MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                        FILED
this Memorandum Decision shall not be                               Sep 20 2016, 8:56 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                   Gregory F. Zoeller
Crown Point, Indiana                                     Attorney General of Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Cesar A. Castaneda,                                      September 20, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A05-1601-CR-25
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G01-1302-FA-6



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016     Page 1 of 25
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Cesar A. Castaneda, Sr. (Castaneda), appeals his

      conviction for battery resulting in death, a Class A felony, Ind. Code § 35-42-2-

      1(a)(5) (2012); and neglect of a dependent, a Class D felony, I.C. § 35-46-1-

      4(a)(3) (2012).


[2]   We affirm.


                                                    ISSUES

[3]   Castaneda raises two issues on appeal, which we restate as follows:

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

      statements into evidence; and

      (2) Whether Castaneda’s sentence is inappropriate in light of the nature of the

      offense and his character.


                           FACTS AND PROCEDURAL HISTORY

[4]   Castaneda and Tabitha Garza (Garza) were married on March 16, 2011. The

      couple lived at 5030 Reading Avenue, East Chicago, in Lake County, Indiana,

      with their two children, A.C. (a daughter) and C.C. (a son), as well as Garza’s

      son from a previous relationship. Following the birth of C.C. on July 2, 2012,

      Garza took a four-week maternity leave before returning to her job as a medical

      assistant sometime in August of 2012. At the time, Castaneda was

      unemployed, so he cared for the children while Garza was at work. Although

      thirteen-month-old A.C. and one-month-old C.C. were home with Castaneda



      Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 2 of 25
      all day, Garza’s eight-year-old son attended school in the mornings until 12:30

      p.m.


[5]   At the end of September 2012, C.C. began experiencing “some incidences of

      vomiting, excessive spit-up, a period of time with diarrhea and fever.” (Tr. p.

      68). As a result, C.C.’s doctor recommended switching to a lactose-free

      formula and to place him in an upright position after feedings. After following

      the doctor’s advice, C.C. began to show improvement. However, according to

      Garza, C.C. was still occasionally experiencing symptoms of reflux and had

      been in a fussy mood, so she intended to take him back to his doctor.


[6]   On the morning of October 10, 2012, Garza awoke to take care of A.C. and

      ready her son for school and herself for work. Before leaving the house, Garza

      gave A.C. a bottle and placed her in the playpen to take a nap. At the time,

      Castaneda was still asleep, and three-month-old C.C. was asleep in the bed with

      him. Between 9:30 and 9:45 a.m., Garza woke Castaneda and instructed him

      to listen in case A.C. woke up. Garza then left for work. At approximately

      1:30 p.m., Castaneda called Garza and sounded “panicked.” (Tr. p. 87). He

      told Garza that she needed to come home because C.C. was not breathing.

      During this conversation, Garza could hear A.C. crying in the background.

      Garza instructed Castaneda to call 9-1-1, and she left work immediately.


[7]   Within four minutes of Castaneda and Garza both calling 9-1-1, Jeremy Furto

      (Furto), a firefighter and first responder for the City of East Chicago, arrived at

      the residence. Castaneda was waiting at the door with C.C. in his arms, and he


      Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 3 of 25
      told Furto that C.C. “was choking.” (Tr. p. 35). Furto took the unconscious

      C.C. from Castaneda and observed that C.C. did not have a pulse, was not

      breathing, and was “[c]ool” to the touch. (Tr. p. 35). After checking to make

      sure that C.C.’s airway was not obstructed, Furto commenced infant CPR.

      Less than two minutes later, the ambulance arrived, and Furto transferred care

      of C.C. to the paramedic, Patrick Nickos (Nickos). Once C.C. was loaded into

      the ambulance, Nickos confirmed that C.C. did not have a pulse and was not

      breathing, and “[h]e was bluish in color.” (Tr. p. 49). Using a laryngoscope to

      inspect the upper portion of C.C.’s airway, Nickos verified that there were no

      obstructions, such as vomit, blocking the trachea. Nickos resumed CPR, with

      Furto providing artificial ventilations via an Ambu bag. Although C.C.’s pulse

      returned with the administration of CPR, he “never took a breath on his own,”

      and he was not getting sufficient oxygen to his blood. (Tr. p. 58). Thus, Nickos

      intubated C.C. with an endotracheal (ET) tube to provide oxygen directly to his

      lungs.


[8]   At 1:54 p.m., the ambulance arrived at St. Catherine’s Hospital in East

      Chicago, where the emergency room care providers were waiting to

      immediately take over C.C.’s treatment. C.C., who remained unresponsive,

      received a lumbar puncture in order to ascertain whether he had any infections,

      as well as a CT scan of his head. The lumbar puncture did not provide any

      indication of infection, and the CT scan depicted swelling in C.C.’s brain. In

      addition, an x-ray established that C.C.’s ET tube was about one centimeter too

      low in the airway, so it was repositioned.


      Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 4 of 25
[9]    Because of his critical condition, C.C. was airlifted to Memorial Hospital in

       South Bend, Indiana, that same day. After C.C. departed from St. Catherine’s

       in the helicopter, Castaneda and Garza drove together to the hospital in South

       Bend. On the way, Castaneda explained to Garza “[t]hat he grabbed [C.C.],

       that he tried breathing in his mouth, that he stuck his finger down his throat and

       that he shook him a little to tell him to breathe and that he wouldn’t breathe.”

       (Tr. p. 78).


[10]   En route to Memorial Hospital, the Med Flight team noted that C.C.’s

       “fontanel was full, was bulging and tense,” indicating “that the brain was

       already swelling and under pressure.” (Tr. p. 420). Upon arrival, C.C. was

       admitted to the pediatric intensive care unit. It was immediately “clear that

       [C.C.] had brain swelling that was cerebral edema.” (Tr. p. 421). Additional

       CT scans were taken, which revealed intracranial bleeding—specifically

       subdural and subarachnoid hemorrhages. At this point, C.C.’s hospital care

       providers began to suspect that C.C. had been subjected to “non-accidental

       trauma” based on the fact that the history provided—i.e., that he had stopped

       breathing due to choking—was inconsistent with the nature of his injuries, in

       conjunction with the fact that C.C.’s injuries were classic indicators of abusive

       head trauma. 1




       1
         According to C.C.’s pediatric critical care physician, Dr. Olubunmi Okanlami (Dr. Okanlami), the
       nomenclature has changed for the “constellation of injuries” that has historically been referred to as “Shaken
       Baby Syndrome.” (Tr. p. 434). Practitioners now refer to this condition as “abusive head trauma” in order

       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016           Page 5 of 25
[11]   After C.C.’s admission to the hospital, a report was made to the Indiana

       Department of Child Services (DCS) in reference to C.C.’s “choking incident.”

       (Tr. p. 123). On October 11, 2012, Tina Kozlowski (Kozlowski), a family case

       manager with the Lake County Office of DCS, was assigned to investigate

       based on the fact that there was “a near fatality” involving a child. (Tr. p. 125).

       When Kozlowski arrived at Memorial Hospital, she learned from C.C.’s care

       providers that the cause of his injuries “was most likely non-accidental trauma”

       although “[t]hey were still ruling out other medical issues.” (Tr. pp. 141-42).

       Thereafter, Kozlowski conducted separate interviews with Garza and

       Castaneda.


[12]   During his interview with Kozlowski, Castaneda described his version of events

       leading up to C.C.’s incapacitation. He stated that he had woken up at about

       9:00 a.m., at which time he fed C.C., gave A.C. a bottle and placed her in her

       playpen, and then he and C.C. both went back to sleep. At approximately 1:00

       p.m., he woke up because “he heard choking sounds coming from C.C.” and

       “gasping,” and then he “saw some substance coming out of [C.C.’s] mouth and

       nose.” (Tr. pp. 126-27). Castaneda stated that he opened C.C.’s mouth to

       remove any substances, and “he tried blowing into the mouth to give breaths to

       [C.C.]” (Tr. p. 126). Castaneda also reported “that he shook [C.C.] lightly to

       see if he could arouse his son.” (Tr. p. 126). Castaneda stated that he




       to encompass additional mechanisms of injury, such as where a child has been shaken with or without
       impact or where a child has head trauma as a result of being pushed or hit. (Tr. p. 408).

       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016       Page 6 of 25
       attempted to revive C.C. for about ten to fifteen minutes before calling 9-1-1.

       Castaneda further explained to Kozlowski that C.C. had been ill recently and

       was having issues with vomiting. Kozlowski “asked him if that was frustrating.

       [Castaneda] said yes but then he said no very quickly, that he loved his son, he

       would never hurt his son.” (Tr. p. 132). When Kozlowski inquired about

       whether Garza’s oldest son was home during the choking incident, Castaneda

       recalled that he met Garza’s son at the bus stop at 12:30 p.m. and then went

       back to sleep for half an hour, at which time he heard C.C. choking. Kozlowski

       also asked who was supervising fifteen-month-old A.C. during the four-hour

       span that he was supposedly napping with C.C., to which Castaneda did not

       offer a response. Later that evening, Castaneda called Kozlowski and stated

       “that he may have shook [C.C.] harder than he originally told [her].” (Tr. p.

       133).


[13]   On October 12, 2012, Dr. Eric Yoon (Dr. Yoon), an ophthalmologist,

       examined C.C. Using “an indirect op[h]thalmoscope,” Dr. Yoon assessed

       C.C.’s retinas—that is, “the back part of the eye.” (Tr. p. 377). Dr. Yoon

       concluded that C.C. “had diffuse retinal hemorrhages in all three layers of the

       retina, for both eyes.” (Tr. p. 384). For the next several days, C.C., who had

       never regained consciousness, remained in critical condition and was

       maintained by mechanical ventilation. Subsequent scans of his brain showed

       damage that was “progressively worsen[ing].” (Tr. p. 412). C.C.’s doctor

       struggled to control his blood pressure, and EEG studies indicated ongoing

       seizure activity despite the administration of anti-seizure medication. There


       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 7 of 25
       were also signs of anoxic brain damage. Following an MRI scan on October

       16, 2012, “it was clear that . . . there was pretty diffuse brain damage to the

       cerebral cortex, cerebellum as well as the spinal cord in the cervical region and

       that—all of those were not compatible with life.” (Tr. p. 412). On the morning

       of October 17, 2012, after consulting with C.C.’s medical team, Garza made the

       decision to remove C.C. from the ventilator. Within five minutes of

       withdrawing life support, C.C. passed away.


[14]   A few hours after C.C.’s death, Dr. Joseph Prahlow (Dr. Prahlow), a forensic

       pathologist, performed an autopsy on C.C. Dr. Prahlow determined that C.C.

       “died as a result of closed head and neck injuries” and ruled his death “a

       homicide.” (Tr. pp. 270-71). In support of this determination, Dr. Prahlow

       made numerous findings indicating that C.C. was subjected to significant

       trauma. In relevant part, Dr. Prahlow found diastatic fractures, which are the

       result of extensive swelling of the brain, which causes the skull plates to

       separate at the suture lines. Dr. Prahlow examined C.C.’s brain and found a

       subscapular contusion on the left parietal region of the scalp, which led him to

       conclude that there was impact to C.C.’s head. Dr. Prahlow also found

       subdural hemorrhage, subarachnoid hemorrhage, retinal hemorrhages, and

       perioptic nerve hemorrhage, all of which he concluded to be the result of

       trauma. Microscopic examination revealed brain lacerations—i.e., traumatic

       “disruption of the brain” tissue—and attempts at healing. (Tr. p. 249). There

       was also a contusion to the cervical spinal cord, which is located “very high in

       the neck, . . . right where the spinal cord attaches to the brainstem.” (Tr. pp.


       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 8 of 25
       252-53). Particularly in infants, such injuries to the spinal cord result from

       “hyperflexion or hyperextension of the neck.” (Tr. p. 253). Microscopically,

       within the cerebellum, medulla, and spinal cord, Dr. Prahlow detected globular

       staining with beta amyloid precursor protein, which proved to him that these

       areas of hemorrhaging were the result of actual “traumatic disruption of the . . .

       nervous tissue” as opposed to being the secondary result of a lack of blood flow

       leading to necrosis. (Tr. p. 267). When Dr. Prahlow examined C.C.’s thoracic

       cavity, he observed areas of bleeding in the posterior rib cage, which prompted

       his further examination. Although no fractures were visible in the x-rays and

       CT scans, microscopic testing confirmed healing fractures in several of C.C.’s

       posterior ribs, which would be consistent with a significant pressure/squeezing

       injury. Finally, although Dr. Prahlow detected that C.C. had interstitial

       pneumonia indicative of a respiratory illness, he found no evidence of aspirated

       material in the lungs to support a choking hypothesis.


[15]   On March 8, 2013, the State filed an amended Information, charging Castaneda

       with Count I, neglect of a dependent by placing the dependent in a situation

       that endangers the dependent’s life or health, resulting in death, a Class A

       felony, I.C. § 35-46-1-4(a)(1),(b)(3) (2012); Count II, murder, a felony, I.C. § 35-

       42-1-1(1) (2012); Count III, battery resulting in death, a Class A felony, I.C. §

       35-42-2-1(a)(5) (2012); and Count IV, neglect of a dependent by depriving the

       dependent of necessary medical support, resulting in death, a Class A felony,

       I.C. § 35-46-1-4(a)(3),(b)(3) (2012).




       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 9 of 25
[16]   On October 19-23, 2015, the trial court conducted a jury trial. During its case-

       in-chief, the State relied primarily on the expert testimony of Dr. Prahlow, Dr.

       Yoon, and Dr. Okanlami. Dr. Prahlow, the pathologist who performed C.C.’s

       autopsy, testified that C.C. “died as a result of closed head and neck injuries,”

       which “could include a component of shaking but definitely also includes a

       component of impact.” (Tr. pp. 270-71, 274). Dr. Yoon, the ophthalmologist,

       testified that the severe hemorrhaging of all three retinal layers was “very

       suspicious of trauma.” (Tr. p. 384). Specifically, he said that this type of

       damage usually results from “vigorously shaking the baby where his head is

       going back and forth,” and, in fact, that C.C.’s retinal injuries were consistent

       with a violent shaking. (Tr. p. 385). Finally, C.C.’s pediatric critical care

       physician, Dr. Okanlami, testified that “this was definitely a child that was the

       subject of abusive head trauma, presumably by shaking” with the additional

       concern “that there was a delay in seeking medical care.” (Tr. p. 439).


[17]   The State also presented the testimony of Jermal Norris (Norris), who shared a

       cell with Castaneda at the Lake County Jail for a few months in 2013 while

       Castaneda awaited trial. Norris informed the jury that cellmates “tend to open

       up to each other.” (Tr. p. 178). Thus, in exchange for lenient treatment in his

       own pending case, Norris testified as to the content of some of his conversations

       with Castaneda. In particular, Norris stated that Castaneda had claimed to be

       incarcerated because C.C. had been crying, and “he shook him.” (Tr. p. 173).

       Norris further recounted that Castaneda had expressed doubts about the

       paternity of his younger child, believing instead that the father of Garza’s older


       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 10 of 25
       son might actually be C.C.’s biological father. 2 In order to cope with the stress

       he was feeling about this situation, Castaneda admitted to Norris that he had

       been smoking marijuana, including on the day that he shook C.C.


[18]   In contrast to the State’s expert witnesses, during the defense’s case, Dr.

       Edward Willey (Dr. Willey), a pathologist whose practice is centered on

       providing consultations for attorneys, testified that he found no inflicted

       traumatic injuries when he reviewed the medical records pertaining to C.C.

       Instead, he opined that C.C.’s death was natural and was the result of external

       hydrocephalus, 3 which he surmised had been overlooked during C.C.’s

       treatment and autopsy. Dr. Willey additionally testified that “Shaken Baby

       Syndrome is imaginary” and that he “[does not] believe you can damage [a]

       child by shaking it.” (Tr. pp. 558, 561). Another defense witness, Dr. Amjad

       Alkadri (Dr. Alkadri), an interventional radiologist, reviewed C.C.’s x-rays and

       found no evidence of rib fractures. However, Dr. Alkadri also testified that

       “[t]his is a clear case of a baby that was shaken.” (Tr. p. 364).


[19]   At the close of the evidence, the jury returned a guilty verdict for Count I,

       neglect of a dependent resulting in death; Count II, reckless homicide as a Class

       C felony (as a lesser included offense of murder); Count III, battery resulting in



       2
         During the trial, the State also elicited testimony from Garza that, before they were married, Castaneda
       had been jealous of her relationship with her older son’s father but that those issues were resolved.
       3
         According to Dr. Willey, external hydrocephalus is “a condition where there’s [sic] collections of fluid
       around the brain.” (Tr. p. 501). He explained that his diagnosis was based on C.C.’s head circumference,
       which had increased from the 50th percentile on a pediatric growth chart to the 95th percentile between his
       two-month well-check appointment and his admission to Memorial Hospital.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016          Page 11 of 25
       death; and Count IV, neglect of a dependent resulting in death. On December

       2, 2015, the trial court held a sentencing hearing. The trial court merged

       Counts I and II into Count III and accordingly entered a judgment of

       conviction for Count III, battery resulting in death as a Class A felony. The

       trial court also entered a judgment of conviction for Count IV, neglect of a

       dependent resulting in death, which the trial court reduced to a Class D felony.

       The trial court sentenced Castaneda to serve consecutive terms of twenty-eight

       years on Count III and one and one-half years on Count IV, resulting in an

       aggregate sentence of twenty-nine and one-half years, fully executed in the

       Indiana Department of Correction.


[20]   Castaneda now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                           I. Admission of Evidence

[21]   Castaneda claims that the trial court abused its discretion by admitting hearsay

       into evidence. A trial court is vested with sound discretion to admit or exclude

       evidence at trial, and we afford the trial court’s decision “great deference on

       appeal.” VanPatten v. State, 986 N.E.2d 255, 260 (Ind. 2013). “We will not

       reverse such a decision, often made in the context of heated testimony and

       argument, unless it is clearly contrary to the logic and effect of the facts and

       circumstances of the case or misinterprets the law.” Id.


[22]   Although the context was only vaguely described at trial, it appears that shortly

       after C.C. died, Garza created an online petition, imploring the “Lake County


       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 12 of 25
Prosecutor, East Chicago Police, [and] Indiana State Police” to charge

Castaneda with C.C.’s death. (Tr. p. 592). During the trial, Garza provided

testimony that was inconsistent with her statements in the online petition.

Thus, the State inquired into a portion of the contents of the online petition in

order to impeach Garza. First, the State questioned her as follows:

        Q.      Now, you indicated that you started this on-line petition?
        A.      Yes.
        Q.      That you supplied the information; is that correct?
        A.      Yes, ma’am.
        Q.      And in this on-line petition, you said that the man [i.e.,
        Castaneda] was tired from staying up getting high the night
        before, he wanted a nap. [C.C.] had been sick and was fussy.
        Do you recall putting that information on your website, “Justice
        for [C.C.]”?
        A.      That was the information that I was fed by somebody else.
        Q.      Fed by whom?
        A.      [Kozlowski].
        ****
        Q.      [Kozlowski] told you she saw your husband the night
        before?
        A.      No. She when speaking with me at the hospital, when she
        interviewed me, kept implying that he was up getting high, that
        he was doing this, he was doing that, and I was angry at the time.
        My child was on life support, and I wanted somebody to blame
        for it.
        Q.      So you’re saying the DCS worker told you that
        [Castaneda] had been getting high the night before?
        A.      Yes.




Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 13 of 25
       (Tr. pp. 84-85). 4 Additionally, the State made the following inquiry:


               Q.     But do you recall in the website that you started called
               “Justice for [C.C.]” what you said was [Castaneda’s] story was
               rehearsed and he practiced it on anyone who would listen. Do
               you recall writing that on your website?
               A.     Yes.


       (Tr. p. 103). Then, on cross-examination, Castaneda clarified Garza’s direct

       testimony as follows:

               Q.     . . . [The State] asked you about some words that you had
               put on your website, specifically the quotation, “[Castaneda’s]
               story was rehearsed and he tells it to anyone[.]” Are those your
               words, or are those [Kozlowski’s] words?
               A.     Those were my words at the time.
               Q.     That his story was rehearsed?
               A.     I was angry and that’s just how I felt at the time.
               Q.     Do you think his story was rehearsed?
               A.     No.


       (Tr. pp. 105-06).


[23]   Thereafter, the State completed its examination of Garza and proceeded with

       the remainder of its witnesses. However, prior to resting its case, the State

       sought to read into evidence a portion of Garza’s online petition “as past

       [recollection] recorded because when [Garza] testified about . . . [t]he on-line




       4
         We note that Garza specifically stated that Kozlowski interviewed her before Kozlowski spoke with
       Castaneda, and Kozlowski had not yet had the opportunity to conduct any investigation from which she
       could have learned such information about Castaneda.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016     Page 14 of 25
       petition information, she did not admit—she kind of said she may have said it,

       so I would like to as a past recollection recorded because she did admit that she

       made it.” (Tr. p. 586). Over Castaneda’s hearsay objection, the trial court

       permitted the State to read the following excerpt from Garza’s petition into

       evidence: “The man was tired from staying up getting high the night before.

       He wanted a nap. [C.C.] had been sick about two weeks and was fussy. His

       story was rehearsed and he practiced it on anyone who would listen.” (Tr. p.

       592).


[24]   On appeal, Castaneda claims that the trial court erroneously allowed the State

       to read the hearsay statements into evidence. A “hearsay” statement is one that

       “(1) is not made by the declarant while testifying at the trial or hearing; and (2)

       is offered in evidence to prove the truth of the matter asserted.” Ind. Evidence

       Rule 801(c). Hearsay is not admissible unless a specifically delineated

       exception set forth in Indiana Evidence Rule 803 applies. Evid. R. 802.


[25]   In this case, the State sought to admit the statements from the petition as a

       recorded recollection. Indiana Evidence Rule 803(5) provides an exception to

       the hearsay rule for recorded recollections. This Rule states that a record that:

       “(A) is on a matter the witness once knew about but now cannot recall well

       enough to testify fully and accurately; (B) was made or adopted by the witness

       when the matter was fresh in the witness’s memory; and (C) accurately reflects

       the witness’s knowledge” may be admitted and “read into evidence.” Evid. R.

       803(5).



       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 15 of 25
[26]   We find that the admission of the statement fails the first prong of the recorded

       recollection criteria. As our supreme court has explained, “[t]he recorded

       recollection exception applies when a witness has insufficient memory of the

       event recorded, but the witness must be able to ‘vouch for the accuracy of the

       prior [statement].’” Kubsch v. State, 866 N.E.2d 726, 734 (Ind. 2007) (second

       alteration in original) (quoting Gee v. State, 389 N.E.2d 303, 309 (Ind. 1979)).

       Here, there is no indication that Garza had insufficient memory of the

       statements that were read into evidence. Rather, by the time of trial, it appears

       that she no longer blamed Castaneda for C.C.’s death and, therefore, had

       simply disavowed her prior statements. Particularly, Garza acknowledged at

       trial that she wrote the petition “in the days following my son passing away.”

       (Tr. p. 83). Although she testified that she had gone to bed before Castaneda

       and did not personally observe his activities on the night prior to the incident,

       Garza recalled that she wrote in the petition that Castaneda had been up

       smoking marijuana that night and was unable to nap the next day because of

       C.C.’s fussiness. However, at trial, she claimed that she was fed this

       information by Kozlowski and that she no longer held these beliefs. Similarly,

       Garza specifically remembered that she was angry and, at the time, believed

       that Castaneda’s story was rehearsed. By trial, Garza had changed her tune.

       Accordingly, because Garza had sufficient memory of the statements she made




       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 16 of 25
       in her online petition, they should not have been read into evidence pursuant to

       the recorded recollection exception of the hearsay prohibition. 5


[27]   Nevertheless, we find that any error in the admission of the statements is

       harmless. “‘[E]rrors in the admission of evidence are to be disregarded as

       harmless error unless they affect the substantial rights of a party.’” VanPatten,

       986 N.E.2d at 267 (alteration in original) (quoting McClain v. State, 675 N.E.2d

       329, 331 (Ind. 1996)). In deciding whether the error in the admission of

       evidence affected the defendant’s substantial rights, we “must assess the

       probable impact of the evidence upon the jury.” Id. (quoting McClain, 675

       N.E.2d at 331). An error in the admission of hearsay evidence does not provide

       a basis for reversal if “it is merely cumulative of other evidence admitted.” Id.

       (quoting McClain, 675 N.E.2d at 331-32).


[28]   Castaneda asserts that he was prejudiced by the admission of the hearsay. In

       particular, he argues that “[a]fter hearing the complicated and conflicting

       testimony of the experts, the last thing presented to the jury was the [State]

       reading the excerpt from the website which indicated that . . . Castaneda had

       been getting high and staying up late the night before the child’s death,




       5
         The State contends that the statements were admissible under Evidence Rule 803(3), which allows for the
       admission of “[a] statement of the declarant’s then-existing state of mind (such as motive, design, intent, or
       plan) or emotional, sensory, or physical condition (such as mental feeling, pain or bodily health), but not
       including a statement of memory or belief to prove the fact remembered or believed unless it relates to the
       execution, revocation, identification, . . . or terms of the declarant’s will.” However, we need not address
       this argument based on our harmless error analysis, which follows.



       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016           Page 17 of 25
       improperly impugning his character and encouraging the jury to convict based

       upon his character.” (Appellant’s Br. pp. 11-12). We disagree. During the

       State’s examination and Castaneda’s cross-examination of Garza, she

       acknowledged that she had drafted an online petition in which she discussed

       that Castaneda had been up the night before the incident smoking marijuana;

       that he wanted to take a nap; that C.C. was sick and fussy; and that he had

       rehearsed his version of events. Notwithstanding the fact that Garza claimed at

       trial that she had been fed some of the information by Kozlowski and that she

       no longer maintained those beliefs, the State’s act of reading the statements into

       evidence was merely cumulative of Garza’s prior testimony.


[29]   Moreover, “[t]he improper admission of evidence is harmless error if we are

       satisfied that the conviction is supported by such substantial independent

       evidence of guilt that there is little likelihood the challenged evidence

       contributed to the conviction.” Corbally v. State, 5 N.E.3d 463, 470 (Ind. Ct.

       App. 2014). Here, the evidence established that C.C. suffered a traumatic brain

       injury while in the care of Castaneda. Although Castaneda informed the first

       responder, Furto, that C.C. “was choking,” there is no evidence that C.C.’s

       airway was obstructed. (Tr. p. 35). Rather, the medical evidence reveals that

       C.C. sustained subdural and subarachnoid hemorrhages; brain lacerations;

       retinal hemorrhages; perioptic nerve hemorrhage; diastatic fractures from

       extensive brain swelling; cervical spinal cord hemorrhage; a contusion on the

       parietal scalp signifying impact to the head; and he had rib fractures in the early

       stages of healing. It was also clear that C.C. suffered brain damage based on a


       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 18 of 25
       prolonged lack of oxygen to the brain. Although there was conflicting evidence

       on the cause of this anoxic event, Dr. Okanlami explained that it was likely the

       result of the fact that, after he sustained an injury that caused his brain to swell

       and bleed, C.C. stopped breathing, and Castaneda delayed in seeking medical

       attention that could have helped restore oxygenation to C.C.’s brain.


[30]   In addition, Castaneda informed both Garza and Kozlowski that he “shook

       [C.C.] a little” to revive him, and he later confessed to Kozlowski “that he may

       have shook [C.C.] harder than he originally told [her].” (Tr. pp. 78, 133).

       According to Norris, Castaneda admitted that C.C. had been crying, and “he

       shook him.” (Tr. p. 173). Finally, Dr. Prahlow, Dr. Yoon, Dr. Okanlami, and

       Dr. Alkadri all testified that C.C.’s fatal injuries were consistent with having

       been violently shaken. Accordingly, based on the substantial evidence of his

       guilt, we find that the admission of the hearsay “was unimportant in relation to

       everything else the jury considered on the issue in question.” Corbally, 5 N.E.3d

       at 470. 6




       6
          Castaneda also argues that the admission of the statements violated his “rights under the Sixth Amendment
       of the United States Constitution to confrontation of the witness against him” because Garza “was clearly
       not available at the time the statement was admitted.” (Appellant’s Br. p. 12). We, however, find that
       Castaneda has waived this argument for appeal because he did not object on this ground at trial. Rather, he
       objected solely on the basis of hearsay, and it is well established that “[a] defendant may not object on one
       ground at trial and raise another on appeal.” Saunders v. State, 848 N.E.2d 1117, 1122 (Ind. Ct. App. 2006),
       trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016        Page 19 of 25
                                                  II. Sentencing

[31]   Castaneda also claims that his sentence is inappropriate. It is well established

       that matters of sentencing are reserved to the trial court’s discretion and should

       receive considerable deference on appeal. Cardwell v. State, 895 N.E.2d 1219,

       1222 (Ind. 2008). It is an abuse of the trial court’s sentencing discretion if its

       “decision is clearly against the logic and effect of the facts and circumstances

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

       therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (internal

       quotation marks omitted), trans. denied. Even where a trial court has imposed a

       valid sentence, our court has the authority to revise the sentence if, “after due

       consideration of the trial court’s decision, [we] find[] that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.” Ind. Appellate Rule 7(B).


[32]   A Class A felony is punishable by “a fixed term of between twenty (20) and fifty

       (50) years, with the advisory sentence being thirty (30) years.” I.C. § 35-50-2-4

       (2012). A Class D felony is subject to a term of imprisonment “of between six

       (6) months and three (3) years, with the advisory sentence being one and one-

       half (1 ½) years.” I.C. § 35-50-2-7(a) (2012). In this case, the trial court

       identified several aggravating circumstances, including the tender age of the

       child, the violation of a position of trust (only applied as to the Class A felony

       battery charge), and Castaneda’s deceptive behavior “in trying to cover [his]

       tracks.” (Tr. p. 705). As for mitigating circumstances, the trial court noted

       Castaneda’s lack of a significant criminal history, his positive relationship with


       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 20 of 25
       his family and community members, and the fact that incarceration would be a

       hardship on his family. Accordingly, for Castaneda’s conviction of battery

       resulting in death as a Class A felony, the trial court imposed a mitigated

       sentence of twenty-eight years. As for his conviction of Class D felony neglect

       of a dependent, the trial court imposed the advisory sentence of one and one-

       half years. Although the trial court did not enhance Castaneda’s individual

       sentences, it relied on the presence of aggravating circumstances to order that

       Castaneda’s sentences run consecutively, resulting in an aggregate term of

       twenty-nine and one-half years.


[33]   “Castaneda concedes that the offenses for which he was convicted; causing the

       death of his infant son and failing to request medical help in a timely fashion,

       are extremely serious. His request for a review pursuant to Rule 7(B) . . . is

       based upon the inconsistent decisions of the trial court when evaluating

       aggravating and mitigating circumstances for each offense.” (Appellant’s Br. p.

       13). Specifically, Castaneda argues that “it is inappropriate for a trial court to

       identify and weigh aggravating and mitigating circumstances and impose a

       sentence less than the advisory for one offense; weigh the same mitigating and

       two fewer aggravating circumstance[s] and impose a sentence for the advisory

       term for a related offense; and then to use an unidentified aggravating factor to

       impose consecutive sentences.” (Appellant’s Br. p. 15).


[34]   We find that Castaneda’s argument is more appropriately framed as whether

       the trial court abused its sentencing discretion rather than whether his sentence



       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 21 of 25
       is inappropriate. A trial court may be found to have abused its sentencing

       discretion

               if it: (1) fails to enter a sentencing statement at all; (2) enters a
               sentencing statement that explains reasons for imposing a
               sentence—including a finding of aggravating and mitigating
               factors if any—but the record does not support the reasons; (3)
               enters a sentencing statement that omits reasons that are clearly
               supported by the record and advanced for consideration; or (4)
               considers reasons that are improper as a matter of law.


       Gross, 22 N.E.3d at 869 (quoting Anglemyer v. State, 868 N.E.2d 482, 490-91,

       clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)) (internal quotation marks

       omitted). If we find an abuse of discretion, we will only remand for

       resentencing “‘if we cannot say with confidence that the trial court would have

       imposed the same sentence had it properly considered reasons that enjoy

       support in the record.’” Id. (quoting Anglemyer, 868 N.E.2d at 491).


[35]   We first note that Castaneda has not cited any authority to support his assertion

       that the trial court is constrained from imposing consecutive sentences simply

       because it exercised its discretion to impose advisory/mitigated sentences.

       Rather, our court has previously found


               that there is “no basis for holding that a trial court is restricted to
               a one-step balancing process when sentencing a defendant for
               multiple crimes” and that “it is permissible for a trial court to
               consider aggravators and mitigators in determining the sentence
               for each underlying offense and then to independently consider
               aggravators and mitigators in determining whether to impose
               concurrent or consecutive sentences.”

       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 22 of 25
       Id. at 870 (quoting Frentz v. State, 875 N.E.2d 453, 472 (Ind. Ct. App. 2007),

       trans. denied). Moreover, we have long held that “[t]he decision to impose

       consecutive sentences lies within the discretion of the trial court,” and “[a]

       single aggravating circumstance may be sufficient to support the imposition of

       consecutive sentences.” Id. at 869.


[36]   Here, the trial court identified multiple aggravating circumstances: C.C.’s age;

       Castaneda’s violation of a position of trust; and Castaneda’s deceptive

       behavior. After identifying all of the aggravating and mitigating factors and

       imposing advisory/mitigated sentences, the trial court stated, “And given these

       aggravating factors that I’ve listed, I think consecutive sentence is in fact

       appropriate.” (Tr. p. 707). Therefore, we find no abuse of discretion in the trial

       court’s decision to impose consecutive sentences despite the fact that the

       underlying sentences were advisory/mitigated.


[37]   In addition, although Castaneda has not fully developed his argument pursuant

       to Appellate Rule 7(B), we find that his sentence is not inappropriate. The

       purpose of appellate review of sentences “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell, 895 N.E.2d at 1225. Ultimately,

       “whether we regard a sentence as appropriate at the end of the day turns on our

       sense of the culpability of the defendant, the severity of the crime, the damage

       done to others, and myriad other factors that come to light in a given case.” Id.



       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 23 of 25
       at 1224. On review, we focus on “the length of the aggregate sentence and how

       it is to be served.” Id.


[38]   Although Castaneda concedes that the nature of his offense is “extremely

       serious,” we find this description to be woefully inadequate. (Appellant’s Br. p.

       13). As the caregiver at the time, Castaneda’s responsibility was to ensure the

       health and well-being of his son. C.C. was only three months old; he depended

       on Castaneda to meet all of his needs. Instead, the evidence indicates that

       Castaneda could not tolerate having his sleep disturbed by a sick, crying infant.

       After inflicting injuries on C.C. which caused C.C. to undergo

       cardiopulmonary arrest, Castaneda delayed in seeking medical attention and

       caused further oxygen deprivation to C.C.’s brain. Castaneda fabricated a story

       about C.C. choking, as evidenced by the fact that C.C.’s airway was not

       obstructed, in order to protect his own interests at the risk of obtaining proper

       treatment for his child. At the time of his autopsy, C.C. was found to have

       sustained, in part, hemorrhaging to his brain, retinas, and spinal cord, which

       were consistent with shaking and impact to the head.


[39]   As to Castaneda’s character, the trial court found that, “[o]utside of this

       instance, you’re a good guy.” (Tr. p. 701). Castaneda has a minimal criminal

       history, consisting of a 2009 misdemeanor conviction for trespassing.

       However, he has previously been arrested for possession of marijuana (which

       was ultimately dismissed), and there was evidence presented during the trial

       that Castaneda was smoking marijuana at the time he hurt C.C. Based on the



       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 24 of 25
       facts before us, we cannot say that Castaneda’s twenty-nine-and-one-half-year

       sentence is inappropriate.


                                               CONCLUSION

[40]   Based on the foregoing, we conclude that the trial court’s admission of hearsay

       statements amounted to harmless error. We further conclude that Castaneda’s

       sentence is not inappropriate.


[41]   Affirmed.


[42]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision 45A05-1601-CR-25 | September 20, 2016   Page 25 of 25
