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ATTORNEY FOR APPELLANT Kevin R. O'Reilly Lafayette, Indiana

ATTORNEYS FOR APPELLEE Steve Carter Attorney General of Indiana Stephen R. Creason Deputy Attorney General Indianapolis, Indiana

In the

Indiana Supreme Court
No. 79S00-0702-CR-65 MICHELLE GAUVIN,

FILED
Apr 01 2008, 11:21 am
of the supreme court, court of appeals and tax court

CLERK

Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below).

Appeal from the Tippecanoe Superior Court No. 2, No. 79D02-0503-MR-1 The Honorable Thomas H. Busch, Judge

On Direct Appeal

April 1, 2008

Shepard, Chief Justice.

Appellant Michelle Gauvin pled guilty to the confinement, neglect, and murder of her four-year-old stepdaughter. The trial court imposed life without parole.

Gauvin's sentence rests in part on a finding that she tortured the child. Gauvin contends she was correcting the child's misbehavior. Parental supervision is crucial to rearing children,

but the duration and severity of the pain and suffering Michelle's stepdaughter endured adequately established torture as an aggravating circumstance.

Gauvin also claims that her sentence is inappropriate. We affirm.

Facts and Procedural History

Aiyana Gauvin was born on December 12, 2000, to Christian and Cassandra Gauvin. Christian obtained custody of Aiyana on December 19, 2003, following a Child in Need of Services proceeding. Christian and Aiyana subsequently moved in with Michelle, who married Christian on February 18, 2005. Michelle usually cared for Aiyana during the day; Christian cared for her in the evenings.

According to the Gauvins, Aiyana began exhibiting intermittent behavioral problems in summer 2004. They claimed that Aiyana sometimes acted defiantly or disrespectfully, would not stop picking scabs on her feet or pulling out her own hair, urinated and soiled herself or her bed, fell over and injured herself, and refused to eat or ate condiments out of the refrigerator during the night.

In response to Aiyana's behavior, the Gauvins resorted to a number of disciplinary measures. Michelle often tied up Aiyana and put duct tape over her mouth. At times, Aiyana was bound to a play gate, or to a booster seat using "zip-type child cabinet safety locks." (State's Ex. 13, 15, 60, 85.) Michelle frequently struck Aiyana with her hand or with pieces of a wooden cutting board. (Appellant's App. at 42-43.) Michelle once bit Aiyana after the child had bitten her. (Id. at 43.) Sometimes Michelle would leave Aiyana in Christian's care when Michelle knew that Christian was "fed up with her" and likely to physically abuse the child. (Id. at 42.)

Aiyana slept in a small room adjacent to the garage with a plywood floor but no insulation or forced air heating. The room was "exceptionally cold," about ten to fifteen degrees colder than the rest of the house. (Tr. at 40, 83, 175.) To prevent Aiyana from leaving the room

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during the night, the door was sometimes tied shut and anchored to a chair in the next room. Aiyana's room contained a bed without bedding, and she was prevented at times from sleeping even on that. Instead, she was forced to sleep bound either in her booster seat or on a small plastic tray in the corner on the floor.

The Gauvins also photographed Aiyana in varying states of bondage and forced her to view these pictures of herself. (Id. at 180-81; State's Ex. 80, 113-22.) In one of the photographs, Aiyana is tied to her bed, wearing an overflowing diaper and lying in excrement. Another shows Aiyana bound to a play gate and staring at seven of these photographs. A digital camera found in the house contained a memory card with two photographs still saved on it.

On March 15, 2005, Michelle again tied Aiyana in the booster seat, with her hands restrained behind her. Christian was particularly "fed up" with Aiyana that night, and while Michelle was out of the house, he beat her severely. (Appellant's App. at 43-44.) When Michelle returned, Aiyana was still bound to the chair. Michelle attempted to feed her a blended rice concoction, but Aiyana had difficulty eating and vomited. In response, Michelle covered Aiyana's mouth with duct tape and put her in her room to go to sleep, still strapped to the booster seat. Michelle admitted knowing that Aiyana "probably needed medical attention." (Id. at 45.) Nonetheless, she left Aiyana in this condition all night.

The following morning, police and firefighters were called to the Gauvin home on a report that a four-year-old child was choking. On entering the home, emergency personnel found Aiyana not breathing, without a pulse, and cold to the touch. She had red marks and bruising on her face, arms, chest, and legs. Michelle explained to police that she had found Aiyana

unresponsive on the floor of the child's room. When the coroner arrived, she observed that Aiyana was "obviously deceased." (Tr. at 79.)

An autopsy revealed that Aiyana died from acute subdural hemotoma caused by vigorous shaking or a blunt force injury to the head within twenty-four hours of her discovery. Numerous bruises, abrasions, and scratches covered Aiyana's body, varying in age from less than one day old to several days old. The pathologist estimated that Aiyana had been struck at least four or

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five times on her head and more than two dozen times on the rest of her body. Ligature marks were found on her wrists. She was malnourished and dehydrated.

In June 2005, as Michelle awaited trial for Aiyana's death, corrections officer Tammy Lynch of the Tippecanoe County Jail went to Michelle's cell to investigate a report that Michelle had attempted suicide. During their conversation, Michelle said she was "tired of all the shit and wanted to tell the truth." She then stated, "I killed the little bitch. The little bitch pissed me off and I killed her." Lynch asked Michelle "if she was [saying] she had killed that baby girl." Michelle responded, "Yes I killed the little bitch and she deserved it too." (State's Ex. 112.)

On September 15, 2006, Michelle pled guilty to murder, confinement as a class B felony, and neglect of a dependent as a class B felony. The trial court found two aggravating

circumstances: (1) Aiyana was less than twelve years of age; and (2) Michelle tortured Aiyana while Aiyana was alive. The court found three mitigating circumstances: (1) Michelle had no substantial prior criminal history; (2) Michelle suffered from severe borderline personality disorder as a result of her tragic childhood; and (3) Michelle had raised two exemplary children. Concluding that the aggravating factors carried greater weight, the trial court sentenced Michelle to life imprisonment without parole for murder and to two twenty-year terms for confinement and neglect, all served consecutively.

Michelle has appealed, challenging the trial court's finding of torture as an aggravator and its rejection of extreme emotional disturbance as a mitigator. Michelle also argues that her sentence is inappropriate. Pursuant to Indiana Rule of Appellate Procedure 4(A)(1)(a), this Court has mandatory and exclusive jurisdiction over the appeal.

Standard of Review

We review trial court findings of circumstances relevant to sentencing for abuse of discretion. Smallwood v. State, 773 N.E.2d 259 (Ind. 2002). We exercise our authority "to review and revise the sentence imposed," Ind. Const. art. VII,

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