MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       Oct 16 2017, 10:07 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
Robert G. Bottorff, II                                   Curtis T. Hill, Jr.
Bob Bottorff Law, PC                                     Attorney General of Indiana
Jeffersonville, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher A. Bruck,                                    October 16, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         10A05-1612-CR-2865
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Vicki L.
Appellee-Plaintiff.                                      Carmichael, Judge
                                                         Trial Court Cause No.
                                                         10C04-1501-F3-1



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017              Page 1 of 30
                                             Case Summary
[1]   Christopher Bruck appeals his convictions and sentence for Level 1 felony

      aggravated battery and Level 6 felony neglect of a dependent. We affirm.


                                                     Issues
[2]   The issues before us are:


              I.       whether the trial court properly admitted Bruck’s three
                       statements to police into evidence over his objection that
                       they had been obtained in violation of his Miranda rights;


              II.      whether the State established a sufficient corpus delicti to
                       allow the admission of Bruck’s statements into evidence;


              III.     whether the trial court properly admitted testimony and
                       documentary evidence from one of the State’s expert
                       witnesses;


              IV.      whether the trial court properly denied Bruck’s motion for
                       public funds to hire an expert witness; and


              V.       whether the trial court properly sentenced Bruck to an
                       aggregate term of forty-two-and-one-half years.


                                                     Facts
[3]   Bruck is the father of Hayden Dukes, who was four years old in January 2015.

      Hayden’s mother is Amanda Dukes. Hayden suffered from a genetic disorder

      known as DiGeorge Syndrome. As a result of this condition, Hayden was non-

      verbal and had signs of autism, was very small for his age, and was asthmatic.

      Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 2 of 30
      He did not begin walking until around four years of age. Bruck and Amanda

      lived separately. On December 31, 2014, Amanda brought Hayden to Bruck’s

      residence for Hayden’s first-ever overnight visitation with Bruck, which was to

      last four days. At this time, Bruck was living with his wife, Yulanda, in the

      basement of a house rented by Yulanda’s parents, Lovette and John Hall, in

      Floyd County. Hayden seemed to have a slight cold when Amanda dropped

      him off but no other ailments, although he would require regular breathing

      treatments for his asthma. Although DiGeorge Syndrome can sometimes cause

      seizures, Hayden had no prior history of seizures.


[4]   In the mid-to-late-afternoon of January 3, 2015, Bruck was in the basement

      with Hayden and two of his other children, watching a basketball game.

      During this time, Yulanda and Lovette were upstairs watching television with

      another of Yulanda’s children, and John was asleep in an upstairs bedroom. At

      around 5:30 p.m., Bruck yelled from downstairs that Hayden was having a

      seizure. Shortly thereafter, Bruck called 911, while Yulanda carried Hayden

      upstairs and laid him on a couch. Yulanda did not drop Hayden or bump his

      head on anything while carrying him.


[5]   Hayden first was transported by ambulance to Scott County Memorial Hospital

      (“Scott Hospital”); Bruck rode in the ambulance with Hayden. When Hayden

      arrived at the hospital around 6 p.m., he was not making any voluntary

      movements, had a low heart rate and difficulty breathing, and was having

      seizures. Bruck informed emergency room physician Dr. Rafael Carter that

      Hayden had been having a fever and cold-like symptoms and denied that he

      Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 3 of 30
had suffered any injury or trauma. Based on this information, Dr. Carter

originally investigated the possibility that Hayden had sepsis resulting from

pneumonia.1 Because of the severity of Hayden’s condition, it was decided it

would be necessary to transport him to Kosair Children’s Hospital in Louisville,

Kentucky (“Kosair”). At about 8 p.m., a physician at Kosair requested that a

CT scan of Hayden’s head be performed before transporting him. The scan was

performed around 9 p.m. and revealed that Hayden had a large subdural

hematoma with a midline shift. This meant that there was severe bleeding

between Hayden’s brain and skull, and that the brain was swelling so much that

the right hemisphere was pushing into the left hemisphere. Subdural

hematomas with midline shift are very serious and frequently lead to death.

After learning the CT scan results, Dr. Carter told Bruck that Hayden must

have suffered some kind of trauma to sustain an injury like that. Bruck then

told Dr. Carter that in the middle of the previous night, Hayden had walked

into the door frame of Bruck and Yulanda’s bedroom. However, Dr. Carter

believed, based on the severity of Hayden’s head trauma, that the head trauma

could not possibly have been caused by Hayden walking into a door frame. Dr.

Carter also would have ordered a CT scan and begun administering drugs to

Hayden to alleviate brain swelling much earlier if he initially was aware

Hayden had sustained a head trauma.




1
    Blood test results later confirmed that Hayden did not have pneumonia or sepsis.


Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 4 of 30
[6]   At some point, someone at Scott Hospital called the Indiana State Police

      (“ISP”) to report that he or she suspected Hayden of having been abused.

      Troopers Zachary Smith and Nick Yaeger arrived at Scott Hospital shortly

      thereafter, in full uniform and driving their police cruisers. When the

      ambulance arrived from Kosair to transport Hayden, Bruck had no way of

      going to Kosair. Trooper Smith offered Bruck a ride to Kosair, which he

      accepted. Bruck rode in the front of Trooper Smith’s cruiser and was not

      handcuffed or restrained in any way, and the two engaged in normal

      conversation during the ride. Meanwhile, Trooper Yeager contacted ISP

      Detective Rachel Abbott and informed her of the suspected abuse and that

      Hayden was being transported to Kosair. ISP Detective David Mitchell also

      was contacted and headed toward Kosair.


[7]   When arriving at Kosair, Bruck initially went to a public emergency room

      waiting room. Troopers Smith and Yaeger also were at the hospital, but they

      did not attempt to monitor Bruck’s whereabouts or restrict his movements in

      any way, nor were they ever ordered to do so by any superiors. Detective

      Abbott arrived at Kosair around 10:30 p.m., approached Bruck in the waiting

      room, and said she wanted to ask him some questions about Hayden. Bruck

      readily agreed. Detective Abbott was in plain clothes but wearing her badge

      and gun on her belt. Detective Abbott and Bruck then went to a conference

      room of some type to talk, as arranged by a Kosair employee. The precise

      layout of this room is unclear—Detective Abbott described it as more like a

      business conference room, with a large table surrounded by about ten chairs.


      Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 5 of 30
      Detective Mitchell recalled the room as resembling an employee break room,

      with a small table, microwave, water fountain, and room for six to seven

      people. Trooper Smith recalled that the room was a “crisis room” for families

      of ill children, which resembled a residential family room, including a few seats,

      table, and television. Tr. Vol. II p. 106. The room was in a non-public area of

      the hospital and had an unlocked door and no windows.2


[8]   Detective Abbott began interviewing Bruck at about 10:55 p.m. Before the

      recording began, Detective Abbott told Bruck that he was free to leave. Bruck

      was not handcuffed or restrained in any way. Troopers Smith and Yaeger were

      sometimes in the hallway outside the room, but they were not guarding the

      door. Detective Abbott did not warn Bruck of his Miranda rights. Bruck

      professed ignorance at what could have caused Hayden’s head trauma, except

      that he reiterated the story about Hayden having hit his head on the bedroom

      door frame during the previous night and said, “I don’t know if that could have

      caused what’s been going on or not.” Tr. Vol. I p. 65. Bruck said that Hayden

      mostly acted normal the next day, except for having a slight nosebleed when he

      woke up. Bruck continued that Hayden appeared normal before suddenly

      having a seizure while he was in the basement with Hayden at about 6 p.m., at

      which time he called 911. During the interview, Bruck’s phone rang several

      times. Bruck told Detective Abbott, “I’m trying to get a ride back, because I’m




      2
       Although Detectives Abbott and Mitchell conducted two recorded interviews of Bruck in this room, both
      were audio-only recordings.

      Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017      Page 6 of 30
      going to be stranded.” Id. at 80. Detective Abbott responded in part, “Well, I

      will say this, I will say you probably need to stay a little bit longer, because I

      think Hayden might be having surgery.” Id. at 82. Bruck said, “Yeah, I’m

      going to find out what’s going on.” Id. Bruck did in fact answer a call,

      apparently from Yulanda, during the interview.


[9]   Bruck then repeated his story that Hayden had hit his head on the door frame of

      his bedroom the night before and said that Hayden generally avoided playing

      with Bruck and Yulanda’s other children. As the interview ended, the

      following exchange took place:


              Abbott: Your little boy, I mean, it’s very serious.


              Bruck: I know.


              Abbott: So I think you need to stick around.


              Bruck: I'm going to, I'm not going to leave any time soon.


              Abbott: Okay. We might need to talk to you again afterwards,
              because we’re—this is all—I mean.


              Bruck: That’s fine. You can talk to my wife, you can talk to her
              mom and dad, you can check out my kids, that’s fine.


              Abbott: Okay. All right. Are you just going to stay here or do you
              know where you’re going to be?


              Bruck: Actually, I've got to find out where they are going.

      Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 7 of 30
       Id. at 94. Detective Abbott then verified that she had Bruck’s phone number,

       and the interview ended. Bruck was cooperative the whole time. The interview

       lasted approximately thirty-five minutes. Detective Mitchell arrived at Kosair

       sometime during this interview. Like Detective Abbott, he was wearing plain

       clothes, with his badge and gun on his belt.


[10]   As this first interview was taking place, Hayden was beginning to undergo

       surgery. When Hayden was admitted to Kosair, ER physician Dr. Megan

       Laniewicz noted a number of contusions, including ones on his right forehead,

       abdomen, shoulder, left knee, and lower leg. Dr. Laniewicz believed the

       bruising on Hayden’s abdomen and shoulder was not typical childhood

       bruising. Also, she thought that the severity of Hayden’s subdural hematoma

       was similar to something often seen “in the setting of a motor vehicle crash or a

       significant free fall, a fall from a second story window, something where you

       have a significant speed and then that is—you get deceleration, a sudden

       deceleration of the body, and the brain then shifts in the skull.” Tr. Vol. V p.

       95.


[11]   Dr. William Gump performed neurosurgery on Hayden. He removed a portion

       of Hayden’s skull, removed the subdural blood clot, attempted to stop bleeding

       within the brain itself, and inserted a monitor to constantly measure the

       pressure on Hayden’s brain. The pressure remained high even after surgery and

       continued to increase. After surgery, Dr. Gump told Detective Mitchell that

       Hayden only had a thirty percent chance of surviving. Dr. Gump also believed

       Hayden’s subdural hematoma was the result of an acute injury and not a

       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 8 of 30
       chronic condition. Dr. Gump compared Hayden’s injury to one he had

       previously seen in a child who had been picked up by a tornado and dropped

       seven miles from home. He also believed it resembled a high-speed car crash

       injury or one from a ten-story fall into a bush. He did not think that either

       walking into a door frame or falling down three of four stairs could possibly

       have caused Hayden’s brain trauma.


[12]   Hayden’s surgery ended a little after 1 a.m. on January 4, 2015. After Dr.

       Gump went over the surgery and prognosis with Detective Mitchell, Detectives

       Mitchell and Abbott decided to re-interview Bruck because what he had said in

       the first interview did not seem consistent with the trauma Dr. Gump described.

       It appears Bruck was still in the “conference room” when Detectives Mitchell

       and Abbot found him and requested a second interview, to which he readily

       agreed, without coercion or threats. Between the first and second interviews,

       no one told Bruck he had to stay in the room. At one point he went looking for

       a restroom, and no one told him to go back to the room.


[13]   The second interview began at 1:22 a.m. Again, no Miranda warnings were

       given. Bruck started by reiterating that the only possible way he knew of that

       Hayden’s head could have been injured was when he walked into the bedroom

       door frame the previous night. Detective Mitchell then began telling Bruck that

       Hayden could not have injured himself the way Bruck had described. Detective

       Mitchell also repeatedly told Bruck that the doctors needed to know as much as

       possible about how Hayden was injured in order to treat him properly. This

       was untrue, however. At one point, Detective Mitchell suggested that Hayden

       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 9 of 30
       could have fallen down some stairs, at which point Bruck said, “If I remember,

       I think he did fall down a few steps.” Tr. Vol. I p. 129. Bruck said he had not

       previously told anyone that because “[w]e’ve had CPS on our case.” Id. at 130.

       Bruck described how the basement floor was concrete with a thin layer of

       carpeting over it, and Hayden had hit the right side of his head hard after falling

       down a few steps. Detective Mitchell was not satisfied with this response and

       continued asking Bruck to tell them what had really happened. Finally, Bruck

       said that, while he was watching a basketball game with his younger son on his

       lap, “He [Hayden] was trying to pull my hand and I wouldn’t let up. . . . I was

       sitting there and I was into a f***ing stupid ass game. . . . I thumped him on

       the head. . . . With my hand . . ., he fell back. . . . And his head hit like the

       floor.” Id. at 139-40. Bruck explained that he hit Hayden in the forehead with

       the heel of his palm, causing him to fall backwards onto the floor. He also said

       that this occurred at about 4 or 4:30 p.m. and that Hayden managed to crawl

       into bed afterwards, but that he knew something was wrong because Hayden

       was holding his head at an unusual angle.


[14]   After the second interview, Detectives Mitchell and Abbott wanted to arrest

       Bruck, but neither one of them had arrest powers in Kentucky. Thus, they told

       Bruck that they wanted to bring him to his house so he could show them where

       the incident happened and so they could talk to Yulanda. However, the

       detectives actually wanted to bring Bruck to the Sellersburg ISP post. They

       asked Trooper Yaeger to drive him there. Bruck voluntarily agreed to go with




       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 10 of 30
       Trooper Yaeger, and again he rode in the front seat and was not restrained,

       although he was unaware he was being driven to an ISP post.


[15]   After arriving at the post, Detective Abbott questioned Bruck a third time in an

       interview room. This time, Detective Abbott did verbally inform Bruck of his

       Miranda rights and gave him a written advice of rights and waiver form.

       Detective Abbott twice told Bruck that the rights were “just a formality” before

       passing him the written form. Ex. 3. Without reading the form, Bruck signed

       it, but on the incorrect line; instead, he signed on the line for an adult guardian

       to waive a juvenile’s rights. During the third interview, Bruck largely paralleled

       what he said toward the end of the second interview about hitting Hayden on

       the head with the palm of his hand, but contended he did not do so on purpose.

       He explained that Hayden began having seizures about an hour or hour-and-a-

       half after the incident, at which time he called 911. Bruck denied ever having

       abused or hit Hayden any other time. At the conclusion of the interview, Bruck

       was arrested.


[16]   Hayden died on January 8, 2015. Dr. Amy Burrows-Beckham of the Kentucky

       Medical Examiner’s office performed an autopsy on Hayden. She found that

       the cause of death was a closed head injury inflicted by an external blunt force.

       She noted the extensive brain swelling, which had caused the brain to herniate

       into the hole in the base of the skull and press against the brain stem. She

       opined that Hayden’s DiGeorge Syndrome was unrelated to his death. She also

       believed that Hayden’s injury could not have been caused by running into a

       door frame, nor from a fall down a household flight of stairs. Rather, it was

       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 11 of 30
       consistent with falling from a multiple-story building, jumping in front of a car

       or being in a car wreck, or having a heavy object dropped on his head. She

       believed a forceful blow to Hayden’s head with a hand could be sufficient to

       have caused the injury.


[17]   On January 7, 2015, the State charged Bruck with Level 3 felony aggravated

       battery. After Hayden died, the State amended the information to one count of

       Level 1 felony aggravated battery causing death to a child and one count of

       Level 1 felony neglect of a dependent causing death to a child. Bruck filed a

       pre-trial motion to suppress all three of his interviews with police, claiming that

       he was in custody for the first two and had to be Mirandized and that the third

       interview was the result of an improper “question first-warn later” interrogation

       method. After conducting a hearing, the trial court denied Bruck’s motion to

       suppress.


[18]   A jury trial began on September 23, 2016. At the conclusion of the presentation

       of evidence on that day, Bruck moved for $5000 in public funds to hire an

       expert witness, a pediatric neurologist, to rebut expert opinions “introduced

       during depositions in this matter.” Tr. Vol. II p. 133. The State objected to this

       request, noting that the case had been pending for eighteen months and that

       Bruck could have moved for such funds at an earlier date. Bruck responded in

       part, “right now we’re simply looking to hire a doctor to evaluate the evidence

       to determine whether there might be a rebuttal to the opinions that we received

       in deposition.” Id. at 138-39. The trial court denied Bruck’s motion.



       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 12 of 30
[19]   At trial, in addition to the medical professionals who had personally treated or

       examined Hayden, the State sought to introduce the testimony of Dr. Melissa

       Currie, a specialist in child abuse medicine at the University of Louisville. At

       the outset, Bruck objected to her testimony, stating in part, “I’d just like to

       create the record that that was ruled upon and granted that we’re not going to

       have testimony about what a person was told about what Mr. Bruck said, and I

       think that that would preclude conclusions based on that as well.” Tr. Vol. III

       p. 53.3 The trial court overruled this objection. During Dr. Currie’s testimony,

       Bruck objected several times to her stating opinions based on statements made

       by Bruck, based on lack of foundation. The trial court overruled these

       objections.


[20]   Dr. Currie testified that Bruck’s death was caused not only by bleeding causing

       external pressure on the brain and swelling but also bleeding within the brain

       itself. She stated that Hayden’s head injury was inconsistent either with him

       walking into a door frame or falling down three to four steps. She did believe

       that a strike to Hayden’s forehead with a bare palm could have caused the

       injury if done with enough force and that the bruise on the right side of

       Hayden’s forehead was consistent with such a strike. She clarified that the

       injury would have been sustained by the hand striking, not Hayden falling back

       onto the floor. She also stated that Hayden’s injury “was one of the worst brain



       3
         Bruck also objected to the fact that, in Dr. Currie’s written report, she referred to Hayden standing on a bed
       when Bruck hit him, although there is no evidence that Hayden was standing on a bed. Dr. Currie testified
       that her opinions were unchanged based on Hayden standing on the floor when he was struck.

       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017            Page 13 of 30
       injuries I’ve seen as far as the amount of disruption inside his brain tissue, how

       deep it went, how many different places it was there.” Id. at 80. As with other

       doctors, she compared Hayden’s injury to ones sustained in a car crash. She

       also opined that even a one-hour delay by Bruck in calling 911 after striking

       him in the head decreased Hayden’s survival chances, and the first hour after

       sustaining head trauma is the most important for treatment.


[21]   On October 3, 2016, the jury found Bruck guilty of both counts as charged. At

       the sentencing hearing, the trial court stated that it was finding as aggravating

       circumstances Hayden’s age, the fact that he had a disability, and that there

       were other children present at the time of the offense. It found one mitigating

       circumstance, Bruck’s lack of criminal history. The trial court entered

       judgment of conviction for Level 1 felony aggravated battery but reduced the

       neglect of a dependent count to a Level 6 felony due to apparent double

       jeopardy concerns. It imposed sentence of forty years for the aggravated battery

       conviction and two-and-a-half years for the neglect conviction, to be served

       consecutively for an aggregate term of forty-two-and-a-half years. Bruck now

       appeals.


                                                   Analysis
                                  I. Admission of Statements to Police

[22]   The first issue Bruck raises is whether his three statements to police should have

       been suppressed due to violations of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.

       1602 (1966). Although Bruck initially raised this issue through a pre-trial


       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 14 of 30
       motion to suppress, he did not seek an interlocutory appeal from the denial of

       that motion but did object to introduction of the statements into evidence at

       trial. Thus, this issue is more appropriately framed as whether the trial court

       properly admitted evidence at trial, not whether it properly denied the motion

       to suppress. See Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). The admission

       of evidence at trial is a matter within the trial court’s discretion. Id. at 259-60.

       “We review these determinations for abuse of that discretion and reverse only

       when admission is clearly against the logic and effect of the facts and

       circumstances and the error affects a party’s substantial rights.” Id. When there

       has been both a motion to suppress and a trial objection to evidence, the trial

       court’s ultimate ruling on admissibility should be based primarily upon

       evidence and testimony presented at trial. Id. at 259 n.9. However, the trial

       court may also consider evidence from a motion to suppress hearing that does

       not directly conflict with foundational evidence presented at trial. Id. Also,

       courts should consider evidence from a motion to suppress hearing that is

       favorable to the defendant and not contradicted by foundational evidence

       offered by the State at trial. Id.


[23]   Of the three interviews Bruck had with police, the second one is the most

       critical. Bruck did not make any inculpatory admissions in the first statement.

       The third, Mirandized statement largely duplicated the un-Mirandized second

       statement, as far as Bruck admitting that he had struck Hayden on the forehead

       an hour or so before he started having seizures. If the second statement was

       improperly taken, then there are potential problems with the third statement,


       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 15 of 30
       despite Bruck’s having been Mirandized, because of the holding in Missouri v.

       Siebert, 542 U.S. 600, 124 S. Ct. 2601 (2004); that case disapproved of the police

       tactic of questioning a suspect in a custodial setting without giving Miranda

       warnings, then giving such warnings only after a suspect has confessed and

       having the suspect repeat that confession. Thus, we will focus here primarily

       upon Bruck’s second interview at Kosair and whether Miranda warnings were

       required before that interrogation.


[24]   In Miranda, the Supreme Court established that if law enforcement officers

       question a person who is in “custody or otherwise deprived of his action in any

       significant way,” the person must first “be warned that he has a right to remain

       silent, that any statement he does make may be used as evidence against him,

       and that he has a right to the presence of attorney, either retained or

       appointed.” Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. Miranda warnings are

       not required if a person being interrogated is not in custody. Luna v. State, 788

       N.E.2d 832, 834 (Ind. 2003). The ultimate inquiry in determining whether a

       suspect is in custody is “whether there is a ‘formal arrest or restraint on freedom

       of movement’ of the degree associated with a formal arrest.” California v.

       Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520 (1983) (quoting Oregon v.

       Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714 (1977)). This requirement is

       met if a reasonable person in similar circumstances would believe he or she is

       not free to leave. Luna, 788 N.E.2d 832, 833 (Ind. 2003). “Only when the

       officer, by means of physical force or show of authority, has in some way

       restrained the liberty of a citizen may we conclude that a ‘seizure’ has

       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 16 of 30
       occurred.” Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386 (1991)

       (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)).

       The mere fact that questioning takes place in a “coercive atmosphere” or that

       police “aggressively” interrogate a suspect does not necessarily place the suspect

       “in custody.” Luna, 788 N.E.2d at 834 (quoting Mathiason, 429 U.S. at 495, 97

       S. Ct. at 714). In making a custody determination, courts must consider the

       totality of the circumstances, and the subjective knowledge and beliefs of an

       officer are irrelevant unless those thoughts are conveyed, through actions or

       words, to the person being questioned. State v. Hicks, 882 N.E.2d 238, 241 (Ind.

       Ct. App. 2008).


[25]   This case bears some similarities to Morales v. State, 749 N.E.2d 1260 (Ind. Ct.

       App. 2001). In that case, after a young child was brought by her mother to a

       hospital with burns, a doctor suspected abuse and contacted law enforcement.

       When a police officer arrived at the hospital, he asked the mother to

       accompany him to the hospital chapel so he could talk to her about the child’s

       injuries. The mother voluntarily agreed to do so, and after a twenty to thirty

       minute interrogation, the mother returned to her child’s bedside. We held that

       the mother was not in custody during the interrogation in the hospital chapel

       and, therefore, Miranda warnings were not required. Morales, 749 N.E.2d at

       1265. Although no one had expressly told the mother that she was free to

       leave, we found “nothing in the record to suggest that a reasonable person

       would not have felt free to leave under the circumstances.” Id.




       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 17 of 30
[26]   There are some differences in Bruck’s case that must be acknowledged. First,

       while the mother in Morales apparently had her own transportation to and from

       the hospital, Bruck did not. Instead, he relied on Trooper Smith to drive him

       from Scott Hospital to Kosair, and he had no way of immediately leaving

       Kosair once he got there. However, we cannot say Bruck’s lack of personal

       motorized transportation rendered him in custody. In the context of all the

       facts and circumstances, Trooper Smith’s driving Bruck to Kosair was a

       courtesy that would have been offered to any parent in such a situation. Bruck

       was not driven to Kosair as a suspect; rather, he sat in the front seat of Trooper

       Smith’s cruiser, was not restrained, and engaged in general conversation with

       Trooper Smith unrelated to Hayden’s situation.


[27]   After arriving at Kosair, Detective Abbott asked to speak with Bruck, and he

       readily agreed. They went to a hospital-arranged private conference room of

       some kind. It was in a non-public area of the hospital, but many parts of a

       hospital are, and there is no indication that it was secured in a manner similar

       to a police station. Although recollections of the room vary, at worst, it was

       similar to a conference room in an office building—with a large table

       surrounded by a number of chairs. It does not appear to have been comparable

       to an interrogation room at a police station.


[28]   At the conclusion of this first interview, Detective Abbott twice suggested that

       Bruck should “stick around” because of Hayden’s condition and because “[w]e

       might need to talk to you again afterwards . . . .” Tr. Vol. I p. 94. Detective

       Abbott’s suggestion that Bruck “stick around” can be seen two ways: one, as a

       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 18 of 30
       suggestion that would be given to any parent whose child was in critical

       condition, and two, as a hope that Bruck would be available in the event she

       wanted to question him some more. It was not a demand or an order that

       Bruck stay at the hospital.


[29]   During Bruck’s time at Kosair between the first and second interviews, none of

       the detectives or troopers there kept track of his whereabouts. Although it

       appears Bruck may have stayed in the conference room most of that time, he

       did so of his own volition. When he did leave the room to look for a restroom,

       no one demanded that he go back to the conference room. Troopers Smith and

       Yaeger were present at Kosair during both interrogations, but they were not

       guarding the conference room door. Also, during the first interview, Bruck had

       said nothing incriminating and so had no reason to think he was a suspect.


[30]   When Bruck was asked to talk a second time, he readily agreed. There is no

       evidence he was threatened or coerced into doing so. During the second

       interview, Detective Mitchell did become much more aggressive in his

       questioning than Detective Abbott had been during the first interview, but that

       did not turn the interview into a custodial situation. Bruck also contends that

       he has mild mental retardation that affected his perception of the circumstances.

       However, neither Detective Abbott nor Detective Mitchell had any awareness

       of a mental deficiency, nor did they notice Bruck having any difficulties

       understanding anything, or that he appeared to be under the influence of any

       substances. Bruck also did not present evidence of the extent of any mental

       disability. Bruck’s claim of mental deficiency is irrelevant to his Miranda

       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 19 of 30
       claims. See Faris v. State, 901 N.E.2d 1123, 1127 (Ind. Ct. App. 2009) (holding

       defendant’s well-documented moderate mental retardation did not render

       noncustodial statement to police involuntary, where officers were unaware of

       and did not notice any mental deficiencies during questioning), trans. denied.

       After the end of the second interview, there was some subterfuge involved in

       driving Bruck back to the Sellersburg ISP post. By then, however, he had

       already made incriminating statements, and he would have been arrested

       immediately if Detectives Abbott and Mitchell had arrest powers in Kentucky.

       Alternatively, he would have been arrested after returning to Indiana, regardless

       of how he got there.


[31]   We recognize that a suspect’s subjective thoughts are not dispositive on the

       question of custody. Hicks, 882 N.E.2d at 241. However, we do believe Bruck’s

       own testimony at the motion to suppress hearing is telling. He testified that he

       voluntarily went to the conference room for the first interview, with no

       coercion, and that no one told him to stay in the room after the first interview

       was over. Also, no one came into the room or guarded the door, and Bruck

       admitted that he could have gotten up and walked out the door. Bruck testified

       that he voluntarily stayed at the hospital between the first and second

       interviews, that he wanted to stay updated on Hayden’s status, and that no one

       forced him to stay there. Bruck also said he was fully willing to give a second

       statement, and that no one told him he had to do so or that he had to stay in the

       room. Again, he admitted that he could have gotten up and left the room

       during the second interview or left the hospital at the end of it. This testimony,


       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 20 of 30
       combined with the objective circumstances, leads us to readily conclude that

       Bruck was not in custody when he gave the second interview, even if the

       atmosphere became confrontational during that interview. Thus, he did not

       have to be Mirandized before or during that interview. Because that second

       statement was properly obtained and is consistent with his third, Mirandized

       statement, we need not address that third statement.4 The trial court properly

       denied Bruck’s motion to suppress and admitted his police statements into

       evidence.


                                                 II. Corpus Delicti

[32]   Next, we address Bruck’s claim that his statements to police were inadmissible

       on the alternative ground that the State failed to establish a sufficient corpus

       delicti for their admission. Our supreme court recently described the corpus

       delicit rule as follows:


                In Indiana, a person may not be convicted of a crime based solely
                on a nonjudicial confession of guilt. Rather, independent proof
                of the corpus delicti is required before the defendant may be
                convicted upon a nonjudicial confession. Proof of the corpus
                delicti means “proof that the specific crime charged has actually
                been committed by someone.” Thus, admission of a confession
                requires some independent evidence of commission of the crime
                charged. The independent evidence need not prove that a crime
                was committed beyond a reasonable doubt, but merely provide




       4
         We do take a moment, however, to strongly advise against police officers telling a suspect who is in custody
       that a waiver of his or her Miranda rights is a mere “formality,” as Detective Abbott told Bruck. A suspect’s
       constitutional rights and any waiver thereof should never be taken lightly.

       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017         Page 21 of 30
                 an inference that the crime charged was committed. This
                 inference may be created by circumstantial evidence.


       Shinnock v. State, 76 N.E.3d 841, 843 (Ind. 2017) (quoting Walker v. State, 249

       Ind. 551, 559, 233 N.E.2d 483, 488 (1968)) (other citations omitted).


[33]   The crux of Bruck’s argument is that there is no independent evidence that he

       committed these offenses, aside from his extrajudicial police statements. This

       confuses the corpus delicti rule for the admission of confessions, as opposed to

       the rule for sufficient evidence to support a conviction. See id. at 844. Under

       the corpus delicti rule for the admission of confessions, there need only be

       evidence that the charged crime was committed by someone, not that the

       defendant committed the crime. See Walker, 249 Ind. at 559, 233 N.E.2d at 488;

       Messel v. State, 176 Ind. 214, 217, 95 N.E. 565, 566 (1911). Where there has

       been a death, a sufficient corpus delicti that the death was the result of a crime

       may be established by evidence that the dead body had marks of violence, or

       the surrounding circumstances indicate the deceased did not die from natural

       causes. Jones v. State, 253 Ind. 235, 246, 252 N.E.2d 572, 578 (1969) (quoting

       Brown v. State, 239 Ind. 184, 190, 154 N.E.2d 720, 722 (1958), cert. denied), cert.

       denied.


[34]   Here, five medical doctors opined that Hayden’s severe subdural hematoma,

       eventually leading to his death, was the result of trauma. Those doctors were

       specialists in emergency medicine, pediatric neurosurgery, pathology, and child

       abuse. Several doctors compared his injury to ones sustained in a car crash or a

       multi-story fall. However, there was no evidence of Hayden having been in
       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 22 of 30
       such a crash or taking such a fall. Several doctors also discounted the

       possibility that his death could have been the result of natural causes or

       something more minor, such as falling down a few steps. Thus, an inference

       clearly could have been made that Hayden’s death was the result of a battery—

       a strike on his head—committed by someone. As such, a sufficient corpus

       delicti was established to allow the admission of Bruck’s confession that he was

       the someone who struck Hayden in the head.


                               III. Admission of Dr. Currie’s Testimony

[35]   Bruck also challenges the admission of Dr. Currie’s testimony and

       accompanying written report, giving her opinion that Hayden’s subdural

       hematoma and death could have been caused by a strike to the head if

       committed with sufficient force. We first note that it is unclear Dr. Currie’s

       testimony and report, even if erroneously admitted, would be reversible error.

       The erroneous admission of evidence is harmless if was unlikely to have had a

       substantial impact upon the jury in light of all the other, properly-presented

       evidence. Williams v. State, 43 N.E.3d 578, 583 (Ind. 2015). Generally, the

       erroneous admission of evidence that is cumulative of other evidence does not

       constitute reversible error. Hoglund v. State, 962 N.E.2d 1230, 1240 (Ind. 2012).

       Here, four other expert witnesses, medical doctors besides Dr. Currie, gave their

       opinions regarding the nature and cause of Hayden’s injury and resulting death.

       Bruck does not challenge the admissibility of any of their testimony. Drs.

       Gump and Burrows-Beckham, in particular, gave very detailed testimony



       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 23 of 30
       regarding the cause of Hayden’s death. Dr. Currie’s testimony was largely

       cumulative of theirs.


[36]   In any event, Bruck’s challenge to Dr. Currie’s testimony circles back to his

       unsuccessful corpus delicti argument. Bruck does not challenge Dr. Currie’s

       qualifications as an expert witness, but he does contest her reliance upon

       Bruck’s police statements describing how he struck Hayden in the head in

       stating an opinion on whether such action could have caused Hayden’s injury

       and death. Under Indiana Evidence Rule 703, “[a]n expert may base an

       opinion on facts or data in the case that the expert has been made aware of or

       personally observed. Experts may testify to opinions based on inadmissible

       evidence, provided that it is of the type reasonably relied upon by experts in the

       field.” Bruck contends that, because a corpus delicti was lacking, Dr. Currie

       could not rely on his police statements. But, as we discussed, there is ample

       evidence of a sufficient corpus delicti to permit the admission of those

       statements. Thus, there was no bar to Dr. Currie relying upon those

       statements.


                               IV. Public Funds to Hire Expert Witness

[37]   Bruck next contends that the trial court erred in denying his request for $5000 in

       public funds to hire an expert witness of his own to counter the State’s experts.

       The decision of whether to approve the expenditure of public funds to hire an

       expert witness for an indigent defendant is within the trial court’s discretion.

       Griffith v. State, 59 N.E.3d 947, 956 (Ind. 2016). A defendant is not entitled to

       any and all experts he may wish to have and bears the burden of demonstrating
       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 24 of 30
       a need for such a witness. Id. Factors a trial court may consider in deciding

       whether to allow the hiring of an expert at public expense include:


               (1) whether the services would bear on an issue generally
               regarded to be within the common experience of the average
               person, or on one for which an expert opinion would be
               necessary; (2) whether the requested expert services could
               nonetheless be performed by counsel; (3) whether the proposed
               expert could demonstrate that which the defendant desires from
               the expert; (4) whether the purpose for the expert appears to be
               only exploratory; (5) whether the expert services will go toward
               answering a substantial question in the case or simply an
               ancillary one; (6) the seriousness of the charge; (7) whether the
               State is relying upon an expert and expending substantial
               resources on the case; (8) whether a defendant with monetary
               resources would choose to hire such an expert; (9) the costs of the
               expert services; (10) the timeliness of the request for the expert
               and whether it was made in good faith; and (11) whether there is
               cumulative evidence of the defendant’s guilt.


       Kocielko v. State, 938 N.E.2d 243, 254-55 (Ind. Ct. App. 2010), aff’d in relevant

       part on reh’g, 943 N.E.2d 1282 (Ind. Ct. App. 2011), trans. denied. Even if certain

       factors would weigh in favor of hiring of an expert, the factors as a whole may

       be insufficient to require doing so. Id. at 255.


[38]   Certain of the above factors weigh strongly in favor of granting Bruck’s request,

       such as the medical issues being outside the expertise of the average person, the

       seriousness of the charges, and the substantial question in this case of the cause

       of Hayden’s death. Certain other factors, however, weigh against granting the

       request. First, Bruck failed to establish that he wished to hire an expert for

       anything other than “exploratory” purposes. As counsel represented to the trial
       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 25 of 30
       court when making the motion, “right now we’re simply looking to hire a

       doctor to evaluate the evidence to determine whether there might be a rebuttal to

       the opinions that we received in deposition.” Tr. Vol. II at 138-39 (emphasis

       added). Second, it appears from the record that defense counsel was able to

       thoroughly cross-examine the State’s expert witnesses without the benefit of

       having an opposing expert witness; he questioned the doctors at length about

       possible other causes of Hayden’s injuries, including a link to his DiGeorge

       Syndrome. Finally, we cannot ignore that Bruck did not make this request until

       the end of the first day of trial. Our supreme court has clearly stated, “[a] court

       need not appoint an expert if the defendant’s request is untimely or not made in

       good faith.” Scott v. State, 593 N.E.2d 198, 201 (Ind. 1992). It is difficult to

       fathom why Bruck could not have made this request at an earlier time, in a case

       that had been pending for over a year-and-a-half, and in which it should have

       been clear from the outset that medical evidence as to the cause of Hayden’s

       injury and death would be key to the State’s case. As such, although this is a

       case in which an expert might have been appointed, it was not abuse of

       discretion for the trial court to deny Bruck’s request for public funds to hire one.

       The request was untimely.


                                                  V. Sentence

[39]   Finally, Bruck challenges the propriety of his forty-two-and-a-half-year

       sentence. Although Bruck invokes Indiana Appellate Rule 7(B), his entire

       argument is based on claims that the trial court overlooked mitigating

       circumstances and relied upon improper aggravating circumstances. This is an

       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 26 of 30
       abuse of discretion claim, not an inappropriate sentence claim. See Anglemyer v.

       State, 868 N.E.2d 482, 490 (Ind. 2007), aff’d on r’hg, 875 N.E.2d 218 (Ind. 2007).

       Abuse of discretion and inappropriate sentence claims are to be analyzed

       separately; Bruck fails to make a cogent argument regarding whether his

       sentence is inappropriate and so he has waived review of that issue. 5 See Keller

       v. State, 987 N.E.2d 1099, 1121 n.11 (Ind. Ct. App. 2013), trans. denied. An

       abuse of discretion in identifying or not identifying aggravators and mitigators

       occurs if it is “‘clearly against the logic and effect of the facts and circumstances

       before the court, or the reasonable, probable, and actual deductions to be drawn

       therefrom.’” Anglemyer, 868 N.E.2d at 490 (quoting K.S. v. State, 849 N.E.2d

       538, 544 (Ind. 2006)).


[40]   One of the alleged mitigating circumstances Bruck claims the trial court

       overlooked is a conclusion by the probation department, based on the Indiana

       Risk Assessment System (“IRAS”), that he was at a low risk to reoffend.

       However, “[e]vidence-based offender assessment scores are not to be considered

       aggravating or mitigating factors to determine the gross length of a sentence.”

       Williams v. State, 997 N.E.2d 1154, 1165 (Ind. Ct. App. 2013) (citing Malenchik

       v. State, 928 N.E.2d 564, 575 (Ind. 2010)).6




       5
         Bruck’s reply brief contains slightly more argument with respect to Rule 7(B), but a party cannot raise new
       issues in a reply brief. See Curtis v. State, 948 N.E.2d 1143, 1148 (Ind. 2011).
       6
        Such tests and their scores may be used when determining the manner in which a sentence is to be served.
       Williams, 997 N.E.2d at 1165.

       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017          Page 27 of 30
[41]   Bruck also argues that the trial court should have found as mitigating that

       imprisonment would result in a hardship to his other dependents. Trial courts

       are not required to find a defendant’s incarceration would result in undue

       hardship on his dependents. Weaver v. State, 845 N.E.2d 1066, 1074 (Ind. Ct.

       App. 2006), trans. denied. “[T]his mitigator can properly be assigned no weight

       when the defendant fails to show why incarceration for a particular term will

       cause more hardship than incarceration for a shorter term.” Id. Here, Bruck

       was facing a minimum sentence of twenty years for his Level 1 felony

       conviction and an advisory term of thirty years. See Ind. Code 35-50-2-4(b). In

       terms of hardship to Bruck’s dependents, there is not a significant difference

       between a term of twenty and forty years. The trial court did not abuse its

       discretion in failing to recognize this factor as a mitigating circumstance.


[42]   Bruck also suggests that his alleged mental disability should have been

       considered by the trial court. A trial court does not have to accept a defendant’s

       claim of mental disability where the evidence regarding it is highly disputable in

       nature, weight, or significance. Smith v. State, 670 N.E.2d 7, 8 (Ind. 1996).

       Also, in order for a defendant’s mental history to be mitigating, “there must be

       a nexus between the defendant’s mental health and the crime in question.”

       Steinberg v. State, 941 N.E.2d 515, 534 (Ind. Ct. App. 2011), trans. denied. There

       is scant evidence in the record regarding the extent of Bruck’s alleged mental

       retardation or whether it had any nexus to the offenses here. He apparently

       dropped out of school in the 11th grade and was diagnosed as “mildly mentally

       retarded” at age eighteen. App. p. 40. We cannot say this small bit of


       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 28 of 30
       information required the trial court to find Bruck’s mental health to be a

       mitigating circumstance.7


[43]   Finally, Bruck contends the trial court erred in finding Hayden’s age to be an

       aggravating circumstance. He notes that the age of the victim is an element of

       the offense of Level 1 aggravated battery resulting in the death of a child. See

       I.C. § 35-42-2-1.5 (making aggravated battery a Level 1 felony if the victim is

       less than fourteen and the defendant is at least eighteen). However, the young

       age of a victim may be considered an aggravating circumstance where the

       victim is well below the age that is an element of the offense. See Kien v. State,

       782 N.E.2d 398, 414 (Ind. Ct. App. 2003) (holding trial court properly

       considered four-year-old molestation victim’s young age as an aggravating

       circumstance), trans. denied. The trial court did not abuse its discretion in

       considering Hayden’s age as an aggravating circumstance as it was well below

       the fourteen-year-old threshold for Level 1 felony aggravated battery resulting in

       the death of a child.


                                                    Conclusion
[44]   Bruck was not in custody when he gave his critical, inculpatory second

       statement to police and, therefore, he did not have to be given Miranda

       warnings beforehand. The trial court properly admitted his police statements




       7
        Bruck also suggests his mental retardation could have been related to a brain injury of some kind, but he
       directs us to no evidence in the record to support such a claim.

       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017         Page 29 of 30
       into evidence. There also was a sufficient corpus delicti to support introduction

       of those statements into evidence and to serve as a basis for Dr. Currie’s expert

       opinions. The trial court did not abuse its discretion in denying Bruck’s request

       for public funds to hire an expert witness, and it also did not abuse its discretion

       in sentencing Bruck. We affirm in all respects.


[45]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 10A05-1612-CR-2865 | October 16, 2017   Page 30 of 30
