Evan D. Huntsinger v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 18 2018, 10:55 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joshua Flowers Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Angela Sanchez
Assistant Section Chief, Criminal
Appeals
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Evan D. Huntsinger, December 18, 2018
Appellant-Defendant, Court of Appeals Case No.
36A05-1707-CR-1610
v. Appeal from the Jackson Circuit
Court
State of Indiana, The Honorable Richard W.
Appellee-Plaintiff. Poynter, Judge
Trial Court Cause No.
36C01-1604-F3-7
Najam, Judge.
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Statement of the Case
[1] Evan D. Huntsinger appeals his convictions for battery, as a Level 3 felony;
neglect of a dependent, as a Level 3 felony; and three counts of neglect of a
dependent, each as a Level 6 felony. Huntsinger raises five issues for our
review, which we restate as follows:
1. Whether Huntsinger preserved for appellate review his
argument that the trial court abused its discretion when it
admitted into evidence a forensic interview of Kh.H., a
step-sibling of Huntsinger’s victim.
2. Whether the trial court abused its discretion when it
denied Huntsinger’s motion for a mistrial.
3. Whether the State presented sufficient evidence to support
Huntsinger’s three convictions for Level 6 neglect of a
dependent.
4. Whether Huntsinger’s convictions for battery, as a Level 3
felony, and neglect of a dependent, as a Level 3 felony,
violate Indiana’s prohibitions against double jeopardy.
5. Whether the trial court abused its discretion when it
sentenced Huntsinger to an aggregate term of nine years
with five years suspended.
[2] We affirm in part, reverse in part, and remand with instructions.
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Facts and Procedural History
[3] In February of 2016, Huntsinger and Lindsey Huntsinger were married, living
together in Seymour, and had an infant son, L.H., who was just shy of seven
months old. They lived with Huntsinger’s other minor children, Kh.H. and
Ki.H., and Lindsey’s other minor child, J.W. Kh.H., the oldest child, was four
years old at the time.
[4] L.H. was “a healthy baby.” Jury Trial Tr. Vol. 1 at 224. Lindsey “never saw
[L.H.] fall or strike his own head or get injured in any way.” Id. at 240. The
children in the house “all got along pretty well,” and “none of them ever hit
[L.H.]” Id. at 240-41.
[5] While everyone was at home during the afternoon of February 22, Lindsey
stepped outside to smoke a cigarette. When she went outside, Huntsinger was
inside “holding [L.H.] to give him a bottle.” Id. at 234. Kh.H., Ki.H., and
J.W. “were awake on the couch” in the same “area where [Huntsinger] was.”
Id.
[6] While she was outside, Lindsey “could hear [L.H.] inside being fussy.” Id. at
236. Not more than four minutes after she had gone outside, Huntsinger came
out holding L.H. and saying that L.H. needed to go to the hospital. Lindsey
observed that L.H. “was completely limp.” Id. Huntsinger told Lindsey that he
had been “feeding [L.H.] a bottle and trying to burp [L.H.] and [L.H.] just went
limp.” Id. at 237.
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[7] Lindsey rushed L.H. to the Schneck Medical Center in Seymour. There,
medical personnel observed that L.H. was “seizing,” which “in an infant you
have to assume . . . [is] really serious” as it can “indicate some kind of brain
damage . . . .” Id. at 178-79. Dr. Onyekachi Nwabuko ordered a CT scan of
L.H.’s brain, which immediately revealed a “big bleed” on L.H.’s brain that
“was actually shifting the brain from one side to the other . . . .” Id. at 184.
The medical personnel at Schneck provided care to L.H. until he was
transferred to Riley Children’s Hospital in Indianapolis.
[8] At Riley, Dr. Tara Harris ordered an MRI and a skeletal survey of L.H., which
revealed among other things that L.H. had also suffered rib fractures. Dr.
Harris also conducted tests that ruled out a bleeding disorder as a cause for
L.H.’s brain bleed. As a result of her examination of L.H., Dr. Harris
concluded that L.H. had suffered “abusive head trauma,” which “we used to
call Shaken Baby Syndrome.” Jury Trial Tr. Vol. 2 at 221. As she later
explained, “with [L.H.] the fact that he ha[d] subdural[ hematomas] and
subarachnoid[] and retinal hemorrhages and posterior rib fractures, all of those
together can only be explained by abuse.” Id. at 223-24.
[9] On February 23, case workers for the Indiana Department of Child Services
removed the children from the home. J.W. was placed with his biological
father, Cole Williamson. On at least one occasion shortly thereafter, J.W. told
Williamson that Huntsinger had “hit [his] brother” L.H. Id. at 109. And, on
February 26, Stephanie Back conducted a recorded forensic interview of Kh.H.
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at the Child Advocacy Center of Southeastern Indiana. In that interview,
Kh.H. stated that she had seen Huntsinger shake L.H. on February 22.
[10] The State charged Huntsinger as follows: Count 1: battery, as a Level 3 felony;
Count 2: neglect of a dependent (L.H.), as a Level 3 felony; Count 3: neglect
of a dependent (Kh.H.), as a Level 6 felony; Count 4: neglect of a dependent
(Ki.H.), as a Level 6 felony; and Count 5: neglect of a dependent (J.W.), as a
Level 6 felony. At his ensuing jury trial, Lindsey and Williamson both testified.
Kh.H. testified in person and stated that she saw Huntsinger “shooked [L.H.]
too hard and hurt him real hard.” Id. at 38. Kh.H. also testified that
Huntsinger had told her not to tell anyone what he had done to L.H. The State
also admitted into evidence L.H.’s medical records, and the State called L.H.’s
treating physicians as witnesses. At the close of the State’s case-in-chief,
Huntsinger moved for a directed verdict on Counts 3, 4, and 5, which related to
endangerment of Kh.H.’s, Ki.H.’s, and J.W.’s mental health from having been
near L.H. during the February 22 battery. The trial court denied Huntsinger’s
motion.
[11] During Huntsinger’s cross-examination of Kh.H., “some people in the
audience” observed “the State communicate with one of the Jurors . . . .” Id. at
85. Huntsinger brought the matter to the court’s attention outside the presence
of the jury, and the prosecutor responded, “I know what he’s talking about.
You were asking one of the questions for like the tenth time and one of the
Jurors was nodding her head because [Kh.H. had] answered it and I was like
nodding my head too. Yeah.” Id. The juror in question was an alternate juror.
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The court brought that juror into the courtroom and asked her about the
incident, and she stated that she remembered “looking” in the direction of the
prosecutor because of the “repetition” of the questions and the “lengthy
process” of the cross-examination for Kh.H. Id. at 87. She acknowledged that
she had “nodded” her head and “made eye contact” with the prosecutor in an
“[o]h my gosh” expression. Id. at 88.
[12] The court then admonished the juror that she was not to have “any kind
of . . . communication . . . in any way” with anyone in the courtroom and that
she was to instead “focus on the witness.” Id. The court further told her that
communication with others was “inappropriate.” Id. The juror responded that
she understood the court’s admonishment. Huntsinger then moved for a
mistrial, which the court denied.
[13] During his case-in-chief, Huntsinger attacked Kh.H.’s credibility. In particular,
Huntsinger testified that Kh.H. was “on the sensory processing disorder
spectrum” and that her perceptions are “like fantasy.” Jury Trial Tr. Vol. 3 at
189-90. Huntsinger also called his own expert witness, Dr. Peter Dehnel, who
testified that “it’s incredibly difficult to get reliable testimony from kids” and
that an inexperienced child interviewer can affect the reliability of a child’s
testimony. Id. at 135. After Huntsinger rested, the State on rebuttal moved to
admit Kh.H.’s recorded forensic interview with Back to demonstrate Kh.H.’s
credibility. Huntsinger objected to the admission of the forensic interview only
on the ground that the court had simultaneously denied him his request to
admit further evidence to challenge the interviewer. Id. at 230-50. The trial
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court overruled Huntsinger’s objection. The jury then found Huntsinger guilty
as charged.
[14] At the conclusion of the ensuing sentencing hearing, the trial court found the
following aggravating and mitigating circumstances:
[O]bviously one of the things I consider when announcing a
sentence is the nature and circumstances of the offense . . . . The
problem in this situation is we don’t know how [L.H.] will do,
the child is just too young. The developmental injuries this child
may have sustained will not be pronounced until probably the
child is school . . . age, but the doctor was clear that there will be
injuries to this child . . . . There is no doubt that this child will
sustain long-term damage. The question is to what degree. . . .
This child could’ve very easily died. . . . The injuries to this child
were clear, the child was gripped . . . sufficiently to fracture the
spinal area . . . . One of the things the State brought out . . . was
involving the daughter. It’s one thing to deny one’s own guilt,
but to me, getting a child, especially a child that you could tell
was torn between a love for her father, trying to protect her
father, not wanting to make her father mad and having to be
ordered by a man in a black robe to answer questions. That was
very concerning to me. Getting a child to lie or to cover for you
because you don’t want to admit your guilt really bothers me.
And I don’t doubt for a second this child is being honest in her
testimony, what she saw. That, to me, is significant. Also,
the . . . the victim’s age . . . . The crime requires you to be over
eighteen years of age for [b]attery, but it says a child under the
age of fourteen. This child is substantially younger than the age
of fourteen. This child was completely defenseless.
Completely. . . . That, to me, is a significant factor. The fact that
relates to Count 1 that you were in a position of trust for this
child. . . . [Y]ou abused a position of trust involving this
child. . . . That, to me, is another significant aggravating factor.
What are the mitigating factors? The mitigators are the fact that
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you have no criminal history. That is true. There could be some
hardship on your family as a result of this, but I believe the
seriousness of the offense outweighs any mitigation in this case.
Sent. Tr. at 28-31. The court then ordered Huntsinger to serve an aggregate
term of nine years with five years suspended. This appeal ensued.
Discussion and Decision
Issue One: Forensic Interview
[15] On appeal, Huntsinger first asserts that the trial court violated Indiana’s
protected person statute, Ind. Code § 35-37-4-6 (2018), when it admitted
Kh.H.’s recorded forensic interview into evidence. However, Huntsinger did
not object at trial on the ground that the interview was inadmissible under that
statute. “It is well-settled law in Indiana that a defendant may not argue one
ground for objection at trial and then raise new grounds on appeal.” Hitch v.
State, 51 N.E.3d 216, 219 (Ind. 2016) (quotation marks omitted). Accordingly,
Huntsinger has not preserved this issue for our review, and we do not consider
it. See, e.g., Leonard v. State, 80 N.E.3d 878, 884 n.4 (Ind. 2017).
Issue Two: Motion for a Mistrial
[16] Huntsinger next asserts that the trial court abused its discretion when it denied
his motion for a mistrial based on the “communication” between the prosecutor
and the alternate juror. See Jury Trial Tr. Vol. 2 at 85-88. “Whether to grant or
deny a motion for a mistrial lies within the sound discretion of the trial court.
We afford great deference to the trial court’s decision and review the decision
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solely for an abuse of that discretion.” Isom v. State, 31 N.E.3d 469, 480 (Ind.
2015) (citations omitted).
[17] A mistrial “is an extreme remedy that is only justified when other remedial
measures are insufficient to rectify the situation.” Id. at 481 (quotation marks
omitted). Here, in response to the “communication” between the prosecutor
and the alternate juror,1 the trial court issued an admonishment to the juror.
“[A] properly submitted admonition to the jury is presumed to cure” error. Id.(quotation marks omitted). We are not persuaded by Huntsinger’s bald
assertions on appeal that the trial court’s admonishment here was somehow
insufficient. Rather, we agree with the State that Huntsinger’s argument
“comes nowhere close to his heightened burden” to show that the extreme
remedy of a mistrial was required despite the admonishment. Appellee’s Br. at
23. We affirm the trial court’s denial of Huntsinger’s motion for a mistrial.
Issue Three: Sufficiency of the Evidence for Counts 3, 4, and 5
[18] We next consider Huntsinger’s argument that the State failed to present
sufficient evidence to support the three Level 6 felony convictions for neglect of
a dependent. “When an appeal raises a sufficiency of evidence challenge, we
do not reweigh the evidence or judge the credibility of the witnesses, and we
1
In his brief on appeal, Huntsinger asserts that he was denied an offer to prove that oral communication had
also occurred between the prosecutor and the juror. We cannot agree—at no point during his colloquy with
the trial court did Huntsinger affirmatively request an offer to prove some oral communication between the
prosecutor and the juror. Accordingly, Huntsinger did not preserve his argument regarding the denial of any
such request.
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respect a fact-finder’s exclusive province to weigh conflicting evidence.” Phipps
v. State, 90 N.E.3d 1190, 1195 (Ind. 2018) (quotation marks omitted). We
consider only the probative evidence and the reasonable inferences that support
the verdict. Id. We will affirm if the probative evidence and reasonable
inferences drawn from the evidence could have allowed a reasonable trier of
fact to find the defendant guilty beyond a reasonable doubt. Id.[19] To prove its three charges of neglect of a dependent, as Level 6 felonies, the
State here was required to show that Huntsinger, having the care of Kh.H.,
Ki.H., and J.W., his dependents, did knowingly place those dependents in a
situation that endangered their lives or health. I.C. § 35-46-1-4(a)(1). Our case
law is clear that “mental and emotional” health is captured by the neglect
statute. Harrison v. State, 644 N.E.2d 888, 890 (Ind. Ct. App. 1994), trans.
denied. “[T]he purpose of the neglect statute is to protect a dependent from the
failure of those entrusted with his or her care to take the action necessary to
ensure the dependent is safe.” Id. However, the “risk of . . . mental harm”
must “go[] 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 . . . .”
Gross v. State, 817 N.E.2d 306, 309 (Ind. Ct. App. 2004).
[20] Huntsinger asserts that the three children “were not exposed to any danger or
risk.” Appellant’s Br. at 23. In particular, Huntsinger argues that there was no
evidence that, had he used on any of the three children the amount of force he
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used on L.H., any of the other three children would have been harmed. But
Huntsinger’s argument misunderstands the State’s charges. As the prosecutor
made clear during the jury trial, the three Level 6 felony charges were premised
on Huntsinger having placed the children in a situation that endangered their
mental health by abusing L.H. so near to them.
[21] And the evidence most favorable to the verdict supports Huntsinger’s three
Level 6 convictions. Kh.H., Ki.H., and J.W. were each in close proximity to
the battery when it happened. Indeed, while not necessary to demonstrate the
offenses, the evidence plainly demonstrates that at least two of the children,
Kh.H. and J.W., actually observed the battery and remembered it some time
later. We conclude that the evidence demonstrates that Huntsinger was aware
of a high probability that his battery of L.H. placed the other three children in a
situation that endangered their mental health. See I.C. § 35-46-1-4(a)(1). Thus,
we affirm Huntsinger’s convictions on Counts 3, 4, and 5.
Issue Four: Double Jeopardy on Counts 1 and 2
[22] Huntsinger next asserts that the trial court violated his right to be free from
double jeopardy when it entered judgment of conviction on both Count 1 (his
battery of L.H.) and Count 2 (neglect of L.H. that endangered L.H.’s life). The
State properly concedes that the trial court violated Huntsinger’s right to be free
from two convictions for the very same act when it entered its judgment of
conviction on both Count 1 and Count 2. See Bradley v. State, ___ N.E.3d ___,
No. 87A01-1711-CR-2584, 2018 WL 5578874, at *5-7 (Ind. Ct. App. Oct. 30,
2018), not yet certified. We agree. Both Count 1 and Count 2 are based on the
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very same act, namely, Huntsinger’s shaking of L.H. Accordingly, we reverse
Huntsinger’s conviction on Count 2 and remand with instructions for the trial
court to vacate the judgment and sentence on that Count.
Issue Five: Sentencing
[23] Last, Huntsinger argues that the trial court abused its discretion when it
sentenced him. Sentencing decisions rest within the sound discretion of the
trial court and are reviewed on appeal only for an abuse of discretion. McElfresh
v. State, 51 N.E.3d 103, 107 (Ind. 2016). One way in which a trial court may
abuse its discretion is by omitting from its sentencing statement “reasons that
are clearly supported by the record and advanced for consideration, or the
reasons given are improper as a matter of law.” Anglemyer v. State, 868 N.E.2d
482, 491 (Ind.), clarified on reh’g on other grounds, 875 N.E.2d 218 (2007).
However, “a trial court can not . . . be said to have abused its discretion in
failing to ‘properly weigh’” aggravators or mitigators. Id.[24] Huntsinger asserts that the trial court abused its discretion because “the victim’s
age is a material element” of his Level 3 battery conviction. Appellant’s Br. at
27. He also asserts that the fact that he was in a position of trust over the
children is “an essential element” of his Level 6 neglect convictions. Id. at 27-
28. Both of those assertions are incorrect. The statutory definition of battery as
relevant here does not require the victim specifically to be seven months old.
I.C. § 35-42-2-1(j). Neither does the statutory definition of neglect as relevant
here require the dependent specifically to be the defendant’s child or step-child.
I.C. § 35-46-1-4(a)(1). Rather, those fact-specific circumstances were properly
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considered by the trial court as the nature and circumstances of the offenses.
See I.C. § 35-38-1-7.1(a). Accordingly, we reject Huntsinger’s argument.
[25] Huntsinger further argues that the trial court failed to properly weigh various
aggravating and mitigating circumstances. This argument is not properly before
us and we do not consider it. Anglemyer, 868 N.E.2d at 491. And, insofar as
Huntsinger argues that the trial court failed to consider mitigating
circumstances advanced for the trial court’s consideration but then not
mentioned by the trial court in its sentencing statement, Huntsinger has not met
his burden on appeal to show that any such circumstances were significant in
light of his aggregate term of nine years—the advisory term for a single Level 3
felony conviction—with five years suspended. See, e .g., McElfresh, 51 N.E.3d at
112. Accordingly, we cannot say that the trial court abused its discretion when
it sentenced Huntsinger.
Conclusion
[26] In sum, we affirm Huntsinger’s convictions on Counts 1, 3, 4, and 5, as well as
his sentence. However, we reverse Huntsinger’s conviction on Count 2, and we
remand with instructions for the trial court to vacate that conviction and its
concurrent sentence.
[27] Affirmed in part, reversed in part, and remanded with instructions.
Crone, J., and Pyle, J., concur.
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