Gavin J Guernsey v. State of Indiana

Court of Appeals of Indiana | Memorandum Decision 26A-CR-161 | October 19, 2026 Page 1 of 22
Pursuant to Indiana Appellate Rule 65(E), the trial court and parties shall not take
any action in reliance upon this memorandum decision until it is certified.
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not
binding precedent for any court and may be cited only for persuasive value
or to establish res judicata, collateral estoppel, or law of the case.
I N T H E
Court of Appeals of Indiana
Gavin J. Guernsey,
Appellant-Defendant
v.
State of Indiana,
Appellee-Plaintiff
October 19, 2026
Court of Appeals Case No.
26A-CR-161
Appeal from the Clark Circuit Court
The Honorable Lisa Garcia Reger, Judge
Trial Court Cause No.
10C04-2204-F3-18
Memorandum Decision by Judge Mathias
Judges Kenworthy and DeBoer concur.

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Mathias, Judge.
[1] The Clark Circuit Court sentenced Gavin J. Guernsey to an aggregate twenty-
two year sentence executed in the Department of Correction after a jury found
him guilty of Level 3 felony and Level 5 felony battery resulting in serious
bodily injury to a person less than fourteen years old, Level 5 felony neglect of a
dependent resulting in bodily injury, and two counts of Level 6 felony neglect of
a dependent. Guernsey appeals his convictions and sentence and raises four
issues, which we restate as:
1. Whether the trial court abused its discretion when it denied
Guernsey’s motion to replace Juror 37 with an alternate juror;
2. Whether Guernsey was denied his right to present his chosen
defense when the court excluded witness testimony after that
witness exercised his Fifth Amendment right against self-
incrimination;
3. Whether the State presented sufficient evidence to support
Guernsey’s conviction on Count Five, Level 6 felony neglect of a
dependent; and,
4. Whether Guernsey’s aggregate twenty-two year sentence is
inappropriate in light of the nature of his offenses and his
character.
[2] We affirm Guernsey’s convictions and sentence.

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Facts and Procedural History
[3] In November 2021, Guernsey and S.D. began dating, and they moved in
together shortly thereafter. S.D.’s two-year-old daughter (“Child”) lived with
them, and Guernsey often cared for Child on nights when S.D. was at work or
sleeping. Although Child initially had a good relationship with Guernsey and
enjoyed spending time with him, after she and S.D. moved into Guernsey’s
apartment Child was reluctant to be near Guernsey.
[4] Toward mid-December, Child, who had been a generally happy child, began to
be anxious and scared much of the time. On December 20, S.D. saw a gash on
Child’s head. After Child had also vomited more than once, S.D. and Guernsey
took Child to a children’s hospital in Louisville. Medical personnel released
Child from the hospital after her CT scan results were normal.
[5] Child’s behavior continued to regress and she suffered additional injuries while
in Guernsey’s care or while S.D. was sleeping. In early January, Child chipped
a tooth and bruised her forehead and chin. Guernsey told S.D. that Child had
fallen out of bed or had been sleepwalking. Later that month, Guernsey
reported to S.D. that Child had eaten her own feces. S.D. asked Guernsey to
call her or wake her up if she was at home when these incidents occurred but
Guernsey did not do so. On one occasion, Guernsey texted S.D. while she was
at work and told her that he had to struggle with Child to get her to sit down in
the bathtub.

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[6] On or about January 15, 2022, S.D. and her mother, T.D., observed bruising all
over Child’s body and significant bruising on her abdomen and back. Two days
later, S.D. saw Guernsey crouched down in front of Child, and Child looked
scared. Guernsey told S.D. that Child had eaten her own feces and vomited.
After Child vomited feces a second time, S.D. and T.D. took Child to Clark
Memorial Hospital. Medical personnel discharged Child, but the Indiana
Department of Child Services instructed S.D. to take Child to the children’s
hospital in Louisville.
[7] Dr. Jennie Green, a pediatrician specializing in child abuse, evaluated Child
when she was admitted to the children’s hospital. Dr. Green observed that
Child had suffered from several areas of “cluster bruising,” which is defined as
three or more bruises in a localized area caused by multiple impacts. Tr. Vol. 4,
pp. 99-110. Child had cluster bruising on her forehead, which extended into her
hairline, under her chin extending to her neck, to her abdomen, and to both
sides of her back. Dr. Green concluded that significant force must have been
used to cause the bruises on Child’s back, chin, and abdomen. And the multiple
impacts to Child’s abdomen had caused a three-centimeter laceration on Child’s
liver. Dr. Green determined that Child’s injuries were caused by physical abuse.
Id. at 110. Medical personnel also screened Child’s urine while she was
admitted to the hospital. Her urine tested positive for THC.
[8] Coprophagia, which is the scientific term for consumption of feces, is highly
abnormal behavior. Id. Dr. Green explained that persons who engage in
coprophagia usually suffer from severe autism, intellectual disability, severe

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mental illness, or major trauma. Id. at 110-11. Dr. Green found it difficult to
believe that Child had eaten her feces of her own free will and concluded it was
more likely that her feces were fed to her. Id. at 112.
[9] Jeffersonville Police Department Detective Jonathan Herring interviewed both
S.D. and Guernsey about Child’s injuries and behavior. Guernsey’s explanation
of how Child’s injuries occurred was not consistent with Dr. Green’s findings.
Id. at 115, 118. And later hair follicle toxicology established that, in addition to
marijuana, Child had also been exposed to fentanyl. Tr. Vol. 4, p. 90.
[10] In April, the State charged Guernsey with Level 3 felony battery for the injury
to Child’s liver, Level 5 felony battery, Level 5 felony neglect of a dependent,
Level 6 felony neglect of a dependent for forcing Child to eat feces, and Level 6
felony neglect of a dependent for Child’s exposure to marijuana and/or
fentanyl. Guernsey’s jury trial commenced on November 10, 2025. Guernsey
failed to appear, and the court tried him in absentia.
[11] During voir dire, Juror 37 told the court that she was acquainted with T.D.
because they had attended the same church in the past. Juror 37 stated that she
had not seen T.D. for a long time or talked to her in years. Tr. Vol. 2, pp. 137-
38. Juror 37 stated that she could be fair and impartial. Id. at 138. Juror 37 was
not challenged for cause and she was empaneled on the jury. During trial, and
after T.D. testified, Juror 37 waved to T.D. in the hallway of the courthouse.
The State brought this to the attention of the trial court, and the court
questioned Juror 37 outside the presence of the other jurors. Juror 37

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maintained that she had the ability to remain fair and impartial. Guernsey’s
counsel asked the trial court to excuse Juror 37 and replace her with an
alternate juror. The trial court denied the motion after finding that Juror 37
could be fair and impartial.
[12] One of Guernsey’s defense theories was that Child’s uncle, L.D., who used
drugs and had a prior battery conviction on a child, had caused Child’s injuries.
Guernsey listed L.D. as a defense witness. The State moved to exclude L.D.’s
testimony, and, in particular, his criminal history. The trial court excluded
L.D.’s testimony and Guernsey made an offer of proof of what L.D.’s
testimony would have been. L.D., who had pending criminal charges, refused
to testify citing the Fifth Amendment on advice of counsel.
[13] After the four-day jury trial concluded, the jury found Guernsey guilty as
charged. Law enforcement found Guernsey and arrested him prior to the
sentencing hearing. The trial court found several aggravating circumstances:
that the harm to Child was greater than the elements of Guernsey’s offenses,
that Guernsey lacked remorse or accountability, that Child was two years old
when the offenses were committed, Guernsey’s position of trust with Child, and
that Guernsey had absconded from the jurisdiction and failed to appear for trial.
The trial court considered Guernsey’s lack of criminal history and that he had
the support of his family as mitigating circumstances. The court then ordered
Guernsey to serve an aggregate twenty-two year sentence executed in the
Department of Correction.

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[14] Guernsey now appeals.
1. The trial court acted within its discretion when it denied
Guernsey’s motion to replace Juror 37 with an alternate juror.
[15] Guernsey argues that the trial court erred when it empaneled Juror 37 and
abused its discretion when the court denied his request to replace the juror with
an alternate during trial. As our Supreme Court explained in Easler v. State, 131
N.E.3d 584 (Ind. 2019):
“The right to a fair trial before an impartial jury is a cornerstone
of our criminal justice system” guaranteed by both the United
States and Indiana [C]onstitutions. Whiting v. State, 969 N.E.2d
24, 28 (Ind. 2012) (citing U.S. Const. amend. VI and Ind. Const.
art. 1, § 13). “The presence of even one biased juror on the jury is
a structural error requiring a new trial.” Id. Thus, “the trial court
has ‘a broad discretion and duty . . . to see that the jury as finally
selected is subject to no solid basis of objection on the score of
impartiality.’” Id. at 29 (omission in original) (quoting Frazier v.
United States, 335 U.S. 497, 511, 69 S. Ct. 201, 93 L. Ed. 187
(1948)).
Id. at 588. “Removing prospective jurors—whether peremptorily or for cause—
who cannot perform these tasks is the mechanism parties and trial courts use to
achieve an impartial jury.” Oswalt v. State, 19 N.E.3d 241, 245-46 (Ind. 2014)
(citing Emmons v. State, 492 N.E.2d 303, 305 (Ind. 1986)).
[16] Indiana Code section 35-37-1-5(a) provides a list of “good causes for challenge
to any person called as a juror in a criminal trial,” which includes “that the
person is biased or prejudiced for or against the defendant.” “A juror’s bias may

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be actual or implied.” Alvies v. State, 795 N.E.2d 493, 499 (Ind. Ct. App. 2003),
trans. denied. Juror bias may be implied “where a relationship exists between the
juror and one of the parties.” Caruthers v. State, 926 N.E.2d 1016, 1020 (Ind.
2010).
[17] Guernsey claims that Juror 37 was biased because she was acquainted with
T.D. However, Guernsey did not move to strike Juror 37 either peremptorily or
for cause after she had stated during voir dire that she knew T.D. because they
attended the same church.
[18] A defendant who seeks to challenge the trial court’s refusal to strike a potential
juror must satisfy the exhaustion rule:
The exhaustion rule requires parties to peremptorily remove
jurors whom the trial court refuses to strike for cause or show
that they “had already exhausted [their] allotment of
peremptories” at the time they request for-cause removal. And
“even where a defendant preserves a claim by striking the
challenged juror peremptorily,” an appellate court will find
reversible error “only where the defendant eventually exhausts all
peremptories and is forced to accept either an incompetent or an
objectionable juror.” The rule promotes judicial economy: parties
should use the tools at their disposal to cure error and avoid
significant costs that will accrue to the judiciary, the parties, and
the citizen jurors. Failure to comply with the exhaustion rule
results in procedural default.
Oswalt v. State, 19 N.E.3d 241, 246 (Ind. 2014) (citations omitted).
[19] Guernsey has not provided us with a trial record disclosing whether he had
exhausted his peremptory challenges when Juror 37 stated that she knew T.D.

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But he also failed to challenge her for cause, and, therefore, his failure to
comply with the exhaustion rule results in procedural default of his attempt to
challenge the ruling in this appeal. Moreover, counsel questioned Juror 37
about her relationship with T.D., and the juror informed the court both that she
had not spoken to T.D. for years and that she could remain fair and impartial.
[20] We now turn to Guernsey’s second claim of error concerning Juror 37. The trial
court instructed the jurors that they should not communicate with any parties,
attorneys, witnesses, members of the media, or any other person about the case.
Despite the instruction, while the jurors were in the hallway leading to the court
room, Juror 37 waved to T.D. in a friendly manner. The State brought the
incident to the trial court’s attention, and, therefore, the court questioned Juror
37 regarding her continued ability to remain fair and impartial. See Tr. Vol. 4,
pp. 7-9. Juror 37 told the court that she “absolutely” had the ability to remain
fair and impartial. Id. at 8.
[21] Guernsey asked the court to excuse Juror 37 because she communicated with
T.D. The trial court declined to excuse the juror and stated, “my observation of
her . . . I fell [sic] that she is . . . being truthful . . . in her desire to be impartial
and to weigh the credibility of the witnesses.” Id. at 10. Guernsey claims that
Juror 37’s communication with T.D. brought their friendship to the attention of

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her fellow jurors, which “created a public appearance that the jury was biased .
. . .”1 Appellant’s Br. at 24.
[22] It is well settled that
[t]rial courts have significant leeway under Indiana Trial Rule
47(B) in determining whether to replace a juror with an alternate
and we will reverse only if there was an abuse of discretion[.] A
defendant is entitled as a matter of right only to an impartial jury,
Ind. Const. art. I, § [13], and not to one of his precise choosing
where the issue is merely replacing a regular juror with an
alternate.
Walker v. State, 988 N.E.2d 341, 351 (Ind. Ct. App. 2013) (quoting Jervis v. State,
679 N.E.2d 875, 881-82 (Ind. 1997)), trans. denied.
[23] Our Supreme Court discussed this issue in Harris v. State, 659 N.E.2d 522, 525
(Ind. 1995), and reaffirmed its holding when it discussed Harris in a subsequent
decision. Specifically, in Riggs v. State, the court observed:
For example in Harris v. State, 659 N.E.2d 522, 525 (Ind. 1995),
after the first witness took the stand a juror realized that the
previous weekend the witness’s brother, who worked at a service
station and was also expected to testify, had driven the juror
1 We are not persuaded by Guernsey’s reliance on Threats v. State, 582 N.E.2d 396 (Ind. Ct. App. 1991), trans.
denied. The circumstances of that case are not analogous to the facts presented here because the juror in that
case did not disclose his relationship to the defendant’s wife until jury deliberations were underway. That
juror was replaced with an alternate juror and the trial court denied the defendant’s motion for mistrial. On
appeal, we reversed the trial court’s judgment on the motion for mistrial because the juror’s delayed
disclosure caused friction among the other members of the jury, the trial court failed to take appropriate
remedial action, and therefore, our court could not “be certain that the verdict was free of improper
influences.” Id. at 401.

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home after servicing the juror’s car. The two had exchanged
pleasantries but nothing related to the case. The trial court’s
ruling that this incidental contact with an expected witness was
not a ground to remove the juror was within the trial court’s
discretion. Id. at 526. The ground for removal did not present any
substantiated basis to assume bias on the part of the juror. The
trial court’s assessment of the effect of such innocuous contact is
entitled to significant deference because it is based in large part
on an assessment of the juror’s ability to evaluate the case on its
merits.
809 N.E.2d 322, 327 (Ind. 2004).
[24] In this case, both parties and the court were aware that Juror 37 knew T.D.
from her church before Juror 37 was empaneled on the jury without objection.
It was within the discretion of the trial court to determine whether Juror 37
should be removed from the jury mid-trial because she waved to T.D. in the
courtroom hallway. It is not evident from the record whether any of Juror 37’s
fellow jurors saw her wave to T.D., although it is possible that they did so. The
trial court questioned Juror 37 about her ability to remain impartial and
evaluate the case on its merits. The court was satisfied that Juror 37 would be
able to do so, and Guernsey has not convinced us that the trial court abused its
discretion when it denied his request to replace Juror 37 with the alternate juror.
2. The trial court did not deny Guernsey his right to present a
defense when it excluded L.D.’s testimony.
[25] Next, Guernsey claims that he was denied his Sixth Amendment right to
present his defense that L.D. was the perpetrator of the offenses committed

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against Child. “[T]he Constitution guarantees criminal defendants ‘a
meaningful opportunity to present a complete defense.’” In re Crisis Connection,
Inc., 949 N.E.2d 789, 800 (Ind. 2011) (quoting Kubsch v. State, 784 N.E.2d 905,
923-24 (Ind. 2003)). “The right to present a complete defense includes the right
to ‘offer the testimony of witnesses’, ‘present the defendant’s version of the
facts’, and use the defendant’s ‘own witnesses to establish a defense.’” Crossland
v. State, 256 N.E.3d 517, 528 (Ind. 2025) (quoting Washington v. Texas, 388 U.S.
14, 19 (1967)).
[26] However, this right does not guarantee a defendant every defense imaginable.
See Marley v. State, 747 N.E.2d 1123, 1132 (Ind. 2001). In presenting a defense,
“[t]he accused, as is required of the State, must comply with established rules of
procedure and evidence designed to assure both fairness and reliability in the
ascertainment of guilt and innocence.” Id. (quoting Roach v. State, 695 N.E.2d
934, 939 (Ind. 1998)); see also Crossland, 256 N.E.3d at 528 (quoting Chambers v.
Mississippi, 410 U.S. 284, 302 (1973) (explaining that “it is constitutional ‘to
exclude evidence through the application of evidentiary rules that themselves
serve the interests of fairness and reliability’”)).
[27] In general, evidence of a third-party motive is relevant under Evidence Rule 401
because the evidence tends to make it less probable that the defendant
committed the offense. However,
this evidence may be excluded if its probative value is out-
weighed by unfair prejudice, confusion of the issues, or the
potential to mislead the jury. Ind. Evid. R. 403. In the context of

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third-party motive evidence, these rules are grounded in the
widely-accepted principle that before evidence of a third party is
admissible, the defendant must show some connection between
the third party and the crime. See Holmes v. South Carolina, 547
U.S. 319, 327 & n.*, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006)
(listing jurisdictions and quoting 41 C.J.S., Homicide § 216, at
56-58 (1991) (“Evidence tending to show the commission by
another person of the crime charged may be introduced by
accused when it is inconsistent with, and raises a reasonable
doubt of, his own guilt; but frequently matters offered in evidence
for this purpose are so remote and lack such connection with the
crime that they are excluded.”)).
Pelley v. State, 901 N.E.2d 494, 505 (Ind. 2009), abrogated on other grounds by
Austin v. State, 997 N.E.2d 1027, 1039 (Ind. 2013).
[28] S.D. and T.D. testified that L.D. had been present in T.D.’s home while Child
was visiting. Guernsey informed the court that he intended to argue that L.D.
committed the charged offenses, and he wanted to present evidence of L.D.’s
criminal history to the jury, including L.D.’s drug use and conviction for
battering a child. The trial court granted the State’s motion to exclude L.D.’s
testimony and evidence of his criminal history. Thereafter, Guernsey made an
offer of proof. On advice of counsel, L.D., who had pending drug charges,
exercised his Fifth Amendment right against self-incrimination and did not
answer counsel’s questions. Tr. Vol. 4, pp. 77-78.
[29] The State argued that the evidence of L.D.’s criminal history was not relevant
because there was no evidence that L.D. had the opportunity to commit the
charged offenses against Child and L.D.’s prior offenses were not connected to

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Child. Id. at 80. The trial court concluded Guernsey was attempting to use
evidence of L.D.’s prior criminal offenses “to show character or propensity of
[L.D.] to act in conformity with the alleged crime” rather than to show motive
or opportunity. Id. at 127. We agree and conclude that the trial court properly
excluded records of L.D.’s criminal history. See Ind. Evid. R. 404(b); Thompson
v. State, 15 N.E.3d 1097, 1102 (Ind. Ct. App. 2014) (explaining that “[t]o be
admissible under Evidence Rule 404(b), the evidence must be relevant to some
other matter other than the defendant’s propensity to commit crimes . . . .”).
[30] Guernsey also argues that L.D. should have been compelled to invoke his right
against self-incrimination in front of the jury. But our Supreme Court has
recognized that “defendants do not have a right to force a witness to invoke the
witness’s right against self-incrimination before the jury.” See Martin v. State,
179 N.E.3d 1060, 1067 (Ind. Ct. App. 2021) (citing Stephenson v. State, 864
N.E.2d 1022, 1047 (Ind. 2007)). Here, the trial court noted that other witnesses
and evidence established that L.D. was at T.D.’s home while Child was also in
the home and that L.D. was a drug user. The court concluded that “the risk of
confusion and the prejudicial effect of [L.D.] appearing to . . . plead the 5th
outweighs the minimum probative value.” Tr. Vol. 4, p. 127.
[31] Here, the jury was presented with evidence that L.D. resided with T.D. and he
used illegal drugs. Because of L.D.’s drug use, S.D. did not want Child around
her brother. Moreover, there was no evidence to suggest that L.D. had the
opportunity to abuse Child and T.D. testified that when she cared for Child in
her home, she was always with Child. Tr. Vol. 3, p. 249, Vol. 4, p. 3.

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[32] During closing arguments, Guernsey argued that the evidence reflected that the
only marijuana use occurred on the balcony outside of the apartment.
Regarding Child’s exposure to fentanyl, Guernsey argued that L.D. was the
only person who had contact with Child who was also addicted to fentanyl. Id.
at 146. Given the evidence of L.D.’s drug use, which was disclosed by his
mother and sister, we cannot conclude that the trial court’s refusal to force L.D.
to invoke his Fifth Amendment right in front of the jury would have aided
Guernsey in presenting his defense.
[33] For all of these reasons, Guernsey has not persuaded us that he was unable to
present his chosen defense to the jury.2
3. The State presented sufficient evidence to support
Guernsey’s Level 6 felony neglect of a dependent conviction
for exposing Child to marijuana.
[34] A challenge to the sufficiency of the evidence warrants a “deferential standard
of review in which we ‘neither reweigh the evidence nor judge witness
credibility, instead reserving those matters to the province of the jury.’” Hancz-
2 The bulk of Guernsey’s argument regarding the exclusion of L.D.’s testimony and additional evidence of
L.D.’s drug use concerned his defense for Count 5, i.e., neglect of a dependent for exposure to marijuana
and/or fentanyl. In his brief, he raises several additional arguments including that the State opened the door
to the admission of the evidence and that the trial court denied him his right to confrontation during his
cross-examination of T.D. See Appellant’s Br. at 32-34. As is discussed below, we agree with Guernsey that
the State failed to prove that he exposed Child to fentanyl as alleged in Count 5. But Guernsey did not
dispute the presence of marijuana in the apartment. Therefore, if there was any error in the exclusion of
L.D.’s testimony and evidence related to his drug use and his proximity to Child, such error was harmless.
For this reason, we do not address those arguments raised in Guernsey’s brief that relate to whether he
exposed Child to fentanyl.

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Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (citation omitted). We
consider only the probative evidence and reasonable inferences that support the
judgment of the trier of fact. Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021).
We will affirm the conviction unless no reasonable factfinder could find the
elements of the crime proven beyond a reasonable doubt. Teising v. State, 226
N.E.3d 780, 783 (Ind. 2024).
[35] During the time period of the charged offenses, Indiana Code section 35-46-1-
4(a) provided in pertinent part that a person commits Level 6 felony neglect of a
dependent when the person, having the care of a dependent, knowingly or
intentionally “places the dependent in a situation that endangers the
dependent’s life or health . . . .” A person engages in conduct “knowingly” if,
when he engages in the conduct, “he is aware of a high probability that he is
doing so.” I.C. § 35-41-2-2(b). In Count 5, the State charged Guernsey with
neglect of a dependent for failing to supervise and or care for Child, “thus
allowing [Child] to consume Marijuana and/or Fentanyl.”3 Appellant’s App.
Vol. 2, p. 38.
[36] Concerning the mens rea requirement under the neglect statute, our court has
explained:
3 Our supreme court has warned against using “and/or” language because “it is ambiguous and potentially
imprecise.” See Dunn v. State, 230 N.E.3d 910, 916 (Ind. 2024). That admonishment arose in a case involving
jury instructions, see id., and we observe that the “and/or” language in the Count V charging information was
repeated in the jury instructions in this case. However, Guernsey did not challenge that language at trial or in
this appeal.

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The mens rea under the Neglect Statute[ ] requires the defendant
to have a subjective awareness of a high probability that he
placed the dependent in a dangerous situation. Our court has
repeatedly held that the Neglect Statute “must be read as
applying only to situations that expose a dependent to an ‘actual
and appreciable’ danger to life or health.” Scruggs v. State, 883
N.E.2d 189, 191 (Ind. Ct. App. 2008) [(parenthetical omitted)],
trans. denied. In Scruggs, we reiterated:
. . . to be an “actual and appreciable” danger for purposes
of the neglect statute when children are concerned, the
child must be exposed to some risk of physical or mental
harm that goes substantially beyond the normal risk of
bumps, bruises, or even worse that accompany the
activities of the average child. This is consistent with a
“knowing” mens rea, which requires subjective awareness
of a “high probability” that a dependent has been placed in
a dangerous situation, not just any probability.
[883 N.E.2d at 191]. The purpose of the Neglect Statute is to
authorize the intervention of the police power to prevent harmful
consequences and injury to dependents without having to wait
for actual loss of life or limb. Because such a finding requires one
to resort to inferential reasoning to ascertain the defendant’s
mental state, the appellate courts must look to all the surrounding
circumstances of a case to determine if a guilty verdict is proper.
Burden v. State, 92 N.E.3d 671, 675 (Ind. Ct. App. 2018) (citation modified).
Moreover, “the knowing exposure of a dependent to an environment of illegal
drug use poses an actual and appreciable danger to that dependent and thereby
constitutes neglect regarding the endangerment requirement of the offense.”
White v. State, 547 N.E.2d 831, 836 (Ind. 1989).

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[37] In this case, hair follicle testing established that Child had also been exposed to
fentanyl sometime during the ninety days prior to the collection of the sample.
But the State failed to prove that Guernsey knowingly exposed Child to
fentanyl.
[38] S.D. testified that she never saw fentanyl in her apartment. Tr. Vol. 4, p. 71. But
she also stated that “it was revealed to [her] later that [Guernsey]” used fentanyl
in their apartment. Id. at 39. When asked how she made that discovery, S.D.
stated, “I don’t remember. I think during the hospital stay when she tested
positive for fentanyl.” Id. But, these statements, when it is considered within the
context of her testimony at trial, seemed to be an assumption that Guernsey
must have used fentanyl given Child’s positive test result for that substance.
There was no evidence presented that there was fentanyl in Guernsey’s
apartment, that any person saw Guernsey using fentanyl, that he tested positive
for fentanyl, or that he possessed fentanyl.
[39] However, the State did present sufficient evidence to prove that Guernsey
exposed Child to marijuana. First, Child’s urine tested positive for THC when
she was admitted to the hospital. Although S.D. testified that, to her
knowledge, neither she nor Guernsey ever smoked marijuana in Child’s
presence, she admitted that she and “all the adults” had smoked marijuana on
the apartment balcony. Id. at 39, 56. S.D. stated that the marijuana was stored
in a bag and left on the balcony. Id. at 63. Dr. Green testified that the positive
result for THC established that Child had been exposed either through
secondhand smoke or by ingesting an edible. Id. at 88. Guernsey did not dispute

Court of Appeals of Indiana | Memorandum Decision 26A-CR-161 | October 19, 2026 Page 19 of 22
the presence of marijuana in the apartment. He merely argued that marijuana
was only smoked on the apartment balcony, and therefore, Child must have
been exposed elsewhere.
[40] Under these circumstances, we conclude that the State presented sufficient
evidence to prove that Guernsey knowingly exposed Child to marijuana.
Therefore, we affirm his conviction for neglect of a dependent as charged in
Count V.
4. Guernsey’s aggregate sentence is not inappropriate in light
of the nature of his offenses and his character.
[41] Under Indiana Appellate Rule 7(B), we may modify a sentence that we find is
“inappropriate in light of the nature of the offense and the character of the
offender.” Making this determination “turns on our sense of the culpability of
the defendant, the severity of the crime, the damage done to others, and myriad
other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d
1219, 1224 (Ind. 2008).
[42] However, appellate revision of sentences under Rule 7(B) is reserved for “a rare
and exceptional case.” Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018) (per
curiam). Thus, when conducting this review, we will defer to the sentence
imposed by the trial court unless the defendant demonstrates compelling
evidence that portrays the nature of the offenses and his character in a positive
light, such as showing a lack of brutality in the offenses or showing substantial
virtuous character traits. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

Court of Appeals of Indiana | Memorandum Decision 26A-CR-161 | October 19, 2026 Page 20 of 22
[43] The sentencing range for a Level 3 felony is three to sixteen years, with the
advisory sentence being nine years. I.C. § 35-50-2-5. The trial court imposed a
fifteen-year sentence on Guernsey’s Level 3 felony conviction for battery with
serious bodily injury to a person under fourteen. The court was allowed to
impose a sentence between one and six years for the Level 5 felony conviction
for battery resulting in bodily injury to a person under fourteen. I.C. § 35-50-2-
6. The trial court sentenced Guernsey to five years for that Level 5 felony
conviction. And for the Level 5 felony neglect of a dependent conviction, the
court imposed a three-year advisory sentence. Finally, the court ordered
Guernsey to serve the one-year advisory terms for his two Level 6 felony
neglect of a dependent convictions. I.C. § 35-50-2-7.
[44] The court ordered the sentences for the Level 5 felony convictions to run
concurrent with each other but consecutive to the fifteen year sentence imposed
on the Level 3 felony conviction. Tr. Vol. 4, p. 178. The one year sentences for
the Level 6 felony convictions were ordered to be served consecutively to the
sentences imposed on all other counts. Therefore, in the aggregate, the court
imposed a twenty-two year sentence.
[45] The evidence presented at trial established the brutality of Guernsey’s offenses.
Two-year old Child was covered in bruises, and there were photos of Child with
feces smeared on her face, which Guernsey also forced Child to eat. Dr. Green
testified that the laceration on Child’s liver could only have been caused by a
significant blow to her abdomen. The photographic evidence of Child’s injuries
was, by Guernsey’s own admission, “heart-breaking.” Appellant’s Br. at 40.

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[46] Guernsey violated his position of trust with Child and S.D. but claims his
violation of their trust was not “heinous.” Id. at 40. To the contrary, Guernsey’s
repeated abuse of a two-year old child by striking her and forcing her to eat her
feces is a heinous violation of his position of trust. Guernsey did not
demonstrate remorse for abusing Child. He also failed to appear for trial
demonstrating a lack of respect for the judicial system. The fact that Guernsey
has the support of his family and did not have a prior criminal history do not
convince us that his sentence is inappropriate.
[47] The brutal nature of Guernsey’s offenses and his lack of substantial virtuous
character traits more than support the aggregate twenty-two-year sentence.
Conclusion
[48] The trial court did not abuse its discretion when it refused to remove Juror 37
from the jury panel. And Guernsey was not denied his right to present his
chosen defense when the court granted the State’s motion to exclude L.D. as a
witness. Finally, Guernsey has not persuaded us that his twenty-two-year
sentence is inappropriate in light of his offenses and his character.
[49] Affirmed.
Kenworthy, J., and DeBoer, J., concur.
ATTORNEY FOR APPELLANT
Andrew R. Rutz
Lorch, Naville & Ward, LLC
New Albany, Indiana

Court of Appeals of Indiana | Memorandum Decision 26A-CR-161 | October 19, 2026 Page 22 of 22
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana