MEMORANDUM DECISION
                                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                                     Mar 29 2016, 6:57 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
Jeremy K. Nix                                           Gregory F. Zoeller
Matheny, Hahn, Denman & Nix,                            Attorney General of Indiana
L.L.P.
Huntington, Indiana                                     Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Racheal Dawn Ruble,                                     March 29, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        35A02-1507-CR-932
        v.                                              Appeal from the Huntington
                                                        Circuit Court
State of Indiana,                                       The Honorable Thomas M.
Appellee-Plaintiff.                                     Hakes, Judge
                                                        Trial Court Cause No.
                                                        35C01-1411-F3-260




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016              Page 1 of 14
[1]   Racheal Dawn Ruble appeals her conviction for neglect of a dependent

      resulting in serious bodily injury as a level 3 felony and raises two issues. We

      find dispositive the issue of whether her conviction for neglect of a dependent

      must be reduced from a level 3 felony to a level 6 felony. We reverse and

      remand for resentencing.


                                      Facts and Procedural History

[2]   On September 9, 2014, Ruble took K.R., who was the grandson of her husband

      Gary and just shy of four months old at the time, to a walk-in clinic in

      Huntington, Indiana, and reported that she believed something was wrong with

      K.R.’s ankle and that her dog had stepped on K.R.’s right foot. Marcy Pratt, a

      nurse practitioner, examined K.R. and noted that he appeared to be normal

      other than that he was bloated and irritable and, with respect to his leg, that it

      looked normal, there was no swelling, no bruising, no scratches, and nothing

      that indicated there had been any injury to the leg or ankle whatsoever. Pratt

      also examined K.R.’s head and noted that, other than a small bruise on his right

      cheek, his head appeared normal.


[3]   At approximately 7:00 p.m. on September 11, 2014, Ruble returned to the clinic

      with K.R., and Pratt immediately recognized that K.R.’s upper right leg was

      very swollen, that it was twice the size of his left leg and the skin was tight, and

      that, if you touched it, he would scream in pain. Pratt believed there was a

      fracture to K.R.’s femur and was adamant with Ruble that K.R. needed to go to

      the emergency room immediately. Pratt also noted that K.R.’s head appeared



      Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016   Page 2 of 14
      normal. Ruble made every indication that she was headed to the emergency

      room.


[4]   Approximately one to one and one-half hours after Ruble and K.R. left the

      clinic, Pratt checked with the emergency room and learned that K.R. had not

      arrived. Pratt eventually spoke with the emergency room physician, Dr. Sheila

      Blakley, and then called child protective services. Huntington Police Officer

      Shane Blair went to Ruble’s home close to 10:00 p.m., and Ruble informed him

      that K.R. was not there but was with Gary. Officer Blair asked Ruble why she

      had not taken K.R. to the hospital, and Ruble stated that she was waiting for

      Gary to leave work and they could go together. Officer Blair advised Ruble

      that she needed to meet her husband and take K.R. to the hospital. At some

      point, Gary returned home from work and found K.R. at home and saw that

      K.R.’s leg was swollen to twice the size it should be, and he and Ruble took

      K.R. to the hospital. They arrived at the hospital “closer to 11:00 o’clock.”

      Transcript at 181.


[5]   At the emergency room, Dr. Blakley examined K.R. and found significant

      swelling to his right thigh along with signs of a head injury. The swelling of

      K.R.’s leg indicated a possible underlying facture, and the swelling of his

      interior fontanel indicated there was increased pressure around the brain. A

      C.T. scan of his head showed multiple areas of bleeding within and around his

      brain. Dr. Blakley noticed that the bleeding appeared to be acute and had

      occurred recently. Dr. Blakley also noted that the fact that K.R.’s fontanel was

      flat at the clinic but swollen at the time he was admitted to the hospital

      Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016   Page 3 of 14
      indicates increasing pressure and continued bleeding, and would support a

      finding of a more acute injury. An x-ray showed a spiral-type fracture in the

      middle of K.R.’s femur. Dr. Blakley also observed hemorrhaging behind or

      within K.R.’s eye, which is consistent with acceleration and deceleration or

      rapid and vigorous shaking. Dr. Blakley believed that, if left untreated, K.R.’s

      injuries could have been life threatening, and K.R. was transported to Riley

      Children’s Hospital.


[6]   Dr. Katherine Haider, a pediatric ophthalmologist, examined K.R. and

      observed a pattern of retinal hemorrhages over his left eye which was consistent

      with a child who had non-accidental trauma. Dr. Ralph Hicks, a child abuse

      pediatrics specialist, examined K.R. in the morning on September 12, 2014, and

      prepared reports. Dr. Hicks noted that K.R. had a spiral fracture to his right

      femur, and the x-ray showed no evidence of healing so the fracture was recent.

      Dr. Hicks further noted that M.R.I. images showed indications of collections of

      blood around the brain and that the neuroradiologist felt that the collections

      were probably of different ages, suggesting there had been more than one event

      involving some sort of head injury.


[7]   In their investigation, police determined that Cheyenne Hibbert, a

      developmental disability professional, had a home visit with K.R. and Ruble on

      September 3, 2014, and again on September 11, 2014, from 12:30 to 2:00 p.m.,

      and she did not observe anything out of the ordinary or notice anything while

      watching K.R. that made her believe that he was in any kind of pain or distress.

      Also, Ruble’s sister had cared for K.R. overnight from September 5 to

      Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016   Page 4 of 14
      September 6, 2014, and K.R. appeared healthy at the time, and Ruble’s

      probation officer met with Ruble on September 10, 2014, at which time K.R.

      did not appear to be in pain and slept the entire time.


[8]   On November 20, 2014, the State charged Ruble with: Count I, battery on a

      child resulting in serious bodily injury, namely a broken femur, as a level 3

      felony; Count II, battery on a child resulting in serious bodily injury, namely

      abusive head trauma, as a level 3 felony; Count III, neglect of a dependent

      resulting in serious bodily injury as a level 3 felony; Count IV, battery on a child

      resulting in bodily injury of a subdural hematoma as a level 5 felony; and Count

      V, battery on a child resulting in bodily injury of a broken tibia as a level 5

      felony. The State later moved to dismiss Count V, and the court granted the

      motion. Following a jury trial in May 2015, the jury found Ruble guilty as

      charged on Counts I, II, and III and not guilty on Count IV, and the court

      entered judgment of conviction on Counts I, II, and III. As to each of her

      convictions under Counts I through III, the court sentenced Ruble to thirteen

      years with four years suspended to probation, and ordered that Counts I and II

      be served concurrently with each other and consecutive to Count III, for an

      aggregate sentence of twenty-six years with eighteen years executed and eight

      years suspended to probation.




      Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016   Page 5 of 14
                                                       Discussion

[9]    The issue is whether Ruble’s conviction of neglect of a dependent as a level 3

       felony violates double jeopardy principles.1 The Indiana Constitution provides

       that “[n]o person shall be put in jeopardy twice for the same offense.” IND.

       CONST. art. 1, § 14. “Indiana’s Double Jeopardy Clause . . . prevent[s] the

       State from being able to proceed against a person twice for the same criminal

       transgression.” Hopkins v. State, 759 N.E.2d 633, 639 (Ind. 2001) (quoting

       Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). The Indiana Supreme Court

       has held that “two or more offenses are the ‘same offense’ in violation of Article

       I, Section 14 of the Indiana Constitution, if, with respect to either the statutory

       elements of the challenged crimes or the actual evidence used to convict, the

       essential elements of one challenged offense also establish the essential elements

       of another challenged offense.” Richardson, 717 N.E.2d at 49.


[10]   In addition, Indiana courts “have long adhered to a series of rules of statutory

       construction and common law that are often described as double jeopardy, but

       are not governed by the constitutional test set forth in Richardson.” Guyton v.

       State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Pierce v. State, 761 N.E.2d

       826, 830 (Ind. 2002) (citing Richardson, 717 N.E.2d at 55 (Sullivan, J.,

       concurring))). “Even where no constitutional violation has occurred, multiple




       1
        To the extent the State argues that Ruble’s two convictions for battery as level 3 felonies under Counts I and
       II are based on separate injuries that occurred at separate times and thus do not violate the prohibition
       against double jeopardy, we note that Ruble does not challenge her battery convictions but rather challenges
       the enhancement of her conviction for neglect of a dependent under Count III to a level 3 felony.

       Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016                Page 6 of 14
       convictions may nevertheless violate the ‘rules of statutory construction and

       common law that are often described as double jeopardy, but are not governed

       by the constitutional test set forth in Richardson.’” Vandergriff v. State, 812

       N.E.2d 1084, 1088 (Ind. Ct. App. 2004) (quoting Pierce, 761 N.E.2d at 830),

       trans. denied. As enumerated in Justice Sullivan’s concurrence in Richardson and

       endorsed by the Indiana Supreme Court in Guyton, five additional categories of

       double jeopardy exist: (1) conviction and punishment for a crime which is a

       lesser-included offense of another crime for which the defendant has been

       convicted and punished; (2) conviction and punishment for a crime which

       consists of the very same act as another crime for which the defendant has been

       convicted and punished; (3) conviction and punishment for a crime which

       consists of the very same act as an element of another crime for which the

       defendant has been convicted and punished; (4) conviction and punishment for

       an enhancement of a crime where the enhancement is imposed for the very

       same behavior or harm as another crime for which the defendant has been

       convicted and punished; and (5) conviction and punishment for the crime of

       conspiracy where the overt act that constitutes an element of the conspiracy

       charge is the very same act as another crime for which the defendant has been

       convicted and punished. See Guyton, 771 N.E.2d at 1143; Richardson, 717

       N.E.2d at 55-56 (Sullivan, J., concurring).


[11]   Ruble maintains that her convictions for battery on a child resulting in serious

       bodily injury as level 3 felonies and neglect of a dependent resulting in serious

       bodily injury as a level 3 felony violate Indiana’s double jeopardy jurisprudence.


       Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016   Page 7 of 14
       After noting that the statutes governing the offenses of battery and neglect of a

       dependent provide for an enhancement to a level 3 felony if the offenses result

       in serious bodily injury, Ruble argues that the information charging her with

       neglect of a dependent “did not specify the serious bodily injury that was caused

       by the neglect as opposed to the batteries” and that the State did not elicit any

       testimony or argue in closing argument that “any additional injury [was] caused

       by [her] delay in seeking medical attention for K.R.” Appellant’s Brief at 8-9.

       In support of her argument, Ruble cites to Strong v. State, 870 N.E.2d 442 (Ind.

       2007), and Montgomery v. State, 21 N.E.3d 846 (Ind. Ct. App. 2014), trans.

       denied. She requests that her conviction for neglect of a dependent be reduced

       from a level 3 felony to a level 6 felony to remedy the double jeopardy

       violation.


[12]   The State responds that, although the offense under Count III was elevated to a

       level 3 felony on the basis that serious bodily injury occurred, the battery counts

       were elevated to level 3 felonies for that reason and because of the ages of the

       victim and perpetrator. The State also argues that all three counts were based

       on separate harms. With respect to Count III, the State notes that the count

       “did not allege a specific serious bodily injury but was based on [Ruble] not

       taking K.R. to the emergency room after it was obvious that he had a serious

       problem with his leg” and that “[t]he neglect charge in Count III was not based

       on any inflicted injury” but was based on the fact Ruble failed to obtain

       immediate medical care “after it was obvious that he had a substantial leg

       problem . . . .” Appellee’s Brief at 18, 20. The State argues that, if there is a


       Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016   Page 8 of 14
       double jeopardy problem, the solution is to reduce the conviction under Count

       III from a level 3 felony to a level 6 felony and to remand to the trial court for

       appropriate resentencing.


[13]   Ind. Code § 35-42-2-1 governs the offense of battery and provides in part that a

       person who knowingly or intentionally touches another person in a rude,

       insolent, or angry manner commits battery as a class B misdemeanor. The

       statute further provides that the offense is a level 6 felony “if one (1) or more of

       the following apply: . . . (1) The offense results in moderate bodily injury to any

       other person” or “(3) The offense is committed against a person less than

       fourteen (14) years of age and is committed by a person at least eighteen (18)

       years of age.” Ind. Code § 35-42-2-1(d). Finally, the statute provides the

       offense is a level 3 felony “if it results in serious bodily injury to a person less

       than fourteen (14) years of age if the offense is committed by a person at least

       eighteen (18) years of age.” Ind. Code § 35-42-2-1(i).


[14]   Ind. Code § 35-46-1-4 governs the offense of neglect of a dependent and

       provides in part that a person having the care of a dependent, who knowingly or

       intentionally places the dependent in a situation that endangers the dependent’s

       life or health, commits neglect of a dependent as a level 6 felony. The statute

       further provides in part that the offense above is a level 5 felony if it “results in

       bodily injury” and a level 3 felony if it “results in serious bodily injury.” Ind.

       Code § 35-46-1-4(b)(1), (b)(2). “Serious bodily injury” means in part “bodily

       injury that creates a substantial risk of death or that causes . . . serious

       permanent disfigurement, [] unconsciousness, [] extreme pain, [or] permanent

       Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016   Page 9 of 14
       or protracted loss or impairment of the function of a bodily member or organ . .

       . .” Ind. Code § 35-31.5-2-292.


[15]   In Strong, Chad Strong was convicted of the murder of his girlfriend’s three-

       year-old daughter, Taranova Glick, and neglect of a dependent resulting in the

       same child’s death as a class A felony. 870 N.E.2d at 442. The Court noted

       that the murder count charged Strong with knowingly killing Taranova, and the

       neglect of a dependent resulting in death count “alleged that [Strong], who had

       care of three-year-old Taranova Glick as a dependent, knowingly placed her ‘in

       a situation endangering her life or health,’ allowing her ‘to languish and suffer

       without medical treatment knowing she had been gravely injured, all of which

       resulted in the death of Taranova Glick.’” Id. at 443. The Court observed the

       relevant statute, Ind. Code § 35-46-1-4, and noted that “[t]he offense of neglect

       of a dependent, absent a resulting injury, [was] defined as a class D felony,” and

       that the crime was a class C felony when it “results in bodily injury,” a class B

       felony when it “results in serious bodily injury,” and a class A felony when it

       “results in the death of a dependent who is less than fourteen (14) years of age.”

       Id. The Court then noted that the State argued that the murder and neglect

       convictions were based on two different sets of actions as the murder happened

       when Strong “placed his knee into Taranova’s abdomen” and the “neglect

       happened thereafter when he did not seek medical attention.” Id. The Court

       held that “[s]uch a recharacterization of the charges, however, does not

       eliminate the fact that both charged offenses would still be based on the same

       bodily injury.” Id. at 444. The Court further held that “[t]he injuries urged to


       Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016   Page 10 of 14
       support the ‘serious bodily injury’ necessary for class B neglect are the same

       injuries, the same harm, that resulted in the child’s death and are the basis of

       the murder charge” and that “[o]nly when deemed a class D offense, which does

       not include any element of bodily injury, does the conviction of neglect of a

       dependent satisfy the common law/statutory construction aspect of Indiana’s

       double jeopardy jurisprudence.” Id. (emphasis added). The Court remanded to

       the trial court “to reduce the conviction for neglect of a dependent from a class

       A felony to a class D felony, for which the sentence shall be a term of three

       years, to be served consecutively to the sentence for murder.” Id.


[16]   In Montgomery, the State charged Christopher Montgomery with, among other

       counts, murder and two counts of neglect of a dependent as class A felonies,

       and the jury found him guilty as charged. 21 N.E.3d at 851. The trial court

       entered judgments of conviction on the murder count and the two neglect of a

       dependent counts, including under count III for failing to seek immediate

       medical help after Elijah sustained a head injury. Id. The trial court reduced

       the conviction under count III to a class B felony based upon double jeopardy

       concerns. Id. In addressing whether Montgomery’s conviction of neglect of a

       dependent as a class B felony violated double jeopardy principles, this Court

       held that the Indiana Supreme Court’s reasoning in Strong applied with equal

       force to Montgomery’s neglect of a dependent conviction. Id. at 865-867. We

       noted that Montgomery had been found guilty of neglect of a dependent as a

       class A felony for causing the death of Elijah and that the court had entered the

       conviction as a class B felony for failing to seek immediate medical help after

       Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016   Page 11 of 14
       Elijah sustained the head injury. Id. at 867. We further noted that, “[h]owever,

       that serious bodily injury was the same injury which led to Elijah’s death” and

       that thus the trial court “should have entered Montgomery’s conviction” on

       count III “as a class D felony, which applies to the crime of neglect of a

       dependent without any element of bodily injury.” Id. We accordingly

       remanded with instructions to reduce Montgomery’s conviction under count III

       from a class B felony to a class D felony and to enter a sentence of three years

       to be served consecutive to his murder sentence. Id.


[17]   In this case, the charging information alleged under Count I that Ruble

       committed battery on K.R. “which resulted in serious bodily injury, to wit: a

       broken femur,” under Count II that she committed battery on K.R. “which

       resulted in serious bodily injury, to wit: Abusive Head Trauma,” and under

       Count III that she committed neglect of a dependent by placing the dependent

       in a situation that “endangered the life or health of K.R., a four month old male

       child, said act resulting in serious bodily injury.” Appellant’s Appendix at 12-

       16. The State acknowledges that Count III does not identify a specific “serious

       bodily injury” in addition to the serious bodily injuries alleged in Counts I and

       II or otherwise. Further, the prosecutor in closing arguments pointed to K.R.’s

       broken femur and head trauma as the injuries supporting the enhancements to

       level 3 felonies of the battery charges under Counts I and II, but did not point to

       a specific alleged serious bodily injury or harm to support the enhancement to a

       level 3 felony of the neglect of a dependent charge under Count III.




       Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016   Page 12 of 14
[18]   The State’s position, which appears to have support in the record, is that the

       neglect charge under Count III was based on Ruble failing to obtain medical

       care for K.R. after it was obvious he “had a substantial leg problem” and that “the

       neglect charge was based on [Ruble] not immediately obtaining medical

       treatment for K.R.’s leg after Pratt told her to immediately take the baby to the

       emergency room.” Appellee’s Brief at 20 (emphases added). This is consistent

       with the testimony presented at trial, which established that, when Pratt

       examined K.R. at approximately 7:00 p.m. on September 11, 2014, she

       observed that K.R.’s right leg had become badly swollen and K.R. was in pain,

       she believed the leg was fractured, and she instructed Ruble to take K.R. to the

       emergency room immediately. However, the serious bodily injury to K.R.’s leg

       was the same injury, the same harm, which supports Ruble’s conviction for

       battery as a level 3 felony under Count I. See Strong, 870 N.E.2d at 443-444 (the

       same abdomen injury supported the defendant’s two convictions); Montgomery,

       21 N.E.3d at 867 (the same head injury supported the defendant’s two

       convictions). The State does not point to evidence that Ruble’s failure to seek

       immediate treatment for K.R.’s leg resulted in additional serious bodily injury

       or harm. We conclude that Ruble’s conviction for neglect of a dependent under

       Count III must be reduced to a level 6 felony, which in this case does not

       include an element of bodily injury. See Strong, 870 N.E.2d at 444 (“Only when

       deemed a class D offense, which does not include any element of bodily injury, does

       the conviction of neglect of a dependent satisfy the common law/statutory

       construction aspect of Indiana’s double jeopardy jurisprudence . . . .”)

       (emphasis added); Montgomery, 21 N.E.3d at 867 (holding that defendant’s
       Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016   Page 13 of 14
       conviction for neglect of a dependent should have been entered as a class D

       felony which applies to the crime without any element of bodily injury). We

       remand with instructions to reduce Ruble’s conviction for neglect of a

       dependent under Count III from a level 3 felony to a level 6 felony and to

       resentence Ruble accordingly.2


                                                     Conclusion

[19]   For the foregoing reasons, we reverse and remand with instructions to reduce

       Ruble’s conviction for neglect of a dependent under Count III from a level 3

       felony to a level 6 felony and to resentence Ruble accordingly.


[20]   Reversed and remanded.


       Kirsch, J., and Mathias, J., concur.




       2
        As we remand with instructions to reduce Ruble’s conviction under Count III to a level 6 felony and for
       resentencing, we need not address Ruble’s argument that her crimes were part of an episode of criminal
       conduct and thus that the aggregate sentence imposed exceeded the limitation provided by Ind. Code § 35-50-
       1-2.

       Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016           Page 14 of 14
