        MEMORANDUM DECISION

        Pursuant to Ind. Appellate Rule 65(D),
                                                                       Sep 17 2015, 8:58 am
        this Memorandum Decision shall not be
        regarded as precedent or cited before any
        court except for the purpose of establishing
        the defense of res judicata, collateral
        estoppel, or the law of the case.


        ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
        Marielena Duerring                                       Gregory F. Zoeller
        South Bend, Indiana                                      Attorney General of Indiana
                                                                 Angela N. Sanchez
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                   IN THE
            COURT OF APPEALS OF INDIANA

        Tyler Beathea,                                           September 17, 2015
        Appellant-Defendant,                                     Court of Appeals Case No.
                                                                 20A03-1411-CR-404
                v.                                               Appeal from the Elkhart Superior
                                                                 Court
        State of Indiana,                                        The Honorable George W.
        Appellee-Plaintiff                                       Biddlecome, Judge
                                                                 Trial Court Cause No.
                                                                 20D03-1212-FB-122



        Mathias, Judge.


[1]     Following a jury trial, Tyler Beathea (“Beathea”) was convicted in Elkhart

        Superior Court of Class B felony battery resulting in serious bodily injury of a


        Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-404 | September 17, 2015   Page 1 of 12
        child and Class D felony neglect of a dependent and sentenced to eighteen years

        to be served in the Indiana Department of Correction. Beathea now appeals and

        presents two issues for our review:


            I.      Whether Beathea was denied a meaningful opportunity to present a
                    complete defense to the battery charge when he was not permitted to
                    introduce testimony from the emergency room doctor that the
                    victim’s injuries were not “serious” and;

            II.     Whether the State presented sufficient evidence that the victim
                    suffered serious bodily injury and that Beathea committed neglect of a
                    dependent.

        We affirm.

                                        Facts and Procedural History


[2]     On December 23, 2012, Brook Jackson (“Jackson”) worked a double shift from

        9:00 a.m. until 10:00 p.m. at a nearby gas station. Jackson wanted to finish up

        her last minute Christmas shopping with her brother after work. Tyler Beathea

        (“Beathea”), Jackson’s boyfriend at the time, offered to take care of Jackson’s

        three-year-old daughter, A.L., while she worked the double shift and finished

        her shopping. Beathea had watched A.L. on two prior occasions, and A.L.

        “liked him very much.” Tr. p. 161.


[3]     Sometime that morning, A.L. wet the bed, and Beathea became infuriated.

        Beathea shouted profanities at A.L. and then pulled A.L.’s hair. He then picked

        her up by her hair, threw her in the air, dropped her on the bed, and struck her

        on the top of the head five times. Tr. pp. 328, 336-37. Beathea did not seek any

        medical attention for A.L. after the incident.


        Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-404 | September 17, 2015   Page 2 of 12
[4]     Jackson arrived home around 12:45 a.m. on December 24, 2012. A.L. was

        asleep. Several minutes later, A.L. awoke, and Jackson noticed that A.L. had a

        large bump on the right side of her head and that her entire head was swollen.

        Jackson asked Beathea what happened to A.L., but he responded that he did

        not know. Jackson noticed that A.L. was quiet and would not speak to Beathea,

        which was “very abnormal” for her. Tr. pp. 168-69.

[5]     Jackson took A.L. to the emergency room to be treated for her injuries,

        accompanied by her brother and Beathea. Over the next several hours at the

        hospital, A.L.’s injuries worsened. A.L. remained very quiet and winced when

        touched. The nurse assessed A.L.’s pain at a six out of ten on the flat score

        scale, a pain assessment for children. Her head turned pink beginning on the

        right side, but spread across her head, turning into a “purplish discoloration.”

        Tr. p. 227.

[6]     Doctors ordered a CT scan along with various other x-rays that determined

        A.L. suffered bleeding on several areas in the soft tissue of her scalp. The

        emergency room doctor diagnosed the injury as a “cephalohematoma,” and the

        hospital administered Tylenol to A.L. The doctor instructed Jackson to give

        A.L. Tylenol or ibuprofen and use ice to reduce the swelling.


[7]     The hospital staff suspected child abuse, and the emergency room nurse began

        the necessary paperwork for the referral to Child Protective Services. Jackson

        was cooperative, while Beathea refused to answer the nurse’s questions and

        became flustered. A heated dispute arose in the room, and the nurse asked


        Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-404 | September 17, 2015   Page 3 of 12
        Beathea to go to the waiting room. Instead of complying with the nurse’s

        request, Beathea left the hospital. Approximately seven hours after arriving at

        the hospital, A.L. was released from the emergency room, and Jackson took her

        to Child Protective Services to be interviewed.

[8]     On the evening of December 24, 2012, A.L.’s eyes became red and swollen

        with clear discharge. Jackson took her back to the hospital, and she was

        released the same day. A.L.’s eyes completely swelled shut on December 25,

        2012, and A.L. was unable to open any of her Christmas gifts that day or

        participate in family festivities without great assistance. Her eyes remained

        swollen shut for two to three months, and it took nearly a year for A.L’s

        swelling and bruising to completely heal. A.L. was apprehensive when Jackson

        brushed her hair, and her head remained tender at the time of trial.


[9]     Beathea was charged with Class B felony battery resulting in serious bodily

        injury of a child and Class D felony neglect of a dependent. A jury trial was

        held on September 15-17, 2014. During trial, the emergency room doctor

        described A.L.’s injuries. On cross-examination, Beathea questioned the doctor

        about the degree of the injuries he found during A.L.’s examination. Beathea

        specifically asked the doctor to opine on whether A.L. suffered “serious”

        injuries based on the doctor’s examination. The State objected that asking the

        doctor to determine whether the injury was “serious” called for a legal

        conclusion, because serious bodily injury was an element of the offense in this

        case. The trial court sustained the State’s objection.



        Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-404 | September 17, 2015   Page 4 of 12
[10]     The jury found Beathea guilty as charged. The trial court ordered Beathea to

         serve eighteen years executed at the Department of Correction. Beathea now

         appeals.

                     I. Meaningful Opportunity to Present a Complete Defense


[11]     Beathea argues that he was denied a meaningful opportunity to present a

         complete defense when the trial court sustained the State’s objection to the

         emergency room doctor testifying to whether or not A.L.’s injuries were

         “serious.” He contends that his defense was premised on whether the State

         could prove that he inflicted serious bodily injury, and his defense was

         eliminated because the trial court refused to allow the doctor to opine on

         whether A.L.’s injuries were “serious.” Tr. pp. 256-57.


[12]     The decision to admit or exclude evidence is within the trial court’s sound

         discretion, and that decision is “afforded a great deal of deference on appeal.”

         Hauk v. State, 729 N.E.2d 994, 1001 (Ind. 2000) (quoting Bacher v. State, 686

         N.E.2d 791, 793). We review the trial court’s ruling on the admission or

         exclusion of evidence for an abuse of discretion. Roche v. State, 690 N.E.2d

         1115, 1134 (Ind. 1997). We reverse only where the decision is clearly against

         the logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d

         386, 390 (Ind. 1997). Even if the trial court’s decision was an abuse of

         discretion, we will not reverse if the admission constituted harmless error. Fox v.

         State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999).




         Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-404 | September 17, 2015   Page 5 of 12
[13]     Although a defendant’s right to present a defense is of utmost importance, it is

         not absolute. Parker v. State, 965 N.E.2d 50, 53 (Ind. Ct. App. 2012). “The

         accused, as is required by the State must comply with established rules of

         procedure and evidence designed to assure both fairness and reliability in the

         ascertainment of guilt and innocence. Id.


[14]     Indiana Evidence Rule 704(b) provides:

                          Witnesses may not testify to opinions concerning intent,
                          guilt, or innocence in a criminal case; the truth or falsity of
                          allegations; whether a witness has testified truthfully; or
                          legal conclusions.

[15]     The trial court sustained the State’s objection to the doctor’s testimony and

         stated, “The witness cannot interpret whether or not the element of serious

         bodily injury is established or not established as a matter of opinion. And he

         may not render a [sic] opinion on whether or not the State has proved an

         element of the charge.” Tr. p. 257. We agree. See Schumm v. State, 868 N.E.2d

         1202, 1205 (Ind. Ct. App. 2007) (holding that a police officer who issued a

         citation to a driver for driving with improper headlights could not testify to

         whether the vehicle’s taillights complied with department of transportation

         regulations because it was a legal conclusion).


[16]     Beathea asked the doctor whether A.L’s injuries satisfied the definition of one

         of the essential elements of the charged crime, which would have amounted to

         the doctor opining on whether the State had proven Beathea guilty of battery

         resulting in serious bodily injury. The doctor was not aware that the term

         “serious” had a specialized legal meaning different than its vernacular meaning.
         Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-404 | September 17, 2015   Page 6 of 12
         The trial court correctly classified the testimony as a legal conclusion and

         sustained the State’s objection. C.f. Torres v. County of Oakland, 758 F.2d 147,

         151 (6th Cir. 1985) (holding that if the terms used by the witness have a separate,

         distinct, and specialized meaning in the law different from the present in the

         vernacular, exclusion is appropriate).


[17]     Even if the trial court had abused its discretion by excluding the testimony, any

         error would be harmless. “Trial court error is harmless if the probable impact of

         the error on the jury, in light of all of the evidence, is sufficiently minor such

         that it does not affect the substantial rights of the parties.” Bald v. State, 766

         N.E.2d 1170, 1173 (Ind. 2002) (quoting Hauk v. State, 729 N.E.2d 994, 1002

         (Ind. 2000)). No evidence exists to show that the doctor knew that there was a

         legal definition related to “serious” injury, so the doctor’s classification of

         A.L.’s injuries as “serious” would not have affected the jury’s outcome in

         determining if her injuries met the legal definition of “serious.” Further, the

         State presented testimony from several other witnesses who established the

         extent and seriousness of A.L.’s injuries. The jury properly considered this

         testimony to determine whether A.L.’s injuries were “serious.”

                                        II. Sufficiency of the Evidence


[18]     Beathea argues that neither of his convictions was supported by sufficient

         evidence. “Upon a challenge to the sufficiency of evidence to support a

         conviction, a reviewing court does not reweigh the evidence or judge the

         credibility of witnesses, and respects the jury’s exclusive province to weigh


         Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-404 | September 17, 2015   Page 7 of 12
         conflicting evidence. Montgomery v. State, 878 N.E.2d 262, 265 (Ind. Ct. App.

         2007) (quoting McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We must

         consider only the probative evidence and reasonable inferences supporting the

         verdict. Id. We must affirm if the probative evidence and reasonable inferences

         drawn from the evidence could have allowed a reasonable trier of fact to find

         the defendant guilty beyond a reasonable doubt. Id.


         A. Serious Bodily Injury


[19]     Beathea does not dispute that he battered A.L. but rather claims that the battery
         did not result in serious bodily injury.

[20]     Indiana Code section 35-42-2-1(a) (1) provides:

                          A person who knowingly or intentionally touches another
                          person in a rude, insolent, or angry manner commits
                          battery, a Class B misdemeanor. However, the offense is:
                          (4) a Class B felony if it results in serious bodily injury to a
                          person less than fourteen (14) years of age and is committed
                          by a person at least eighteen (18) years of age.

[21]     Under Indiana Code section 35-31.5-2-292,


                          “serious bodily injury” is defined as bodily injury that
                          causes: (1) serious permanent disfigurement; (2)
                          unconsciousness; (3) extreme pain; (4) permanent or
                          protracted loss or impairment of the function of a bodily
                          member or organ; or (5) loss of a fetus.

[22]     Whether bodily injury is “serious” is a question of degree and, therefore, is
         appropriately reserved for the trier of fact. Sutton v. State, 714 N.E.2d 694, 697
         (Ind. Ct. App. 1999). No bright line rule differentiates “bodily injury” from
         “serious bodily injury.” Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004).
         “Within the framework provided by the definition, it remains for the factfinder
         Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-404 | September 17, 2015   Page 8 of 12
         to determine the question of degree: that the bodily injury is serious.” Ricks v.
         State, 446 N.E.2d 648, 650-51 (Ind. Ct. App. 1983).

[23]     Beathea argues that the State failed to prove serious bodily injury because,
         “…[t]he only testimony that referred to ‘loss or impairment of the function of a
         bodily member or organ’ was that concerning of the tissues around A.L.’s eyes.
         No medical testimony was given concerning whether the swelling caused a
         ‘protracted loss or impairment’ of A.L.’s vision. Nor was there any testimony
         that established that A.L.’s vision was impaired for a significant period of
         time.” Appellant’s Br. at 8-9.

[24]     However, the State presented evidence at trial that could lead a jury to
         determine that A.L.’s injuries were serious due to extreme pain and permanent
         or protracted loss or impairment of the function of a bodily member or organ.
         The jury could reasonably conclude that A.L. suffered extreme pain when
         Beathea picked her up by the hair, threw her on the bed, and struck her in the
         head five times. Hours later, A.L.’s head and eyes became swollen and she
         cried and winced in pain after the incident occurred. The nurse in the
         emergency room assessed A.L.’s pain at a six out of ten and testified that she
         could tell by A.L’s body language that she was in pain. Tr. p. 281. Further,
         A.L.’s injuries did not heal for nearly one year after the incident, and she still
         remained sensitive about others touching or combing her hair at the time of
         trial.

[25]     The State’s evidence also established that A.L.’s injuries were serious because
         she experienced protracted loss of use or impairment of her vision. In
         Mendenhall v. State, this court held that evidence was sufficient to show
         protracted loss of use of right eye where eye was swollen shut and victim felt
         pain all around that eye. Mendenhall v. State, 963 N.E.2d 553, 569 (Ind. Ct. App.
         2012) (affirming that evidence was sufficient to establish that the victim suffered
         Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-404 | September 17, 2015   Page 9 of 12
         serious bodily injury). After being struck by Beathea, A.L. suffered internal
         bleeding and a pooling of blood outside the skull, beneath the skin, which
         caused her eyes to swell completely shut. She was unable to open her eyes for
         two to three months and it took almost one year for all of the bruising and
         swelling to subside.

[26]     For all of these reasons, we conclude that the State presented sufficient evidence
         from which a reasonable jury could have concluded that Beathea inflicted
         serious bodily injury on A.L.

         B. Neglect of a Dependent


[27]     Beathea also argues that the State failed to present sufficient evidence to prove
         that he committed Class D felony neglect of a dependent. Specifically, Beathea
         contends that no evidence was introduced to establish that his delay in
         reporting his conduct actually caused harm to A.L. Appellant’s Br. at 11.

[28]     Indiana Code section 35-46-1-4 (a)(1) provides,


                          a person having the care of a dependent, whether assumed
                          voluntarily or because of a legal obligation, who knowingly
                          or intentionally places the dependent in a situation that
                          endangers the dependent’s life or health commits neglect of
                          a dependent, a Class D felony.

[29]     A person knowingly commits neglect of a child when he is “subjectively aware
         of a high probability that he placed the dependent in a dangerous situation.”
         Sanders v. State, 734 N.E.2d 646, 650 (Ind. Ct. App. 2000). Because such a
         finding requires one to resort to inferential reasoning to ascertain the
         defendant’s mental state, the appellate courts must look to all the surrounding
         circumstances of a case to determine if a guilty verdict is proper. McMichael v.



         Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-404 | September 17, 2015   Page 10 of 12
         State, 471 N.E.2d 726, 731 (Ind. App. Ct. 1984) (citing Perkins v. State, 392
         N.E.2d 490, 495 (Ind. Ct. App. 1979)).

[30]     At trial, the State presented testimony that Beathea endangered A.L.’s health by
         failing to seek medical attention after he caused her injury and by refusing to
         tell the doctors, nurses, or anyone else how A.L. was injured until after she
         received medical treatment. A jury could reasonably conclude that Beathea
         knew that A.L. needed medical attention after he injured her and that by failing
         to help her seek treatment, he endangered her health. The State’s evidence
         showed that Beathea struck A.L. numerous times in the morning sometime
         after she wet the bed. A.L. remained alone with Beathea for another twelve to
         sixteen hours without receiving any medical care until her mother returned at
         nearly 1:00 a.m. the next day.

[31]     A reasonable person in Beathea’s position as A.L.’s caregiver would have
         concluded that a three year old who had been picked up by her hair, dropped,
         and struck several times in the head would need medical attention. Further,
         during this time period and before Jackson returned, A.L.’s head began
         swelling, which should have alerted Beathea that A.L. required medical
         attention. When Jackson arrived home, she noticed the bump and swelling on
         A.L.’s head and immediately sought medical care for her daughter, as any
         reasonable person would do. Beathea should have been aware of a high
         probability that he placed A.L. in a dangerous situation. Sanders, supra.

[32]     Beathea further argues that there is a lack of testimony that A.L.’s life or health
         was subjected to an actual and appreciable danger due to Beathea’s initial
         denial of responsibility or any speculated “delay” in treatment. Appellant’s Br.
         at 10. Thankfully, A.L. did not suffer more serious consequences from her
         injuries, but her symptoms were real and appreciable dangers that required a
         medical evaluation. A.L. suffered multiple blows to the head and swelling,
         Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-404 | September 17, 2015   Page 11 of 12
         which presented a risk for fracture or potential bleeding in the brain. Medical
         attention was therefore necessary to determine the extent of her injuries and to
         order appropriate treatment. See Sample v. State, 601 N.E.2d 457, 460 (Ind. Ct.
         App. 1992) (citing Johnson v. State, 555 N.E.2d 1362, 1366 (Ind. Ct. App.
         1990)). (The State must prove that the actor subjected the dependent to a danger
         that was actual and appreciable, but this does not mean that a delay in seeking
         treatment must actually result in injury to dependent).

[33]     For all these reasons, we conclude that the State presented sufficient evidence at
         trial from which a reasonable jury could have concluded that Beathea
         committed Class D felony neglect of a dependent.

                                                Conclusion


[34]     The trial court did not abuse its discretion in excluding the emergency room

         doctor’s testimony regarding whether A.L.’s injuries were serious because

         testimony was an inadmissible legal conclusion under Indiana Evidence Rule

         704(b). Further, the State presented sufficient evidence to support Beathea’s

         Class B felony battery resulting in serious bodily injury of a child and Class D

         felony neglect of a dependent.


[35]     Affirmed.

         Baker, J., and Bailey, J., concur.




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