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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: JAMES D. CRUM Coots, Henke & Wheeler, P.C. Carmel, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana

RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
MARY FRANCIS EDWARDS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 29A02-0610-PC-938

APPEAL FROM THE HAMILTON CIRCUIT COURT The Honorable Judith S. Proffitt, Judge Cause No. 29C01-0208-FB-47

August 14, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION KIRSCH, Judge

Mary Francis Edwards appeals the denial of her petition for post-conviction relief

from her convictions for two counts of neglect of a dependant, 1 each as a Class B felony. She raises two issues, which we restate as: I. Whether sufficient evidence was presented to support her conviction on Count 2, neglect of a dependant, because the State failed prove that Edwards knowingly deprived D.E. of food and nourishment and that the offense took place in Hamilton County; and II. Whether Edwards received the effective assistance of counsel when trial counsel failed to object to evidence, move for judgment on the evidence for Count 2, and submit Edwards to a psychiatric evaluation for sentencing consideration. We affirm. FACTS AND PROCEDURAL HISTORY At approximately 10:00 a.m. on July 22, 2002, Edwards drove from her residence in Coatesville in Putnam County to Noblesville in Hamilton County to visit her parents. Her five-year old son, D.E., was a passenger in her truck. Edwards arrived at her parents' apartment at approximately 11:30 a.m. and parked her truck in the parking lot behind the apartment. Because her father did not want D.E. inside of the apartment, Edwards left D.E. outside in the truck while she went inside to visit her parents. It was a very hot day, and the high temperature was approximately ninety-six degrees. Edwards was inside of her parents' apartment for about an hour, and when she returned to the truck, she found D.E. unconscious in the bed of the truck. Edwards carried D.E. into the apartment, and a call was made to 9-11 at approximately 12:45 p.m. while she and her mother attempted to revive D.E. Police officers and fire department medics responded to the dispatch and found D.E. unconscious, unresponsive with no pulse or respiration, and his skin was hot to the touch.
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See IC 35-46-1-4.

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D.E. was transported to Riverview Hospital in Noblesville, where his core temperature was determined to be 108 degrees. Medical personnel in the emergency room attempted to revive D.E. and cool his core temperature. All efforts to resuscitate D.E. were unsuccessful, and he was pronounced dead at approximately 2:00 p.m. At an autopsy performed on July 23, 2002, D.E.'s cause of death was determined to be environmental hyperthermia, which is the prolonged exposure to high temperature. It was also determined that D.E. was dehydrated. Additionally, the autopsy showed that D.E. suffered from malnutrition and had little of the fat reserves present in children of his age. It was determined that the cause of this malnutrition was the lack of adequate outside nutrition. After an investigation into D.E.'s death, Edwards was charged with two counts of neglect of a dependant, each as a Class B felony. She was convicted of both counts after a jury trial and sentenced to twenty years on each count to be served consecutively to each other. On September 15, 2003, Edwards filed a notice of appeal, but subsequently requested permission to remand the case in order to begin post-conviction proceedings. On July 23, 2004, Edwards filed a petition for post-conviction relief, which alleged ineffective assistance of trial counsel. The post-conviction court denied her petition on October 11, 2006. Edwards now appeals.

DISCUSSION AND DECISION Edwards used the Davis/Hatton procedure as outlined in Indiana Appellate Rule 37 to stay her direct appeal and pursue a petition for post-conviction relief in the trial court. See
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State v. Lopez, 676 N.E.2d 1063, 1069 (Ind. Ct. App. 1997), trans. denied (citing Davis v. State, 267 Ind. 152, 368 N.E.2d 1149 (1977), and Hatton v. State, 626 N.E.2d 442 (Ind. 1993)). After a full evidentiary hearing, if the petition for post-conviction relief is denied, then the direct appeal can be reinstated. Id. Then the issues determined in the postconviction proceedings may be heard in addition to the issues initially raised in the direct appeal. Id. "`Once the petition for post-conviction relief is denied after a hearing, and the

direct appeal is reinstated, the direct appeal and the appeal of the denial of post-conviction relief are consolidated.'" Schlabach v. State, 842 N.E.2d 411, 415-16 (Ind. Ct. App. 2006) (quoting Williams v. State, 757 N.E.2d 1048, 1058 (Ind. Ct. App. 2001), trans. denied (2002)). I. Sufficiency of the Evidence Our standard of review for sufficiency claims is well settled. We do not reweigh the evidence or judge the credibility of the witnesses. Dickenson v. State, 835 N.E.2d 542, 551 (Ind. Ct. App. 2005), trans. denied. We will consider only the evidence most favorable to the judgment together with the reasonable inferences to be drawn therefrom. Id.; Robinson v. State, 835 N.E.2d 518, 523 (Ind. Ct. App. 2005). We will affirm the conviction if there is sufficient probative evidence to support the judgment of the trier of fact. Dickenson, 835 N.E.2d at 552; Robinson, 835 N.E.2d at 523. Edwards argues that the State failed to present sufficient evidence to support her conviction for Count 2, neglect of a dependent. In order to convict Edwards of neglect of a dependent as a Class B felony under Count 2, the State was required to prove that Edwards, having the care of a dependent, whether assumed voluntarily or because of a legal obligation,
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knowingly or intentionally deprived the dependent of necessary support, which resulted in serious bodily injury. IC 35-46-1-4. She concedes that sufficient evidence was presented to establish that D.E. was malnourished, but contends that the State failed to prove that she deprived D.E. of food and nourishment because no witness testified that Edwards was withholding nourishment from D.E. We disagree. Although no direct evidence that Edwards deprived D.E. of food and nourishment was presented, "[a] verdict will be sustained based on circumstantial evidence alone if the circumstantial evidence supports a reasonable inference of guilt." Gasper v. State, 833 N.E.2d 1036, 1044 (Ind. Ct. App. 2005), trans. denied (citing Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000)). The evidence presented showed that Edwards had sole custody of D.E. from January 1, 2002 until the day of his death. Prior to this, D.E. had been living with his father and paternal grandmother. While he lived with them, D.E. had a good appetite and gained weight. At the time of his death, D.E. weighed only 30.5 pounds, which was well below the fifth percentile of children his age. His autopsy revealed that D.E. was extremely malnourished and had very little, if any, of the fat reserves in his body that a well-nourished child would have present in his or her body. The doctor who performed the autopsy determined that the malnourishment was due to a lack of adequate food and nutrition. We conclude that the evidence was sufficient to support Edwards's conviction for neglect of a dependent. Edwards also argues that the evidence was insufficient to support her conviction under Count 2 because of a lack of venue. Specifically, she contends that the State failed to prove that the crime occurred in Hamilton County. She claims that the evidence showed that, at the
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time of the crime, she and D.E. lived in Coatesville, which was located in Putnam County, 2 and that no evidence was presented that she deprived D.E. of nourishment in Hamilton County during the relevant time period. The right to be tried in the county in which the offense was committed is a constitutional and a statutory right. Ind. Const. Art. 1,

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