                                                                  FILED
                                                              Jul 21 2016, 7:06 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                        Gregory F. Zoeller
Anderson, Indiana                                          Attorney General of Indiana

                                                           Ian McLean
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Mikel An Krueger,                                          July 21, 2016
Appellant-Defendant,                                       Court of Appeals Cause No.
                                                           82A01-1509-CR-1392
        v.                                                 Appeal from the Vanderburgh
                                                           Superior Court
State of Indiana,                                          The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           82D02-1403-FB-361



Barnes, Judge.




Court of Appeals of Indiana | Opinion 82A01-1509-CR-1392 | July 21, 2016                 Page 1 of 7
                                               Case Summary
[1]   Mikel An Krueger appeals her conviction for Class B felony neglect of a

      dependent. We affirm.


                                                       Issue
[2]   Krueger raises one issue, which we restate as whether the evidence is sufficient

      to sustain her conviction.


                                                       Facts
[3]   A.G. was born in March 2011 to Krueger and Kenneth Galloway. Krueger and

      Galloway were not married, and A.G. lived with Krueger. Galloway and

      several members of his extended family have been diagnosed with primary

      pulmonary hypertension, a condition that causes the blood pressure within the

      arteries that supply the lungs to be elevated. A patient with pulmonary

      hypertension will become easily fatigued and can have difficulty breathing.

      They may have “intermittent spells where they look blue.” Tr. p. 234. Sudden

      events, such as fainting or cardiac arrest, are more common as the disease

      progresses over months or years.


[4]   Beginning in May 2011, A.G. began suffering from episodes in which he would

      suddenly make a choking noise, turn blue, become stiff, and lose consciousness.

      Krueger was with A.G. during each of the episodes. Dr. Julio Morera, a

      pediatric cardiologist, treated A.G. in Evansville, but A.G. continued having

      the episodes. A.G. was lifelined to Riley Hospital for Children in Indianapolis,

      and he underwent a heart catheterization in July 2011. The heart
      Court of Appeals of Indiana | Opinion 82A01-1509-CR-1392 | July 21, 2016   Page 2 of 7
      catheterization showed that A.G. had mild pulmonary hypertension. A.G. was

      treated with sildenafil, a medication that alleviates pulmonary hypertension by

      dilating blood vessels. However, Krueger decided to stop giving the medication

      to A.G. because she claimed that he was experiencing acid reflux as a side

      effect. A.G.’s episodes continued, and in June 2012, Dr. Morera placed A.G.

      on an EKG monitor. The monitor showed A.G.’s heart quicken and then stop

      for a few seconds. A.G. was again transported to Riley Hospital, and a

      pacemaker was implanted. Two days after the pacemaker was implanted, A.G.

      had another episode. Because the doctors were concerned about the

      functioning of the pacemaker, they performed an exploratory surgery, which

      did not reveal a mechanical problem with the pacemaker.


[5]   A.G. was later referred to Dr. Chris Johnsrude at Kosair Children’s Hospital in

      Louisville. Dr. Johnsrude performed extensive testing on A.G. to determine

      the cause of the episodes. He determined that A.G.’s pulmonary hypertension

      was too mild to be causing the episodes. He also determined that the

      pacemaker was unnecessary. Dr. Johnsrude placed A.G. on continuous EKG

      monitoring, which revealed no abnormalities. A video EEG was also

      performed, which also revealed no abnormalities. Krueger asked if A.G. could

      be removed from the monitoring so that she could give him a bath. While

      Krueger was alone with A.G. giving him a bath, A.G. had another episode.

      Dr. Johnsrude was “despondent” that A.G. had an episode without the

      monitoring equipment being connected. Id. at 180. Dr. Johnsrude suggested

      sending A.G. home with video monitoring equipment to record an episode, but


      Court of Appeals of Indiana | Opinion 82A01-1509-CR-1392 | July 21, 2016   Page 3 of 7
      Krueger refused to permit the video monitoring. At that point, Krueger’s

      mother, Staci Krueger, approached Dr. Johnsrude and expressed suspicion that

      Krueger was somehow causing A.G.’s episodes.


[6]   Dr. Johnsrude explained that A.G.’s episodes could be triggered by an adult in

      several different ways by pressing on certain locations on A.G.’s body for a few

      seconds. A.G. was referred to Kosair’s pediatric forensic medicine team, which

      conducts child abuse examinations. Krueger was interviewed by detectives and

      the Department of Child Services (“DCS”). DCS took custody of A.G. and

      placed him with Galloway.1 Krueger was allowed supervised visitations. Grant

      Wargel supervised a visitation on September 26, 2012. The visit was

      videotaped. At one point during the visit, Krueger looked directly at the video

      camera. A few minutes later, she moved to a location on a couch that was in

      one of the camera’s blind spots. Wargel was taking notes and was not watching

      Krueger, and Krueger said, “Grant I think he’s having a spell. I didn’t do it.”

      Tr. p. 256. A.G. was stiff and unconscious.


[7]   DCS referred Krueger to Dr. Susanne Blix, who diagnosed Krueger with

      factitious disorder by proxy, which was formerly known as Munchausen

      Syndrome by Proxy. Factitious disorder by proxy involves a caretaker




      1
       Krueger appealed the determination that A.G. and her other child were children in need of services. We
      affirmed the trial court’s determination. See In re A.G., 6 N.E.3d 952 (Ind. Ct. App. 2014).

      Court of Appeals of Indiana | Opinion 82A01-1509-CR-1392 | July 21, 2016                       Page 4 of 7
       exaggerating or causing medical symptoms in a dependent to gain attention,

       validation, or some other perceived benefit.


[8]    The State charged Krueger with Class B felony aggravated battery, Class B

       felony battery resulting in serious bodily injury to a person less than fourteen

       years of age, and Class B felony neglect of a dependent resulting in serious

       bodily injury. A jury trial was held in July 2015. The jury found Krueger guilty

       of Class B felony neglect of a dependent but not guilty of the other charges.

       The trial court sentenced Krueger to ten years with eight years executed in the

       Department of Correction, one year on work release, and one year on

       probation.


                                                     Analysis
[9]    Krueger argues that the evidence is insufficient to sustain her conviction for

       neglect of a dependent. When reviewing the sufficiency of the evidence needed

       to support a criminal conviction, we neither reweigh evidence nor judge witness

       credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider

       only the evidence supporting the judgment and any reasonable inferences that

       can be drawn from such evidence.” Id. We will affirm if there is substantial

       evidence of probative value such that a reasonable trier of fact could have

       concluded the defendant was guilty beyond a reasonable doubt. Id.


[10]   At the time of Krueger’s offense, Indiana Code Section 35-46-1-4 governed the

       offense of neglect of a dependent and provided: “A person having the care of a

       dependent, whether assumed voluntarily or because of a legal obligation, who

       Court of Appeals of Indiana | Opinion 82A01-1509-CR-1392 | July 21, 2016   Page 5 of 7
       knowingly or intentionally: (1) places the dependent in a situation that

       endangers the dependent’s life or health . . . commits neglect of a dependent.”

       Ind. Code § 35-46-1-4(a). The offense was a Class B felony if it resulted in

       serious bodily injury. I.C. § 35-46-1-4(b)(2).


[11]   Krueger argues that the evidence is insufficient to sustain her conviction

       because the case against her was based on “sheer conjecture and surmise.”

       Appellant’s Br. p. 17. According to Krueger, the State failed to present

       sufficient evidence that a crime was even committed. Krueger points out that,

       contrary to Dr. Johnsrude’s testimony, Dr. Morera testified that A.G.’s

       episodes were consistent with primary pulmonary hypertension. She also

       points out that no one saw Krueger inflict harm on A.G. or touch him

       inappropriately. Krueger’s ex-boyfriend, Christopher Crowe, testified that he

       was present during one of the episodes and that Krueger was driving when the

       episode started. Further, even after A.G. was removed from Krueger’s care, he

       allegedly had another three episodes while in the care of Krueger’s mother,

       Staci. Contrary to Dr. Blix’s testimony, two other psychologists found no

       indication that Krueger had factitious disorder by proxy. Krueger contends that

       her argument is not an invitation to reweigh the evidence; rather, she contends

       a conviction may not stand on mere speculation.


[12]   The State argues that Krueger does, in fact, request that this court reweigh the

       evidence. We agree. A.G. was diagnosed with mild primary pulmonary

       hypertension based on extensive testing, and Dr. Johnsrude testified that A.G.’s

       episodes were not consistent with that diagnosis. None of the treatments were

       Court of Appeals of Indiana | Opinion 82A01-1509-CR-1392 | July 21, 2016     Page 6 of 7
       effective in stopping the episodes. Dr. Johnsrude and his team of physicians

       examined and ruled out every reasonable medical cause for the episodes. After

       A.G. was removed from Krueger’s care in September 2012, he lived with

       Galloway and Galloway’s family and then with Galloway and his girlfriend.

       Galloway and his mother testified that, since being removed from Krueger,

       A.G. had not had any episodes where he turned blue and lost consciousness.

       Although Krueger’s mother and grandfather testified regarding three incidents

       while A.G. was in their care, the State points out that the jury was entitled to

       find them biased.


[13]   We acknowledge that there were differing expert opinions presented here and

       that some witness testimony conflicted with other witness testimony. However,

       resolving those conflicts was the jury’s responsibility. On appeal, we cannot

       reweigh the evidence or judge the credibility of the witnesses. Bailey, 907

       N.E.2d at 1005. We conclude that the State presented sufficient evidence to

       show that Krueger knowingly or intentionally placed A.G. in a situation that

       endangered his life or health and resulted in serious bodily injury.


                                                   Conclusion
[14]   The evidence is sufficient to sustain Krueger’s conviction for Class B felony

       neglect of a dependent. We affirm.


[15]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.


       Court of Appeals of Indiana | Opinion 82A01-1509-CR-1392 | July 21, 2016   Page 7 of 7
