MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                    Mar 09 2015, 9:12 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark A. King                                             Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey A. Dice, II,                                     March 9, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         34A04-1407-CR-318
        v.                                               Appeal from the Howard Superior
                                                         Court
                                                         The Honorable George A. Hopkins,
State of Indiana,                                        Judge
Appellee-Plaintiff                                       Case No. 34D04-1107-FB-116




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015    Page 1 of 11
                                                Case Summary
[1]   Jeffrey1 A. Dice, II, appeals his convictions and sentences for class B felony

      neglect of a dependent resulting in serious bodily injury and class B felony

      battery resulting in serious bodily injury. He argues that the trial court

      committed fundamental error by permitting the State’s expert witness to testify

      to the cause of the victim’s injuries when the witness was not qualified to do so,

      that his convictions violate the Indiana Constitution’s prohibition against

      double jeopardy, and that his sixteen-year sentence is inappropriate. We

      conclude that the State’s witness was qualified to testify to the cause of the

      victim’s injury and therefore the trial court committed no error, let alone

      fundamental error, in permitting her to testify. The State concedes that Dice’s

      convictions violate the prohibition against double jeopardy, and we agree.

      Finally, we conclude that Dice has waived his inappropriateness argument by

      failing to present a cogent argument. Therefore, we affirm Dice’s conviction

      and sentence for battery and vacate his conviction for neglect of a dependent.


                                    Facts and Procedural History
[2]   The facts most favorable to the verdicts follow. In May 2011, Dice was married

      to and living with Tara and her nineteen-month-old daughter, B.S. Dice agreed

      to watch B.S. while Tara was at work. Dice took Tara to work and returned

      home with B.S. No one else was present at the house. While in Dice’s



      1
        This is the correct spelling of appellant’s first name. His name is misspelled on trial court documents as
      “Jeffery.”

      Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015                Page 2 of 11
      custody, B.S. suffered severe burns to her face, left hand, and left foot. Dice

      called Tara at work, told her that B.S. had burned her hand, and asked Tara

      what to do. Tara did not ask Dice how B.S. had been burned but told him to

      take B.S. to the hospital near her workplace.


[3]   Dice took B.S. to the hospital, although it was not the one that Tara had

      requested. Tara went to the hospital and saw that B.S.’s hand and foot were

      burned. Tara’s mother and sisters also came to the hospital. One of Tara’s

      sister observed that Dice “didn’t seem regretful at all. He just kind of sat there

      with a stone look on his face.” Tr. at 91. Another sister noticed that Dice

      “seemed normal, not really worried or upset. [B.S.] was freaking out and

      screaming, you could hear it, and he just sat there. He had no emotion

      whatsoever.” Id. at 95. Tara’s mother also observed that Dice showed “a total

      lack of emotion, no remorse.” Id. at 112. Dice provided inconsistent

      explanations to Tara’s sister as to how B.S. got burned. In one account, he told

      her that he was boiling water for noodles and the water boiled over his hand,

      causing him to jump back and drop the pan. Later, he told her that B.S.

      grabbed the pan off the stove and the water splashed out on her. Id. at 98.


[4]   B.S. was transported by ambulance to Riley Hospital for Children for treatment

      of her wounds. Tara and Dice followed. While they were driving, Dice told

      Tara that he had been boiling water to cook noodles and was unaware that B.S.

      was in the room with him. Something startled him, and he knocked the pan off

      the stove. It was only when B.S. started crying that he realized that she was in

      the room. Tara was frustrated because Dice was unable to provide details such

      Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015   Page 3 of 11
      as where B.S. was standing, exactly how she got burnt, and how the pot fell off

      the stove.


[5]   At Riley, Dr. Roberta Hibbard consulted with and assisted the burn surgeons in

      treating B.S. Dr. Hibbard is a professor of pediatrics at Indiana University

      School of Medicine at Riley. She has been at Riley since 1985. She is also the

      director of the Section of Child Protection Programs in the Department of

      Pediatrics. The Child Protection Programs “provide consultation to other

      health care providers, to child protection services, to law enforcement and other

      professionals when there are concerns about the possibility of child abuse and

      neglect.” Id. at 194. The consultations vary from a simple phone call, to a

      review of medical records and other available information, scene investigation,

      examination of the patient, interviews of family members, and participation in

      the direct medical care of the patient. Id. at 195. During her time at Riley, Dr.

      Hibbard has been involved in a couple hundred burn cases. Id. at 217.


[6]   Dr. Hibbard examined B.S. the day after she was admitted to Riley. B.S.’s left

      hand and left foot were bandaged, but Dr. Hibbard was able to see her other

      hand and foot and her face. Dr. Hibbard observed redness and blistering on

      B.S.’s left cheek and under her chin. Dr. Hibbard also reviewed photographs of

      B.S.’s left hand and left foot before they were bandaged. Dr. Hibbard noted the

      “fairly clear line or straight line of where the skin has been burned and where

      it’s not been burned” on B.S.’s left hand and the “fairly straight line of

      demarcation” involving all of [B.S.’s] toes of her left foot, which she concluded

      are “clear evidence of a dip or an immersion burn to the hand and foot.” Id. at

      Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015   Page 4 of 11
      204, 205-08. Dr. Hibbard also interviewed Tara and Dice. She concluded that

      Dice’s explanation regarding how B.S. got burned did not “make any sense for

      the pattern of injury that [B.S.] sustained.” Id. at 209. She further concluded

      that B.S.’s injuries were “most characteristic of non-accidental injury in the

      absence of a clear history to account for them.” Id. at 211. B.S. was released

      from Riley after two weeks and placed with her maternal grandmother. B.S.

      required further surgery and years of physical therapy. She has permanent

      scarring.


[7]   The State charged Dice with class B felony neglect of a dependent resulting in

      serious bodily injury and class B felony battery resulting in serious bodily injury

      to a person less than fourteen years of age. Dice’s first trial ended in a mistrial.

      At Dice’s second trial, Dr. Hibbard testified without objection. Dice’s expert

      Dr. Richard Kagan testified that the burns on B.S.’s hand and foot appeared to

      be immersion burns. Id. at 297-98. However, he also testified that the burn

      pattern shown in the photographs was not consistent “with a single intentional

      injury that would be inflicted by a perpetrator.” Id. at 285. It was Dr. Kagan’s

      belief that the injuries to B.S. were “more likely accidental” because of “the

      multiple areas that are involved where I cannot in my mind come up with a

      system to replicate how this could have happened. I cannot explain in one

      instance of intent how that could have possibly happened.” Id. at 301. The

      jury found Dice guilty as charged. The trial court sentenced Dice to concurrent

      sixteen-year executed terms. Dice appeals.




      Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015   Page 5 of 11
                                      Discussion and Decision

       Section 1 – The trial court committed no error by allowing Dr.
           Hibbard to testify regarding the cause of B.S.’s burns.
[8]    Dice contends that the trial court erred by permitting Dr. Hibbard to offer her

       opinion as an expert witness on the cause of B.S.’s burns. Because Dice did not

       object to Dr. Hibbard’s testimony at trial, his claim of error is waived and he

       can win reversal only by establishing fundamental error. See Benson v. State, 762

       N.E.2d 748, 755 (Ind. 2002) (“As a general rule, the failure to object at trial

       results in a waiver of the issue on appeal.”).


[9]    “[T]the fundamental error doctrine is an ‘extremely narrow’ doctrine that is

       available only in ‘egregious circumstances.’” Hale v. State, 976 N.E.2d 119, 124

       (Ind. Ct. App. 2012) (quoting Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)).

       To rise to the level of fundamental error, “‘an error must be so prejudicial to the

       rights of the defendant as to make a fair trial impossible.’” Benson, 762 N.E.2d

       at 755 (quoting Willey v. State, 712 N.E.2d 434, 444-45 (Ind. 1999)). Put

       another way, “the error ‘must constitute a blatant violation of basic principles,

       the harm or potential for harm must be substantial, and the resulting error must

       deny the defendant fundamental due process.’” Id. (quoting Wilson v. State, 514

       N.E.2d 282, 284 (Ind. 1987)).


[10]   Under Indiana Evidence Rule 702, if scientific, technical, or other specialized

       knowledge will assist the trier of fact to understand the evidence or to determine

       a fact in issue, a witness qualified as an expert by knowledge, skill, experience,


       Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015   Page 6 of 11
       training, or education, may testify thereto in the form of an opinion or

       otherwise. “[O]nly one characteristic is necessary to qualify an individual as an

       expert.” Burnett v. State, 815 N.E.2d 201, 204 (Ind. Ct. App. 2004). “As such, a

       witness may qualify as an expert on the basis of practical experience alone.”

       Id.; see also Clark v. State, 6 N.E.3d 992, 998 (Ind. Ct. App. 2014) (“The

       qualifications of an expert may be established by practical experience as well as

       by formal training.”).


[11]   Dice’s sole argument is that the State failed to show that Dr. Hibbard had

       sufficient knowledge, skill, experience, training, or education to opine on

       whether B.S.’s burns were the result of an accident or an intentional act.

       Specifically, he contends that she was not qualified because she is not an expert

       on the causes and treatments of burns. We disagree. Dr. Hibbard is a professor

       of pediatrics at Riley Hospital for Children. She has worked at Riley for

       twenty-nine years. During her tenure, she has been involved with a couple

       hundred burn cases. She is also director for the Section of Child Protection

       Programs, which assists health care providers, child protection services, law

       enforcement, and other professionals when there are concerns that a child has

       been abused and neglected. Dr. Hibbard examined B.S. and reviewed pictures

       of her injuries. We conclude that the State showed that Dr. Hibbard had

       sufficient knowledge and experience regarding the causes of burns suffered by

       children to provide her opinion on the cause of B.S.’s burns. See Myers v. State,

       887 N.E.2d 170, 186 (Ind. Ct. App. 2008) (concluding that forensic pathologist

       who performed victim’s autopsy was qualified to give opinion that victim was


       Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015   Page 7 of 11
       raped), trans. denied. We find no error, let alone fundamental error, in the

       admission of Dr. Hibbard’s testimony.2


              Section 2 – Dice’s convictions violate double jeopardy
                                    principles.
[12]   Dice asserts that his convictions for class B felony neglect of a dependent and

       class B felony battery resulting in serious bodily injury violate the Double

       Jeopardy Clause of the Indiana Constitution, which provides that “[n]o person

       shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14.

       The double jeopardy rule prohibits multiple punishments for the same offense.

       Johnson v. State, 749 N.E.2d 1103, 1107-08 (Ind. 2001).

                [T]wo or more offenses are the same offense in violation of article 1,
                section 14 if, with respect to either the statutory elements of the
                challenged crimes or the actual evidence used to obtain convictions,
                the essential elements of one challenged offense also establish the
                essential elements of another challenged offense. Under the actual
                evidence test, we examine the actual evidence presented at trial in
                order to determine whether each challenged offense was established by
                separate and distinct facts. To find a double jeopardy violation under
                this test, we must conclude that there is a reasonable possibility that
                the evidentiary facts used by the fact-finder to establish the essential
                elements of one offense may also have been used to establish the
                essential elements of a second challenged offense.

       Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013) (citations and quotation marks

       omitted).



       2
         Dice also argues that the evidence was insufficient to support his convictions because the only evidence
       that the State presented on his culpability was Dr. Hibbard’s. Because we conclude that Dr. Hibbard’s
       testimony was properly offered to the jury, we need not address his claim of insufficient evidence.

       Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015               Page 8 of 11
[13]   To determine whether there is a reasonable possibility that that the factfinder

       used the same evidence to find the defendant guilty of two offenses, we

       “‘identify the essential elements of each of the challenged crimes and [] evaluate

       the evidence from the jury’s perspective....’ In determining the facts used by the

       fact-finder to establish the elements of each offense, it is appropriate to consider

       the charging information, jury instructions, and arguments of counsel.” Lee v.

       State, 892 N.E.2d 1231, 1234 (Ind. 2008) (quoting Spivey v. State, 761 N.E.2d

       831, 832 (Ind. 2002)).


[14]   To convict Dice of class B felony neglect of a dependent, the State had to prove

       that he knowingly or intentionally placed the dependent in a situation that

       endangered the dependent’s life – allowed her to come in contact with boiling

       water – and it resulted in serious bodily injury. Appellant’s App. at 16; Ind.

       Code § 35-46-1-4(a)(1) and -(b)(2). To convict Dice of class B felony battery,

       the State had to prove that he knowingly or intentionally touched a person who

       was less than fourteen years of age in a rude, insolent or angry manner – burned

       her with boiling water – that resulted in serious bodily injury to that person. Id.

       at 17; Ind. Code § 35-42-2-1(a)(4).


[15]   The State acknowledges that the prosecutor argued in closing and rebuttal that

       Dice knowingly immersed B.S. in boiling water resulting in serious burns to the

       child’s face, left hand, and left foot. As such, the State concedes that there is a

       reasonable probability that the evidentiary facts used by the jury to establish

       battery were also used to establish neglect of a dependent. We agree.



       Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015   Page 9 of 11
[16]   “When two convictions are found to contravene double jeopardy principles, a

       reviewing court may remedy the violation by reducing either conviction to a

       less serious form of the same offense if doing so will eliminate the violation. If

       it will not, one of the convictions must be vacated.” Richardson v. State, 717

       N.E.2d 32, 54 (Ind. 1999) (citation omitted). Because the evidence and the

       prosecutor’s argument best fit the class B felony battery charge, we leave the

       battery conviction intact and vacate Dice’s conviction for class B felony neglect

       of a dependent.


           Section 3 – Dice has waived his argument that his sentence is
                                  inappropriate.
[17]   Dice contends that his sentence is inappropriate 3 pursuant to Indiana Appellate

       Rule 7(B), which states, “The Court may revise a sentence authorized by statute

       if, after due consideration of the trial court’s decision, the Court finds that the

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

       of the offender.” Dice has the burden to show that his sentence is

       inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on

       reh’g, 875 N.E.2d 218.


[18]   Although Dice cites Appellate Rule 7(B), he argues that the trial court relied on

       impermissible aggravators and improperly weighed the aggravating and




       3
         Dice uses the term “unreasonable” rather than “inappropriate.” Prior to January 1, 2003, we reviewed a
       sentence to determine if it was “manifestly unreasonable.” However, the Indiana Supreme Court amended
       Indiana Appellate Rule 7(B), effective January 1, 2003, to replace “manifestly unreasonable” with
       “inappropriate.”

       Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015          Page 10 of 11
       mitigating factors.4 He fails to present a cogent argument that his sentence is

       inappropriate based on the nature of the offense and his character. “Failure to

       put forth a cogent argument acts as a waiver of the issue on appeal.” Whaley v.

       State, 843 N.E.2d 1, 18 n.15 (Ind. Ct. App. 2006); see also Ind. Appellate Rule

       46(A)(8)(a) (“The argument must contain the contentions of the appellant on

       the issues presented, supported by cogent reasoning.”). Therefore, Dice has

       waived his inappropriateness argument.


                                                   Conclusion
[19]   We affirm Dice’s conviction and sentence for class B felony battery and vacate

       his conviction for class B felony neglect of a dependent.


[20]   Affirmed in part and vacated in part.


       Friedlander, J., and Kirsch, J., concur.




       4
         Appellate courts no longer review the trial court’s weighing and balancing of aggravators and mitigators.
       See Anglemyer, 868 N.E.2d at 491 (“Because the trial court no longer has any obligation to ‘weigh’
       aggravating and mitigating factors against each other when imposing a sentence,… a trial court cannot now
       be said to have abused its discretion by failing to properly weigh such factors.”).

       Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015            Page 11 of 11
