Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1876 | May 17, 2018 Page 1 of 17

MEMORANDUM DECISION

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

Matthew D. Anglemeyer

Marion County Public Defender

Appellate Division

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Christina D. Pace

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Mercy Darrington,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

May 17, 2018

Court of Appeals Case No.

49A02-1708-CR-1876

Appeal from the Marion Superior 

Court

The Honorable Marc T. 

Rothenberg, Judge

Trial Court Cause No.

49G02-1310-FB-69153

Brown, Judge.
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[1] Mercy Darrington appeals her sentence for two counts of neglect of a 

dependent resulting in serious bodily injury as class B felonies. Darrington 

raises three issues which we consolidate and restate as:

I. Whether the trial court erred in ordering her to pay certain fines 

and costs; and

II. Whether her sentence is inappropriate in light of the nature of the 

offense and her character.

We affirm and remand.

Facts and Procedural History

[2] On July 12, 2013, Da., born on December 4, 2010, and De., born on July 12, 

2012, (Da. and De., together, the “children”) and their two older siblings were 

placed in foster care with Darrington, a therapeutic foster parent. In August 

2013, Kylee Bunnell, an employee of The Villages of Indiana, a primary foster 

care and adoption agency, picked up De. and Da. from their foster home for a 

visit with their biological mother. During the visit, the children’s biological 

mother brought sausages and a lemonade or juice for the children. Once the 

food and drinks were brought, Da. did not want to go back and play and was

“just pouring more juice and wanting juice and juice.” Transcript Volume II at 

23. Da. was “just sitting at the table wanting to drink.” Id. Bunnell tried to 

redirect Da. to water instead of juice and Da. was “downing those just left and 

right, cold water, like he had done with the juice. But just kept wanting more 

and more, stopping to take a breath and just kept chugging.” Id. at 24.
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[3] In October 2013, another visit occurred at The Villages. Casey Elliott, an 

employee at The Villages and a provider of supervised parenting time, provided 

transportation for Da. and De. and went to Darrington’s home to pick the 

children up for a visit with their biological mother. Da. was crying when Elliott 

arrived and continued to do so. Darrington brought Da. out, and Elliott 

observed that he was crying uncontrollably and shaking. Darrington told 

Elliott that Da. had been crying for awhile and that “it was probably excitement 

about the visit.” Id. at 55. Elliott did not see Darrington comfort Da. and 

observed that De. “showed no emotion at all” and was just sitting. Elliott took 

Da. and De. to The Villages for a visit and noticed that Da. was “walking 

strange,” “like shuffling his feet,” and that he “tripped over his feet a couple of 

times.” Id. at 57. She observed that one side of Da.’s face “appeared to kind of 

be drooping significantly more than the other side.” Id. She also observed 

changes in De. and Da. from earlier visits in that they were not active or 

playing, they stopped smiling and laughing, and “[t]hey would just pretty much 

sit on the couch just expressionless, emotionless.” Id. at 60.

[4] When the children’s biological mother arrived for the visit with fried chicken 

and juice, Da. “beelined for the food” and “went straight for the juice again.” 

Id. at 27. Da. was “chugging, vomited, and kept drinking.” Id. Da. “just 

needed to eat and drink.” Id. at 28. At that time, Bunnell was extremely 

worried. Elliott observed Da. “drink cup after cup of either juice or water as 

fast as he could.” Id. at 59. Da. drank continuously through the whole visit, 

became sick a couple of times and threw up, and wanted to drink again. At 
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some point, Bunnell observed that Da.’s eye was droopy and he did not change 

facial expressions. The Clinical Director at the Villages observed the children 

and then called Child Protective Services. 

[5] Indianapolis Metropolitan Police Detective Sergeant Eli McAllister arrived at 

the scene and observed that De. was “more or less asleep or non-responsive.” 

Id. at 130. He also observed that Da. was awake but appeared very afraid, 

uneasy, was shaking, and his left eyebrow was drooping down. An ambulance 

was called, the medics informed Detective Sergeant McAllister and others that 

they felt that the children needed to be transported to Riley Hospital for 

Children right away and then transported them to the hospital where an 

emergency room physician decided to admit the children. 

[6] That evening, Detective Sergeant McAllister interviewed Darrington. She

stated that De. was “very, very, overweight” when she was placed in her home. 

State’s Exhibit 11 at 24:10-24:15. She told him at one point that she did not 

give De. anything to drink at lunch on Monday. She stated that she was easing 

up on the milk because she was looking for a bowel movement from De., that 

she gave De. half a cup of milk at 2:30 on Monday, and that she did not give 

De. or Da. anything to drink in between meals. She later indicated that on that 

Monday, De. had half of a sippy cup of milk for breakfast, a little less than half 

a cup at 12:00, and had nothing else to drink that day. She stated that Da. did 

not eat much recently. When asked why she did not allow the children to have 

anything to drink outside of mealtimes, she answered that they wet the bed and 

pee on themselves. Detective Sergeant McAllister found the information 
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Darrington gave him about what she had been feeding the children and 

providing them to drink to be “wholly inadequate and strangely restrictive,” 

and arrested her. Transcript Volume II at 139. 

[7] The next day, Dr. Tara Harris, an assistant professor of clinical pediatrics at 

Riley Hospital for Children with a subspecialty in child abuse pediatrics,

observed that De. could not be engaged at all, and “[i]f you moved forward to 

engage with her or if she thought you were going to touch her, she screamed.” 

Id. at 85. Dr. Harris also observed that De.’s skin looked very dry to the point 

that it was wrinkled which was not typical for a fifteen-month-old. She 

determined that the cause of the appearance of De.’s skin was from profound 

dehydration and that her sodium level was 164 which was outside the normal 

range of 135 to 145 and potentially lethal for her and her potassium level was 

critical. 

[8] Dr. Harris observed that Da.’s behavior was very unusual for a child his age 

and that he was very quiet. She also observed that he had very dry skin to the 

point of having some saggy and “kind of wrinkled-looking” areas. Id. at 97. 

She determined that Da.’s sodium level was 155 which, “[i]f it progressed much 

further, it certainly could be life threatening.” Id. at 97. She also determined 

that Da.’s potassium level was at a level where it could have been life 

threatening. Da. received treatment and his sodium levels returned to the 

normal range after two days. With treatment, De.’s levels returned to normal 

by the third day. 
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[9] On October 23, 2013, the State charged Darrington with two counts of neglect 

of a dependent as class B felonies and two counts of battery as class D felonies. 

On July 15, 2016, the State charged Darrington in an amended information 

with two counts of neglect of a dependent resulting in serious bodily injury as 

class B felonies and one count of battery resulting in bodily injury as a class D 

felony. 

[10] On June 26 and 27, 2017, the court held a jury trial. When asked about Da.’s 

drinking and wanting more to drink, Bunnell testified: “At first the juice wasn’t 

but after we noticed, like, how much he kept, like, just not wanting to do 

anything else, it became – it started to become very unusual.” Id. at 24. Elliott 

testified that Da. was not a “real active child” and that “[a]ny time there was 

food or drink, he would eat or drink as – all of it – as much of it as he could as 

fast as he could” at “[e]very visit.” Id. at 57. Dr. Harris testified that the high 

levels of sodium in De. and Da. were due to fluid restriction and that a fifteenmonth-old should have four full eight-ounce sippy cups each day. Dr. Harris 

also testified that the level of dehydration did not develop rapidly. She testified 

that Da.’s droopy eyebrow was related to his sodium level which can change 

the way one’s nerves are working. When asked if there was any way to know 

what the full implications would be for De. and Da., Dr. Harris answered:

Unfortunately, no. What they experienced is something we term 

medically as Toxic Stress. So, again, for both of them, they’re at 

that period of those early, formative years where their brain is 

growing really rapidly and should be making lots of new 

connections. The way that you make all those new connections 

is by good nutrition and by interacting with the world. So by 
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people talking to you and playing with you and having those 

interactions. So the fact that they didn’t have those and didn’t 

have that adequate nutrition for brain growth is going to have 

life-long implications for them.

Id. at 108. She also testified that, if De. and Da. had not been treated, they 

would have died from the liquid restrictions. The court admitted photographic 

evidence showing the appearance of the children when they were hospitalized. 

[11] After the State rested, Darrington moved for a directed verdict, and the court 

denied the motion. During the presentation of the defense’s case, Dr. Dana 

Hiller testified that she had seen De. and Da. on one occasion in late summer 

or early fall when Darrington brought them in for a wellness check, the children 

seemed to be doing fairly well, and she did not have any specific concerns but 

referred the children to First Steps because they had mental or physical 

developmental disabilities. On cross-examination, Dr. Hiller testified that she 

never saw them again after that visit in September. 

[12] Terri Everitt, an employee of Dockside Services, an agency contracted with the 

Department of Child Services to provide services including therapy and case 

management, testified that she was a foster care case manager in 2013 and that 

the children were initially very scared and would scream when out of 

Darrington’s presence. She testified that she visited Darrington’s home twice a 

week on a regular basis, visited the home on October 22, 2013, noticed only 

that Da. and De. were fussy and wanted to be in the same room with her, and 

did not notice a droopiness on Da.’s face. 
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[13] Tyanne Clancy, a social worker, testified that she went to Darrington’s home 

between 4:30 and 5:00 on October 22, 2013, to pick up her own two children 

who Darrington cared for while she worked and did not notice anything out of 

the ordinary with Da. or De. 

[14] The jury found Darrington guilty of two counts of neglect of a dependent 

resulting in serious bodily injury as class B felonies and not guilty of battery. 

[15] On July 26, 2017, the court held a sentencing hearing. Detective Sergeant 

McAllister testified there were six children living in Darrington’s home, he did 

not see many toys, and there was food in the kitchen. He testified that he 

interviewed the two older foster children that were related to De. and Da. and 

both described in particular one occasion in which Darrington slapped Da.

across the face. He also testified that one of the children talked about watching 

Darrington telling De. to shut up on the morning of the investigation and “push 

her head into the pack ‘n play and then even when she started crying louder, 

she shoved her head harder.” Transcript Volume III at 66. He also testified 

that there were numerous electronics in the home, specifically televisions, as 

well as a Cadillac sedan, a Cadillac SUV, and a Corvette convertible. 

[16] Darrington stated:

Definitely I’d like to say that I’m sorry. You know, for one, it 

was never the intention to harm any child. And so, you know, 

for that, I apologize. I have learned, you know, the dehydration 

and more on the facts of nutrition. You know, I did not withhold 

anything. They were drinking milk. They were drinking milk 
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and juice and just not enough water. I didn’t withhold with any 

intent of harming any child.

And, again, I’ve learned. I continue repeatedly to share the 

information with others to say, Give your kids more water. Give 

your kids more water. They need water, not just juice and not 

just milk. We have to, you know, some of us just didn’t know. I 

do know now. And that mistake will never happen again. You 

know, that I’m confident of.

Id. at 80. She also testified that she purchased bicycles and clothes for the 

children, the testimony that she struck one of the children was not accurate, and 

that she filed for bankruptcy in 2016 and the bankruptcy was complete. The 

court asked her if she had equity in her mortgage, and she answered: “No. The 

home is upside down.” Id. at 85.

[17] The court stated:

[T]his case is not the typical case you see here. When you see 

Neglect of a Dependent, I usually see, unfortunately, a dead 

child, one who has usually been beaten, shaken, smothered. I 

don’t see one who’s been now malnourished. It was unusual in 

that sense.

I don’t think it’s a situation where Ms. Darrington didn’t care. I 

don’t think that’s it at all. I think there was certainly a level of 

ignorance and a level of – for lack of a better term, a draconian 

sense of upbringing which brought us here. I think she did what 

she thought was best. Unfortunately, it was terrible.

If you think, you know, every time someone wets themselves the 

punishment is you don’t give them something to drink, that’s a 

terrible, terrible thing. Withholding the – you know, she can buy 

them all the TVs in the world. She can buy them clothes. She 
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can buy them everything. But you’re withholding the essentials 

of life. You’re withholding water. You know, you can survive 

without food. You can’t – for a bit. You can’t survive without 

water for more than two days. Other liquids may substitute that 

hydration for a short period of time, but in the end, you need 

water. 

So it’s not that I think she doesn’t care. I think that she 

intentionally – I think there was absolutely a knowing aspect to 

this. She knew what she was doing. I just think her methods 

were criminal. They rose to the level and the jury agreed with 

me.

Id. at 92-93. The court stated: “There are aggravators in this matter. The 

nature of the crime, I think, again, the malnutrition. It’s not something I see 

but it’s something that has to be considered as an aggravator.” Id. at 94. The 

court found the “young age of the dependent” as an aggravator. Id. The court 

found the fact that “the crime is going to be the result of circumstances that are 

unlikely to occur as a mitigator because she shouldn’t have care and control of 

any children.” Id. at 95. The court also observed that Darrington did not have 

a criminal history. The court stated: “I think she has expressed remorse but I’m 

not sure she’s really accepted responsibility.” Id. The court sentenced 

Darrington to ten years with seven years suspended for each count and ordered 

that the sentences be served consecutive to each other. 

[18] The court imposed a fine of $4,000 for each count for a total of $8,000. At the 

sentencing hearing, the court stated:

Now, I understand there was a bankruptcy proceeding. Without 

that bankruptcy proceeding, I – and based on what I’ve seen and 

the assets I’ve seen and when they were purchased, I believe she 
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has the means to pay these fines and the court costs I’m going to 

assess on her $183.00 on each cause, probation fees in the 

amount of $100.00 on each cause which is the amount I can give 

plus any administrative fees.

That being said, if the Defense wants to present the bankruptcy 

findings and proof of assets, I would look to modify that fee if 

they can show that she really truly has liquidated assets and she 

has no way of paying. Otherwise, yeah. She can sell a TV. She 

can sell a car. I know she’s upside down on her house, but she 

can get herself a reverse mortgage. I mean, there are ways of 

doing that unless that bankruptcy tells me, which she just 

recently went through – and it very well may – that she has no 

assets.

Id. at 97.

[19] Darrington indicated that she wished to appeal, and her counsel asked the court 

to appoint pauper counsel. The court stated:

Okay. Aside from – and granted. Considering the fines that I’ve 

imposed and the assets that I see here, she has no income. I will 

appoint pauper counsel for those purposes. But, again, make no 

mistake. I do find that from the evidence presented, she does 

have the assets to pay the fines that have been assessed in this 

matter. 

Id. at 98-99.

Discussion

I.

[20] The first issue is whether the trial court erred in ordering Darrington to pay 

certain fines and costs. Sentencing decisions, including decisions to impose 
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restitution and costs, are generally left to the trial court’s discretion. Berry v. 

State, 950 N.E.2d 798, 799 (Ind. Ct. App. 2011). If the fees imposed by the trial 

court fall within the parameters provided by statute, we will not find an abuse 

of discretion. Id.

[21] Darrington acknowledges that certain vehicles were jointly owned by herself 

and her adult daughter and that they had been purchased in 2011, 2010, and 

2009. She points to her testimony that “[t]his whole case has depleted all my 

finances and living situation which is what’s indicated with the bankruptcy or 

where that stemmed from.” Transcript Volume III at 83. She also points out 

that she was upside down on her home. She asserts that the trial court did not 

dispatch its affirmative duty to determine whether she was indigent before it 

imposed the fine and that this court should remand for a proper indigency 

hearing. 

[22] The State argues that it presented evidence of Darrington’s material assets 

including her luxury vehicles, flat screen televisions, hot tub in her bedroom, 

and newly remodeled kitchen. The State also asserts that Darrington made a 

total of $12,796.92 for being a foster parent to Da. and De. between July 12, 

2013, and October 22, 2013, prior to their removal. It asserts that the indigency 

hearing was part and parcel of the sentencing hearing. 

[23] Ind. Code § 35-50-2-5 provides that a person who commits a class B felony 

“may be fined not more than ten thousand dollars ($10,000).” The Indiana 

Supreme Court has noted that the Indiana legislature requires indigency 
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hearings as to the imposition of fines and costs, see Ind. Code § 33-37-2-3(a) 

(providing “when the court imposes costs, it shall conduct a hearing to 

determine whether the convicted person is indigent”); Ind. Code § 35-38-1-18 

(same for court-imposed fines), and the Court has held that, “when fines or 

costs are imposed upon an indigent defendant, such a person may not be 

imprisoned for failure to pay the fines or costs.”1 Whedon v. State, 765 N.E.2d 

1276, 1279 (Ind. 2002). The Court has also stated that “a defendant’s financial 

resources are more appropriately determined not at the time of initial 

sentencing but at the conclusion of incarceration, thus allowing consideration of 

whether the defendant may have accumulated assets through inheritance or 

otherwise.” Id. While a trial court’s appointment of defense and appellate 

counsel for a defendant implies a finding of indigency, the appointment of 

counsel is not conclusive as to the defendant’s inability to pay costs. Briscoe v. 

State, 783 N.E.2d 790, 792 (Ind. Ct. App. 2003). Where a trial court fails to 

conduct an indigency hearing when required, the proper remedy is to remand 

with instructions to hold such a hearing. Id. at 792-793.

[24] Although there was testimony regarding the vehicles Darrington owned and the 

televisions in her home, the record also revealed that Darrington testified that 

she had filed bankruptcy which was complete and that she was upside down on 

 

1 Also, Ind. Code § 33-37-2-3(b) provides in part that “[a] court may impose costs and suspend payment of all 

or part of the costs until the convicted person has completed all or part of the sentence” and “[i]f the court 

suspends payment of the costs, the court shall conduct a hearing at the time the costs are due to determine 

whether the convicted person is indigent.”
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her mortgage. Under “Financial Situation,” the presentence investigation 

report (“PSI”) states:

[Darrington] stated that she is currently supporting herself 

through her savings due to having been laid off in 2008 from her 

last place of employment. The defendant also listed that she 

receives $200 per month for child support and also reported 

receiving $1200 per month from her family. The defendant 

admitted that she does have a checking account but indicated 

that she did not have either a savings account or any assets of 

value. The defendant reported that her monthly bills total 

$1516.00 and indicated that she does not have any past due debts 

but also indicated that she filed bankruptcy in 2016. The 

defendant indicated that she felt that she was not able to pay her 

bills but also indicated that she was able to pay her bills without 

struggling.

Appellant’s Appendix Volume III at 100. The court acknowledged that “it very 

well may – that she has no assets.” Transcript Volume III at 97. In appointing 

pauper counsel for appeal, the court stated that Darrington “has no income.” 

Id. at 98. Under the circumstances, we conclude that the trial court erred in 

failing to hold a hearing or make the necessary inquiry regarding Darrington’s 

indigency or ability to pay as statutorily required. We remand with instructions 

to hold a hearing on Darrington’s indigency or ability to pay. See Briscoe, 783 

N.E.2d at 793 (noting that the appointment of trial and appellate counsel 

implied the trial court knew of the defendant’s indigency and that the 

presentence investigation report provided some information regarding the 

defendant’s financial position, noting that these facts were not conclusive as to 

the defendant’s ability to pay fees, holding the trial court erred when it failed to 
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conduct a hearing on this issue, and remanding with instructions to hold a 

hearing on the defendant’s indigency because his sentence included the 

imposition of a fee).

II.

[25] The next issue is whether Darrington’s sentence is inappropriate in light of the 

nature of the offense and the character of the offender. Darrington asserts that 

she felt bad about what happened, did not contemplate that the amount of fluid 

she gave the children would harm them, and did much good for them including 

taking the children to wellness checks. She also points out that many 

professional people credentialed in child care did not discern anything out of 

the ordinary with the children. She asserts that she has a good relationship with 

her family, worked for twenty-five years as an underwriter but had not been 

employed since she was laid off from that job in 2008, and has no criminal 

history or history of drug use. She requests that we revise her sentence to a 

lesser time on home detention and probation and run the sentences 

concurrently. 

[26] The State points out that the trial court suspended most of Darrington’s 

sentence to probation and that nothing about the nature of the offenses warrants 

a downward revision of Darrington’s already lenient sentence. The State 

asserts that Darrington’s treatment of the children reflects poorly on her 

character. 
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[27] Ind. Appellate Rule 7(B) provides that we “may revise a sentence authorized by 

statute if, after due consideration of the trial court’s decision, [we find] that the 

sentence is inappropriate in light of the nature of the offense and the character 

of the offender.” Under this rule, the burden is on the defendant to persuade 

the appellate court that his or her sentence is inappropriate. Childress v. State, 

848 N.E.2d 1073, 1080 (Ind. 2006).

[28] Ind. Code § 35-50-2-5 provides that “[a] person who commits a Class B felony 

(for a crime committed before July 1, 2014) shall be imprisoned for a fixed term 

of between six (6) and twenty (20) years, with the advisory sentence being ten 

(10) years.”

[29] Our review of the nature of the offense reveals that Darrington was the 

therapeutic foster parent for Da. and De. While in Darrington’s care, the 

children suffered profound dehydration and high levels of sodium and

potassium due to fluid restriction. Dr. Harris determined that De.’s sodium 

level was potentially lethal for her and that Da.’s potassium level was at a level 

where it could have been life threatening. 

[30] Our review of the character of the offender reveals that Darrington does not 

have a criminal history. Darrington reported she worked as an insurance 

underwriter for twenty-five years until she was laid off in 2008 and had not been 

employed since 2008. The PSI indicates that Darrington reported never 

consuming alcohol, marijuana, cocaine, heroin, methamphetamine, or 

prescription pills. The PSI also indicates that Darrington’s overall risk 
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assessment score using the Indiana risk assessment system places her in the low 

risk to reoffend category. 

[31] After due consideration, we conclude that Darrington has not sustained her 

burden of establishing that her consecutive sentences of the advisory sentence of 

ten years with seven years suspended for each count is inappropriate in light of 

the nature of the offense and her character.2

Conclusion

[32] For the foregoing reasons, we affirm Darrington’s sentence and remand for a 

determination of her indigency or ability to pay consistent with this opinion.

[33] Affirmed and remanded.

Bailey, J., and Crone, J., concur.

 

2 To the extent Darrington argues the court abused its discretion in sentencing her by using the malnutrition 

the children experienced as an aggravator, we need not address this issue because we find that her sentence is 

not inappropriate under Ind. Appellate Rule 7(B). See Chappell v. State, 966 N.E.2d 124, 134 n.10 (Ind. Ct. 

App. 2012) (noting that any error in failing to consider the defendant’s guilty plea as a mitigating factor is 

harmless if the sentence is not inappropriate) (citing Windhorst v. State, 868 N.E.2d 504, 507 (Ind. 2007) 

(holding that, in the absence of a proper sentencing order, Indiana appellate courts may either remand for 

resentencing or exercise their authority to review the sentence pursuant to Ind. Appellate Rule 7(B)), reh’g 

denied; Mendoza v. State, 869 N.E.2d 546, 556 (Ind. Ct. App. 2007) (noting that, even if the trial court is found 

to have abused its discretion in sentencing, the error is harmless if the sentence imposed is not inappropriate), 

trans. denied), trans. denied.