Court of Appeals of Indiana | Memorandum Decision 82A01-1603-CR-568 | December 2, 2016 Page 1 of 11

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.

ATTORNEYS FOR APPELLANT

Scott L. Barnhart

Brooke Smith

Keffer Barnhart LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Michael Gene Worden

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Beth Montgomery,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

December 2, 2016

Court of Appeals Case No.

82A01-1603-CR-568

Appeal from the Vanderburgh 

Superior Court

The Honorable Robert J. Pigman, 

Judge

Trial Court Cause No.

82D03-1410-F1-3805

Baker, Judge.
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[1] Beth Montgomery was convicted of Neglect of a Dependent Resulting in 

Death,1 a Level 1 Felony, and Neglect of a Dependent,2 a Level 6 Felony. She 

appeals her Level 1 Felony conviction, arguing that her statement to law 

enforcement officers should not have been admitted as evidence and that there 

was insufficient evidence to sustain the conviction. Finding no error and 

sufficient evidence, we affirm.

Facts

[2] Montgomery suffers from depression, chronic migraine headaches, and chronic 

back pain. She took anti-depressant and pain medications during and after her 

pregnancy with B.B. On August 27, 2014, Montgomery was admitted to the 

hospital and delivered B.B. During and following the delivery, Montgomery 

suffered from complications that required emergency medical treatment. B.B. 

also required medical attention because he had respiratory distress and 

withdrawal symptoms, but he was released from the hospital seven days later in 

a healthy condition. Upon B.B.’s discharge, Montgomery and John Bivens, 

Montgomery’s fiancé and B.B.’s father, were provided with information about 

how to care for B.B. This information included instructions that the baby was 

to sleep on his back in a crib by himself.

 

1

Ind. Code § 35-46-1-4(b)(3).

2

I.C. § 35-46-1-4(a).
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[3] On September 29, 2014, Bivens returned home from work and cared for B.B. 

and his older sibling, K.B., while Montgomery slept for a few hours. Before he 

and K.B. went to sleep in the master bedroom, Bivens made sure that 

Montgomery was awake and coherent so that she could care for B.B. At some 

point that night, Montgomery fell asleep on the couch.

[4] Around two a.m. on September 30, Montgomery woke Bivens up because B.B. 

was next to her and not moving. Montgomery called 911, and the 911 

dispatcher instructed Bivens to perform CPR on the baby. When the fire 

department personnel arrived at the home, one of the first responders observed 

that B.B. was so pale that he matched the color of his diaper and that he was 

stiff and cold. The first responder took over CPR, and after about ten or fifteen 

minutes, the baby was transported to the hospital, by which time he was 

already deceased. The cause of death was suffocation. 

[5] The same first responder decided to call the Sheriff’s Department because of the 

poor condition of Montgomery’s trailer home. Among other things, it was 

dirty, it contained at least ten dogs and cats, it smelled strongly of animal urine, 

and it was covered with dog droppings.

[6] Montgomery and Bivens voluntarily went to the Vanderburgh County 

Command Post for questioning. While there, Montgomery was advised of her

Miranda3rights, which she waived by signing a written waiver form. 

 

3 Miranda v. Arizona, 384 U.S. 436 (1966).
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Montgomery initially told the detectives that she woke up in the middle of the 

night, that B.B. was in his bassinet, that she discovered that he was cold, and 

that he must have rolled over onto his stomach. When the detectives said that 

B.B. was too young to roll over, Montgomery insisted that she had seen him 

roll over twice before and that he had been holding his head up since he came 

home from the hospital.

[7] At one point, Montgomery asked the detectives whether she needed an 

attorney, but the interview continued. Eventually, she told them that she 

wanted an attorney and asked whether she was free to leave. When told that 

she was not free to leave, she asked whether she was under arrest, and the 

detectives told her that she was. The detectives left the room. Montgomery 

then opened the door and asked, “Can I speak with you?” Tr. p. 331. She 

asked what she was under arrest for, and one detective said that the condition 

of the house was enough to substantiate a charge of neglect. Shortly thereafter, 

Montgomery started talking about what happened to B.B., explaining that 

when she woke up, the baby was lying face down on the couch next to her, that 

he was not breathing, and that he was cold. 

[8] On October 2, 2014, the State charged Montgomery with Level 1 felony neglect 

of a dependent resulting in death and Level 6 felony neglect of a dependent. On 

March 6, 2015, the trial court held a hearing on Montgomery’s motion to 

suppress evidence related to her statement to the detectives, and on March 27, 

2015, the trial court denied the motion. On December 1-3, 2015, a jury trial 

took place, and the jury found Montgomery guilty as charged. The trial court 
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sentenced her to twenty years incarceration for the Level 1 felony and one year 

incarceration for the Level 6 felony, with the sentences running consecutively.

Discussion and Decision

I. Statement to Law Enforcement Officers

[9] Montgomery argues that the trial court erred when it allowed her videotaped 

interview with law enforcement officers to be admitted into evidence. A trial 

court has broad leeway regarding the admission of evidence. Smith v. State, 889 

N.E.2d 836, 839 (Ind. Ct. App. 2008). We will reverse only if the decision is 

clearly against the logic and effect of the facts before the trial court. Figures v. 

State, 920 N.E.2d 267, 271 (Ind. Ct. App. 2010).

[10] Montgomery first contends that the trial court should not have admitted her 

statement because the detectives violated her Miranda rights when they 

continued questioning her after she expressed interest in getting an attorney. 

“To invoke the right to counsel, it is not enough that the defendant might be 

invoking his rights; the request must be unambiguous.” Bailey v. State, 763 

N.E.2d 998, 1103 (Ind. 2002) (quotation marks and citation omitted) (emphasis 

original). An officer does not need to stop questioning when an accused makes 

an equivocal statement requesting counsel, nor does the officer have to ask 

clarifying questions to determine whether the accused wants counsel. Id. 

Further, when an individual who is being interrogated invokes her right to 

counsel but “initiates ‘further communication, exchanges, or conversations’ 

with law enforcement, then the individual may be further interrogated without 
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counsel present.” Hartman v. State, 988 N.E.2d 785, 788 (Ind. 2013) (quoting 

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)). 

[11] The record shows that the detectives advised Montgomery of her Miranda rights 

before questioning her and that Montgomery understood her rights before she 

signed the waiver form. During questioning, when Montgomery asked whether 

she needed an attorney, the detectives lawfully continued the conversation. In 

the first instance, Montgomery asked, “Do I need an attorney cause I feel . . .” 

and said “I’m feeling like I’m being . . . .” Tr. p. 320. These statements 

constitute an equivocal request, and the detectives were not obligated to stop 

questioning her at that point. See King v. State, 991 N.E.2d 612, 618 (Ind. Ct. 

App. 2013) (finding that defendant’s question of “Am I going to need an 

attorney?” did not constitute an unequivocal request for counsel); Collins v. 

State, 873 N.E.2d 149, 156 (Ind. Ct. App. 2007) (finding that defendant’s 

statement, “I probably need an attorney,” was an observation rendered 

equivocal by the use of the word “probably”). 

[12] In the second instance, Montgomery stated, “I think I need an Attorney is what 

I think. Yeah I want an Attorney. I’m free to leave right?” Tr. p. 330. The 

detectives told her that she was not free to leave. Montgomery asked, “So am I 

under arrest?” Id. at 331. At that point, the detectives left the interview room,

but Montgomery opened the door and said, “Can I speak with you?” Id. She 

asked why she was under arrest, and one detective told her that the condition of 

her house warranted a charge of neglect for both of her children. One detective

said, “I mean you want to talk to us, if you’re wanting to talk to us I’ll be glad 
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to talk to you and let you know what’s going on. But if your [sic] gonna come 

to the door do you want to talk to us?” Id. at 331-32. Montgomery said, “Yeah 

I, I wanted to know what I was . . . .” Id. at 332. Detective Chapman said, 

“Did you not come to the door and say, can I talk to you?” Id. Montgomery 

replied, “Yeah but first I want know what I’m being arrested for or what I’m 

going to be charged with?” Id. The detectives then resumed questioning her.

[13] When Montgomery opened the door and asked whether she could speak with 

the detectives, she initiated further communication with them, thereby allowing 

the detectives to continue to question her. Montgomery claims that she did not 

reinitiate the interrogation but merely asked the detectives an administrative 

question about why she was being arrested. She points to no authority to justify 

such a distinction, and we find that her question was properly considered to be 

a communication that allowed the detectives to resume questioning her. See

Owens v. State, 732 N.E.2d 161, 164 (Ind. 2000) (finding that the defendant 

initiated further communication with the detective such that his rights were not 

violated when, after the detective ceased questioning after the defendant 

requested a lawyer, the defendant inquired about his mother and asked, “What 

could happen to somebody that did this?”). Montgomery also claims that the 

detectives did not scrupulously honor her right to counsel; we note, however, 

that before the detectives resumed questioning her, they twice confirmed that 

she wanted to talk with them and that she was the one who initiated the 

conversation after they stopped it.
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[14] Montgomery next contends that the trial court should not have admitted her 

statement because it was involuntarily given. Specifically, she asserts that “[i]t 

is questionable whether Beth’s statement is a product of rational intellect in 

light of the timing of the interrogation and the fact that it occurred mere hours 

after the death of her infant son, and while she was in a fragile emotional and 

mental state.” Appellant’s Br. p. 15. 

[15] “A statement is voluntary if, in the light of the totality of the circumstances, the 

confession is the product of a rational intellect and not the result of physical 

abuse, psychological intimidation, or deceptive interrogation tactics that have 

overcome the defendant's free will.” State v. Keller, 845 N.E.2d 154, 165 (Ind. 

Ct. App. 2006) (quotation marks and citation omitted). Factors that may be 

considered when reviewing the totality of the circumstances for whether a 

waiver of rights was voluntary include police coercion; the length, location, or 

continuity of the interrogation; and the defendant’s maturity, education, 

physical condition, and mental health. Id.

[16] Montgomery does not allege that she suffered physical abuse, psychological 

intimidation, or deceptive interrogation tactics, nor does the record support the 

idea that Montgomery was mistreated while at the command post. Although 

she was emotionally upset by the death of her son, we cannot say that such

feelings negate the voluntariness of her statement. 

[17] Because Montgomery’s rights were not violated when the detectives obtained 

her statement, we find no error in the trial court’s admitting it into evidence. 
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However, even if we found that the trial court had committed an error in 

admitting her statement, it would have been harmless because, as discussed 

below, the conviction is supported by other substantial independent evidence of 

guilt. E.g., Headlee v. State, 678 N.E.2d 823 (Ind. Ct. App. 1997). 

II. Sufficiency of the Evidence

[18] Montgomery argues that there is insufficient evidence supporting her conviction 

for neglect of a dependent resulting in death because she did not knowingly fall 

asleep with B.B. in her arms. When reviewing a claim of insufficient evidence, 

we will consider only the evidence and reasonable inferences that support the 

conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if, 

based on the evidence and inferences, a reasonable jury could have found the 

defendant guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003, 

1005 (Ind. 2009). Circumstantial evidence alone is sufficient if inferences may 

reasonably be drawn that enable the factfinder to find the defendant guilty 

beyond a reasonable doubt. Pratt v. State, 744 N.E.2d 434, 437 (Ind. 2001). 

[19] To convict Montgomery of Level 1 felony neglect of a dependent resulting in 

death, the State was required to prove beyond a reasonable doubt that she was 

“[a] person having the care of a dependent, whether assumed voluntarily or 

because of a legal obligation, who knowingly or intentionally . . . place[d] the 

dependent in a situation that endanger[ed] the dependent’s life or health,” that 

she was at least eighteen years old, and that the care “result[ed] in the death of a 

dependent who is less than fourteen (14) years of age.” Ind. Code § 35-46-1-
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4(a)(1), (b)(3). To establish that Montgomery acted “knowingly,” the State was 

required to prove that she was “aware of a high probability” that she was 

engaging in that conduct. Ind. Code § 35-41-2-2(b). 

[20] Montgomery argues that she was unaware of and had no conscious control 

over her behavior. The record, however, indicates that Montgomery was well 

aware of her decisions, which included taking medications that affected her 

ability to adequately care for her children and home. The evidence shows that 

the hospital staff informed Montgomery on how to care for B.B. and instructed 

her on how B.B. was to sleep alone on his back in his crib. Montgomery was 

aware that it was important for B.B. to sleep on his back—when the detectives 

questioned her, she emphasized that B.B. always slept on his back. Bivens 

testified that Montgomery was awake and coherent before he went to bed on 

the night that B.B. died. The evidence shows that Montgomery knew that she 

had taken medication that day and was tired that night. The forensic medical 

evidence established that B.B. died from suffocation as a result of being on his 

stomach and on a surface that was not flat. Finally, in her statement to the 

detectives, Montgomery admitted that when she woke up, B.B. was lying facedown on a couch cushion next to her. 

[21] Although Montgomery argues that she was unaware of what she was doing, the 

jury was free to disbelieve her and infer from the surrounding circumstances

that she took B.B. out of his bassinet and held him while she was sitting on the 

couch, thereby placing her baby in a situation in which he could fall asleep in a 

physically dangerous position. We will not second-guess the jury in its 
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assessment of her credibility. The evidence is sufficient to support her 

conviction for neglect of a dependent resulting in death. 

[22] The judgment of the trial court is affirmed.

Vaidik, C.J., and Najam, J., concur.