                                                                                 FILED
                                                                            Jun 22 2020, 8:57 am

                                                                                 CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Alexander L. Hoover                                        Curtis T. Hill, Jr.
      Law Office of Christopher G. Walter,                       Attorney General of Indiana
      P.C.
      Nappanee, Indiana                                          Samantha M. Sumcad
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
             COURT OF APPEALS OF INDIANA

      Micah Richard Kunkle,                                      June 22, 2020
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-CR-2617
                 v.                                              Appeal from the Marshall Superior
                                                                 Court
      State of Indiana,                                          The Honorable Robert O. Bowen,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 50D01-1811-F3-41



      May, Judge.

[1]   Micah Richard Kunkle appeals his convictions of Level 3 felony aggravated

      battery, 1 Level 3 felony battery resulting in serious bodily injury to a person less




      1
          Ind. Code § 35-42-2-1.5(2) (2014).


      Court of Appeals of Indiana | Opinion 19A-CR-2617 | June 22, 2020                             Page 1 of 14
      than 14 years old, 2 Level 3 felony neglect of a dependent resulting in serious

      bodily injury, 3 and Level 5 felony battery resulting in bodily injury to a person

      less than 14 years of age. 4 Kunkle presents two issues for our review:


                 I. Whether his three convictions of battery subject him to double
                 jeopardy; and


                 II. Whether sufficient evidence supports his conviction of Level
                 3 felony neglect of a dependent resulting in serious bodily injury.


      We affirm.



                                Facts and Procedural History
[2]   In August 2018 Kunkle began dating Dawn Walter. In September 2018,

      Kunkle moved in with Walter and her three children, R.W., A.L., and A.W.

      When Walter would go to work, Kunkle would take care of A.W., who was

      two years old. On October 2, 2018, Kunkle took Walter to work, dropped

      R.W. and A.L. off at school, and returned home to watch A.W. When Walter

      returned home from work, she noticed A.W. had burns on his back. When

      confronted by Walter, Kunkle said A.W. “messed with the spigots” for the




      2
          Ind. Code § 35-42-2-1(c)(1) & (j) (2018).
      3
          Ind. Code § 35-46-1-4(a)(1) & (b)(2) (2018).
      4
          Ind. Code § 35-42-2-1(c)(1) & (g)(5)(B) (2018).


      Court of Appeals of Indiana | Opinion 19A-CR-2617 | June 22, 2020            Page 2 of 14
      bathtub while Kunkle was grabbing a towel and A.W. fell into the tub and

      burned himself. (Tr. Vol. II at 125.)


[3]   Walter wanted to take A.W. to the hospital, but Kunkle told her they would be

      drug tested and neither of them would pass. Kunkle also told Walter she would

      lose custody of her children as a result of the failed drug test. Walter ultimately

      decided to not take A.W. to the hospital. Around this time, Walter and Kunkle

      decided to stop letting Lyle Walter (“Lyle”), Walter’s ex-husband and the father

      of her three children, exercise his regular visitation with A.W.


[4]   On October 23, 2018, Walter woke to the sound of A.W. crying. Walter

      walked to the kitchen and found Kunkle holding A.W. over the sink,

      attempting to make him throw up. Kunkle claimed A.W. had found a bottle of

      pills and swallowed some. A.W. defecated in his pants during the commotion,

      so Kunkle took him to the bathroom. Kunkle began screaming at A.W., so

      Walter followed him to the bathroom and took over cleaning up A.W.


[5]   Walter noticed Kunkle was getting very angry, so she called Lyle. Walter did

      not want her children to be around Kunkle while he was screaming and cursing

      at her. Walter told Lyle to call or come to the house if he did not hear from her

      in fifteen minutes. Kunkle heard the phone call between Walter and Lyle and

      became even angrier. Kunkle confronted Walter, and the two of them went

      outside to continue arguing. A.L., who was nine years old at the time, became

      scared and contacted her cousin, who then handed the phone to her father,

      A.L.’s uncle. Out of concern, A.L.’s uncle contacted A.L.’s paternal


      Court of Appeals of Indiana | Opinion 19A-CR-2617 | June 22, 2020         Page 3 of 14
      grandmother and explained the situation. A.L.’s grandmother then called 9-1-

      1.


[6]   When EMTs arrived, they noticed A.W. had burns on his body and told Walter

      that A.W. should be taken to the hospital. Soon after, Lyle arrived and agreed

      to take A.W. to the hospital. At the hospital, a doctor determined A.W. was

      suffering from a corneal abrasion and from bruises and lacerations to his ears,

      head, shoulder, legs, hips, and arms. Additionally, the doctor noted areas of his

      left side, buttocks, and lower back appeared to be healing from an immersion

      burn. Dr. Tara Harris testified that an immersion burn “basically means he was

      dipped into a scalding liquid.” (Id. at 178.)


[7]   Detectives interviewed Kunkle regarding A.W.’s injuries. Kunkle told police he

      had sought medical treatment for A.W. from a family friend named Dr.

      Hershberger. When police tried to follow up with Dr. Hershberger, police

      learned Dr. Hershberger moved to Wisconsin in 2015 and was deceased. On

      November 2, 2018, the State charged Kunkle with Level 3 felony aggravated

      battery, Level 3 felony battery resulting in serious bodily injury to a person less

      than 14 years old, Level 3 felony neglect of a dependent resulting in serious

      bodily injury, and Level 5 felony battery resulting in bodily injury to a person

      less than 14 years of age. A jury found Kunkle guilty of all charges.


[8]   The trial court entered judgments of conviction on all four counts. The trial

      court sentenced Kunkle to sixteen years for Level 3 felony aggravated battery;

      sixteen years for Level 3 felony battery resulting in serious bodily injury to a


      Court of Appeals of Indiana | Opinion 19A-CR-2617 | June 22, 2020          Page 4 of 14
      person less than 14 years of age; six years for Level 3 felony neglect of a

      dependent resulting in serious bodily injury; and five years for Level 5 felony

      battery resulting in bodily injury to a person under fourteen years of age. The

      court ordered the sentences for aggravated battery and for the two battery

      convictions to be served concurrently, and it ordered the sentence for the

      neglect conviction to be served consecutive to the other three. Therefore,

      Kunkle’s aggregate sentence is twenty-two years in prison.



                                  Discussion and Decision
                                          I. Double Jeopardy
[9]   Kunkle argues three of his convictions – one of aggravated battery and two of

      battery – violate his constitutional right to be free from double jeopardy. See

      Ind. Const. Art. 1, § 14 (“No person shall be put in jeopardy twice for the same

      offense.”). Two offenses are the “same offense” in violation of Indiana’s

      Double Jeopardy Clause 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. Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002). To

      determine whether the statutory elements test is violated, we apply the federal

      test: “whether each provision requires proof of an additional fact which the

      other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180,

      182 (1932).



      Court of Appeals of Indiana | Opinion 19A-CR-2617 | June 22, 2020         Page 5 of 14
[10]   We review de novo whether a defendant’s convictions violate this provision.

       Spears v. State, 735 N.E.2d 1161, 1166 (Ind. 2000), reh’g denied. “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), holding modified by Garrett v. State, 992 N.E.2d 710 (Ind. 2013)

       (modification unrelated to the case before us).


[11]   Specifically, Kunkle argues his convictions of aggravated battery and two

       counts of battery violate the “actual evidence” test. See Spivey, 761 N.E.2d at

       832. The actual evidence test requires us to “determine whether each

       challenged offense was established by separate and distinct facts.” Richardson,

       717 N.E.2d at 53. To determine what facts were used to convict, we consider

       the charging information, the final jury instructions, the evidence, and the

       arguments of counsel. Davis v. State, 770 N.E.2d 319, 324 (Ind. 2002), reh’g

       denied.


[12]   To prove Kunkle committed Level 3 felony aggravated battery, the State had to

       present evidence that: (1) Kunkle; (2) knowingly or intentionally; (3) inflicted

       injury on A.W.; (4) that caused protracted loss or impairment of the function of

       a bodily member or organ. See Ind. Code § 35-42-2-1.5(2) (2014) (elements of

       crime). To convict Kunkle of the Level 3 felony battery, the State had to prove

       battery resulted in serious bodily injury, in addition to all the elements for the

       Level 5 felony battery. See Ind. Code § 35-42-2-1(j) (2018). The Level 5 felony

       Court of Appeals of Indiana | Opinion 19A-CR-2617 | June 22, 2020          Page 6 of 14
       battery conviction required proof of the following: (1) Kunkle; (2) who was at

       least eighteen years of age; (3) knowingly or intentionally; (4) touched A.W.;

       (5) who was under fourteen years of age; (6) in a rude, insolent, or angry

       manner; (7) resulting in bodily injury. See Ind. Code § 35-42-2-1(g)(5)(B) (2018)

       (elements of crime).


[13]   The charging information for aggravated battery read:


               Micah Richard Kunkle did knowingly or intentionally inflict
               injury on A.W. that caused protracted loss or impairment of the
               function of a bodily member or organ, to-wit: A.W., age 2,
               causing severe burns to his back, butt and testicles[.]


       (App. Vol. II at 26) (emphasis added). The Level 3 felony battery resulting in

       serious bodily injury charging information read:


               Micah Richard Kunkle, a person at least eighteen (18) years of
               age, did knowingly or intentionally touch A.W., a person under
               the age of fourteen (14), in a rude, insolent, or angry manner by
               hitting and/or beating A.W. resulting in serious bodily injury, to-
               wit: bruising to the head, scratches to his neck and/or bruising to the
               leg[.]


       (Id. at 26) (emphasis added). The charging information for battery resulting in

       bodily injury read:


               Micah Richard Kunkle, a person at least eighteen (18) years of
               age, did knowingly or intentionally touch A.W., a person under
               the age of fourteen (14), in a rude, insolent, or angry manner by
               hitting and/or beating A.W. resulting in bodily injury a [sic]
               bruising and/or physical pain[.]

       Court of Appeals of Indiana | Opinion 19A-CR-2617 | June 22, 2020             Page 7 of 14
       (Id. at 27) (emphasis added).


[14]   As the language of the charges makes clear, the aggravated battery charge was

       based on the immersion burns on A.W., (see id. at 26), while the other two

       counts of battery were based on bruises and scratches, and bruises and pain.

       (See id. at 26, 27.) Similarly, in the final jury instructions for these three

       charges, the instruction for Level 3 felony aggravated battery alone was

       supported by the evidence of A.W.’s burns. (See App. Vol. III at 54 (containing

       final instruction for all counts).) Accordingly, the conviction of aggravated

       battery was based on evidence distinct from the other two battery charges. See,

       e.g., Vermillion v. State, 978 N.E.2d 459, 465-66 (Ind. Ct. App. 2012) (no double

       jeopardy violation when State established separate offenses based on distinct

       facts).


[15]   We turn next to Kunkle’s convictions of Level 3 felony battery resulting in

       serious bodily injury to a person less than 14 years old and Level 5 felony

       battery resulting in bodily injury to a person less than 14 years of age to

       determine whether the evidence used to support them violates the actual

       evidence test. Kunkle notes the charging information for each count cites

       “bruising” as part of the bodily injury caused by the battery. (App. Vol. II at

       26, 27.)


[16]   The final instructions regarding these two battery charges were similar, but not

       identical, to the charging information. The final instruction for Level 3 felony

       battery resulting in serious bodily injury read:


       Court of Appeals of Indiana | Opinion 19A-CR-2617 | June 22, 2020            Page 8 of 14
               Micah Richard Kunkle, a person at least eighteen (18) years of
               age, did knowingly or intentionally touch [A.W.], a person under
               the age of fourteen (14), in a rude, insolent or angry manner
               resulting in serious bodily injury, to wit: to the head, neck, and
               body[.]


       (App. Vol. III at 54.) The final instruction for Level 5 felony battery resulting in

       bodily injury read:


               Micah Richard Kunkle, a person at least eighteen (18) years of
               age, did knowingly or intentionally touch [A.W.], a person under
               the age of fourteen (14), in a rude, insolent, or angry manner
               resulting in bodily injury, to wit: bruising or pain, or corneal
               abrasion[.]


       (Id.)


[17]   To ensure Kunkle was not exposed to double jeopardy, the prosecutor needed

       to separate the facts in evidence to support separately the two counts of neglect

       and present argument that clarified for the jury the facts it needed to find to

       support each count separately. During closing arguments, the prosecutor

       reviewed these two counts separately, explained the elements for each count,

       and highlighted the evidence that proved each element.


[18]   While going over the evidence to support the elements of Level 3 felony battery

       resulting in serious bodily injury, the prosecutor noted that, after Kunkle started

       to come around, A.W.


               gets injuries in his ear, in his head, on his shoulder, on his legs,
               on his hips, on his arms, on his upper legs. That happened over a

       Court of Appeals of Indiana | Opinion 19A-CR-2617 | June 22, 2020         Page 9 of 14
               period of time, Ladies and Gentlemen. . . . You know everyone
               knows the speed in [sic] which bruises will heal on their body.
               Look at these photographs. It shows you that this happened over
               a period of time.


       (Tr. Vol. III at 69.) Then, when discussing the evidence supporting Level 5

       felony battery resulting in bodily injury, the prosecutor said: “[H]ere we’re

       talking about the fact that little [A.W.] is not only covered in bruises, but he has

       a corneal abrasion that Dr. Harris says would have been very painful left

       untreated. Um, pain also qualifies under this statute.” (Id. at 71.) Because the

       prosecutor explained to the jury that it should convict Kunkle for one battery

       based on the bruises all over his body and for the other battery based on the

       corneal abrasion that would have been painful, we hold Kunkle was not

       exposed to Double Jeopardy when convicted of both counts of battery. See, e.g.,

       Vermillion, 978 N.E.2d at 465-66 (Ind. Ct. App. 2012) (no double jeopardy

       violation when State established separate offenses based on distinct facts).


                                  II. Sufficiency of the Evidence
[19]   Kunkle argues the evidence was insufficient to prove he committed Level 3

       felony neglect of a dependent resulting in serious bodily injury. In assessing

       whether there was sufficient evidence to support a conviction, we consider the

       probative evidence in the light most favorable to the verdict. Burns v. State, 91

       N.E.3d 635, 641 (Ind. Ct. App. 2018). “It is the fact-finder’s role, not that of

       appellate courts, to assess witness credibility and weigh the evidence to

       determine whether it is sufficient to support a conviction.” Drane v. State, 867


       Court of Appeals of Indiana | Opinion 19A-CR-2617 | June 22, 2020         Page 10 of 14
       N.E.2d 144, 146 (Ind. 2007). “Reversal is appropriate only when no reasonable

       fact-finder could find the elements of the crime proven beyond a reasonable

       doubt. Thus, the evidence is not required to overcome every reasonable

       hypothesis of innocence and is sufficient if an inference may reasonably be

       drawn from it to support the verdict.” Burns, 91 N.E.3d at 641 (internal citation

       omitted).


[20]   To prove Kunkle committed Level 3 felony neglect of a dependent resulting in

       serious bodily injury, the State was required to present evidence that: (1)

       Kunkle; (2) having care of A.W.; (3) knowingly or intentionally; (4) placed

       A.W. in a situation that endangered his life or health; and (5) said act resulted

       in serious bodily injury. See Ind. Code § 35-46-1-4(a)(1) & (b)(2) (2018)

       (elements of crime). Serious bodily injury is “bodily injury that creates a

       substantial risk of death or that causes: (1) serious permanent disfigurement; (2)

       unconsciousness; (3) extreme pain; (4) permanent or protracted loss or

       impairment of the function of a bodily ember or organ; or (5) loss of a fetus.”

       Ind. Code § 35-31.5-2-292.


[21]   Kunkle asserts: “Nowhere in her testimony does Dr. Harris ever state that the

       injuries became worse as a result of Kunkle . . . not seeking medical attention

       for the burns immediately after they occurred.” (Appellant’s Br. at 16.)

       However, our review of the record found evidence that Dr. Harris did so testify.

       For example, she explained:


               [W]hen burns are fresh, especially burns at this depth, partial
               thickness burns, they’ll be very moist because essentially there’s

       Court of Appeals of Indiana | Opinion 19A-CR-2617 | June 22, 2020        Page 11 of 14
        been a blister and the top layer has come off, so they’re wet when
        they first, um, happen, but then over time, um, if they don’t have
        treatment, they get dry and the appearance of the skin changes as
        the body tries to heal it. Um, if they’re appropriately treated, we
        try to keep that skin moist because that will help it heal, helps
        prevent infection, helps prevent it from cracking and getting
        worse. Um, but if it’s allowed to just get dried out, then the skin,
        um, becomes darker pigmented and will dry out over time. He
        had, um, some of that and then some crusting where the healing
        tissue was starting to peel off.


(Tr. Vol. II at 179.) In addition, she said:


        So burns are extremely painful. Most people have had a sunburn
        and you know how sensitive that is, um, with any movement or
        touching of it. They type of burn that [A.W.] had, the partial
        thickness being one (1) layer deeper, is typically even more
        painful because you’ve burned right to where those nerve endings
        stop, so they’re very painful . . . the depth of his burn that’s the
        most painful level to burn to. Um, so it – they’re immediately
        extremely painful when the burn happens . . . and then it stays
        painful. It’s really tender especially with any movement. Um,
        the – the kind of hardest – or most heartbreaking part of burns on
        this area – on the buttocks on a toddler that they’re going to
        continue to – um, have to touch and wipe that area, so, um, any
        time he urinated or had a bowel movement, having that tissue
        contact that raw sensitive burned skin would have been very
        painful, um, and then having to clean it off, having to use wipes
        and clean off that area would have been extraordinarily painful.


(Id. at 180-81.) Because of the painfulness of the type of burns A.W. had, he

should have received intravenous narcotic painkillers, “especially when we’re

going to be cleaning the area and putting new dressings on it . . . .” (Id. at 181.)

Finally, she opined:

Court of Appeals of Indiana | Opinion 19A-CR-2617 | June 22, 2020         Page 12 of 14
               [A.W.] had not gotten medical care even for significant injury
               like his burn, ah, which I would classify as medical neglect. Um,
               with the burn where it was, um, and seeing how very painful he
               was with that location, um, I think he would meet some
               definitions of torture with seeing him be in pain like that
               repeatedly over time and still not getting him attention.


       (Id. at 188.)


[22]   If he had been taken for medical care when the burns occurred, A.W. would

       have been treated with narcotic painkillers, especially when his diaper needed

       changed, but instead he remained at home to endure diaper changes that were

       repeatedly “extraordinarily painful.” (Id. at 181.) In addition, if properly kept

       moisturized, burns do not dry out, crack, and turn a darker color, but A.W.’s

       skin had some of those changes. Dr. Harris’ testimony was sufficient to

       demonstrate A.W. experienced repeated extreme pain as a result of Kunkle’s

       failure to obtain medical treatment for A.W.’s burns. Therefore, the evidence

       was sufficient to support Kunkle’s conviction of Level 3 felony neglect of a

       child resulting in serious bodily injury. See, e.g., Schweitzer v. State, 552 N.E.2d

       454, 458 (Ind. Ct. App. 1990) (victim’s testimony that “she never before had

       been so painfully injured” sufficient to prove serious bodily injury).



                                                Conclusion
[23]   Kunkle was not subjected to double jeopardy because the State argued different

       injuries to support each of his three convictions of battery. The State presented

       sufficient evidence of serious bodily injury related the exacerbation of pain from


       Court of Appeals of Indiana | Opinion 19A-CR-2617 | June 22, 2020          Page 13 of 14
       the burns to convict Kunkle of Level 3 felony neglect of a dependent resulting in

       serious bodily injury. Accordingly, we affirm.


[24]   Affirmed.


       Robb, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-2617 | June 22, 2020      Page 14 of 14
