MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Jun 26 2018, 7:12 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Brooklyn, Indiana                                        Attorney General of Indiana

                                                         Katherine Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robin Kraemer,                                           June 26, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1711-CR-2703
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable Michael J. Lewis,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         84D06-1702-F1-563



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018             Page 1 of 13
                                               Case Summary


[1]   Following a jury trial, Robin Lee Kraemer was convicted of neglect of a

      dependent resulting in death, a Level 1 felony; failure to report, a Class B

      misdemeanor; four counts of neglect of a dependent as Level 6 felonies;

      maintaining a common nuisance, a Level 6 felony; and visiting a common

      nuisance, a Class A misdemeanor. Kraemer was sentenced to an aggregate

      term of 36.5 years imprisonment. On appeal, Kraemer presents three issues for

      our review, which we restate as follows:


                       1. Does Kraemer’s conviction for failure to report abuse
                       or neglect of a child violate her federal and state
                       constitutional privilege against self-incrimination?


                       2. Did the State present sufficient evidence to support
                       Kraemer’s conviction for Class A misdemeanor visiting a
                       common nuisance?


                       3. Do Kraemer’s convictions for neglect of a dependent
                       based on her use of methamphetamine violate principles of
                       double jeopardy?


[2]   We affirm in part, reverse in part, and remand with instructions.


                                       Facts & Procedural History


[3]   C.H. was born on August 21, 2007. Kraemer was his guardian and cared for

      C.H. since he was three days old. After his birth, C.H. was diagnosed with

      several brain disorders, collectively described as cerebral palsy. C.H. was


      Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018   Page 2 of 13
      completely dependent on Kraemer for his daily needs, including feeding,

      bathing, and physical/occupational therapy. C.H. was also blind and

      developed seizures, for which his physician, Dr. Pablito Dela Cruz, prescribed

      an anticonvulsant that proved beneficial. Because C.H. had increased muscle

      tone in his extremities, his body was stiff and not easy to move thus

      necessitating physical and occupational therapy from an early age.


[4]   Given C.H.’s condition, Dr. Dela Cruz wanted C.H. to ultimately achieve and

      maintain a weight of between twenty-two and twenty-five pounds. When it

      became apparent that C.H. was not gaining weight appropriately, Dr. Dela

      Cruz diagnosed him as failure to thrive and recommended supplementation. In

      June 2014, C.H. weighed twenty-two pounds. Dr. Dela Cruz became

      concerned when less than three months later C.H.’s weight had decreased to

      nineteen pounds. Dr. Dela Cruz referred C.H. to a gastroenterologist at Riley

      Children’s Hospital in Indianapolis. Based on results from blood work, C.H.

      was seen in the emergency room at Riley on September 9, 2014. Upon his

      release, he was directed to follow up with Dr. Dela Cruz in two weeks. C.H.,

      however, was not seen by Dr. Dela Cruz until June 2015, at which time, he

      weighed twenty-four pounds. At this appointment, Dr. Dela Cruz refilled three

      different prescriptions for C.H. and recommended continuation of physical and

      occupational therapy. He also requested a follow-up with C.H. in four months,

      which never occurred.


[5]   According to Kraemer, around 1:00 a.m. on February 21, 2017, she woke up

      and went to make something to eat. C.H. also woke up, so she made him a

      Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018   Page 3 of 13
      bottle of formula, which he would not eat. Kraemer changed C.H.’s diaper,

      noting that it was wet, but not saturated. She noticed nothing unusual about

      C.H.’s breathing, and C.H. eventually went back to sleep. Around 3:00 a.m.

      Kraemer awoke again and discovered that C.H. was not breathing. Kraemer

      called 911, and her husband began resuscitation efforts.


[6]   Vigo County Sheriff’s Deputy Dayton Huebner responded to the emergency

      call and, upon arrival, encountered Kraemer, who was “hysterical and crying.”

      Transcript Vol. 2 at 35. Kraemer informed Deputy Huebner that C.H. had been

      sick and spontaneously told him that C.H. had a nine-year life expectancy. En

      route to the hospital, paramedics ceased attempts to resuscitate C.H., and he

      was declared dead upon arrival.


[7]   Jim Hayne, an emergency room nurse at Terre Haute Union Hospital,

      conducted a post-mortem assessment of C.H. in which he found no signs of

      trauma to C.H.’s body, no skin breakdown, and no bedsores. Nurse Hayne

      noted, however, “extreme dehydration,” that C.H. had sunken eyes, and that

      he had been dead for “quite awhile.” Id. at 82. He also noted that C.H. was

      “severely emaciated” and documented that C.H., then nine and a half years

      old, weighed approximately fifteen pounds. Id. at 86. Nurse Hayne testified

      that he had been in the military and had seen malnourished children in other

      countries, but that C.H. presented the “worst” case of malnutrition he had ever

      seen. Id. at 93.




      Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018   Page 4 of 13
[8]    Jason Fischer, a detective with the Vigo County Sheriff’s Department, spoke

       with Kraemer at the hospital, and one of the first things she stated was that

       C.H. had a nine-year life expectancy. Kraemer also informed Detective Fischer

       that C.H. had been sick with the flu, although she admitted that he had not

       been to a doctor in over a year. Detective Fischer permitted Kraemer to leave

       the hospital before he had the opportunity to view C.H.’s body. He then went

       to see C.H. and testified that he was unprepared for what he saw, describing

       C.H. as a “small, small child” who looked like “a skeleton with skin stretched

       over it.” Id. at 46. The sight of C.H. in such an emaciated state was

       “something [Detective Fischer had] never seen before.” Id. Based on his

       observations, Detective Fischer immediately contacted the Department of Child

       Services (DCS) and opened a criminal investigation.


[9]    Erin Gonthier, a family case manager (FCM) with DCS, arrived at Union

       Hospital just before 7:00 a.m. She was taken to see C.H. and noted that what

       she observed was “very alarming and very concerning” in that it appeared that

       C.H. had been neglected because he appeared “severely emaciated.” Id. at 103,

       102. FCM Gonthier and Detective Fischer then went to Kraemer’s home,

       which Kraemer shared with her husband. At that time, Kraemer’s son, his

       girlfriend, and their two children, five-year-old L.K. and two-year-old L.K.

       (Grandchildren), also lived in Kraemer’s home.


[10]   FCM Gonthier approached Kraemer in the driveway, and initially, Kraemer

       was cooperative. When FCM Gonthier asked her to submit to a drug screen,

       Kraemer “immediately became defensive and combative,” yelled at FCM

       Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018   Page 5 of 13
       Gonthier, refused to submit to the drug screen, and told FCM Gonthier to

       leave. Id. at 108. The other adults in the home, especially Kraemer’s son, were

       also belligerent toward FCM Gonthier. Eventually, Kraemer submitted to a

       drug screen, which was positive for amphetamines, methamphetamine, and

       THC. A sample of Kraemer’s Grandchildren’s hair follicles tested positive for

       methamphetamine. Given the test that was run, it was not possible that the

       children were merely exposed to methamphetamine through use by others. The

       test established that the children had methamphetamine in their systems.


[11]   Dr. Roland Kohr performed an autopsy of C.H. Dr. Kohr noted that at the

       time of his death, C.H. weighed approximately fifteen pounds and had a severe

       lack of muscle mass, which condition had most likely developed over several

       months. He described C.H.’s condition as “by far the most extreme loss of

       tissue and lack of normal nutrition” he had ever seen. Transcript Vol. 3 at 7.

       Toxicology testing revealed that C.H. had trace amounts of methamphetamine

       in his system. Dr. Kohr ultimately concluded that C.H. died as the result of

       severe malnutrition with bronchopneumonia as a contributing cause.


[12]   On March 15, 2017, the State charged Kraemer with Count I, Level 1 felony

       neglect of a dependent resulting in death; Count II, Level 3 felony neglect of a

       dependent resulting in serious bodily injury; Count III, Class B misdemeanor

       failure to make a report; Count IV, Level 6 felony neglect of a dependent;

       Count V, Level 6 felony neglect of a dependent; Count VI, Level 6 felony

       maintaining a common nuisance; Count VII, Class A misdemeanor visiting a

       common nuisance; and Counts VIII and IX, Level 6 felony neglect of a

       Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018   Page 6 of 13
       dependent.1 A four-day jury trial commenced on September 18, 2017, at the

       conclusion of which the jury found Kraemer guilty as charged. On October 19,

       2017, the trial court merged Count II with Count I, and entered judgments of

       conviction on the remaining offenses. The trial court sentenced Kraemer to the

       advisory sentence of thirty years on Count I; 180 days on Count III, and one

       year on each Level 6 felony and the Class A misdemeanor. The court ordered

       the sentences be served consecutively for an aggregate sentence of 36.5 years

       imprisonment. Kraemer now appeals. Additional facts will be provided as

       necessary.


                                              Discussion & Decision


                                                Constitutional Right


[13]   Kraemer argues that prosecuting her for failure to report her own child abuse or

       neglect violated her federal and state constitutional right against compulsory

       self-incrimination. See U.S. Const. amend. V; Ind. Const. art. 1, section 14 .

       This privilege “protects against any disclosures which the witness reasonably

       believes could be used in a criminal prosecution or could lead to other evidence

       that might be so used.” Kastigar v. U.S., 406 U.S. 441, 445 (1972). Kraemer

       maintains that “the State used [her] failure to incriminate herself not just to

       imply guilt, but as the sole evidence to establish guilt for failing to report.”

       Appellant’s Brief at 11. Acknowledging that she did not file a motion to dismiss



       1
           In Counts VIII and IX, Kraemer’s Grandchildren were the alleged victims.


       Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018   Page 7 of 13
       alleging the constitutional challenge she presents on appeal, Kraemer asserts

       that her challenge amounts to fundamental error.


[14]   “Generally, the failure to file a proper motion to dismiss raising the

       Constitutional challenge waives the issue on appeal.” Baumgartner v. State, 891

       N.E.2d 1131, 1135-36 (Ind. Ct. App. 2008). Still, some cases have considered

       challenges to the constitutionality of statutes even where the defendant failed to

       file a motion to dismiss. Notably, in Morse v. State, 593 N.E.2d 194, 197 (Ind.

       1992), the court addressed the defendant’s challenge to the constitutionality of a

       statute even though the issue was raised for the first time on appeal in a pro se

       motion filed with the court by a defendant who was represented by counsel. See

       also Vaughn v. State, 782 N.E.2d 417, 420 (Ind. Ct. App. 2003) (citing Morse in

       deciding to address defendant’s challenge to constitutionality of statute even

       though defendant filed no motion to dismiss and State argued waiver on

       appeal), trans. denied; Boyd v. State, 889 N.E.2d 321, 323-24 (Ind. Ct. App. 2008)

       (following Morse and Vaughn in choosing to address defendant’s claim that

       statute was unconstitutionally vague even though he did not file proper motion

       to dismiss and the State argued waiver on appeal), trans. denied.


[15]   Ind. Code § 31-33-5-1 imposes a duty upon an individual “who has reason to

       believe that a child is a victim of child abuse or neglect” to “make a report” of

       such abuse or neglect. A person who fails to make a report as required under

       I.C. § 31-33-5-1 commits a Class B misdemeanor. In this case, the charging

       information simply tracked the statutory language and did not specify the abuse



       Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018   Page 8 of 13
       or neglect that Kraemer failed to report. During closing argument, however,

       the prosecutor argued to the jury as follows:


               Failure to make a report. [Kraemer] being required to make a
               report failed to do so. Gonna get the instruction related to the
               Indiana code that says that an individual who has reason to
               believe [t]hat a child is a victim of child abuse or neglect has to
               make a report. . . . [Kraemer] wasn’t gonna make any report.
               She was the one doing the meth, she was the one smoking the
               marijuana. There was no report made.


       Transcript Vol. 3 at 230.


[16]   We acknowledge that the State presented evidence concerning neglect or abuse

       of Kraemer’s Grandchildren by their parents who chose to use

       methamphetamine and who exposed the children to the dangers of the drug.

       We cannot agree with the State, however, that the jury was asked to find

       Kraemer guilty for failing to report such neglect. As we read the State’s closing

       argument, the jury was asked to find Kraemer guilty of failing to report her own

       neglect based upon her own use of methamphetamine. The State’s prosecution

       of Kraemer in this regard directly conflicts with her constitutional privilege

       against self-incrimination. See, e.g., U.S. v. Kuh, 541 F.2d 672 (7th Cir. 1976)

       (noting that “[t]he object of the Fifth Amendment is to insure that a person

       should not be compelled to give information which might tend to show he

       himself has committed a crime”).


[17]   The State asserts that there is nothing in the statute itself that exempts a person

       with knowledge of child abuse or neglect from the duty to make a report to

       Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018   Page 9 of 13
       DCS or local law enforcement. Regardless, we conclude that the federal and

       state constitutions render invalid Kraemer’s conviction for failure to report her

       own abuse. We direct the trial court to vacate Kraemer’s conviction and

       sentence for failure to report as a Class B misdemeanor.


                                        Sufficiency of the Evidence


[18]   Kraemer next argues that the State failed to present sufficient evidence to

       support her conviction for visiting a common nuisance with C.H. When we

       consider a challenge to the sufficiency of the evidence, we neither reweigh the

       evidence nor assess the credibility of the witnesses. Suggs v. State, 51 N.E.3d

       1190, 1193 (Ind. 2016). Instead, we consider only the evidence and reasonable

       inferences supporting the verdict. Id. We will affirm the conviction if there is

       probative evidence from which a reasonable jury could have found the

       defendant guilty beyond a reasonable doubt. Id.


[19]   Pursuant to Ind. Code § 35-45-1-5(a)(3)(A), a common nuisance is defined, in

       pertinent part, as “a building, structure, vehicle, or other place that is used . . .

       to unlawfully use a controlled substance or an item of drug paraphernalia.” A

       person who “knowingly or intentionally visits a common nuisance . . . commits

       visiting a common nuisance.” I.C. § 35-45-1-5(b) (emphasis supplied). The

       offense is a Class A misdemeanor if the person “knowingly, intentionally, or

       recklessly takes a person less than eighteen (18) years of age . . . into a common

       nuisance.” I.C. § 35-45-1-5(b)(2)(B). Here, the State charged Kraemer with

       visiting a common nuisance as a Class A misdemeanor, alleging that she


       Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018   Page 10 of 13
       knowingly, intentionally, or recklessly took C.H. to visit a common nuisance,

       i.e., the home in which they lived. Kraemer does not dispute that her home is a

       common nuisance. Rather, Kraemer argues that because C.H. lived in her

       home, she cannot be found to have taken him to visit his own home. The State

       asserts that “[t]here can be no dispute that [Kraemer] took C.H. into her

       home.” Appellee’s Brief at 16.


[20]   We agree with Kraemer. It is not enough that Kraemer took C.H. into their

       home. The notion of a visit remains a key element to the offense of visiting a

       common nuisance. Thus, the issue before us is what does it mean to “visit” a

       common nuisance. In its most common connotation, to visit a place is to come

       and go and stay for a short time period of time. We think it is a stretch to say

       that one visits his own home. As Kraemer asserts, the State did not present any

       evidence that she used methamphetamine outside of her home or that she took

       C.H. into a common nuisance that was not their home. We thus conclude that

       the State’s evidence is insufficient to support Kraemer’s conviction for visiting a

       common nuisance as a Class A misdemeanor.2 We direct the trial court to

       vacate Kraemer’s conviction and sentence for this offense.


                                                   Double Jeopardy


[21]   Indiana’s Double Jeopardy Clause was intended to prevent the State from being

       able to proceed against a person twice for the same criminal transgression.



       2
           Kraemer’s conviction for maintaining a common nuisance as a Level 6 felony is unaffected.


       Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018            Page 11 of 13
       Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). This clause prohibits, among

       other things, multiple punishments for the same conduct. Jarrell v. State, 818

       N.E.2d 88, 92 (Ind. Ct. App. 2004). Multiple punishments are for the same

       offense in violation of double jeopardy, “if, with respect to . . . the actual

       evidence used to convict, the essential elements of one challenged offense also

       establish the essential elements of another challenged offense.” Id.


[22]   In Count IV, the State charged Kraemer with neglect of a dependent based on

       the fact that she knowingly placed C.H. in a situation that endangered his life or

       health as evidenced by the fact that she tested positive for methamphetamine

       and THC. In Count V, the State charged Kramer with the same offense, but

       alleged that she placed C.H. in a situation that endangered his life or health as

       evidenced by the fact that at the time of his autopsy, C.H. tested positive for

       methamphetamine. Kraemer argues these convictions violate double jeopardy

       principles in that they “arose from a single criminal transgression.”3 Appellant’s

       Brief at 16. We agree. The basis for the neglect convictions under both Counts

       IV and V is Kraemer’s use of illegal drugs in her home which placed C.H. in a

       situation that endangered his life or health. Double jeopardy principles prohibit

       multiple punishments for the same conduct. Cf. Williams v. State, 829 N.E.2d

       198 (finding multiple convictions for neglect of a dependent did not violate

       double jeopardy principles where the State proved five distinct acts occurring at




       3
           Kraemer does not challenge her Level 6 felony neglect convictions with regard to separate victims.


       Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018              Page 12 of 13
       different times). We therefore direct the trial court to reverse Kraemer’s

       conviction and sentence for neglect of a dependent under Count IV.


[23]   In sum, we reverse Kraemer’s convictions for failure to report (Count III),

       visiting a common nuisance (Count VII), and neglect of a dependent (Count

       IV) and direct the trial court to vacate the convictions and sentences thereon.


[24]   Judgment affirmed in part, reversed in part, and remanded with instructions.


       Najam, J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018   Page 13 of 13
