Joshua D. Preston v. State of Indiana ( 2013 )

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
FILED
Feb 06 2013, 9:21 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEREMY K. NIX GREGORY F. ZOELLER
Matheny, Hahn, Denman & Nix, LLP Attorney General of Indiana
Huntington, Indiana
JONATHAN R. SICHTERMANN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOSHUA D. PRESTON, )
)
Appellant-Defendant, )
)
vs. ) No. 35A04-1206-CR-291
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HUNTINGTON CIRCUIT COURT
The Honorable Thomas M. Hakes, Judge
Cause No. 35C01-1101-FB-18
February 6, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Following a jury trial, Joshua D. Preston (“Preston”) was convicted of Class B
felony neglect of a dependent and Class B felony battery. Preston appeals and raises two
issues, which we restate as:
I. Whether the trial court abused its discretion by admitting evidence of
Preston’s prior drug use and withdrawal?
II. Whether Preston’s convictions for neglect of a dependent and battery
violated Indiana Constitution’s prohibition against double jeopardy?
We affirm.
Facts and Procedural History
In early August 2010, Preston was babysitting N.B., the eight-month-old child of
his girlfriend, Michelle Bowling (“Bowling”). Preston told Bowling that N.B. had fallen
off his lap and hit her head on a television stand. Bowling observed a rug burn on N.B.’s
head and some bruising across her ear. Around this same time, Bowling also observed
that N.B. had stopped crawling. Bowling took N.B. to the hospital and the doctor
informed her that N.B. had stopped crawling due to the ear infection she was
experiencing at the time, because it was affecting her equilibrium.
In early September 2010, Preston was experiencing withdrawal from the
methadone pills that he had previously been using without a prescription. Therefore,
from September 4–6, 2010, he was too sick to help Bowling move into their home, and
she testified that he was irritable and grouchy during that period of withdrawal
On September 7, 2010, Bowling left N.B. with Preston while she went to the store,
even though Preston still looked pale and had vomited earlier that day. While Bowling
was away, Preston called her and told her that N.B. had fallen off the couch and was
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crying uncontrollably, but he then called Bowling back to tell her N.B. was doing better.
However, for several hours after Bowling’s return, N.B. was vomiting and lethargic.
Later that night, Bowling called the doctor. The nurse advised Bowling to continue to
monitor N.B. and to take her to the hospital if the vomiting did not cease.
Bowling suggested to Preston that they should take N.B. to the hospital but
Preston told Bowling not to take N.B. because he would be accused of child abuse. Tr. p.
463. Nonetheless, Bowling, on her own, took N.B. to Parkview Huntington Emergency
Room. Bowling relayed to the emergency room doctors Preston’s story that N.B. had
fallen off the couch, and after performing a CT scan, doctors released N.B. and told
Bowling to give N.B. Tylenol and to put ice on her head. During the day on September
8, 2010, N.B. appeared lethargic, was still throwing up, and would not eat. Tr. p. 467.
As the day progressed, N.B. seemed to improve.
On September 9, 2010, N.B. seemed to be doing better. Bowling left N.B. with
Preston while she went with her stepsister to apply for a new job. While Bowling was
away, Preston called Bowling’s stepsister’s phone and was screaming N.B.’s name
repeatedly, but Bowling and her stepsister could not discern what was wrong. Preston
then ran out onto his porch holding N.B. and shouting N.B.’s name. A stranger passing
by, Andrew Delagrange (“Delagrange”), saw Preston out on his porch, holding N.B.
Delagrange asked if he could help, and he told Preston to call 911. When the paramedics
arrived at the home, nine-month-old N.B. was pale, unresponsive to stimuli, her eyes
were wide open with no pupillary response, and she was having irregular and shallow
breathing. Ex. Vol., State’s Ex. 2. They also observed a dime sized greenish bruise on
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her right forehead and blood in her nose. Preston told the paramedics that N.B. had
rolled off the couch and was unresponsive.
N.B. was flown by helicopter to Parkview Hospital in Fort Wayne. Dr. Jayesh
Patel (“Dr. Patel”), medical director of the pediatric intensive care unit, initially
diagnosed N.B. with a significant cerebral concussion. After more tests and consultation
with other doctors, he concluded N.B.’s symptoms were not consistent with a fall off a
couch and he diagnosed her with “shaken baby syndrome[.]” Tr. pp. 391, 393. Dr.
Jeffrey Bessette (“Dr. Bessette”), a diagnostic radiologist, conducted a CT scan and a
MRI scan of N.B.’s brain and observed a subdural hematoma. He also reviewed the CT
scan from September 7, 2010 and discovered that the subdural hematoma was already
present on that day. He also observed a fracture on N.B.’s right radius from an injury
sustained four to eight weeks prior. Dr. Barbara Schroeder (“Dr. Schroeder”), an
ophthalmologist, also examined N.B. and noted that N.B.’s eyes showed massive
preretinal and intraretinal hemorrhages, which she noted was “consistent only with non
accidental shaking trauma.” Ex. Vol., State’s Ex. 9.
Detective Cory Boxell (“Detective Boxell”) questioned Preston regarding the
injuries to N.B. Preston told Detective Boxell that he was the sole adult present when
N.B. fell off the couch on September 7, 2010 and that N.B. had slept most of the day on
September 8, 2010. Preston also said he was the only adult present with N.B. on
September 9, 2010 when, according to him, N.B. again fell off the couch, due to his son
pulling the blanket N.B. was wrapped up in at the time.
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Preston was charged with Class B felony neglect of a dependent resulting in
serious bodily injury1 between August 1, 2010 until September 9, 2010 and was charged
with Class B felony battery2 resulting in serious bodily injury to a person less than
fourteen years of age and committed by a person of at least eighteen years of age between
September 7, 2010 until September 9, 2010.
On February 27, 2012, the jury trial commenced and continued until March 1,
2012. During the trial, three physicians testified that N.B.’s condition was the result of
abusive head trauma.3 On March 2, 2012, the jury found Preston guilty on both counts.
On May 7, 2012, Preston was sentenced to consecutive eighteen-year sentences, with
three years suspended to probation on each count.
Preston now appeals.
I. Admission of Character Evidence
A trial court’s decision to admit or exclude evidence is reviewed for an abuse of
discretion. Lehman v. State, 926 N.E.2d 35, 37 (Ind. Ct. App. 2010), trans. denied (citing
Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004)). An abuse of discretion occurs
if the trial court’s decision is “clearly against the logic and effect of the facts and
circumstances before the court, or if the court has misinterpreted the law.” Boatner v.
State, 934 N.E.2d 184, 186 (Ind. Ct. App. 2010).
Indiana Evidence Rule 404(b) provides that “[e]vidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show action in
1
Indiana Code § 35-46-1-4(b)(2).
2
Indiana Code § 35-42-2-1(a)(4).
3
Shaken baby syndrome is a subset of abusive head trauma.
5
conformity therewith. It may, however, be admissible for other purposes, such as proof
of motive . . . .” The State may offer evidence of motive “to prove that the act was
committed,” “the identity of the actor,” or “the requisite mental state.” Embry v. State,
923 N.E.2d 1, 9 (Ind. Ct. App. 2010) (internal quotation marks and citations omitted).
The list of when evidence may be admissible is not exhaustive, and essentially, as long as
the “evidence has some purpose besides [establishing] behavior in conformity with a
character trait and the balancing test is favorable, the trial court can elect to admit the
evidence.” Whatley v. State, 908 N.E.2d 276, 281 (Ind. Ct. App. 2009).
“In assessing the admissibility of Rule 404(b) evidence, a trial court must (1)
determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at
issue other than the defendant’s propensity to commit the charged act and (2) balance the
probative value of the evidence against its prejudicial effect pursuant to Indiana Evidence
Rule 403.” Vermillion v. State, 978 N.E.2d 459, 463 (Ind. Ct. App. 2012) (citing Embry,
923 N.E.2d at 8). Under Indiana Evidence Rule 403, “[a]lthough relevant, evidence may
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice . . . .”
Here, the challenged evidence of Preston’s drug withdrawal was not offered to
show Preston’s propensity for drug use but rather was offered to show his mental state at
the time of the offenses. Specifically, it was offered to show that Preston was irritable
and grouchy when he was withdrawing from the methadone, which reflects on his mental
state when he was caring for N.B. Moreover, we note that, while the evidence of
Preston’s drug withdrawal symptoms was prejudicial, this evidence was highly probative,
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because it related to Preston’s irritability at the time he was caring for N.B. and provided
context surrounding the events that led to N.B.’s injuries. 4 Therefore, we conclude the
probative value of the evidence was not substantially outweighed by the prejudicial
effect. For all these reasons, we defer to the trial court’s decision to admit the evidence
of Preston’s drug use and withdrawal.
II. Double Jeopardy
Preston also argues that his convictions for neglect and battery violate the double
jeopardy provision of the Indiana Constitution. “Whether convictions violate double
jeopardy is a question of law which we review de novo.” Vermillion, 978 N.E.2d at 464
(citing Grabarczyk v. State, 772 N.E.2d 428, 432 (Ind. Ct. App. 2002)). Under the
Indiana Constitution Article I, Section 14, “[n]o person shall be put in jeopardy twice for
the same offense.” In Richardson v. State, our Supreme Court concluded that “two or
more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana
Constitution, if, with respect to either the statutory elements of the challenged crimes or
the actual evidence used to convict, the essential elements of one challenged offense also
establish the essential elements of another challenged offense.” 717 N.E.2d 32, 49 (Ind.
1999) (emphasis in original).
4
Preston argues that there is no evidence that he was experiencing withdrawal symptoms at the time he
cared for N.B. Appellant’s Br. at 9. However, the record reflects that Preston was experiencing
withdrawal symptoms in the days leading up to the incident and that he vomited on September 7, 2010,
which was when N.B. was first injured. Thus, we conclude the evidence was not too remote to be
relevant.
7
Preston first challenges the dual convictions under the actual evidence test.5 To
find a double-jeopardy violation under the actual evidence test, we must conclude that
there is “a reasonable possibility that the evidentiary facts used by the fact-finder to
establish the essential elements of one offense may also have been used to establish the
essential elements of a second challenged offense.” Vermillion, 978 N.E.2d at 464
(citing Richardson, 717 N.E.2d at 53) (internal quotation marks omitted). “To determine
what facts were used, we consider the evidence, charging information, final jury
instructions, and arguments of counsel.” Osburn v. State, 940 N.E.2d 853, 860 (Ind. Ct.
App. 2011) (internal quotation marks and citations omitted), trans. denied.
Here, the State charged Preston with Class B felony neglect and Class B felony
battery. As to the crime of Class B felony neglect, the trial court correctly instructed the
jury that to find Preston guilty of neglect, it had to find that Preston (1) “having the care
of a dependant, whether assumed voluntarily or because of a legal obligation,” (2)
“knowingly or intentionally place the dependant in a situation that endangered the
dependant’s life or health, to wit: endangered the life or health of [N.B.], a child less than
one (1) year old,” and (3) “said act resulting in serious bodily injury to [N.B.].”
Appellant’s App. at 139; see also Ind. Code § 35-46-1-4. As to the crime of Class B
felony battery, the trial court correctly instructed the jury that to find Preston guilty of
battery, it had to find that Preston (1) “when at least eighteen years of age,” (2)
“knowingly and intentionally touched another person, to wit: a child with the initials
5
Preston concedes that the statutory elements of neglect and battery establish “two separate and distinct
crimes.” Appellant’s Br. at 5.
8
[N.B.],” (3) “in a rude, insolent or angry manner,” (4) “when [N.B.] was less then
fourteen (14) years of age,” and (5) “the touching resulted in serious bodily injury to
[N.B.].” Appellant’s App. pp. 139-40; see also Ind. Code § 35-42-2-1.
In Vandergriff v. State, this court held that additional and distinct evidentiary facts
are required to prove the battery and neglect convictions. 812 N.E.2d 1084, 1088 (Ind.
Ct. App. 2004). This court noted that to prove neglect, the State had to prove that the
defendant had the care, custody, and control of the dependent. Id. And to prove battery,
the State had to prove that the victim was less than fourteen years of age and the
defendant was at least eighteen years of age. Id. Thus, this court noted that while “the
same evidence may have established that [victim] was a dependant and under fourteen
years of age, clearly additional evidentiary facts were required to prove that [defendant]
had the care, custody and control of [the victim] and that [defendant] was at least
eighteen years of age.” Id. at 1087.
In this case, Preston was charged with neglect from August 1 until September 9,
2010, but was charged with battery only from September 7-9, 2010. For the Class B
felony neglect charge, the State presented evidence of N.B.’s age and that Preston had
care, custody and control of N.B. when she received one of her serious injuries in
Preston’s care while her mother went to the store on September 7, 2010. This evidence
was necessary to prove neglect but not battery. The State also presented evidence that
Preston urged Bowling not to take N.B. to the hospital on September 7, 2010, because he
was worried he would be accused of child abuse and that when Bowling did go to the
hospital with N.B., Preston did not go with them. In addition, the State’s evidence
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showed that Preston was the only person with information regarding the true cause of
N.B.’s injuries, but that he told Bowling on September 7, 2010 and paramedics on
September 9, 2010 that N.B. had fallen off the couch. Several doctors testified that
failure to immediately seek help for a baby that has suffered from abusive head trauma
could result in more complications. The State also presented evidence that in early
August, when Preston was watching N.B., she fell off his lap and hit her head on a
television stand. Around this same time, Bowling had also observed that N.B. had
stopped crawling. The doctor informed Bowling that N.B. had stopped crawling due to
the ear infection she was experiencing at the time, but after the September 9, 2010
incident, a skeletal survey revealed that N.B. had broken her right radius four to eight
weeks prior, which was during the time Preston was one of her caregivers.
As to the Class B felony battery crime, the State presented evidence that the cause
of her later injuries was that Preston shook her. Several doctors testified that N.B.’s
injuries were not consistent with Preston’s story that N.B. was injured by falling off the
couch but were consistent with non-accidental shaking trauma. Finally, the State
presented evidence that Preston was over eighteen years of age at the time of that offense,
a necessary element for the battery conviction.
For all these reasons, we conclude there was no constitutional double jeopardy
violation, because the same evidence was not used to convict Preston of neglect and
battery, but rather, there were separate and distinct facts establishing the elements of each
of the convictions.
10
However, in addition to the constitutional double jeopardy argument, Preston also
makes a common law double jeopardy argument. “Under the rules of statutory
construction and common law that constitute one aspect of Indiana’s double jeopardy
jurisprudence, where one conviction ‘is elevated to a [higher class of felony] based on the
same bodily injury that forms the basis of [another] conviction, the two cannot stand.’”
Strong v. State, 870 N.E.2d 442, 443 (Ind. 2007) (quoting Pierce v. State, 761 N.E.2d
826, 830 (Ind. 2002)). Specifically, Preston argues that the enhancement of neglect to a
Class B felony was based on the same serious bodily injury that formed the basis for the
Class B felony battery. However, the State clearly argued at trial, particularly in its
closing argument, that it had presented evidence of separate and distinct bodily injuries to
prove the charged offenses.
In its closing argument, the State argued that the underlying serious bodily injury
for battery was N.B.’s unconsciousness, subdural hematoma, and retinal hemorrhaging
that resulted from the shaking, which created a substantial risk of death and caused
unconsciousness. Tr. pp. 732, 746-47. The State argued that the serious bodily injuries
underlying the neglect offense was N.B.’s protracted loss of function of her foot and hand
and her loss of vision for a period of time, which resulted from Preston withholding
information and failing to seek immediate treatment for N.B. Tr. pp. 742, 747; see also
Appellant’s App. p. 144.
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Thus, the State clearly delineated separate and distinct underlying serious bodily
injuries for the offenses. 6 Based on the evidence, charging information, final jury
instructions, and, particularly, the arguments of counsel, we hold that the enhancement of
the neglect offense was predicated on different serious bodily injuries than the battery
offense.
Conclusion
The trial court did not abuse its discretion by admitting evidence of Preston’s drug
withdrawal symptoms. Moreover, Preston’s conviction for Class B felony battery and
Class B felony neglect was not a double jeopardy violation.
Affirmed.
KIRSCH, J., and CRONE, J., concur.
6
This case is distinguishable from Strong v. State where the enhancement for the neglect offense was
premised on the same serious bodily injury that was the basis of the murder conviction. Strong, 870
N.E.2d at 444 (“The injuries urged to support the “serious bodily injury” necessary for class B neglect are
the same injuries, the same harm, that resulted in the child's death and are the basis of the murder
charge.”). In this case, the State set forth separate acts and underlying serious bodily injuries for the
different offenses.
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