MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Aug 16 2018, 9:15 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                      Curtis T. Hill, Jr.
O’Connor & Auersch                                       Attorney General of Indiana
Indianapolis, Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Isaac Hicks,                                             August 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-87
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Stanley E. Kroh,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G03-1606-MR-23007



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-87 | August 16, 2018                  Page 1 of 9
                                                 Case Summary
[1]   Following a jury trial, Isaac Hicks (“Hicks”) was convicted of Neglect of a

      Dependent Resulting in Death, a Level 1 felony.1 On appeal, Hicks argues that

      the evidence is insufficient to support his conviction. We affirm.



                                 Facts and Procedural History
[2]   On April 20, 2016, Tamika Culpepper (“Culpepper”)—Hicks’s girlfriend—gave

      birth to their son, Z.H. Although Z.H. initially had a jaundice-related health

      issue, the jaundice resolved and Z.H. was generally healthy by June of 2016.


[3]   In early June—when Z.H. was just over six weeks old—Hicks was living with

      his grandmother (“Grandmother”) while Culpepper lived nearby with her

      mother. Hicks and Culpepper shared parenting responsibilities, and Culpepper

      would sometimes stay overnight with Hicks and Z.H. at Grandmother’s

      residence. On June 5, 2016, Culpepper went to Grandmother’s residence after

      work for one of these overnight visits. When Culpepper arrived at some point

      after 10:00 p.m., Z.H. was in his bouncy chair, and was behaving normally.

      Z.H. later fell asleep in his bassinet. Hicks and Culpepper stayed up a bit later,

      and then went to sleep with Z.H. nearby.




      1
          Ind. Code § 35-46-1-4(a)(1), (b)(3).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-87 | August 16, 2018   Page 2 of 9
[4]   Overnight, Z.H. woke up twice, and Culpepper got up to feed him both times.

      Culpepper last fed Z.H. around 5:30 a.m. Later that morning, Grandmother

      left, and Hicks got up to lock the door behind her. Around 8:05 a.m., Hicks

      greeted a service technician who arrived to work on the television service. The

      technician observed Hicks preparing a bottle, and saw Z.H. moving. Culpepper

      remained asleep during the service call, which was completed around 8:45 a.m.


[5]   At 9:52 a.m., Hicks downloaded a document to his cell phone. The document

      was named “SevereBrainInjury_rev7.pdf.” At 10:00 a.m., Hicks called 9-1-1

      and reported that Z.H. was not breathing. When Hicks brought Z.H. out to the

      ambulance, Z.H. was limp. Emergency responders could not find a pulse, and

      conducted CPR. After Z.H. was in the ambulance, Hicks woke Culpepper and

      told her that Z.H. was not breathing and in an ambulance. Culpepper rushed

      outside and rode in the ambulance as responders attempted to resuscitate Z.H.


[6]   Meanwhile, law enforcement spoke with Hicks at the residence. Hicks—who

      was nineteen years old at the time—explained that when he discovered that

      Z.H. was not breathing, he brought Z.H. to an upstairs bathroom and changed

      Z.H.’s clothes to see if that would wake him up; when Z.H. would not wake up,

      he called 9-1-1. Hicks later told a detective that he woke up knowing he needed

      to change Z.H.’s diaper; Hicks said that he brought Z.H. upstairs, realized Z.H.

      was not breathing, and called 9-1-1. At some other time, Hicks told Culpepper

      that he was making breakfast, realized Z.H. needed a diaper change, went to

      change the diaper, and called 9-1-1 when he realized Z.H. was not breathing.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-87 | August 16, 2018   Page 3 of 9
[7]   When Z.H. arrived at the hospital, he had regained a pulse but was not

      breathing on his own. Z.H. was unconscious, with severe internal injuries, and

      was so cold that his temperature would not register on the thermometer. Z.H.’s

      blood had become acidic due to a prolonged lack of oxygen. It was determined

      that Z.H. had experienced hemorrhaging inside of his retinas, optic nerve, and

      both hemispheres of his brain. Due to his young age, Z.H.’s skull had not yet

      fused, and pressure from internal injuries had caused his skull to spread apart.

      Z.H. had a fresh abrasion on the back of his head, and linear abrasions. Z.H.

      also had a fractured rib, and fractures at the ends of his right wrist and left tibia.

      Z.H.’s injuries were consistent with being squeezed and violently shaken.


[8]   After eight days in the hospital, Z.H. died from his internal injuries on June 14,

      2016. The next day, the State charged Hicks as follows: Count I—Murder, a

      felony;2 Count II—Neglect of a Dependent Resulting in Death, a Level 1

      felony; and Count III—Battery Resulting in Death to a Person Less Than 14

      Years of Age, a Level 2 felony.3 A jury determined that Hicks was guilty of

      Neglect of a Dependent Resulting in Death, and not guilty of Murder; the jury

      could not reach a verdict on the Battery count. The court entered judgment of

      acquittal on Count I and dismissed Count III. Following a sentencing hearing

      on Count II, the trial court imposed an executed sentence of twenty-eight years.




      2
          I.C. § 35-42-1-1.
      3
          I.C. § 35-42-2-1(c)(1), (j)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-87 | August 16, 2018   Page 4 of 9
[9]    Hicks now appeals.



                                  Discussion and Decision
[10]   When reviewing a challenge to the sufficiency of evidence supporting a

       conviction, “we neither reweigh the evidence nor judge witness credibility;

       instead we consider only the evidence and the reasonable inferences supporting

       the verdict.” Leonard v. State, 80 N.E.3d 878, 882 (Ind. 2017). We will affirm

       the conviction if there is probative evidence from which a reasonable jury could

       have found the defendant guilty beyond a reasonable doubt. Id.


[11]   Indiana Code Section 35-46-1-4(a) provides, in pertinent part, that “[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 Level 6 felony.” The offense is elevated to a Level 1 felony “if it is

       committed . . . by a person at least eighteen (18) years of age and results in the

       death of a dependent who is less than fourteen (14) years of age.” I.C. § 35-46-

       1-4(b)(3). Here, the State alleged that Hicks knowingly endangered Z.H. by

       failing to seek medical attention; the charging information reads as follows:


               On or about June 6, 2016, Isaac Hicks, being at least 18 years of
               age and having the care of Z.H., a dependent less than 14 years
               of age, did knowingly place said dependent in a situation that
               endangered the dependent’s life or health, to-wit: did not seek
               medical attention, which resulted in the death of Z.H.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-87 | August 16, 2018   Page 5 of 9
       App. Vol. II at 30.


[12]   Hicks does not dispute the sufficiency of evidence as to the age-related elements

       and as to Z.H. being a dependent in his care. Hicks focuses on whether there is

       sufficient evidence (1) that he knowingly placed Z.H. in danger by delaying

       medical treatment and (2) that the delay of treatment resulted in Z.H.’s death.


                                                 Mens Rea
[13]   “A person engages in conduct ‘knowingly’ if, when he engages in the conduct,

       he is aware of a high probability that he is doing so.” I.C. § 35-41-2-2(b). For

       the purposes of the neglect statute, “the accused must have been subjectively

       aware of a high probability that he placed the dependent in a dangerous

       situation.” Armour v. State, 479 N.E.2d 1294, 1297 (Ind. 1985).


[14]   The evidence favorable to the verdict indicates that Z.H. was severely injured at

       some point on June 6, 2016, when Hicks and Culpepper were in the house.

       Hicks told Z.H.’s physician that he fed Z.H. around the time that the technician

       was present, and that Z.H. ate normally. Z.H.’s physician opined that due to

       the severity of Z.H.’s injuries, Z.H. would have exhibited symptoms right away.

       Z.H. could not have had a bottle without vomiting and likely lost consciousness

       after the trauma. The evidence, then, indicates that Z.H. became injured after

       8:45 a.m., which was when the technician left. There was also evidence that

       Z.H. was injured as much as “half an hour to an hour,” Tr. Vol. III at 141,

       before the ambulance arrived around 10:05 a.m. Thus, the jury could

       reasonably conclude that Z.H. suffered the injuries almost an hour before Hicks

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-87 | August 16, 2018   Page 6 of 9
       called 9-1-1 at 10:00 a.m.—and long before Hicks researched severe brain

       injuries at 9:52 a.m. As to Z.H.’s injuries, there was medical testimony that the

       injuries were non-accidental, consistent with Z.H. being squeezed—fracturing

       one of Z.H.’s ribs—and shaken to the point that his limbs flailed, causing

       fractures at the ends of his bones. There was also evidence that Z.H. was

       wearing only a diaper when Hicks gave Z.H. to emergency responders, but that

       a bloody garment was recovered from the residence. The garment had Z.H.’s

       blood on the back collar, which corresponded to the area of an abrasion on

       Z.H.’s head. Hicks also gave several different accounts of the morning’s events.


[15]   Hicks asserts that many of Z.H.’s injuries were “internal and, for that matter,

       invisible.” Appellant’s Br. at 11. Yet, the nature of the injuries was apparent

       enough for Hicks to conduct targeted research on the same type of injury that

       Z.H. had sustained. What is more, the removal of the bloody garment and

       Hicks’s differing accounts collectively evince a consciousness of guilt. Next, to

       the extent Hicks seeks to avoid culpability by suggesting the delay was brief and

       inconsequential—directing us to the period between conducting research and

       calling 9-1-1—we do not reweigh the evidence, instead, the evidence supports a

       determination that Z.H. was injured well before Hicks downloaded this

       research to his phone. Furthermore, it is the role of the fact-finder to determine

       whether a particular delay amounts to neglect. See Lush v. State, 783 N.E.2d

       1191, 1198 (Ind. Ct. App. 2003) (declining to reweigh evidence where “[t]he

       jury found that under the facts and circumstances . . . a fifteen-minute delay was

       a deprivation of medical care.”). Ultimately, from the evidence adduced at


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-87 | August 16, 2018   Page 7 of 9
       trial, a jury could reasonably conclude that Hicks was aware of a high

       probability that Z.H. needed medical care, and that Hicks knowingly

       endangered Z.H.’s life by failing to promptly seek that care.


                            Neglectful Act Resulting in Death
[16]   Hicks also challenges the sufficiency of evidence that the alleged neglectful

       act—the failure to seek medical attention—resulted in Z.H.’s death. This Court

       has determined that “the phrase ‘results in the death of a dependent’ for

       purposes of the neglect statute . . . implicates proximate causation.” Patel v.

       State, 60 N.E.3d 1041, 1052 (Ind. Ct. App. 2016). Under this standard, the

       State must, at a minimum, prove beyond a reasonable doubt that the death

       would not have occurred “but for” the neglectful act. Id.


[17]   At trial, the State called Doctor Tara Harris (“Dr. Harris”), one of Z.H.’s

       treating physicians. Dr. Harris opined that, had Z.H. received medical

       attention immediately after the trauma, there would have been a range of

       treatment options available. Those options included putting Z.H. on a

       ventilator to keep his oxygen levels up, which would have “prevented [a]

       hypoxic [e]ffect on the brain.” Tr. Vol. III at 120. There also would have been

       “lots of medication interventions” available. Id. Moreover, if necessary,

       physicians could have taken the “dramatic step” of “cut[ting] off a piece of the

       bone of the skull to give the brain some room to swell.” Id. However, Dr.

       Harris explained that these options were not available because Z.H.’s “brain

       injury was already so progressed” by the time he got to the hospital. Id. By that


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-87 | August 16, 2018   Page 8 of 9
       time, Z.H.’s blood had become acidic from a prolonged lack of oxygen, and he

       was so cold that his temperature would not register. According to Dr. Harris, it

       was “unusual” for an infant to be that cold, as it was not in the middle of winter

       “where he would have gotten really cold during transport.” Id. at 119.


[18]   Although Dr. Harris could not definitively say if the interventions would have

       been successful, it is the role of the fact-finder to weigh evidence, evaluate

       witness credibility, and determine culpability in circumstances like these. Here,

       based upon the medical testimony and the nature of Z.H.’s injuries, the jury

       could reasonably conclude that time was of the essence—and that with every

       moment of delay, Hicks took away another treatment option. Furthermore,

       irrespective of who injured Z.H., the evidence indicates that Hicks was present

       during the trauma, that Hicks appreciated the severity of the injuries, and that

       Hicks should have immediately sought treatment to preserve his child’s life.

       Ultimately, from the evidence, a jury could determine beyond a reasonable

       doubt that, but for the delay in medical treatment, Z.H. would not have died.


[19]   There is sufficient evidence supporting the conviction.


[20]   Affirmed.


       Mathias, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-87 | August 16, 2018   Page 9 of 9
