MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                    Aug 12 2015, 9:30 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                        Gregory F. Zoeller
Keffer Barnhart LLP                                      Attorney General of Indiana
Indianapolis, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Maria Martha Caceres,                                    August 12, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         36A01-1412-CR-518
        v.                                               Appeal from the Jackson Circuit
                                                         Court

State of Indiana,                                        The Honorable Richard W. Poynter,
                                                         Judge
Appellee-Plaintiff.                                      Cause No. 36C01-1306-FB-22




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A01-1412-CR-518| August 12, 2015   Page 1 of 15
[1]   Maria Martha Caceres (“Caceres”) appeals her convictions for battery as a class

      B misdemeanor and neglect of a dependent resulting in serious bodily injury, a

      class B felony. Caceres raises two issues which we revise and restate as:


             I.    Whether the trial court properly instructed the jury; and


            II.    Whether the evidence is sufficient to support her convictions.


      We affirm.


                                      Facts and Procedural History

[2]   Caceres and her husband, Luis Caceres (“Luis”), are the parents of D.C., born

      on March 9, 2012. Luis was frequently away from home for work, and Caceres

      was the primary caregiver for D.C. At his regularly scheduled infant

      assessments, D.C.’s pediatrician, Dr. Courtney Kleber, noted that he was doing

      well, his demeanor and extremities were normal, and he showed no signs of

      mistreatment. On November 7, 2012, Dr. Kleber saw D.C. for an ear infection,

      but, despite the ear infection, he was “acting okay . . . and . . . sleeping okay.”

      Transcript at 38. Dr. Kleber started D.C. on an antihistamine out of concern

      that some of the symptoms he was experiencing at that time were caused by

      allergies.


[3]   On November 30, 2012, Caceres took D.C. to Schneck Medical Center

      (“Schneck”) due to concern about his respiratory issues. While being treated at

      Schneck, D.C. had a chest x-ray taken. The radiologist’s report concerning the




      Court of Appeals of Indiana | Memorandum Decision 36A01-1412-CR-518| August 12, 2015   Page 2 of 15
      x-ray stated that “[a] small infiltrate or pneumonia is not excluded” and that the

      x-ray was an “[o]therwise unremarkable exam.” State’s Exhibit 1.


[4]   On December 17, 2012, D.C. was again seen by Dr. Kleber, who discovered a

      bump on his right clavicle called a callus 1 during his regularly scheduled “nine

      month well-check.” Transcript at 39. Dr. Kleber then sent D.C. to Schneck to

      have an x-ray taken of his clavicle, which was taken later that day. That x-ray

      revealed an oleo fracture2 of the right clavicle, and the report accompanying the

      x-ray noted that “a fracture involving the proximal right humerus is difficult to

      exclude,” State’s Exhibit 1, because the humerus was “not well evaluated” on

      that x-ray. Transcript at 48. The radiologist’s report on the x-ray exam

      concluded by stating “[n]on-accidental trauma” was not excluded as a cause of

      the clavicle fracture. State’s Exhibit 1.


[5]   On December 18, 2012, Dr. Kleber called Caceres to discuss the results of the

      x-ray. Caceres was tearful and cooperative, and Dr. Kleber noted that “she was

      being very appropriate for finding out that her child had, uh, another broken

      bone.” Transcript at 78. Dr. Kleber had Caceres return D.C. to Schneck that

      day for an x-ray of his right humerus, which revealed a fracture that “look[ed]

      like that it had been there a while.” Id. at 49. On December 19, 2012, Caceres




      1
        Callus is defined as “[n]ew growth of incompletely organized bony tissue surrounding the bone ends in a
      fracture; a part of the reparative process.” BLACKISTON’S GOULD MEDICAL DICTIONARY 214 (Alfonso R.
      Gennaro, et al. eds., 4th ed. 1979).
      2
       Dr. Kleber testified that “it’s called a[n] oleo fracture because of the callus formation that’s there.”
      Transcript at 48.

      Court of Appeals of Indiana | Memorandum Decision 36A01-1412-CR-518| August 12, 2015                  Page 3 of 15
      had an in-person follow-up appointment with Dr. Kleber to discuss the x-rays,

      during which Dr. Kleber discussed the possibility that D.C. had a bone

      malignancy. Dr. Kleber also told Caceres that she had arranged for D.C. to

      have a long bone survey and an appointment with a pediatric orthopedic

      surgeon at St. Vincent’s Hospital in Indianapolis.


[6]   On December 20, 2012, D.C. was examined by Dr. Courtney Demetris, a

      pediatric hospitalist and a member of the Child Abuse Review Team at the

      Peyton Manning Children’s Hospital at St. Vincent’s in Indianapolis. After

      reviewing the results of the long bone survey, Dr. Demetris confirmed that D.C.

      had a transverse fracture of the right clavicle and right humerus, and also

      discovered that he had a spiral fracture of the left humerus. Dr. Demetris then

      conducted additional testing to “look into what was going on with [D.C.]

      medically,” which included another full long bone survey conducted two weeks

      later. Id. at 101. After reviewing the results of the various tests performed on

      D.C., Dr. Demetris concluded that he had “normal bones.” Id. at 121. Dr.

      Demetris’s diagnosis was “[n]on-accidental trauma, or child abuse.” Id. at 111.


[7]   On December 20, 2012, Indiana State Police Detective Richard Roseberry was

      assigned to investigate the potential child abuse. He first gathered information

      from the nurses and doctors at the hospital, and then proceeded to interview

      Caceres and Luis, who provided him with the names of all the people with

      whom D.C. had contact. At this time, Caceres expressed no concern that any

      of these people or Luis were harming her child. After conducting an



      Court of Appeals of Indiana | Memorandum Decision 36A01-1412-CR-518| August 12, 2015   Page 4 of 15
       investigation into the other people with whom D.C. had contact, Detective

       Roseberry scheduled a follow-up interview with Caceres for March 4, 2013.


[8]    On March 4, Caceres was interviewed by Detective Sergeant Delmer Gross,

       and then by Detective Roseberry. Over an hour after her interview began,

       Detective Roseberry stated “you got pressed to your breaking point, and you

       broke. And, [D.C.]’s injuries are the result,” which was followed by the

       question “[w]ould, would you agree to that fact?” State’s Exhibit 3(A) at

       1:27:55; State’s Exhibit 3(B) at 25. Caceres sighed and responded “yeah.”

       State’s Exhibit 3(A) at 1:28:15; State’s Exhibit 3(B) at 25. Caceres went on to

       say “it only happened when I got really, really frustrated with him . . . .”

       State’s Exhibit 3(A) at 1:29:10; State’s Exhibit 3(B) at 26.


[9]    On June 14, 2013, the State charged Caceres with battery resulting in serious

       bodily injury to a person less than fourteen years old, a class B felony, and

       neglect of a dependent resulting in serious bodily injury, a class B felony. On

       October 16, 2014, a jury trial was held.


[10]   At trial, when asked her opinion on the approximate date the injuries occurred

       to D.C., Dr. Demetris stated that she had reviewed the x-ray taken on

       November 30, 2012, and had concluded that the fracture of D.C.’s clavicle was

       visible in that x-ray. In addition, she had reviewed the first and second long

       bone survey to assess the state of repair in D.C.’s bones, and, by doing so, she

       was able to estimate the date of injury. She noted that no healing process had

       yet started at the time of the November 30 x-ray, which indicated to her that


       Court of Appeals of Indiana | Memorandum Decision 36A01-1412-CR-518| August 12, 2015   Page 5 of 15
       those fractures were “days, or less than a week or so old” at that time.

       Transcript at 114. She testified that, by comparing the initial x-ray to the

       follow-up x-rays, the fractures had occurred within a week of November 30,

       2012.


[11]   When asked about the potential mechanisms for such injuries, Dr. Demetris

       testified that “typically it takes quite a bit of force to break [humerus] bones in

       an infant,” but that she could not say exactly what happened to cause the

       fractures. Id. at 116. She also testified that these kinds of injuries “do not occur

       with normal infant handling,” that D.C. would have been in extreme pain, and

       that, because the fractures went untreated, his bones would have been “grinding

       on the other ends of the bones,” which is “incredibly painful.” Id. at 120-121,

       126. When she was asked how the person that created the injuries would know

       that D.C. was seriously injured, Dr. Demetris responded that “the amount of

       force that would of [sic] been required to have been applied to the bones of

       [D.C.], to have resulted in these fractures, would have been recognized as

       excessive by any reasonable caregiver,” that D.C. would have had “significant

       crying and outcry,” and that he would not have been using his arms. Id. at 131-

       132. Dr. Demetris testified that during the December 20, 2014 hospital visit

       D.C.’s parents had confirmed to her that he was not crawling or using his arms

       “around the few days of the thirtieth into the next several days.” Id. at 133.


[12]   After the State rested its case-in-chief, the parties and the court discussed final

       jury instructions, including Caceres’s Proposed Final Instruction No. 3, which

       read:

       Court of Appeals of Indiana | Memorandum Decision 36A01-1412-CR-518| August 12, 2015   Page 6 of 15
        Some of you have heard the phrases “circumstantial evidence” and
        “direct evidence.”
        Direct evidence is the testimony of someone who claims to have
        personal knowledge of the commission of the crime which has been
        charged, such as an eyewitness. Circumstantial evidence is the proof
        of a series of facts which tend to show whether the accused is guilty or
        not guilty. The law makes no distinction between the weight to be
        given either direct or circumstantial evidence. You should decide how
        much weight to give any evidence. All the evidence in this case,
        including the circumstantial evidence, should be considered by you in
        reaching your verdict.
        However, circumstantial evidence alone will not justify a finding of
        guilty unless the circumstances are entirely consistent with the
        Accused’s guilt, wholly inconsistent with any reasonable theory of the
        Accused’s innocence, and are so convincing as to exclude a reasonable
        doubt of the Accused’s guilt.


Appellant’s Appendix at 44. Although the trial court stated that it was going to

read the first two paragraphs of this instruction, but not the third, the following

instruction on circumstantial evidence was ultimately read to the jury:

        The parties of this case may prove a fact by one or, by one of two types
        of evidence. Direct evidence or circumstantial evidence. Direct
        evidence is direct proof of a fact. Circumstantial evidence [is] an
        indirect proof of a fact. For example, direct evidence that an animal
        ran in the snow might be the testimony of someone who actually saw
        the animal run in the snow. On the other hand, circumstantial
        evidence that animal ran in the snow might be the testimony of
        someone who saw the animal’s tracks in the snow. It is not necessary
        that any fact be proved by direct evidence. You may consider both
        direct evidence and circumstantial evidence as proof.


Transcript at 282-283.




Court of Appeals of Indiana | Memorandum Decision 36A01-1412-CR-518| August 12, 2015   Page 7 of 15
[13]   On October 15, 2014, a jury found Caceres guilty of the lesser included charge

       of battery as a class B misdemeanor, and neglect of a dependent resulting in

       serious bodily injury, a class B felony. On November 17, 2014, the court

       sentenced Caceres to 180 days for battery as a class B misdemeanor. The court

       sentenced Caceres on the neglect conviction to ten years with four years

       suspended to probation. The court ordered that Caceres serve her first two

       years in the appropriate penal facility followed by four years on home detention

       as a direct placement supervised through the Jackson Jennings Community

       Corrections Department. The court ordered that the sentences be served

       concurrent with each other.


                                                   Discussion

                                                         I.


[14]   The first issue is whether the court abused its discretion in instructing the jury.

       Generally, “[t]he purpose of an instruction is to inform the jury of the law

       applicable to the facts without misleading the jury and to enable it to

       comprehend the case clearly and arrive at a just, fair, and correct verdict.”

       Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind. 2003), cert. denied, 540 U.S. 1150,

       124 S. Ct. 1145 (2004). Instruction of the jury is generally within the discretion

       of the trial court and is reviewed only for an abuse of that discretion. Id. at

       1163-1164. When reviewing the refusal to give a proposed instruction, this

       court considers: (1) whether the proposed instruction correctly states the law;

       (2) whether the evidence supports giving the instruction; and (3) whether other

       instructions already given cover the substance of the proposed instruction.
       Court of Appeals of Indiana | Memorandum Decision 36A01-1412-CR-518| August 12, 2015   Page 8 of 15
       Driver v. State, 760 N.E.2d 611, 612 (Ind. 2002). To constitute an abuse of

       discretion, the instruction given must be erroneous, and the instructions taken

       as a whole must misstate the law or otherwise mislead the jury. Benefiel v. State,

       716 N.E.2d 906, 914 (Ind. 1999), reh’g denied, cert. denied, 531 U.S. 830, 121 S.

       Ct. 83 (2000).


[15]   Before a defendant is entitled to a reversal, she must affirmatively show that the

       erroneous instruction prejudiced her substantial rights. Lee v. State, 964 N.E.2d

       859, 862 (Ind. Ct. App. 2012) (citing Gantt v. State, 825 N.E.2d 874, 877 (Ind.

       Ct. App. 2005)), trans. denied. An error is to be disregarded as harmless unless it

       affects the substantial rights of a party. Id. (citing Oatts v. State, 899 N.E.2d

       714, 727 (Ind. Ct. App. 2009); Ind. Trial Rule 61).


[16]   Caceres argues that the trial court erred by determining that the State had

       presented direct evidence of the actus reus element of the charged crimes and by

       failing to provide an instruction on a “reasonable hypothesis of innocence.” In

       Hampton v. State, 961 N.E.2d 480, 484-491 (Ind. 2012), the Indiana Supreme

       Court discussed the circumstances under which a defendant is entitled to, and

       required to receive, a “reasonable hypothesis of innocence” instruction in

       regards to circumstantial evidence. The Court stated that such an 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. Additionally, the Court stated:



       Court of Appeals of Indiana | Memorandum Decision 36A01-1412-CR-518| August 12, 2015   Page 9 of 15
               [W]e find it inappropriate to include language burdening the jury with
               the task of deciding whether to apply the reasonable theory of
               innocence standard. Whether an instruction is supported by the
               evidence is a matter for the trial court to determine, and it need not be
               reevaluated by the jury.


       Id. Thus, where there is any direct evidence of the actus reus of the charged

       offense, as determined by the court, a “reasonable hypothesis of innocence”

       instruction is inappropriate. See id. The Court’s discussion on direct and

       circumstantial evidence in Hampton provided:

               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 636 (9th ed. 2009). Conversely,
               circumstantial evidence is “[e]vidence based on inference and not on
               personal knowledge or observation.” Id. Indiana case law has
               expressed it thusly: “Direct evidence means evidence that directly
               proves a fact, without an inference, and which in itself, if true,
               conclusively establishes that fact. Circumstantial evidence means
               evidence that proves a fact from which an inference of the existence of
               another fact may be drawn.” Gambill [v. State], 675 N.E.2d [668,] 675
               [(Ind. 1996), reh’g denied].


       Id. at 489.


[17]   Caceres argues that there was no direct evidence of either of the charged crimes,

       and that a “reasonable hypothesis of innocence” instruction was required under

       Hampton. While discussing the proposed jury instructions, the trial court stated

       that “this is not a completely circumstantial evidence case . . . .” Transcript at

       195. We agree. Caceres’s admission that she was the cause of D.C.’s injuries

       constitutes direct evidence of the act element of both the battery and neglect

       charges, because it speaks to whether she touched D.C. in a rude, insolent, or
       Court of Appeals of Indiana | Memorandum Decision 36A01-1412-CR-518| August 12, 2015   Page 10 of 15
       angry manner and whether she placed him in a situation that endangered his

       health. See Carr v. State, 728 N.E.2d 125, 131 (Ind. 2000) (holding that the trial

       court properly refused the defendant’s tendered instruction dealing with

       circumstantial evidence because a defendant’s confession of guilt to another

       person is direct evidence and a witness testified that the defendant had told her

       shortly after the time of the murder that he had “hurt and choked” the victim);

       Clemens v. State, 610 N.E.2d 236, 244 (Ind. 1993) (plurality opinion) (finding

       that a defendant’s admission that he was present when the victim sustained his

       injuries constituted direct evidence), reh’g denied. Accordingly, the trial court

       was not required to issue a jury instruction regarding a “reasonable hypothesis

       of innocence.” See Hampton, 961 N.E.2d at 490. Therefore, we conclude that

       the trial court’s decision not to provide such an instruction did not prejudice

       Caceres’s substantial rights, and that the trial court did not abuse its discretion.3


                                                             II.


[18]   The next issue is whether the evidence is sufficient to support Caceres’s

       convictions. When reviewing claims of insufficiency of the evidence, we do

       not reweigh the evidence or judge the credibility of witnesses. Gray v. State, 903




       3
         To the extent that Caceres argues the jury’s verdicts are inconsistent and thus demonstrate the possibility
       that it misunderstood the instructions given to it, we note that the Indiana Supreme Court has acknowledged
       that this is one possible interpretation of such verdicts. See Beattie v. State, 924 N.E.2d 643, 648 (Ind. 2010)
       (“When a jury returns logically inconsistent verdicts, such a result could mean that it misunderstood its
       instructions.”). However, “it is more likely that the jury chose to exercise lenity, refusing to find the
       defendant guilty of one or more additionally charged offenses, even if such charges were adequately proven
       by the evidence. Such right of a criminal jury to decline to convict is well recognized.” Id. (citations
       omitted).

       Court of Appeals of Indiana | Memorandum Decision 36A01-1412-CR-518| August 12, 2015               Page 11 of 15
       N.E.2d 940, 943 (Ind. 2009). Rather, we look to the evidence and the

       reasonable inferences therefrom that support the verdict. Id. We will affirm the

       conviction if there exists evidence of probative value and reasonable inferences

       drawn from that evidence upon which a reasonable trier of fact could find the

       defendant guilty beyond a reasonable doubt. Id.


[19]   The offense of battery as a class B misdemeanor is governed by Ind. Code § 35-

       42-2-1, 4 which at the time of the offense provided that “[a] person who

       knowingly or intentionally touches another person in a rude, insolent, or angry

       manner commits battery, a Class B misdemeanor.” Caceres argues that there

       is no evidence she battered her child.


[20]   Looking at the evidence most favorable to the battery verdict, the record reveals

       that Caceres admitted to having been the cause of D.C.’s injuries, and that she

       caused those injuries because she was frustrated with her child. Furthermore,

       Dr. Demetris testified that D.C.’s injuries would not have been caused by

       “normal infant handling,” that it would have taken “quite a bit of force” to

       break the humerus bones of an infant, that the force required to cause such

       injuries “would have been recognized as excessive by any reasonable

       caregiver,” and that his injuries were caused by “non-accidental trauma, or

       child abuse.” Transcript at 111, 116, 120-121, 131. Based upon the record, we

       conclude that the State presented evidence of a probative nature from which a




       4
           Subsequently amended by Pub. L. Nos. 158-2013, § 420 and 147-2014, § 2 (eff. July, 1 2014).


       Court of Appeals of Indiana | Memorandum Decision 36A01-1412-CR-518| August 12, 2015              Page 12 of 15
       reasonable trier of fact could have found that Caceres committed battery as a

       class B misdemeanor beyond a reasonable doubt.


[21]   We turn next to Caceres’s argument that the evidence is not sufficient to

       support her conviction for neglect of a dependent resulting in serious bodily

       harm, because she was not aware of a high probability that D.C. needed

       medical care. The offense of neglect of a dependent resulting in serious bodily

       injury is governed by Ind. Code § 35-46-1-4,5 which at the time of the offense

       provided:

               (a) A person having the care of a dependent, whether assumed
               voluntarily or because of a legal obligation, who knowingly or
               intentionally:
                        (1) places the dependent in a situation that endangers the
                        dependent’s life or health;
                                                  *****
               commits neglect of a dependent, a class D felony.
               (b) However, the offense is:
                                                  *****
                        (2) a Class B felony if it is committed under subsection (a)(1),
                        (a)(2), or (a)(3) and results in serious bodily injury; . . . .




       5
        Subsequently amended by Pub. L. No. 193-2013, § 6 (eff. July 1, 2013) and Pub. L. Nos. 158-2013, § 550
       and 168-2014, § 85 (eff. July 1, 2014).

       Court of Appeals of Indiana | Memorandum Decision 36A01-1412-CR-518| August 12, 2015         Page 13 of 15
       “Serious bodily injury” is defined by Ind. Code § 35-31.5-2-292, 6 which, in

       relevant part, provides that “‘[s]erious bodily injury’ means bodily injury that

       creates a substantial risk of death or that causes: . . . (3) extreme pain; . . . .”


[22]   The evidence most favorable to Caceres’s conviction for neglect of a dependent

       resulting in serious bodily injury includes her admission that she caused D.C.’s

       injuries and Dr. Demetris’s testimony that the force required to cause D.C.’s

       fractures “would have been recognized as excessive by any reasonable

       caregiver,” that D.C. would have had “significant crying and outcry,” that he

       would have been in extreme pain because his bones would have been “grinding

       on the other ends of bones,” that Caceres confirmed to her that he was not

       crawling or using his arms “around the few days of the thirtieth into the next

       several days,” and that Caceres did not seek medical treatment for the fracture

       injuries to D.C. until Dr. Kleber noticed the callus on his clavicle more than

       two weeks after the injuries occurred. Transcript at 126, 131-133. Based upon

       the record, we conclude that the State presented evidence of a probative nature

       from which a reasonable trier of fact could have found that Caceres committed

       neglect of a dependent resulting in serious bodily injury beyond a reasonable

       doubt.


                                                        Conclusion

[23]   For the foregoing reasons, we affirm Caceres’s convictions.




       6
           As added by Pub. L. No. 114-2012, § 67 (Eff. July 1, 2012).


       Court of Appeals of Indiana | Memorandum Decision 36A01-1412-CR-518| August 12, 2015   Page 14 of 15
[24]   Affirmed.


       Friedlander, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 36A01-1412-CR-518| August 12, 2015   Page 15 of 15
