MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Mar 21 2017, 6:42 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Oliver Younge                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Christopher Schafer,                                     March 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1605-CR-1143
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Grant W.
Appellee-Plaintiff.                                      Hawkins, Judge
                                                         Trial Court Cause No.
                                                         49G05-1409-MR-42291



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 1 of 31
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Christopher Schafer (Schafer), appeals his conviction for

      murder, a felony, Ind. Code § 35-42-1-1(1); and battery with death of a person

      less than fourteen, a Level 2 felony, I.C. § 35-42-2-1(b)(1).


[2]   We affirm.


                                                  ISSUES
[3]   Schafer raises seven issues on appeal, which we consolidate and restate as the

      following six issues:


          (1) Whether the trial court disclosed bias and a lack of impartiality when

              making certain statements during the proceedings;

          (2) Whether the trial court abused its discretion by admitting Schafer’s

              statements to the police officers into evidence;

          (3) Whether the trial court abused its discretion by admitting certain

              evidence of prior misconduct pursuant to Indiana Rules of Evidence

              404(b);

          (4) Whether the trial court abused its discretion by admitting Schafer’s jail

              phone call to his mother into evidence;

          (5) Whether the State failed to preserve certain materially exculpatory

              evidence; and

          (6) Whether the State presented sufficient evidence beyond a reasonable

              doubt to support Schafer’s conviction for murder and battery with death

              of a person less than fourteen.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 2 of 31
                      FACTS AND PROCEDURAL HISTORY
[4]   On September 2, 2014, Schafer and Skye Johnson (Johnson) lived in

      Indianapolis, Indiana, with their ten-week old daughter, G.S., and Johnson’s

      two children from a previous relationship, two-year old K.G. and one-year-old

      J.G. Johnson watched the children during the day and worked evening shifts at

      a local restaurant, while Schafer worked opposite shifts.


[5]   On August 29, 2014, Johnson took G.S. to the hospital where a CT scan was

      taken. G.S. was diagnosed with acid reflux disease. While she was not

      prescribed any medication, Johnson received suggestions of alternate ways of

      feeding G.S. to help with her acid reflux. The hospital personnel also noted a

      bruise on G.S.’s eyebrow and Johnson spoke with a social worker. Johnson

      explained that the bruise was the result of being hit with a plastic block by J.G.


[6]   On September 2, 2014, Johnson’s friend, Aaron Hawkins (Hawkins), visited the

      apartment and brought lunch for the family. Hawkins did not observe any

      injuries on G.S. when he left at 1:00 p.m. During the afternoon, Johnson

      breastfed G.S. at 1:00 p.m. and again at 4:00 p.m., right before she left for work.

      Schafer arrived home from work at 4:15 p.m. and, at that time, G.S. was asleep

      in the swing in the living room. At approximately 8:45 p.m., Johnson began

      receiving text messages from Schafer, expressing his growing frustration with

      G.S. because he had problems feeding her. Johnson suggested different ideas

      on how to feed her, and around 10:30 p.m. Schafer let her know that G.S. was

      eating.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 3 of 31
[7]   Johnson finished her shift around midnight but lingered with co-workers in the

      parking lot for about thirty to forty-five minutes before driving home, ignoring

      several phone calls from Schafer. When she was on her way home, she

      accepted a call from Schafer, who informed her that G.S. was “unresponsive”

      and “he didn’t know what to do.” (Transcript p. 143). Johnson advised

      Schafer to call 911. When she arrived home, the police were not yet there. As

      she ran inside the apartment, Schafer was on the phone with the paramedics

      who were giving him instructions on performing CPR. G.S. was on the counter

      on the right side of the stove, and noticing “the color of skin, [Johnson] knew

      [G.S.] had passed away.” (Tr. p. 145). Johnson ran back outside to wait for

      the police and paramedics to arrive.


[8]   When the police and paramedics arrived, Schafer and Johnson were advised to

      wait outside. Schafer told Johnson that he “had gotten [G.S.] to fall asleep on

      his chest while he was laying on the couch.” (Tr. p. 146). Because he didn’t

      want to disturb G.S. by getting up, he ended up falling asleep on the couch too.

      When Schafer woke up, he found G.S. “squished in between him and the back

      of the couch.” (Tr. p. 146). Schafer told Johnson that G.S. “was convulsing

      trying to get air” and “he tried to get [G.S] to start breathing.” (Tr. pp. 147,

      146). The paramedics attempted CPR and ventilations on G.S. in the

      ambulance after removing some of her clothing. G.S. had bruising around her

      eyes, nose, chest and “yellowish, blue bruising to the left side of her head.” (Tr.

      p. 118). G.S. was transported to Community North Hospital, where she arrived

      in cardiac arrest. Attempts to restart her heart failed and she was pronounced


      Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 4 of 31
      dead at 1:47 a.m. on September 3, 2014. Dr. Paula Wilham (Dr. Wilham), the

      receiving physician when G.S. was brought into the emergency room, was

      concerned about the bruising on G.S.’s neck and chest because a child that age

      cannot roll over or sit up and can barely hold her head up for short periods of

      time. G.S. had old as well as new bruising on her head and back, petechiae

      under her eyes, bilateral subdural hemorrhages, brain swelling, and a fractured

      femur. With these injuries, G.S. would have cried inconsolably, “because that

      would be her only way of communicating that something was wrong.” (Tr. pp.

      183-84). At the hospital, Indianapolis Metropolitan Police Detective Douglas

      Cook (Detective Cook) was informed by Dr. Wilham and the Deputy Coroner

      about the extent of G.S.’s injuries.


[9]   While G.S. was transported to the hospital, Johnson and Schafer were

      interviewed by Indianapolis Metropolitan Police Detectives. Schafer’s

      interview took place inside Detective Brian Schemenaur’s (Detective

      Schemenaur) police vehicle and was recorded. At that point, Detective

      Schemenaur was unaware of the extent of G.S.’s injuries. Schafer informed

      Detective Schemenaur that G.S.’s health was “fine” when he arrived home that

      afternoon and that G.S. was asleep in the swing after being breastfed by

      Johnson. (Tr. p. 257). He advised the Detective that J.G. had hit G.S. in the

      face with a small plastic toy bird, “causing a small cut or laceration above the

      lip area.” (Tr. p. 258). He then described the couch incident where he had

      fallen asleep and then awoken to find G.S. “pinned face first into the couch

      between his body and the couch.” (Tr. p. 259).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 5 of 31
[10]   After the interview ended, Detective Schemenaur received “information from

       Detective Cook that led [him] to believe that [Schafer] was not telling the

       truth.” (Tr. p. 260). At that point, “the nature of the investigation took a

       different course” and it became necessary to transport the parents down to the

       homicide office were “an audio and video recorded statement following them

       both being mirandized and done in a formal setting” could occur. (Tr. p. 260).

       Before the interviews took place, both Schafer and Johnson were tested for

       fifteen different types of drugs and were found to be negative for all tested

       substances.


[11]   During the second interview at the police station, Schafer was read his Miranda

       rights, and he signed a waiver form. When confronted with the extent of G.S.’s

       injuries by Detective Cook and Dr. Wilham’s opinion that these could not have

       been sustained by a rollover, Schafer’s explanation changed. Schafer told the

       detectives that he had been “laying down horizontally” on the couch, with his

       head resting on a pillow. (Appellant’s App. p. 55). G.S. was on his chest,

       facing up, and had fallen asleep on her back. (Appellant’s App. p. 55). When

       Schafer woke up, his “body pressed up against her, with her head facing

       towards the back of the chair.” (Appellant’s App. p. 56). “She was gasping for

       air at the time, but it was almost like a really week gasp” and her “[e]yelids

       were blue.” (Appellant’s App. p. 56). Schafer took G.S. into the kitchen where

       he placed her on the counter and then went to “grab [his] phone.” (Appellant’s

       App. p. 80). Not being able to find his phone, Schafer thought that it might

       have fallen down the cushions of the couch. He “went to go look for it and it


       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 6 of 31
       took [him] a little longer than [] expected.” (Appellant’s App. p. 80). When he

       returned to the kitchen, G.S. was laying face down on the kitchen floor. Later

       during the interview, Schafer added that when he woke up on the couch, he

       shook G.S. from side to side. He also mentioned shaking G.S. after she had

       fallen off the kitchen counter. Then, he changed his story again, telling the

       Detectives that he never shook G.S. A little while later, Schafer explained that

       he had been trying to feed G.S. and he got “frustrated.” (Appellant’s App. p.

       108). “[He] would get frustrated really bad because [he] want her to eat because

       if she doesn’t eat, she’d get sick.” (Appellant’s App. p. 108). After Schafer

       woke up on the couch, G.S was crying, but it was more “a whimper or

       something.” (Appellant’s App. p. 111). He “tried to feed her again what was

       left. And she wouldn’t eat it.” (Appellant’s App. p. 111). And he “was dealing

       with this all night. [He] got really upset and [he] got really frustrated.”

       (Appellant’s App. p. 112). He admitted that G.S. never became “wedged

       between [him] and the couch cushion.” (Appellant’s App. p. 112). He

       explained that when he stood up from the couch, G.S. was in his lap. He put

       his weight on the baby—“like crushed her” and “wedged [her] underneath”

       him. (Appellant’s App. p. 113). G.S. “was gasping for air [] but it was []

       weak.” (Appellant’s App. p. 114). Schafer picked her up and G.S. started

       bleeding out of her nose.


[12]   On September 3, 2014, the State filed an Information, charging Schafer with

       Count I, murder, a felony; Count II, neglect of a dependent, a Level 1 felony;

       and Count III, battery with death of a person less than fourteen, a Level 2


       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 7 of 31
       felony. On March 11, 2016, Schafer waived his right to a jury trial. Six days

       before trial, Schafer called his mother from jail, using another inmate’s PIN.

       During the conversation, 1 Schafer’s mother gave him “a fourth version of what

       could have happened. That blames and tries to pin [Johnson] coming home at

       11:30 at night while Schafer is asleep on the couch, causing all these injuries to

       G.S., putting [G.S.] back on his chest so he can wake up to her at 12:30 and

       that [Johnson] then disappears.” (Tr. p. 283). Schafer replied that he “wish[ed]

       [he] would have thought of this earlier.” (Tr. p. 283).


[13]   On April 18, 2016, the trial court conducted a bench trial. During the trial,

       forensic pathologist Dr. Thomas Sozio (Dr. Sozio) testified about the autopsy

       he had performed on G.S. He determined that G.S. had sustained “multiple

       areas of blunt force trauma, meaning contusions and bleeding, around the

       face.” (Tr. p. 307). He also observed a torn frenulum, which is “that area of

       skin [] that is attaching the lip to the gum,” and which could have been caused

       by “[f]orceful penetration with a bottle.” (Tr. p. 311). “It’s usually always seen

       with a child abuse case.” (Tr. p. 311). On her left chest, G.S. had injuries that

       could not have been caused by CPR, but had to have been caused by blunt force

       trauma. Dr. Sozio also testified to G.S.’s femur fracture, which he described as

       a spiral fracture, caused by a twisting external force, and which would have

       resulted in “extreme pain, crying profusely, [and] not eating.” (Tr p. 315). Dr.



       1
        A summary of this conversation was presented by the State during trial. Schafer agreed that this was “a fair
       summary” and the trial court accepted the synopsis into the record as a summation of the content of the
       conversation. (Tr. p. 283).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017            Page 8 of 31
       Sozio opined that G.S.’s skull was not fractured, but there was subdural and

       subarachnoid hemorrhage underneath the skull, which had been caused by

       “any type of shaking injury.” (Tr. p. 319). G.S.’s brain had undergone “severe

       swelling” to the point her brain “was forcibly [] protruding through any orifice

       or hole that it could find []—in this case, the spinal cord.” (Tr. p. 319).

       Immediately after the brain injury, G.S. would have experienced “a loss of

       consciousness, not able to eat, [] maybe projectile vomiting, [and] problems

       breathing.” (Tr. p. 320). She would not “have survived for any period of

       hours.” (Tr. p. 320). Dr. Sozio ruled out Schafer’s couch explanation or fall

       from the kitchen counter as cause of the injuries and concluded that this injury

       could not have been caused accidentally. Rather, Dr. Sozio affirmed that the

       cause of death was a combination of the blunt force trauma to the head and the

       femur fracture, with the manner of death being homicide.


[14]   Dr. Tara Harris (Dr. Harris), board certified in child abuse pediatrics, testified

       that G.S.’s injuries were representative of abusive head trauma with additional

       evidence of severe physical abuse. She also opined that neither being hit with a

       plastic toy by a toddler, nor falling from the kitchen counter could have caused

       G.S.’s head injuries. Dr. Harris explained that when G.S.’s brain was being

       pushed into her spinal cord, the brain stem—which is “responsible for all the

       things that our body does without us having to think about it”—became

       damaged. (Tr. p. 353). “And you stop getting the signal telling your heart to

       beat and all of those important functions for life.” (Tr. p. 354). She noted that

       the hermorhaging underneath G.S.’s skull had been caused by “blunt impact to


       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 9 of 31
       the head.” (Tr. p. 354). In order to cause some of these injuries “[s]he had to

       have impact with objects [] not just shaking.” (Tr. p. 374). Because G.S. had

       breastfed fine in the afternoon, Dr. Harris placed the time of the injuries “after

       4:30 [p.m.]” (Tr. p. 355). She concluded that “[t]here was no history of any

       accident that would account” for G.S.’s injuries and it “would take a significant

       force” to fracture her femur. (Tr. pp. 358, 361).


[15]   At the close of the evidence, the trial court found Schafer guilty of murder and

       battery with death of a person less than fourteen. On May 2, 2016, the trial

       court conducted a sentencing hearing and imposed a sentence of sixty years for

       murder, with five years suspended and 6,385 days’ incarceration for battery,

       with sentences to run concurrent.


[16]   Schafer now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                               I. Trial Court’s Bias and Lack of Impartiality


[17]   Schafer first contends that the trial court was biased and exhibited a lack of

       impartiality by making certain comments throughout the proceedings and

       during the sentencing hearing, thereby violating his right to a fair trial. A trial

       before an impartial judge is an essential element of due process. Everling v.

       State, 929 N.E.2d 1281, 1287 (Ind. 2010). The impartiality of a trial court is

       especially important due to the great respect that a jury accords the judge and

       the added significance that a jury might give to any showing of partiality by the

       judge. Id. at 1287-88.
       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 10 of 31
[18]   In assessing a trial court’s partiality, we examine the judge’s actions and

       demeanor while recognizing the need for latitude to run the courtroom and

       maintain discipline and control of the trial. Id. at 1288. “Even where the

       court’s remarks display a degree of impatience, if in the context of a particular

       trial they do not impart an appearance of partiality, they may be permissible to

       promote an orderly progression of events at trial.” Timberlake v. State, 690

       N.E.2d 243, 256 (Ind. 1997), reh’g denied. Bias and prejudice violate a

       defendant’s due process right to a fair trial only where there is an undisputed

       claim or where the judge expressed an opinion of the controversy over which

       the judge was presiding. Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002).

       Adverse rulings and findings by a trial judge from past proceedings with respect

       to a particular party are generally not sufficient reasons to believe the judge has

       a personal bias or prejudice. Voss v. State, 856 N.E.2d 1211, 1217 (Ind. 2006).

       The mere assertion that certain adverse rulings by a judge constitute bias and

       prejudice does not establish the requisite showing. Id.


[19]   However, in order to prevail, a defendant has to make a contemporaneous

       objection to the presumed biased remark. Where a defendant fails to object or

       otherwise challenge a trial court’s remarks, any alleged error is waived on

       appeal. Garrett v. State, 737 N.E.2d 388, 390 (Ind. 2000). Here, Schafer

       concedes to not having objected to the remarks. Knowing that he waived the

       issue, he now argues that the alleged biased remarks amounted to fundamental

       error. Fundamental error is error that represents a blatant violation of basic

       principles rendering the trial unfair to the defendant and thereby depriving the


       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 11 of 31
       defendant of fundamental due process. Davis v. State, 835 N.E.2d 1102, 1107

       (Ind. Ct. App. 2005), trans. denied. The error must be so prejudicial to the rights

       of the defendant as to make a fair trial impossible. Id. In determining whether

       a claimed error denies the defendant a fair trial, we consider whether the

       resulting harm or potential for harm is substantial. Id. This depends upon

       whether the defendant’s right to a fair trial was detrimentally affected by the

       denial of procedural opportunities for the ascertainment of truth to which he

       would have been entitled. Id.


[20]   Schafer points to three specific remarks made by the trial court, which,

       according to his argument, reflected bias and lack of impartiality towards him

       and resulted in an unfair trial. The first comment challenged by Schafer was

       uttered during the State’s introduction of Schafer’s text messages. During the

       trial, the State offered Exhibits 49 and 50, print outs of specific text messages,

       into evidence, as well Exhibit 41, which was a cell phone report. The trial court

       questioned the State about the text messages represented in Exhibits 49 and 50

       and asked, “So these aren’t the texts that have to do with him being frustrated

       and beating the child?” (Tr. p. 140). Schafer claims that the remark about him

       being frustrated and beating G.S. indicated that the trial court had already

       formed “a prejudicial impression of bad character[.]” (Appellant’s Br. p. 16).


[21]   Placed in the proper context, we cannot agree that the statement reflected

       judicial bias. Rather, at that point in the trial, the trial judge was well aware of

       the charges and had heard the parties’ opening statements previewing the

       evidence during which the State had already indicated that G.S. had suffered

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 12 of 31
       multiple injuries. The trial judge had also heard Johnson’s testimony about

       Schafer’s text messages on September 2nd and 3rd. Accordingly, in asking the

       question, the trial court merely attempted to place the exhibits in the proper

       context of the evidence presented. We perceive no bias or lack of impartiality.


[22]   The second and third comments challenged by Schafer were remarks made by

       the trial court during the sentencing hearing. Specifically, the trial court

       remarked, “But what I heard in the interrogation doesn’t make me feel good

       about him” and “he used a phone pin number to make that call to mom a week

       before trial. That doesn’t say good things about his character.” (Tr. pp. 425,

       425). Placed in the context of the sentencing hearing, it is clear that the trial

       court was merely reflecting on the evidence in formulating its mitigators and

       aggravators for sentencing. Accordingly, the remarks did not reflect any bias

       but are just comments on what the evidence at trial established. Therefore,

       there was no error, let alone a fundamental error. 2


                                               II. Schafer’s Statements


[23]   Prior to his arrest, Schafer made two statements to Detective Schemenaur: the

       first one in Detective Schemenaur’s vehicle and the second one at the police

       station. Schafer now claims that the trial court abused its discretion by

       admitting both statements into evidence over his objection because the first




       2
         Schafer also claims fundamental error occurred with respect to some remarks the trial court made during
       the admissibility of Schafer’s jail call to his mother. We will address Schafer’s arguments when discussing
       the admissibility of the phone call.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017           Page 13 of 31
       statement was given without the benefit of his Miranda warnings and the second

       statement was obtained pursuant to interrogation tactics condemned in Missouri

       v. Seibert, 542 U.S. 600, 611-14 (2004). Although Schafer filed a pre-trial

       motion to suppress, because he appeals following a bench trial, the issue is

       properly framed as whether the trial court abused its discretion in admitting the

       evidence. Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). Accordingly, the

       general admission of evidence at trial is a matter we leave to the discretion of

       the trial court. Id. 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.


                                               A. First Statement


[24]   With respect to the statement given in Detective Schemenaur’s police vehicle,

       Schafer claims that it amounted to a custodial interrogation during which he

       was never advised of his Miranda rights.


[25]   In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),

       the United States Supreme Court instructed: “the prosecution may not use

       statements, whether exculpatory or inculpatory, stemming from custodial

       interrogation of the defendant unless it demonstrates the use of procedural

       safeguards effective to secure the privilege against self-incrimination.” These

       “procedural safeguards” include advisements of the right to remain silent, that

       any statement made may be used against the person, and of the right to the

       presence of an attorney. Id. at 444. The purpose of Miranda warnings is to


       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 14 of 31
       secure the constitutional privilege against self-incrimination by providing

       procedural safeguards to be employed during questioning initiated by officers

       focusing on a person suspected of wrongdoing. Id. at 444. “[W]ithout proper

       safeguards the process of in-custody interrogation of persons suspected or

       accused of a crime contains inherently compelling pressures which work to

       undermine the individual’s will to resist and to compel him to speak where he

       would not otherwise do so freely.” Id. at 467. At the same time, Miranda also

       recognizes that “[a]ny statement given freely and voluntarily without any

       compelling influences is . . . admissible in evidence.” Id.


[26]   A custodial interrogation for purposes of the Miranda procedural safeguards is

       defined as “questioning initiated by law enforcement officers after a person has

       been taken into custody or otherwise deprived of his freedom or action in any

       significant way.” Morales v. State, 749 N.E.2d 1260, 1265 (Ind. Ct. App. 2001).

       Whether a criminal defendant is in custody turns on whether a reasonable

       person in the same circumstances would not feel free to leave. Id. This inquiry

       depends upon the “objective circumstances” as opposed to the subjective views

       of the interrogating officers or the subject being questioned. Id. Under

       Miranda, “interrogation” includes express questioning and words or actions on

       the part of the police that the police know are reasonably likely to elicit an

       incriminating response from the suspect. White v. State, 772 N.E.2d 408, 412

       (Ind. 2002). Thus, “[p]olice officers are not required to give Miranda warnings

       unless the defendant is both in custody and subject to interrogation.” Ritchie v.

       State, 875 N.E.2d 706, 717 (Ind. 2007), reh’g denied.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 15 of 31
[27]   Schafer now maintains that by virtue of sitting in the police vehicle and

       answering the detective’s questions, he was submitting to a custodial

       interrogation. However, “[q]uestioning an individual the police suspect of a

       crime does not inherently render the questioning custodial interrogation

       requiring Miranda warnings.” Luna v State, 788 N.E.2d 832, 834 (Ind. 2003).

       When the police first contacted Schafer, he was at his residence with family and

       friends present. Schafer “was willing to talk [] and was responsive.” (Tr. p. 25).

       Detective Schemenaur testified that it was “a normal routine process in [the]

       investigation to do an audio recording at the scene or around the scene so that

       [the officers] don’t have to remove the parents.” (Tr. p. 27). Schafer answered

       Detective Schemenaur’s questions while seated in the front passenger seat of the

       vehicle. During the conversation, Schafer “described basically an event that

       was accidental in nature. That he had been co-sleeping with the child and that

       he had rolled over on the child.” (Tr. p. 30). Schafer’s statement was

       consistent and unwavering. Detective Schemenaur clarified that at no time

       during the statement did Schafer become a suspect. When the conversation

       was finished, Schafer exited the vehicle and joined his family and friends again.

       Only after the first statement was concluded did Detective Schemenaur speak

       with Detective Cook and became informed of the suspicious nature of some of

       G.S.’s injuries. Based on these facts, we conclude that the first statement did

       not amount to a custodial interrogation that required Miranda warnings.


                                              B. Second Statement




       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 16 of 31
[28]   With respect to the second statement at the police station, Schafer contends that

       it was obtained with an interrogation technique which had been disapproved of

       by the United States Supreme Court in Missouri v. Seibert, 542 U.S. 600, 611-14

       (2004). He argues that “he had been subjected to one continuous series of

       custodial interrogations concerning the same incident, punctuated midstream

       by an advice of rights much as described by the Seibert court.” (Appellant’s Br.

       p. 28).


[29]   In Seibert, police officers arrested a suspect in an arson/murder investigation

       and refrained from giving her Miranda warnings. Id. at 2606. After questioning

       the suspect for thirty to forty minutes, she finally admitted that the death caused

       by the arson was not an accident. Id. The suspect was then given a twenty-

       minute break, after which the police officer turned on a tape recorder and gave

       her a Miranda warning. Id. The officer then resumed questioning her,

       confronting her with her pre-Miranda statement. Id. Determining that this

       second statement was inadmissible, the Supreme Court observed:


                 Upon hearing warnings only in the aftermath of interrogation
                 and just after making a confession, a suspect would hardly think
                 he had a genuine right to remain silent, let alone persist in so
                 believing once the police began to lead him over the same ground
                 again. A more likely reaction on a suspect’s part would be
                 perplexity about the reason for discussing rights at that point,
                 bewilderment being an unpromising frame of mind for
                 knowledgeable decision. What is worse, telling a suspect that
                 “anything you say can and will be used against you,” without
                 expressly excepting the statement just given, could lead to an
                 entirely reasonable inference that what he has just said will be
                 used, with subsequent silence being of no avail. Thus, when

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 17 of 31
               Miranda warnings are inserted in the midst of coordinated and
               continuing interrogation, they are likely to mislead and depriv[e]
               a defendant of knowledge essential to his ability to understand
               the nature of his rights and the consequences of abandoning
               them.”


       Id. at 2601. Following Seibert, in Drummond v. State, 831 N.E.2d 781, 783-84

       (Ind. Ct. App. 2005), and King v. State, 844 N.E.2d 92, 98 (Ind. Ct. App. 2005),

       we determined that a defendant’s statement was inadmissible when a defendant

       only received Miranda warnings after he was subjected to a custodial

       interrogation and had made incriminating statements.


[30]   Schafer’s argument that he received Miranda warnings midstream during his

       questioning by Detective Schemenaur at the police station is contradicted by the

       record. The evidence reflects that after Schafer’s first statement, Detective

       Schemenaur was satisfied with his explanation that he had accidentally rolled

       over on to G.S. in his sleep. Only after Detective Schemenaur was advised by

       Detective Cook of the suspicious nature of some of G.S.’s injuries, Detective

       Schemenaur started to doubt the truthfulness of Schafer’s explanation. As a

       result, there was a need for a second interview. Prior to commencing the

       interview at the police station, Detective Schemenaur read Schafer his Miranda

       rights. There was no continuing interrogation as the first interview had been

       satisfactorily concluded until new evidence arose that indicated the need to

       interview Schafer again. Prior to being confronted with the new evidence and

       making incriminating statements, Schafer was given his Miranda advisements.

       This was no ‘question first, warn later’ interrogation, nor was this a ruse to have

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 18 of 31
       Schafer confess; rather, this was a second interview based on the evidence

       discovered during an ongoing investigation. Accordingly, Seibert does not

       apply.


[31]   Continuing his focus on the second statement, Schafer maintains that the

       statement was erroneously admitted because he did not knowingly and

       voluntarily waive his Miranda rights. A waiver of one’s Miranda rights occurs

       when the defendant, after being advised of those rights and acknowledging that

       he understands them, proceeds to make a statement without taking advantage

       of those rights. Ringo v. State, 736 N.E.2d 1209, 1211-1212 (Ind. 2000). The

       admissibility of a confession is controlled by determining from the totality of

       the circumstances whether the confession was made voluntarily and was not

       induced by violence, threats, or other improper influences that overcame the

       defendant’s free will. Id. at 1212. The same test determines whether Miranda

       rights were voluntarily waived. Id. Thus, the voluntariness of a defendant’s

       waiver of rights is judged by the totality of the circumstances. Id. Factors that

       may be considered when reviewing the totality of the circumstances for whether

       a waiver of rights was voluntary, include “police coercion, the length of the

       interrogation, its location, its continuity, as well as the defendant’s maturity,

       education, physical condition, and mental health.” State v. Keller, 845 N.E.2d

       154, 165 (Ind. Ct. App. 2006). A signed waiver of rights form is one item

       showing the accused was aware of and understood his rights. Ringo, 736

       N.E.2d at 1212. When challenged, the State may need to show additional




       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 19 of 31
       evidence tending to prove that Defendant’s waiver and decision to speak were

       voluntary. Id.


[32]   The record indicates that prior to commencing the second interview, Detective

       Schemenaur explained to Schafer that he had received new information which

       required them to talk again. He explained that

               the difference is, is we are no longer there, out in front of your
               residence where you are at. We have transported you away from
               that location. We’re down here. So it’s it’s a different setting.
               So consequently whenever we do that we do go over what’s
               called an advisement and waiver of rights document. And that’s
               basically just, you know [] any time we transport somebody
               down here and we have any additional follow-up questions we
               go through that document. So that’s what we’re going to do first.
               [] I’m going to read this document to you. And if you have any
               questions about it, please ask me.


       (Appellant’s App. p. 42). Detective Schemenaur then proceeded to read the

       advisement form to Schafer and asked Schafer if he understood his rights.

       Schafer replied affirmatively and signed the waiver of rights. During the

       suppression hearing, Schafer agreed that Detective Schemenaur had read him

       the advisement form line by line. Schafer is not uneducated: he is a high

       school graduate and attended college for a year. Besides some generalized

       statements that the explanation of Detective Schemenaur for reading the

       advisement form because “we’re down here” was confusing, Schafer fails to

       point to any coercion or circumstances which would have overcome the

       voluntariness of his waiver of rights. (Appellant’s App. p. 42). Based on the


       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 20 of 31
       evidence before us, we conclude that the trial court properly admitted Schafer’s

       statements.


                                    III. Admission of Prior Bad Act Evidence


[33]   Schafer appears to argue that the trial court abused its discretion when it

       admitted G.S.’s medical records and a selected reading of Schafer’s text

       messages “outside the time window of the day leading up to the victim’s

       death.” 3 (Appellant’s Br. p. 33). Referencing Indiana Evidence Rule 404(b),

       Schafer contends that the medical records and text messages were irrelevant

       and admitted solely to establish the improper purpose of showing action in

       conformity therewith.


[34]   Indiana Evidence Rule 404(b) provides, in pertinent part, that:

                Evidence of other crimes, wrongs, or acts is not admissible to
                prove the character of a person in order to show action in
                conformity therewith. It may, however, be admissible for other
                purposes, such as proof of motive, intent, preparation, plan,
                knowledge, identity, or absence of mistake or accident[.]


       The rule is “designed to prevent the jury from assessing a defendant’s present

       guilt on the basis of his past propensities, the so-called ‘forbidden inference.’”

       Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004), trans. denied. Thus, in




       3
        Schafer also claims that the trial court erroneously admitted the jail phone call to his mother in violation of
       Ind. Evidence Rule 404(b). However, as Schafer did not object to its admission on this ground at trial, his
       argument is waived. See Lehman v. State, 730 N.E.2d 701, 703 (Ind. 2000).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017              Page 21 of 31
       assessing the admissibility of evidence under Ind. Evidence Rule 404(b), the

       trial court must: (1) determine whether the evidence of other crimes, wrongs, or

       acts is relevant to a matter at issue other than the defendant’s propensity to

       commit the charged act; and (2) balance the probative value of the evidence

       against its prejudicial effect pursuant to Evid. R. 403. Id. To determine

       whether the trial court abused its discretion, we employ the same test. Id.


[35]   Our review of the record discloses that the State did not introduce G.S.’s

       medical records of emergency room visits for August 23, 2014 or August 30,

       2014 into evidence even though its 404(b) notice indicated an intent of doing so.

       Accordingly, we will not address Schafer’s argument with respect to the

       medical records. To the extent Schafer now challenges the testimony of Dr.

       Harris where “she sponsored a summary of the child’s medical history that not

       only contained a description of every major instance of medical treatment

       received by the child, but also added her conclusion that the history suggested

       abuse on those previous occasions,” Schafer did not object to the introduction

       of the report at trial. (Appellant’s Br. p. 34). It is generally accepted that where

       a defendant fails to object to the introduction of evidence, the defendant waives

       the claim. See, e.g., Moore v. State, 669 N.E.2d 733, 742 (Ind. 1996).


[36]   Exhibits 46 through 49 consist of text messages between Johnson and Schafer

       which the State introduced to establish Schafer’s intent, motive, and lack of

       accident. Exhibit 46 are text messages dated August 25, 2014, in which Schafer

       expressed frustration with G.S. and Johnson gave advice on what to do.

       Specifically, faced with G.S.’s refusal to take a bottle, Schafer texted “I’m a

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 22 of 31
       horrible fucking father to her. [I don’t know] what she[,]” to which Johnson

       responded, “Walk with her. Give her an ounce change her wrap.” (State’s

       Exh. 46). Exhibit 47 is a text message from Schafer to Johnson sent on August

       28, 2014, in which he exclaimed:

               [G.S.] won’t take the fucking bottle. She’s the most stubborn
               fucking baby ever.


               You’re done breast feeding.


               I can’t put up with this shit anymore. It’s not fair to me.


       (State’s Exh. 47). In Exhibit 48, sent on August 29, 2014, Johnson queried

       Schafer about a bruise on G.S.’s face, of which Schafer disavowed all

       knowledge. Lastly, in Exhibit 49, also sent on August 29, 2014, Schafer again

       expressed frustration with G.S.’s crying and refusal to take a bottle.


[37]   At trial, the State sought the admission of these text messages

               to show [Schafer’s] anger and his built up frustration relationship
               with his 9 week old. That is clearly by the case law that I cited in
               our 404B hearing, that is clearly to establish A) that there was a
               frustrating, hostile relationship, B) that this was not by accident,
               and that this was his mentality and him saying it was a mistake,
               him saying it was an accident. This clearly denotes it, in our
               opinion, that it wasn’t an accident.


       (Tr. pp. 225-26). Schafer objected to the admission of the texts based on

       relevancy and to being more prejudicial than probative. The trial court

       admitted the Exhibits over Schafer’s objection.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 23 of 31
[38]   We conclude that the trial court properly admitted Exhibits 46 through 49

       pursuant to Evid. R. 404(b). The Exhibits clearly have a bearing on Schafer’s

       defense theory that G.S.’s death was accidental rather than intentional as the

       text messages paint a situation at home characterized by Schafer’s growing

       frustration and anger with his infant daughter. As such, Schafer’s state of mind

       leading up to the events on the night of September 2, 2014, are relevant and

       probative to establish intent and the absence of an accident. Schafer now

       argues that the admission of an “extremely small sample size” of text messages

       is prejudicial and selective as it would “allow for maximum manipulation of

       impact on the listener with isolated, often out of context, expressions that did

       not necessarily reflect the defendant’s true or ongoing character or state of

       mind.” (Appellant’s Br. p. 37). Because Schafer failed to raise this argument

       before the trial court, his claim is waived. See Lehman v. State, 730 N.E.2d 701,

       703 (Ind. 2000) (“When [] a defendant presents one argument at trial and a

       different argument on appeal, the claims are forfeited.”).


                                           IV. Phone Call from Jail


[39]   Next, Schafer challenges the admissibility of the phone call he placed from jail

       to his mother because it was untimely disclosed to his defense counsel. Trial

       courts are given wide discretion in discovery matters because they have the duty

       to promote the discovery of truth and to guide and control the proceedings. Dye

       v. State, 717 N.E.2d 5, 11 (Ind. 1999), cert. denied 531 U.S. 957 (2000). They are

       granted deference in determining what constitutes substantial compliance with

       discovery orders, and we will affirm their determinations as to violations and

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 24 of 31
       sanctions absent clear error and resulting prejudice. Id. When remedial

       measures are warranted, a continuance is usually the proper remedy, but

       exclusion of evidence may be appropriate where the violation has been flagrant

       and deliberate, or so misleading or in such bad faith as to impair the right of fair

       trial. Id. Exclusion of evidence as a remedy for a discovery violation is only

       proper where there is a showing that the State’s actions were deliberate or

       otherwise reprehensible, and this conduct prevented the defendant from

       receiving a fair trial. Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000).


[40]   Six days before trial, on April 12, 2016, Schafer called his mother from jail,

       using another inmate’s PIN. During the conversation, Schafer’s mother

       advised him of a possible “fourth version of what could have happened.” (Tr.

       p. 283). The State received notification of the existence of this phone call on

       Wednesday, April 13, 2016, and certified the call by late afternoon of the

       following day. The phone call was discovered by the State to Schafer’s counsel

       on Friday, April 15, by 1:25 p.m. Schafer’s trial commenced Monday, April

       18, 2016. When the State requested to admit the phone call, Schafer objected

       based on relevancy, late discovery, and the fact that the sponsoring witness was

       not a voice recognition expert. The trial court admitted the phone call over

       objection, finding that “[i]n terms of the delay it’s not unconscionable. [The




       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 25 of 31
       State] got notice, she did what she had to do. She followed the procedure[.]”

       (Tr. p. 280). 4


[41]   The State turned over the evidence as soon as it was discovered. Moreover,

       Schafer does not allege that he was taken by surprise by the evidence at trial,

       rather his counsel admitted to having listened to the phone call prior to trial.

       “There is no error when the State provides a defendant evidence as soon as the

       State is in possession of requested evidence.” Id. Accordingly, the State

       properly admitted the phone call.


                                               V. Exculpatory Evidence


[42]   Schafer appears to contend that his due process rights were violated by the

       State’s failure to preserve materially exculpatory evidence stored on Johnson’s

       and Schafer’s cell phones. Evidence is materially exculpatory if it possesses an

       exculpatory value that was apparent before the evidence was destroyed and is of

       such a nature that the defendant would be unable to obtain comparable

       evidence by other reasonable available means. Terry v. State, 857 N.E.2d 396,

       406 (Ind. Ct. App. 2006), trans. denied. When the State fails to preserve

       materially exculpatory evidence, a due process violation occurs regardless of

       whether the State acted in bad faith. Id. While the defendant is not required to

       prove conclusively that the destroyed evidence is exculpatory, there must be




       4
        Schafer claims that this statement is a clear instance of bias and lack of impartiality by the trial court. As
       with his previous claims of bias, we also reject this one as the trial court merely made a procedural decision
       on the late discovery and admissibility of the phone call.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017              Page 26 of 31
       some indication of its exculpatory nature. Blanchard v. State, 802 N.E.2d 14, 27

       (Ind. Ct. App. 2004). If the defendant fails to demonstrate the evidence’s

       exculpatory nature, we will not simply assume that the destroyed evidence

       contained exculpatory material when the record is devoid of such indication.

       Id. In Chissel v. State, 705 N.E.2d 501, 504 (Ind. Ct. App. 1999), trans. denied,

       we held that videotapes of the defendant taking field sobriety tests were not

       materially exculpatory because the defendant presented no evidence that the

       tapes would show him passing the tests, and instead asked us to speculate as to

       the tapes’ contents.


[43]   The State seized Schafer’s cell phone as soon as it became aware of its existence

       and location. After obtaining a search warrant, it extracted the data from

       Schafer’s phone. Instead of explaining what data the State lost and how it

       could have been exculpatory, Schafer’s argument focuses on text messages that

       were located and admitted over his objection, as well as text messages that

       neither party entered into evidence. Schafer’s entire argument appears to be a

       mere speculation of what could have happened if certain pieces of evidence

       might exist. As Schafer presents no evidence of the existence of exculpatory

       text messages or their content, his due process rights were not violated.


                                        VI. Sufficiency of the Evidence


[44]   Lastly, Schafer contends that the State failed to present sufficient evidence

       beyond a reasonable doubt to support his conviction for murder and battery

       leading to the death of a person less than fourteen. Our standard of review for a


       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 27 of 31
       sufficiency of the evidence claim is well settled. In reviewing sufficiency of the

       evidence claims, we will not reweigh the evidence or assess the credibility of the

       witnesses. Moore v. State, 869 N.E.2d 489, 492 (Ind. Ct. App. 2007). We will

       consider only the evidence most favorable to the judgment, together with all

       reasonable and logical inferences to be drawn thereof. Id. The conviction will

       be affirmed if there is substantial evidence of probative value to support the

       conviction of the trier of fact. Id.


[45]   To support a conviction for murder, the State was required to establish that

       Schafer knowingly or intentionally killed G.S. See I.C. § 35-42-1-1.

       Furthermore, “[a] person who knowingly or intentionally inflicts injury on a

       person that creates a substantial risk of death or causes: (1) serious permanent

       disfigurement; (2) protracted loss or impairment of the function of a bodily

       member or organ; or (3) the loss of a fetus; commits aggravated battery, a Level

       3 felony.” I.C. § 35-42-2-1.5. This offense becomes a “Level 1 felony, if, as

       here, it results in the death of a child less than fourteen (14) years of age and is

       committed by a person at least eighteen (18) years of age.” I.C. § 35-42-2-1.5.

       Schafer challenges the mens rea and his identity as the perpetrator of the crimes

       with respect to both charges,.


[46]   Intent is statutorily defined as “[a] person engages in conduct ‘intentionally’ if,

       when he engages in the conduct, it is his conscious objective to do so.” I.C. §

       35-41-2-2(a). “Knowingly” is defined as “[a] person engages in conduct

       ‘knowingly’ if, when he engages in the conduct, he is aware of a high

       probability that he is doing so.” I.C. § 35-41-2-2(b). In Anderson v. State, 681

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 28 of 31
       N.E.2d 703, 708 (Ind. 1997), the defendant challenged the sufficiency of the

       evidence to support the requisite mens rea of the murder of a 21-month old child.

       Our supreme court found sufficient evidence to support the element of an

       intentional killing because “[f]rom the severity of [the child’s] injuries . . . the

       jury could have concluded beyond a reasonable doubt that defendant

       knowingly killed [the child] and did not just intend to stop her from crying.” Id.


[47]   On the day of her death, G.S. was ten weeks old; Schafer was twenty-three. Dr.

       Harris concluded that G.S.’s extensive injuries were representative of abusive

       head trauma with additional evidence of severe physical abuse. G.S. also had

       trauma to her mouth, which Dr. Harris opined could only have occurred when

       something was forcibly shoved into the mouth. The bruising G.S. had incurred

       on her chest could not have been sustained by CPR and had required a lot of

       force. In turn, Dr. Sozio affirmed that G.S.’s chest injuries had to have been

       caused by blunt force trauma. Dr. Sozio also testified to G.S.’s femur fracture,

       which had been caused by a twisting external force and which would have

       resulted in “extreme pain, crying profusely, [and] not eating.” (Tr. p. 315). Dr.

       Sozio opined that G.S.’s skull was not fractured, but there was subdural and

       subarachnoid hemorrhage underneath the skull, which had been caused by

       “any type of shaking injury.” (Tr. p. 319). G.S.’s brain had undergone “severe

       swelling” to the point her brain “was forcibly being protruding through any

       orifice or hole that it could find []—in this case, the spinal cord.” (Tr. p. 319).

       Both doctors expressly ruled out Schafer’s couch explanation or fall off the

       kitchen counter as possible causes of G.S.’s injuries. Accordingly, based on the


       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 29 of 31
       severity of G.S.’s injuries and Schafer’s relative age, there was sufficient

       evidence from which the fact finder could have concluded beyond a reasonable

       doubt that Schafer intentionally killed his infant daughter.


[48]   Similarly, the identity of the abuser is established beyond a reasonable doubt.

       Schafer was caring for G.S. from the time Johnson left for work around 4:30

       p.m. until she passed away. Prior to leaving for work, Johnson had fed G.S.

       and G.S. was sleeping in her swing. Starting at 8:45 p.m., Johnson received

       several texts from Schafer expressing his increasing frustration with G.S.’s

       refusal to take a bottle. When Johnson was on her way home, sometime after

       midnight, she received a phone call from Schafer informing her that G.S. was

       unresponsive. Reflecting on this time line of events and the nature of G.S.’s

       injuries, Dr. Harris placed the time of the trauma “after 4:30 [p.m.]” (Tr. p.

       355). This was confirmed by Dr. Sozio, who testified that with her extensive

       injuries G.S. would not “have survived for any period of hours.” (Tr. p. 320).


[49]   Mindful of the evidence before us, we conclude that the State presented

       sufficient evidence beyond a reasonable doubt to support Schafer’s conviction

       of murder and battery leading to the death of a person less than fourteen.


                                             CONCLUSION
[50]   Based on the foregoing, we hold that (1) the trial court did not express bias and

       a lack of impartiality when making certain statements during the proceedings;

       (2) the trial court properly admitted Schafer’s statements to the police officers;

       (3) the trial court did not abuse its discretion by admitting certain evidence of

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 30 of 31
       prior misconduct pursuant to Indiana Rules of Evidence 404(b); (4) Schafer’s

       jail phone call to his mother was properly admitted into evidence; (5) the State

       did not fail to preserve evidence; and (6) the State presented sufficient evidence

       beyond a reasonable doubt to support Schafer’s conviction.


[51]   Affirmed.


[52]   Crone, J. and Altice, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-CR-1143 | March 21, 2017   Page 31 of 31
