COA revises neglect of dependent conviction stemming from boy’s death

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The Indiana Court of Appeals affirmed a man’s murder conviction following the death of his girlfriend’s son after he seriously injured the boy while punishing him. But the court reversed his Class B felony neglect of a dependent conviction based on double jeopardy concerns.

Christopher Montgomery was convicted of various charges, including murder and Class A felony neglect of a dependent after four-year-old Elijah Simpson died in 2007 from a subdural hematoma. Montgomery, angry at the boy for sucking his thumb, picked him up and threw him to the ground. Simpson had a seizure, but Montgomery threatened his girlfriend and Simpson’s mother, Courtney, to not go to the hospital. Eventually, they took the boy to the hospital, but he died from his injuries.

Montgomery’s convictions were affirmed through direct appeal, so he sought post-conviction relief. The post-conviction court ordered a new direct appeal due to ineffective assistance of appellate counsel on Count I, murder and Count III, neglect of a dependent – in which Montgomery was convicted of a Class A felony, but the trial court reduced to a Class B felony over double jeopardy concerns.

In Christopher M. Montgomery v. State of Indiana, 49A02-1312-CR-1039, the appeals court questioned why the PCR court ordered a new appeal instead of vacating the convictions and ordering a retrial. But this error did not prejudice Montgomery’s substantial rights because the COA found the trial court did not abuse its discretion when it excluded certain evidence. Judge Elaine Brown noted the court prefers to decide issues on the merits.

Montgomery argued certain evidence showing a pattern of abuse by Courtney Simpson should have been admitted at his trial regarding the murder conviction. He wanted to show that maybe it was not the injury he caused that resulted in the boy’s death.

“We find that … the challenged evidence was properly excluded as not relevant because such evidence was in the nature of a pattern of abuse on the part of Courtney and was irrelevant to the charges against Montgomery,” Brown wrote.

“Here, the trial court recognized that the sole issue at trial was who inflicted the blunt force trauma that killed Elijah and found that evidence of Courtney’s pattern of abuse of Elijah was not admissible to show that she committed the offenses unless Montgomery could show that Elijah’s death was caused by a pattern of abuse. He failed to do so, and indeed evidence was presented that he confessed to detectives that he threw Elijah to the ground in a manner consistent with the injury causing death.”

And the trial court should have reduced Montgomery’s neglect of a dependent conviction from a Class A felony to a Class D felony because the same bodily injury used to convict him of murder was used to convict him of neglect. Class D felony does not include any element of bodily injury. The judges remanded with instructions to enter the conviction as a Class D felony and enter a sentence of three years to be served consecutive to Montgomery’s murder sentence, for an aggregate sentence of 58 years.


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