MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                 FILED
regarded as precedent or cited before any                                   Apr 18 2018, 9:07 am

court except for the purpose of establishing                                     CLERK
                                                                             Indiana Supreme Court
the defense of res judicata, collateral                                         Court of Appeals
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estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joel M. Schumm                                           Curtis T. Hill, Jr.
Appellate Clinic                                         Attorney General of Indiana
Indiana University
                                                         Ellen H. Meilaender
Robert H. McKinney School of Law                         Supervising Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana
James R. Strickland
Certified Legal Intern


                                           IN THE
    COURT OF APPEALS OF INDIANA

Chris D. Hawkins,                                        April 18, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         47A04-1709-CR-2185
        v.                                               Appeal from the Lawrence
                                                         Superior Court
State of Indiana,                                        The Honorable William G. Sleva,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         47D02-1507-F3-868



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 47A04-1709-CR-2185 | April 18, 2018                Page 1 of 14
                                                  Case Summary
[1]   Chris Hawkins (“Hawkins”) appeals his conviction, following a jury trial, of

      Battery, as a Level 3 felony.1 He raises four issues on appeal, but we address

      only the dispositive issue of whether the trial court abused its discretion when it

      refused to give Hawkins’s proposed jury instruction regarding a “reasonable

      theory of innocence” applicable to wholly circumstantial evidence because it

      found this case involved direct evidence. Appellant’s Br. at 6.


[2]   We reverse, vacate the conviction, and remand for a new trial.



                                Facts and Procedural History
[3]   C.C. was born on June 22, 2014. In the summer of 2015, C.C. and his mother,

      Shannon Hadley (“Hadley”), moved in with Hawkins into Hawkins’s mother’s

      house. Hawkins’s daughter also lived in the home. Both Hawkins and Hadley

      provided care for C.C. On July 16, 2015, C.C. suffered a significant head injury

      that required serious medical attention. After being treated at the hospital for a

      few days, C.C. recovered from his injuries.


[4]   The State charged Hawkins with battery of C.C., resulting in serious bodily

      injury to a person less than fourteen years of age, as a Level 3 felony. At

      Hawkins’s five-day jury trial, Hadley testified that, on July 16, 2015, Hawkins




      1
          Ind. Code § 35-42-2-1(b), (i) (2015).


      Court of Appeals of Indiana | Memorandum Decision 47A04-1709-CR-2185 | April 18, 2018   Page 2 of 14
      was putting C.C. down for a nap on a bed in a back bedroom of the home while

      Hadley watched a movie in the front living room. Hadley heard “a little

      thump,” Tr. Vol. III at 36, and then heard Hawkins calling to her to call 9-1-1

      because C.C. was not breathing. When Hadley entered the bedroom, C.C. was

      laying limp in Hawkins’s arms. Hadley immediately called 9-1-1 and reported

      that her son was not breathing. The 9-1-1 operator “talked [Hadley and

      Hawkins] through how to get [C.C.] to start breathing.” Id. When Hadley and

      Hawkins began “blowing in [C.C.’s] face,” C.C. vomited. Id. Hadley and

      Hawkins continued resuscitation efforts and C.C. began to breathe again;

      however, C.C. remained unresponsive.


[5]   Emergency Medical Team (“EMT”) personnel Chad Lee Hillenburg

      (“Hillenburg”) testified that he soon arrived on the scene and found C.C.

      unresponsive, with a faint heartbeat and slow respiration. Hillenburg testified

      that Hawkins told him that the child had tripped over a fan, fallen, and hit his

      head. Hadley testified that, after C.C. had been taken to the hospital, Hawkins

      told her that, although Hawkins did not see it, C.C. had tripped over a vacuum

      cleaner when coming into the bedroom through the back door. However,

      Hadley testified that Hawkins informed her the next day that C.C. had tripped

      over a fan. Riley Hitchcock (“Officer Hitchcock”) of the Lawrence County

      Sheriff’s Department, who was dispatched to the scene on July 16, testified that

      there was both a vacuum cleaner and a fan in the bedroom “just inside the

      doorway” to the back yard. Tr. Vol. III at 28.




      Court of Appeals of Indiana | Memorandum Decision 47A04-1709-CR-2185 | April 18, 2018   Page 3 of 14
[6]   Dr. Tara Harris (“Dr. Harris”) testified at Hawkins’s trial as an expert witness

      for the State. Dr. Harris is a physician at Riley Hospital, where C.C. was

      treated, and she specializes in child abuse pediatrics. C.C.’s Riley physicians

      called Dr. Harris in to consult on C.C.’s treatment because, in addition to

      having an “altered mental status,” C.C. also had “lots of bruises.” Id. at 81.

      C.C. had bruises on his cheeks and jawline. He also had bruises on his right

      hand, his right wrist, and his right forearm. He had a bruise in the middle of his

      back, some bruises further down his back, and a bruise above his penis.

      Because of his external bruising, Dr. Harris determined that C.C. had been

      physically abused and suffered “abusive head trauma.” Id. at 85-86.

      Specifically, Dr. Harris testified that children typically do not get bruises on

      their cheeks, jaw lines, or the area above their genitals from accidental falls. Id.

      at 87. C.C. also had retinal hemorrhages in both of his eyes, which Dr. Harris

      testified supports a diagnosis of abusive head trauma. Dr. Harris testified that

      the subdural hemorrhage over the surface of the right side of C.C.’s brain would

      be caused by acceleration through space and sudden deceleration, requiring an

      amount of force that a seventeen-month-old child could not generate on his

      own by falling or engaging in other normal toddler activities. Id. at 88.


[7]   After the State rested its case, Hawkins introduced testimony from a different

      medical expert, Dr. John Galaznik (“Dr. Galaznik”), who specialized in the

      area of physical injury—including abusive injury—to infants and small

      children. Dr. Galaznik testified that, after reviewing the factual history of the

      July 16 injury, C.C.’s medical history, and all of C.C.’s medical records from


      Court of Appeals of Indiana | Memorandum Decision 47A04-1709-CR-2185 | April 18, 2018   Page 4 of 14
      the July 16 injury, he concluded that C.C.’s small subdural hemorrhage on the

      outside of his brain could have resulted from a typical accidental fall for a child

      of C.C.’s age. Dr. Galaznik testified that retinal hemorrhaging, subdural

      bleeding, brain injury, and even death can all occur as a result of a short fall.

      Tr. Vol. IV at 77, 89-90. And he testified that C.C.’s bruises could also have

      been the result of normal toddler activity.


[8]   Through Dr. Harris, the State offered into evidence five photographs, a doctor’s

      report, and testimony about the multiple bruises on C.C.’s body. Initially, the

      trial court admitted that evidence over Hawkins’s objections. However, at the

      conclusion of the trial, the court instructed the jury as follows:


              With the exception of facial bruising in State’s Exhibits 6 and 7,
              you shall not consider evidence of other random bruises. They
              cannot be used as evidence of anything, as their existence does
              not go toward proving any fact the State has [to] prove in this
              case.


      Tr. Vol. V at 23.


[9]   The trial court also gave a pattern jury instruction on direct and circumstantial

      evidence. However, the court declined to add to that instruction Hawkins’s

      tendered language regarding a “reasonable theory of innocence” where proof of

      the actus reus is entirely circumstantial because the court found that there was

      direct evidence of the crime in this case. Tr. Vol. IV at 190-91, 195-96.




      Court of Appeals of Indiana | Memorandum Decision 47A04-1709-CR-2185 | April 18, 2018   Page 5 of 14
[10]   The jury found Hawkins guilty as charged, and the trial court imposed a

       sixteen-year sentence with one year suspended to probation. This appeal

       ensued.



                                  Discussion and Decision
[11]   Hawkins challenges the trial court’s denial of his request to include the

       “reasonable theory of innocence” language in the jury instruction regarding

       circumstantial evidence.


               Because instructing the jury is a matter within the sound
               discretion of the trial court, we will reverse a trial court’s decision
               to tender or reject a jury instruction only if there is an abuse of
               that discretion. Washington v. State, 997 N.E.2d 342, 345 (Ind.
               2013). We determine whether the instruction states the law
               correctly, whether it is supported by record evidence, and
               whether its substance is covered by other instructions. Id. at 345–
               46. “Jury instructions are to be considered as a whole and in
               reference to each other; error in a particular instruction will not
               result in reversal unless the entire jury charge misleads the jury as
               to the law in the case.” Whitney v. State, 750 N.E.2d 342, 344
               (Ind. 2001) (quoting Edgecomb v. State, 673 N.E.2d 1185, 1196
               (Ind. 1996)).


       Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016).


[12]   It is clear—and the parties both agree—that a “reasonable theory of innocence”

       instruction must be given to the jury when the only evidence of the commission

       of the crime is circumstantial. As our Supreme Court held in Hampton v. State,

       961 N.E.2d 480, 491 (Ind. 2012) (emphasis original):


       Court of Appeals of Indiana | Memorandum Decision 47A04-1709-CR-2185 | April 18, 2018   Page 6 of 14
         when the trial court determines that the defendant’s conduct
         required for the commission of a charged offense, the actus reus, is
         established exclusively by circumstantial evidence, the jury
         should be instructed as follows: In determining whether the guilt of
         the accused is proven beyond a reasonable doubt, you should require that
         the proof be so conclusive and sure as to exclude every reasonable theory
         of innocence.[2]


See also 2 Indiana Judges Association, Indiana Pattern Jury Instructions—

Criminal, 4th Ed., 13.1000 (Matthew Bender) (containing, verbatim, the above

“reasonable theory of innocence” language as an option to be added to the

instruction on reasonable doubt, and noting in comments that such language

“was written by the Indiana Supreme Court for use in cases in which the trial

judge makes the determination that all the evidence of guilt of the actus reus

elements of the crime is circumstantial[,]” with quotation and citation to

Hampton). The Hampton decision also made it clear that it is the trial court’s

duty—not the jury’s—to determine whether the evidence in the case is solely




2
   In addition to requesting the specific language of the instruction as stated in Hampton, Hawkins requested
that the court add language approved by the Supreme Court in Hall v. State, 405 N.E.2d 530, 534 (Ind. 1980),
i.e., “However, circumstantial evidence alone will not justify a finding of guilty unless the circumstances are
entirely consistent with the defendant’s guilt, wholly inconsistent with any reasonable theory of the
defendant’s innocence, and are so convincing as to exclude a reasonable doubt of the defendant’s guilt.”
Appellant’s App. at 104. The trial court denied that request.
Although the additional language Hawkins suggests was approved by the Supreme Court in Hall, it is largely
duplicative of the language approved in Hampton. Thus, the Supreme Court has found the additional
language unnecessary. See Gambill v. State, 675 N.E.2d 668, 675 (Ind. 1996). Therefore, when we refer to the
“reasonable theory of innocence” instruction, we refer to only the one italicized sentence approved in
Hampton. Hampton, 961 N.E.2d at 491.

Court of Appeals of Indiana | Memorandum Decision 47A04-1709-CR-2185 | April 18, 2018              Page 7 of 14
       circumstantial such that the reasonable theory of innocence instruction must be

       given. Id. at 490.


[13]   The only question on which the parties disagree is whether or not the case

       involved any direct evidence of the actus reus. The State contends—and the trial

       court agreed—that the evidence indicating that Hawkins was the only person in

       the room with C.C. at the time of his injury and Dr. Harris’ testimony that the

       injury could not have been caused by an accidental fall were direct evidence

       that Hawkins committed battery against C.C. However, we agree with

       Hawkins that the evidence of the actus reus3 was purely circumstantial, and the

       trial court erred in concluding otherwise.


[14]   As the Supreme Court noted in Hampton, direct evidence is “[e]vidence that is

       based on personal knowledge or observation and that, if true, proves a fact

       without inference or presumption.” Black’s Law Dictionary 675 (10th ed. 2014).

       Circumstantial evidence, on the other hand, is “[e]vidence based on inference

       and not on personal knowledge or observation.” Id. at 674. Here, the only

       evidence of Hawkins’s commission of a battery against C.C. was: (1) evidence

       of C.C.’s injuries to his head, including bruising on his face; (2) evidence that

       Hawkins was the only person in the room with C.C. when C.C. was injured;

       and (3) Dr. Harris’ testimony that, in her expert opinion, C.C.’s injuries could




       3
         Actus reus is “[t]he wrongful deed that comprises the physical components of a crime and that generally
       must be coupled with mens rea to establish criminal liability.” Black’s Law Dictionary 44 (10th ed. 2014). In
       this case, the actus reus was the touching of C.C. in a rude, insolent, or angry manner, i.e., the battery of C.C.
       I.C. § 35-42-2-1(b), (i) (2015).

       Court of Appeals of Indiana | Memorandum Decision 47A04-1709-CR-2185 | April 18, 2018                 Page 8 of 14
       not have resulted from an accidental short fall. All of that evidence is

       circumstantial; that is, none of that evidence is based on personal knowledge

       that Hawkins injured C.C. or personal observation of Hawkins injuring C.C.

       Put another way, each of those three pieces of evidence requires an inference to

       conclude that it was Hawkins who injured C.C.4


[15]   Both the State and the trial court relied on Clemens v. State, 610 N.E.2d 236,

       243-44 (Ind. 1993), as support for the holding that there was direct evidence of

       the actus reus in this case. In Clemens, the Supreme Court found “direct

       evidence” from the defendant’s admission that he was present when the victim

       sustained his injuries and the pathologist’s testimony that those injuries must

       have been inflicted intentionally. Id. at 243-44. However, while Hampton did

       not explicitly overrule Clemens, it did so by implication. In Hampton, the

       Supreme Court noted the Clemens decision was “based on the presence of

       evidence liberally deemed to be ‘direct’ rather than ‘circumstantial.’” 961

       N.E.2d at 490. The Court noted that Clemens did not require direct evidence of

       the actus reus—i.e., the conduct required for the commission of the crime—but




       4
         The State contends that there was also evidence that Hawkins gave “conflicting stories” regarding how
       C.C. fell. Appellee’s Br. at 22. However, it is not clear from the record that such was the case. Although
       Hawkins did not testify, the evidence indicated that Hawkins consistently maintained that he was not
       observing C.C. at the time C.C. sustained an injury; rather, although he did not witness it, Hawkins told both
       Hadley and the police that he believed C.C. had tripped over an object, fell, and suffered an injury. That the
       object C.C. tripped over could have been either a fan or a vacuum cleaner is not relevant as Officer Hitchcock
       testified that both of those objects were near the door where C.C. was injured.

       Court of Appeals of Indiana | Memorandum Decision 47A04-1709-CR-2185 | April 18, 2018            Page 9 of 14
       only direct evidence of one element of the crime—i.e., presence at the crime

       scene and/or opportunity to commit the crime. Id.


[16]   The Hampton court contrasted the Clemens approach with the decision in Spears

       v. State, 401 N.E.2d 331 (Ind. 1980), overruled on other grounds by Hicks v. State,

       544 N.E.2d 500 (Ind. 1989), where the Supreme Court reversed a murder

       conviction because there was no direct evidence of the conduct required for the

       commission of the crime, i.e., actus reus. The Hampton court then specifically

       adopted the Spears approach:


                [W]e elect to apply the approach taken in Spears and direct that
                the “reasonable theory of innocence” instruction is appropriate
                only where the trial court finds that the evidence showing that
                the conduct of the defendant constituting the commission of a charged
                offense, the actus reus, is proven exclusively by circumstantial
                evidence.


       961 N.E.2d at 490 (emphasis added).5


[17]   Here, as in Clemens, there is direct evidence that Hawkins was present at the

       scene of the alleged crime, i.e., battery of C.C. But, as in Spears, there is no

       direct evidence of Hawkins’s conduct constituting the crime of battery against

       C.C.; all evidence relating to Hawkins’s conduct is exclusively circumstantial.



       5
          We note that the Hampton decision is consistent with the well-settled principle that “‘[m]ere presence at the
       crime scene with the opportunity to commit a crime is not a sufficient basis on which to support a
       conviction.’” Willis v. State, 27 N.E.3d 1065, 1068 (Ind. 2015) (quoting Pratt v. State, 744 N.E.2d 434, 436
       (Ind. 2001)). Rather, our Supreme Court has held that presence at the crime scene will support a conviction
       only if, “in connection with other circumstantial evidence tending to show participation,” it raises a
       reasonable inference of guilt. Id. (emphasis added).

       Court of Appeals of Indiana | Memorandum Decision 47A04-1709-CR-2185 | April 18, 2018             Page 10 of 14
       Therefore, pursuant to Hampton, the trial court was required to give the jury the

       reasonable theory of innocence instruction.6 Id. at 491.


[18]   However, the State contends that, even if the trial court erred, the error was

       harmless because the substance of the reasonable theory of innocence

       instruction was covered by other jury instructions. Specifically, the State

       maintains that the instruction regarding the presumption of innocence was the

       “functional equivalent” of the reasonable theory of innocence instruction 7 and,

       therefore, the absence of the latter instruction would not likely have impacted

       the jury’s verdict. E.g., Townsend v. State, 934 N.E.2d 118, 127-28 (Ind. Ct.

       App. 2010) (holding that an instruction error will result in reversal when we

       cannot say with complete confidence that a reasonable jury would have

       rendered a guilty verdict if the instruction had been given), trans. denied.


[19]   The language of the “reasonable theory of innocence” instruction required

       under Hampton and omitted by the trial court in the instant case is: “In

       determining whether the guilt of the accused is proven beyond a reasonable

       doubt, you should require that the proof be so conclusive and sure as to exclude every

       reasonable theory of innocence.” 961 N.E.2d at 491. The presumption of



       6
         We note that the reasonable theory of innocence instruction could be placed in the instruction on direct
       and circumstantial evidence, as Hawkins requested, or in the reasonable doubt instruction, as the Indiana
       Pattern Jury Instructions, Criminal, suggest. 2 Indiana Judges Association, Indiana Pattern Jury
       Instructions—Criminal, 4th Ed., 13.1000 (Matthew Bender).
       7
         The State also points to the instruction regarding reasonable doubt. However, as the State acknowledges,
       the Supreme Court held in Hampton that a reasonable doubt instruction does not cure the absence of a
       reasonable theory of innocence instruction; rather, both instructions are required when the evidence of the
       criminal act is exclusively circumstantial. Id. at 486-87.

       Court of Appeals of Indiana | Memorandum Decision 47A04-1709-CR-2185 | April 18, 2018           Page 11 of 14
       innocence instruction given to the jury in Hawkins’s case stated, in relevant

       part: “If the evidence lends itself to two reasonable interpretations, you must

       choose the interpretation consistent with the defendant’s innocence.”

       Appellant’s App. Vol. II at 125.


[20]   The latter instruction was insufficient to cure the absence of the reasonable

       theory of innocence instruction in this case for same reasons that Hampton

       found a reasonable doubt instruction insufficient. The reason for the

       “reasonable theory of innocence” instruction relates to the nature of

       circumstantial evidence, and it “provides the jury with an additional cautionary

       instruction in evaluating circumstantial evidence.” Hampton, 961 N.E.2d at

       487. As the court noted in Hampton, the importance of the reasonable theory of

       innocence instruction in cases involving only circumstantial evidence is “deeply

       imbedded in Indiana jurisprudence” because:


               [w]hile a criminal conviction may properly rest entirely upon
               circumstantial evidence, there is a qualitative difference between
               direct and circumstantial evidence with respect to the degree of
               reliability and certainty they provide as proof of guilt. Such a
               supplemental instruction is a safeguard urging jurors to carefully
               examine the inferences they draw from the evidence presented,
               thereby helping to assure that the jury’s reasoning is sound.
               Additionally, it serves to “reiterat[e] the magnitude of the [‘proof
               beyond a reasonable doubt’] standard to juries when the evidence
               before them is purely circumstantial.” Nichols [v. State], 591
               N.E.2d [134,] 136 [Ind. 1992]. In this regard, the “reasonable
               theory of innocence” instruction informs the jury that if a
               reasonable theory of innocence can be made of the circumstantial
               evidence, then there exists a reasonable doubt, and the defendant
               is entitled to the benefit of that doubt.

       Court of Appeals of Indiana | Memorandum Decision 47A04-1709-CR-2185 | April 18, 2018   Page 12 of 14
       Id. at 486.


[21]   Neither the reasonable doubt instruction nor the presumption of innocence

       instruction addressed the specific concerns about the degree of reliability and

       certainty that circumstantial evidence, alone, provides as proof of guilt, nor did

       they reiterate the magnitude of the proof beyond a reasonable doubt standard

       that is required when the evidence is exclusively circumstantial. And the

       circumstantial evidence of guilt was not so overwhelming that a reasonable jury

       would necessarily have found Hawkins guilty even with the reasonable theory

       of innocence instruction; rather, there was conflicting expert testimony

       regarding the key issue of whether C.C.’s injury was caused intentionally or was

       caused by an accidental fall. Thus, we cannot say with complete confidence

       that the jury would have rendered a guilty verdict if the reasonable theory of

       innocence instruction had been given. Townsend, 934 N.E.2d at 127-28. And,

       “reversal is required if the jury’s decision may have been based upon an

       erroneous instruction.” Hernandez v. State, 45 N.E.3d 373, 378 (Ind. 2015)

       (quotation and citation omitted).


[22]   Finally, we must address the issue of sufficiency of the evidence in order to

       ensure that any retrial will not be barred by principles of double jeopardy. E.g.,

       Clark v. State, 728 N.E.2d 880, 887 (Ind. Ct. App. 2000), overruled on other

       grounds by Paffo v. State, 778 N.E.2d 798, 803 (Ind. 2002).


               Evidence is insufficient to convict when no rational fact finder
               could have found the defendant guilty beyond a reasonable
               doubt. Matthews v. State, 718 N.E.2d 807, 810–11 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 47A04-1709-CR-2185 | April 18, 2018   Page 13 of 14
               1999). Retrial is the proper remedy when a conviction is reversed
               on appeal for error and the evidence at trial was sufficient to
               support the original conviction. Id.


       Id.


[23]   Here, we reverse because of the error in the jury instructions, but we cannot say

       that the evidence at trial was insufficient to support the original conviction.

       Therefore, we remand for a new trial.



                                               Conclusion
[24]   Because the trial court abused its discretion by failing to give the reasonable

       theory of innocence instruction to the jury and that error likely impacted

       Hawkins’s substantial rights, we reverse the trial court, vacate Hawkins’s

       conviction, and remand for a new trial.


[25]   Reversed, vacated, and remanded.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 47A04-1709-CR-2185 | April 18, 2018   Page 14 of 14
