Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                              May 22 2013, 10:32 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

LEANNA WEISSMANN                                 GREGORY F. ZOELLER
Lawrenceburg, Indiana                            Attorney General of Indiana

                                                 IAN MCCLEAN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ZEBULAN HILDEBRAND,
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )     No. 69A01-1210-CR-459
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE RIPLEY CIRCUIT COURT
                       The Honorable Jonathan Cleary, Special Judge
                             Cause No. 69C01-1109-FB-12




                                        May 22, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                Case Summary and Issues

       Zebulan Hildebrand appeals his conviction for aggravated battery as a Class B

felony.   Hildebrand presents three restated issues on appeal:         1) whether it was

fundamental error for the trial court to allow certain expert testimony; 2) whether

Hildebrand’s sentence is inappropriate in light of his character and the nature of the

offense; and 3) whether the judgment of conviction should be corrected to clarify his

conviction.   Concluding that there was no fundamental error in admission of the

testimony, that Hildebrand’s sentence is not inappropriate, and that the judgment of

conviction should be amended for clarification, we affirm in part and remand for

correction of the judgment of conviction.

                               Facts and Procedural History

       On August 12, 2011, Hildebrand brought his two-month-old son, S.H., into the

emergency room. Hildebrand indicated that he had been watching S.H. along with his

two older children, a one-year-old and a two-year-old, when the older children ran

through the room, knocked Hildebrand off balance, and Hildebrand dropped S.H.

Hildebrand stated that after being dropped, S.H. became limp and stopped breathing.

Upon arrival at the emergency room, S.H. was having difficulty breathing, and was

displaying abnormal limb movement. S.H. was rated as being a five on the Glasgow

coma scale; anything under an eight is considered to be a coma.             S.H. was then

transported to a larger children’s hospital in Cincinnati, which was better equipped to

deal with his condition.

       Upon arrival in Cincinnati, it was discovered that S.H. had subdural hematomas

(bleeding on the brain) on both sides of the brain, and a lacerated (torn) liver. It appears
                                             2
that at one point, Hildebrand told a hospital staff member that he had fallen on S.H. after

being tripped by the older children, but later he was not able to tell physicians whether or

not he had fallen on S.H. Hildebrand also could not recall whether he had given S.H.

chest compressions.            One of the physicians with whom Hildebrand spoke was Dr.

Makoroff.        Dr. Makoroff was concerned by the vagueness with which Hildebrand

described the incident, and the inconsistencies between his story and S.H.’s injuries, and

eventually she alerted police that she suspected child abuse. When Indiana State Police

Detective Rohlfing spoke to Hildebrand, Hildebrand stated that he had shaken S.H. In

his discussion with Detective Rohlfing, Hildebrand implied that the shaking had occurred

when he tried to catch S.H. mid-fall and had jerked him back up, but then lost his grip

again and S.H. fell to the floor.1 That same day, tests revealed that S.H. exhibited retinal

hemorrhages, and the pediatric ophthalmologist, Dr. West, diagnosed S.H. with abusive

head trauma. In talking to Detective Rohlfing, Hildebrand admitted that he had not

initially told doctors the whole story surrounding S.H.’s injuries, and admitted that his

failure to tell the doctors the truth was an attempt to help himself.

         On September 19, 2011, Hildebrand was charged with battery resulting in serious

bodily injury, a Class B felony, and aggravated battery, a Class B felony. In August

2012, Hildebrand was tried before a jury.                      At trial, Dr. Makoroff testified that she

diagnosed S.H. with child abuse or abusive head trauma; Dr. West testified that the

trauma to S.H. was non-accidental. The jury found Hildebrand guilty of both counts.




         1
           At some point, either at trial or before, Hildebrand indicated that he shook S.H. after he had fallen, in an
attempt to revive him.
                                                           3
       The court held a sentencing hearing in September 2012, and noted the following

considerations as impacting sentencing:

       The victim, [S.H.], was two (2) months old.
       The Defendant does not have a criminal history.
       The Defendant told Indiana State Police Detective Tracy Rohlfing that you
       do not admit to doing this, wanted to hide the fact that he almost killed
       [S.H.], he jerked the shit out of [S.H.] two to three times, and he thought he
       broke [S.H.]’s neck.
       The Defendant was in a position of trust, as he is the father of [S.H.], and
       was the sole caretaker in the home at the time the two month old was
       injured.

Brief of Appellant at 32.     The court also noted other considerations, including the

multiple injuries that S.H. was found to have sustained. The court sentenced Hildebrand

to sixteen years at the Department of Correction with two years suspended to probation.

This appeal followed. Additional facts will be supplied as necessary.

                                 Discussion and Decision

                                   I. Fundamental Error

                                  A. Standard of Review

       We will review errors not preserved at trial only if they rise to the level of

fundamental error. Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994). The burden of

proving that an alleged error occurred and that it constitutes fundamental error rests with

the defendant. Id. The fundamental error rule is extremely narrow, and applies only

when the error constitutes a blatant violation of basic principles, the harm or potential for

harm is substantial, and the resulting error denies the defendant fundamental due process.

Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct. App. 2010), trans. denied. Fundamental

error is defined as error so prejudicial to the rights of a defendant that a fair trial is

rendered impossible. Id. The mere fact that error occurred and that it was prejudicial
                                             4
will not satisfy the fundamental error rule. Id. In determining whether an alleged error

denied the defendant a fair trial, we must consider whether the resulting harm or potential

for harm is substantial. Townsend, 632 N.E.2d at 730. We look to the totality of the

circumstances and decide whether the error had substantial influence upon the verdict to

determine if the trial was unfair. Id.

                          B. Admission of Physician Testimony

       Hildebrand first challenges the testimony of Drs. Makoroff and West, claiming

that the testimony was too speculative because the doctors did not have all of the facts—

namely Hildebrand’s later admission that he shook S.H.—when they made their

diagnoses. Further, Hildebrand argues that the testimonies regarding S.H.’s injuries

being the result of child abuse or non-accidental trauma were in violation of Indiana

Evidence Rule 704 in that they went to the issue of intent. Because Hildebrand moved in

limine to prevent the testimony but did not object at the time of the testimony, any error

was not preserved for appeal. Raess v. Doescher, 883 N.E.2d 790, 796-97 (Ind. 2008).

We thus analyze the challenged testimonies under the fundamental error doctrine.

       Regarding the nature of the doctors’ conclusions, we disagree that the testimony

was too speculative. While Dr. Makoroff formed an initial opinion about the nature of

S.H.’s injuries, her diagnosis of child abuse did not solidify until Dr. West examined S.H.

and discovered retinal hemorrhaging. That was the same day that Detective Rohlfing

first spoke with Hildebrand and Hildebrand admitted to shaking S.H. It appears that that

additional background information did not change either doctor’s opinion as to the nature

of the injuries, either that day or at any time up to and including when they gave their

testimony at trial.
                                            5
       Moreover, a review of the record shows that Dr. Makoroff is a child abuse

specialist, and her transcript testimony was over one hundred and fifty pages. At trial,

she discussed her extensive background and experience, as well as her exam of S.H.’s

medical records and CT scans, examination of S.H. himself, and conversation with S.H.’s

parents. She specifically noted that she felt her job was not only to make sure that no

incidents of child abuse were missed, but also that child abuse was not mistakenly

diagnosed. She testified as to other possible causes for each of S.H.’s injuries, and then

explained how those possible causes had been ruled out or were not consistent with

Hildebrand’s account of the accident or with the totality of the combination of S.H.’s

particular injuries.   She went through each test and finding and explained how it

contributed to her analysis and how she reached her ultimate diagnosis. In sum, we are

convinced that her diagnosis was far from speculative.

       Dr. West’s testimony was shorter and more specific because she was the

ophthalmologist who examined S.H.’s eyes and discovered the retinal hemorrhages, and

her testimony focused on her findings. Nonetheless, she also discussed other possible

causes for the type and severity of S.H.’s hemorrhages, and then explained how those

other causes—for example, diabetes, CPR, or a fall as Hildebrand described it—had been

ruled out or were inconsistent, and she was left with abusive head trauma as the only

possibility within a medical certainty.      She was specifically asked whether the

hemorrhages could have been caused by a shaking to revive S.H., and she testified that

they could not. Her testimony was also not too speculative.

       Hildebrand also contends that the doctors’ testimony violated Indiana Evidence

Rule 704, arguing that the opinion that S.H.’s injuries were caused by child abuse rather
                                            6
than accidental injury went to intent and/or the ultimate issue. Indiana Evidence Rule

704 states:

       (a) Testimony in the form of an opinion or inference otherwise admissible
       is not objectionable merely because it embraces an ultimate issue to be
       decided by the trier of fact.
       (b) Witnesses may not testify to opinions concerning intent, guilt, or
       innocence in a criminal case; the truth or falsity of allegations; whether a
       witness has testified truthfully; or legal conclusions.

       Hildebrand cites no Indiana authority to support his argument, but cites to two

cases from other jurisdictions, Wyatt v. State, 405 So.2d 154 (Ala. Crim. App. 1981), and

State v. Sanchez-Alfonso, 293 P.3d 1011 (Or. 2012). However, in Wyatt, the court

disapproved of a doctor testifying that the child was a victim of child abuse because the

facts and medical findings were simple enough to be understood by a jury, and therefore

the ultimate determination of abuse was their conclusion to draw. 405 So.2d at 158. And

in Sanchez-Alfonso, the problem with the doctor’s testimony was not that it went to

whether the child had been abused, but that the doctor testified that the defendant was the

abuser. 293 P.3d at 1017.

       The State notes that Rule 704 specifically allows that testimony is not

objectionable merely because it goes to an ultimate issue. The State also cites to a case

more generally on point, Julian v. State, 811 N.E.2d 392 (Ind. Ct. App. 2004), trans.

denied, in which we determined that expert testimony was not in violation of Rule 704.

In that case, an arson case, an expert testified that the fire in question had been

intentionally set. We determined that because the expert did not testify that the defendant

had intentionally set the fire, the testimony was not in violation of Rule 704. Julian, 811

N.E.2d at 400. Likewise, here the doctors testified as to their diagnosis of child abuse,

                                            7
but neither doctor testified that Hildebrand had intentionally injured S.H. It is true that

Hildebrand admitted to being the only caretaker for S.H. that day. However, we agree

with the State that the fact that the doctors’ testimonies, if believed, and when combined

with other evidence, might have led the jury to conclude that Hildebrand intentionally

injured S.H., does not mean that the testimony was in violation of Rule 704. We

conclude that the doctors’ testimonies did not violate Rule 704.

       Because the doctors’ testimony as a whole was broad and thorough and took into

account S.H.’s multiple injuries and the backstory provided by Hildebrand, we conclude

that the testimony was not too speculative. Further, the testimony was not in violation of

Indiana Evidence Rule 704.      We conclude that there was no fundamental error in

allowing Drs. Makoroff and West to testify to their diagnoses of child abuse and non-

accidental trauma.

                             II. Appropriateness of Sentence

                                 A. Standard of Review

       We are empowered by Indiana Appellate Rule 7(B) to revise a sentence “if, after

due consideration of the trial court’s decision, the Court finds that the sentence is

inappropriate in light of the nature of the offense and the character of the offender.” The

burden is on the defendant to persuade us that his sentence has met this inappropriateness

standard of review. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). When

conducting this inquiry, we may look to any factors appearing in the record. Roney v.

State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied.




                                            8
                      B. Hildebrand’s Aggravated Battery Sentence

       Next, Hildebrand challenges his sentence, arguing that it is inappropriate in light

of his character and the nature of the offense. We disagree. Hildebrand was convicted of

aggravated battery as a Class B felony, and the statutory sentencing range was thus

between six and twenty years, with an advisory sentence of ten years. Ind. Code § 35-50-

2-5. Hildebrand was sentenced to sixteen years, with two years suspended to probation.

       Hildebrand argues that the nature of the offense was not egregious enough to

warrant his sentence, because S.H.’s injuries were “typical” of what one would expect of

a Class B felony. Br. of Appellant at 23. Under this reasoning, rarely would any offense

warrant an enhanced sentence. Moreover, Hildebrand downplays the continuing and

potential life-long repercussions of S.H.’s injuries, as it appears that while S.H. has

improved since being released from this hospital, he continues to be delayed in reaching

developmental milestones.

       Hildebrand also argues that his character suggests that a reduced sentence would

be more appropriate. Hildebrand notes his remorse for S.H.’s injuries, his supportive

family, and his lack of criminal history. He fails, however, to address his admission to

Detective Rohlfing that he initially lied to doctors about the accident in an effort to

protect himself. He also fails to address what we believe to be an important factor—that

the victim was his own two-month-old son. Abuse of that position of trust speaks to his

character, and perhaps says more than any later regret can. In light of the totality of the

nature of the offense and Hildebrand’s character, we conclude that the sentence imposed

by the trial court was not inappropriate.


                                            9
                                 III. Abstract of Judgment

        Finally, Hildebrand claims that the trial court orders are not clear as to whether he

was convicted of both charged counts, and that if both convictions stand, double jeopardy

is implicated. The trial court’s judgment of conviction and sentencing order notes that

Hildebrand was “convicted by a jury . . . of Count I . . . and Count II . . .” but that the

court

        now enters judgment of conviction for Count II: Aggravated Battery, a
        Class B felony and does not enter a conviction or sentence on Count I:
        Battery Resulting in Serious Bodily Injury, a Class B felony, because said
        convictions are based upon the same essential material facts and
        convictions and sentencing on both would violate double jeopardy.

Br. of Appellant at 31. The abstract of judgment notes Hildebrand’s sentence for Count

II but does not address Count I. The State does not object to remanding this case with

instructions to clarify that judgment of conviction was entered only for Count II of the

information. We agree with Hildebrand that a conviction can have ramifications even if a

defendant is not sentenced for it, and we remand to the trial court to correct the abstract

of judgment to indicate that judgment of conviction was not entered for Count I, battery

resulting in serious bodily injury.

                                         Conclusion

        Concluding that the expert testimony was not overly speculative and did not

violate Indiana Evidence Rule 704, that Hildebrand’s sentence is not inappropriate in

light of his character and the nature of the offense, and that the abstract of judgment

should be clarified, we affirm in part and remand to amend the abstract of judgment

consistent with this opinion.

        Affirmed in part and remanded.
                                             10
FRIEDLANDER, J., and CRONE, J., concur.




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