do not apply. E.g., White v. State, 756 N.E.2d 1057, 1061 (Ind. Ct.

App. 2001); see also Ind. Evidence Rule 101(d)(2) (providing that the Rules of

Evidence do not apply to sentencing proceedings).

[12] Worthington argues that the trial court should not have permitted Warren to

testify about the occasion in which she saw him “stretching” Z.P., maintaining

that this evidence relates to the battery charges that had been dismissed.

Initially, we observe that Worthington did not object to this testimony.

Consequently, he has waived this argument.

[13] Waiver notwithstanding, we note that this evidence was directly relevant to the

charge of neglect of a child resulting in serious bodily injury, as it was stipulated

in the plea agreement that Worthington placed Z.P. in a situation that

endangered her health, resulting in bodily injuries to the infant. The State is

entitled to present evidence regarding the nature and circumstances of the crime

for which the defendant is being sentenced, and this evidence falls squarely

within that category of information.



Court of Appeals of Indiana | Memorandum Decision 84A05-1510-CR-1829 | July 22, 2016 Page 6 of 7

[14] Next, Worthington contends that, even if Warren’s testimony was properly

admitted, he should have been able to cross-examine her regarding the incident

that led to Poynter’s domestic battery charge. It is well established that

evidence which a defendant seeks to put forward at sentencing “must be

relevant to the consideration and would not include facts concerning a

defendant’s innocence which is the focus of the trial process.”