Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                        FILED
any court except for the purpose of                      Sep 18 2012, 8:44 am
establishing the defense of res judicata,
collateral estoppel, or the law of the                          CLERK
                                                              of the supreme court,
case.                                                         court of appeals and
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ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

THOMAS C. ALLEN                                  GREGORY F. ZOELLER
Fort Wayne, Indiana                              Attorney General of Indiana

                                                 RICHARD C. WEBSTER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                       COURT OF APPEALS OF INDIANA

SERGIO SANDOVAL,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 02A02-1111-CR-1113
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                         APPEAL FROM THE ALLEN SUPERIOR COURT
                            The Honorable John F. Surbeck, Jr., Judge
                                Cause No. 02D04-0906-FB-110



                                        September 18, 2012


                    MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
         Sergio Sandoval appeals his conviction for neglect of a dependent as a class B

felony.1 Sandoval raises one issue, which we restate as whether the evidence is sufficient

to sustain his conviction. We affirm.

         The facts most favorable to Sandoval’s conviction follow. In January of 2009,

Sandoval lived with Brittney Shaw and their two daughters, A.S. and M.S., who was born

on May 1, 2007, in a mobile home in Fort Wayne, Allen County, Indiana. On January

15, 2009, Sandoval filled a five-gallon bucket with hot water from the spigot for the

washing machine hook up and poured the water into the bathtub in the bathroom. The

mobile home’s hot water heater had been set to its maximum temperature setting of 150

degrees. M.S. was immersed in the water and sustained extensive and second-degree

burns.

         M.S. was taken to the emergency room at Parkview Hospital. Sandoval initially

reported to medical personnel that he was running bath water, that he left the room to

obtain supplies and asked Shaw to watch M.S., that Shaw ignored him and went to watch

television, and that M.S. had turned the water to hot and stepped in the tub. Emergency

room physician Dr. John Winther examined M.S. and observed extensive burns on her

feet and perineal area of the buttocks and prescribed morphine for M.S.’s pain. Sandoval

reported to Dr. Winther that he was preparing a bath for M.S., that he had left both the

hot and cold faucets on and had left the room, that he heard M.S. scream, that he returned

to the bathroom to find M.S. squatting in the bathtub, and that he thought that M.S. had

turned off the cold water and stepped into the bathtub. Dr. Winther considered M.S.’s

         1
         Ind. Code § 35-46-1-4 (Supp. 2007) (subsequently amended by Pub. L. 6-2012, § 227 (eff. Feb.
22, 2012)).
                                                 2
burns to be significant and had M.S. transferred to the burn center at St. Joseph’s Hospital

in Fort Wayne. Dr. Winther also asked the nursing staff to contact the Department of

Child Services (“DCS”).

       M.S. was treated at St. Joseph’s Hospital by Dr. Kevin Berning, a plastic surgeon

who treated patients in the hospital’s burn center. A DCS intake family case manager

took photographs of M.S.’s burns at St. Joseph’s Hospital. M.S. remained at St. Joseph’s

Hospital until her discharge on January 26, 2009. Following her discharge from the

hospital, M.S. received additional follow up treatment from the outpatient burn clinic at

St. Joseph’s Hospital.

       Sandoval initially reported to police at St. Joseph’s Hospital that he had been

drawing a bath for M.S. while M.S. was standing looking over the tub, that he left to

retrieve a towel, and that when he returned M.S. was standing in the tub and then sat

down. Sandoval also stated that M.S. had turned off the cold water leaving only the hot

water running. Several minutes later, Sandoval reported that he had left the bathroom to

get a towel, heard M.S. scream, and returned to the bathroom to find M.S. already sitting

in the bathtub. Sandoval provided a written statement that he went to retrieve a towel,

that M.S. turned off the cold water and stepped inside the tub, and that M.S. was already

sitting in the water by the time Sandoval returned.

       During their investigation, police and the CPS case manager assigned to the case

visited Sandoval’s residence and observed that there was no handle for the hot water in

the bathtub where M.S. received her burns. In a subsequent interview with a police

detective, Sandoval stated that when he exited the bathroom to retrieve a towel there was

                                             3
approximately one inch of water in the bathtub and that when he returned there was one

and one-half to two inches of water in the tub. Sandoval also stated that approximately

three years earlier the heating elements of the hot water heater had been replaced, that

there was still insufficient hot water for a full shower or bath, and thus that the

temperature of the hot water heater had been set to the maximum.

       During the investigation, a police officer inspected the hot water heater and

observed that the temperature was set at 150 degrees, which was the highest possible

temperature setting. In examining the bathtub where M.S. received her burns, police

again observed that no knob or fixture existed where the hot water knob would have been

and that the handle or knob for the cold water was very difficult to turn and that a person

would need to use a lot of force to turn it.

       Also during their investigation, police took the temperature of the water in the

bathtub at various intervals to determine how quickly the water heated up. Sandoval

demonstrated to the officers the temperature and depth of the water at the time he exited

the bathroom, which police determined to be approximately ninety-five degrees and one

inch, respectively. Officers then turned off the cold water and determined that, after two

minutes of running the hot water only, the temperature of the water in the bathtub was

between approximately 98 degrees and 112 degrees at different locations in the tub.

Officers continued to fill the bathtub with hot water until the water in the tub was

approximately two inches deep and determined that the temperature of the water was 119

to 122 degrees at different locations in the tub. After fifteen minutes of running the hot



                                               4
water only, the depth of the water was three and three-eighths inches deep and was 127.3

degrees.

       In a subsequent interview with police, Shaw stated that the bathtub was not filled

using the faucet as reported by Sandoval and that Sandoval had instructed her not to say

how M.S. was really burned “because he didn’t want to get in trouble.” Transcript at

263. After police further questioned Sandoval and presented the information provided by

Shaw, Sandoval informed police that he had filled a five-gallon bucket with water

through the hot water spigot for the washing machine and poured the water into the

bathtub. Sandoval also stated that Shaw was not in the area when the incident took place.

Sandoval also stated to police that he spoke with Shaw about “getting their story straight”

before he took M.S. to the hospital and “explained the water was blazing hot” and “didn’t

want them to look like dumb asses.” Id. at 267.

       Police recovered the five-gallon bucket which Sandoval used to fill the bathtub

and asked Sandoval to fill the bucket and pour it into the bathtub the way he had done

when he prepared a bath for M.S. The temperature of the water from the washing

machine spigot was approximately 152 degrees. After Sandoval poured the water from

the bucket into the bathtub, the depth of the water was one and one-quarter to one and

one-half inches and the temperature of the water was approximately 136 degrees. After

five minutes, the temperature of the water in the tub was approximately 132 degrees.

       The State charged Sandoval with neglect of a dependent as a class B felony in

January 2009, and the State filed an amended information in November 2009.              At

Sandoval’s jury trial, the State presented testimony from, among others, Shaw, the DCS

                                            5
case manager, the police detective and officers who were involved with the investigation,

Dr. Winther, Dr. Kevin Berning, and Dr. Antoinette Laskey.

       Dr. Winther testified that he observed that M.S. had suffered “significant

symmetrical [] burns involving the feet and the perineal area of the buttocks.” Id. at 141.

Dr. Winther testified that the burns were “[a]t least second degree burns.” Id. Pointing to

a photograph of M.S.’s burn injuries, Dr. Winther directed the jury to the burn line and

pointed out that “the reddened areas of the buttocks here are very symmetrical with a

horizontal line and then both feet, kind of a stocking distribution going up the leg.” Id. at

146. Dr. Winther testified that he did not notice any burns to M.S.’s hands or upper

extremities and that he did not notice any splash marks on M.S.’s body at all. Dr.

Winther testified as to the burns and blistering on M.S.’s feet and calf areas and as to the

“line of demarcation” suggesting that “it appears that the child entered hot water in an

upright position with the feet and legs drawn up . . . such that the lowest part[s] of the

body that [were] in the water were the feet and the perineum and the buttocks.” Id. at

146-147. Dr. Winther indicated that the lack of splash marks and burns on M.S.’s hands

indicates “[a] very classic description of a dipping or emersion [sic] type of burn pattern.”

Id. at 147. Dr. Winther testified that he did not think that Sandoval’s report regarding the

manner in which M.S. received the burns was accurate as there were no splash marks or

burns on M.S.’s hands and that if M.S. had entered the water on her own, she would have

withdrawn or burned her hands “in an attempt to try to scramble and get out of the

water.” Id. at 148. Dr. Winther testified that M.S.’s burns were very consistent with the

actions of “another person [taking] a child under the arms or by the hands and then

                                             6
lower[ing] them into the water, to see these classic burn patterns.” Id. at 149. When

asked to elaborate on the burn pattern M.S. sustained, Dr. Winther testified that “as the

feet go in the water, it’s hot, so they withdraw because of pain and the legs go up and as

the child is entered into the water, the hot water . . . level goes up to a kind of stocking

distribution and because of the child trying to get away, withdrawal flexes up, the next

part to enter the water is the buttock and perineum and then it goes to a certain level and

then brought out of the water.” Id. at 152.

       Dr. Berning testified that M.S. suffered second-degree burns and that M.S. had

burns over nearly fourteen percent of her total body surface area. Dr. Berning testified

that M.S.’s hands were not burned and that he did not recall observing any splash marks.

Dr. Berning testified that the version of events reported by Sandoval that M.S. climbed

into the tub, turned off the cold water, and sat down before Sandoval could remove her

was not consistent with M.S.’s injuries. Dr. Berning pointed to photographs presented to

the jury and noted that “the line of demarcation where the injury occurs is pretty much a

straight line” and that there were “no splash marks outside of the area.” Id. at 206. When

asked about the pattern of M.S.’s burns, Dr. Berning testified that it appeared that M.S.

“had what we consider a dipping type injury” and explained that “when you have a child

and you hold the child, dip them into liquid, that they would pull up their feet and you’d

have a line of demarcation across the buttock area and generally the feet.” Id. at 210. Dr.

Berning indicated that M.S.’s burns were not consistent with M.S. standing in hot water

and suddenly sitting down, in part because the pattern of injury shows that the feet were

angled at some point and because of the lack of splash marks. Dr. Berning further

                                              7
indicated that M.S.’s burns were not consistent with M.S. standing in cooler water and

then turning off the cold water because in that case the child would have a layered effect

of the injury which did not occur. Dr. Berning also indicated that M.S.’s burns were not

consistent with M.S. climbing into the bathtub one foot at a time or sliding down into the

tub, due to the consistencies of the burns on the feet and the lack of splash injuries.

       Dr. Laskey, an associate professor of pediatrics at Indiana University School of

Medicine who was board certified in child abuse pediatrics, consulted on M.S.’s case.

Dr. Laskey testified that, based upon a temperature of the water in the bathtub of 136

degrees, the pattern of injuries was not consistent with M.S. standing in the tub and then

sitting as that temperature would have been immediately painful and would have caused

at a minimum a first degree burn. Dr. Laskey testified that an adult initially perceives

pain at 119 degrees and that at 130 degrees it would take approximately thirty seconds to

cause a burn that would cause blistering. Dr. Laskey testified that the temperature for a

comfortable baby bath should be ninety-eight degrees.             Dr. Laskey testified that

immersion in water with a temperature of 136 degrees would cause second-degree burns

in less than approximately thirty seconds and that M.S. would have experienced pain

within seconds at that temperature. Dr. Laskey testified that M.S.’s burns were consistent

with an adult caregiver picking her up and placing her in the water and not with stepping

into the tub based on M.S.’s size and developmental capabilities.           Dr. Laskey also

testified that, given the nature of M.S.’s burns, she was in the water for approximately

five to thirty seconds.



                                              8
       The jury found Sandoval guilty of neglect of a dependent as a class B felony. The

trial court sentenced Sandoval to twelve years with ten years executed and two years

suspended to probation.

       The sole issue is whether the evidence was sufficient to sustain Sandoval’s

conviction for neglect of a dependent as a class B felony. When reviewing claims of

insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of

witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we

look to the evidence and the reasonable inferences therefrom that support the verdict. Id.

We will affirm the conviction if there exists evidence of probative value from which a

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Id.

       Sandoval contends that the evidence was insufficient to show that he knowingly

placed M.S. in a situation that endangered the child’s health. Sandoval argues that

“whether the child was placed in the water by [him] or the child placed herself in the

water while unsupervised the ultimate question is whether [Sandoval] knew that the water

he had put into the bathtub was so hot as to burn the child.” Appellant’s Brief at 10-11.

Sandoval asserts that “[t]here is little evidence [from] which a reasonable jury could infer

that [he] knew that the hot water in the bathtub was hot enough to burn M.S.” Id. at 11.

Sandoval argues that visually cold water and hot water look the same, that he used water

directly from the hot water heater which presumably was not a normal occurrence, that

the water heater was turned to the highest setting of 150 degrees but this does not in any

way suggest that he was aware that the water coming out at that temperature would be

dangerous, that it would be hard for a reasonable jury to deduce that it is common

                                             9
knowledge that 150 degree water is dangerous, and that although he later stated during

the investigation that water was blazing hot this fact does not demonstrate that he was

aware of the danger at the time of the injuries. Sandoval further argues that his attempt to

mislead law enforcement on how M.S. was injured does not demonstrate guilt as it is

readily possible that having accidentally hurt the child he was trying to avoid a case with

DCS.

       The State argues that the totality of the circumstances show that Sandoval had

knowledge he was placing M.S. in a dangerous situation. The State asserts that Sandoval

“was subjectively aware that the hot water was extremely hot because [he] had set the

water temperature of the water heater at the maximum of 150 degrees” and that “it is

reasonable to infer that [he] was aware for quite some time that the hot water was

extremely hot.” Appellee’s Brief at 11. The State argues that there was sufficient

evidence, both direct and circumstantial, to support Sandoval’s conviction and that

Sandoval’s argument is merely an invitation for this court to reweigh the evidence and

the credibility of the witnesses.

       The offense of neglect of a dependent is governed by Ind. Code § 35-46-1-4,

which at the time of the offense and the charging information provided in part under

subsection (a) that “[a] person having the care of a dependent, whether assumed

voluntarily or because of a legal obligation, who knowingly or intentionally: (1) places

the dependent in a situation that endangers the dependent’s life or health . . . commits

neglect of a dependent, a Class D felony.” However, the offense is a class B felony if “it

is committed under subsection (a)(1) . . . and results in serious bodily injury.” Ind. Code

                                            10
§ 35-46-1-4(b)(2). “Serious bodily injury” means bodily injury that creates a substantial

risk of death or that causes serious permanent disfigurement, unconsciousness, extreme

pain, permanent or protracted loss or impairment of the function of a bodily member or

organ, or loss of a fetus. Ind. Code § 35-41-1-25. The amended charging information

alleged that “Sandoval, having the care of M.S. . . . , a dependent, whether assumed

voluntarily or because of a legal obligation, did knowingly or intentionally place M.S., in

a situation that endangered her life or health, resulting in serious bodily injury . . . .”

Appellant’s Appendix at 79.

       A person engages in conduct “intentionally” if, when he engages in the conduct, it

is his conscious objective to do so. Ind. Code § 35-41-2-2(a). 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. Ind. Code § 35-41-2-2(b); Villagrana v. State, 954 N.E.2d

466, 468 (Ind. Ct. App. 2011). Under the child neglect statute a “knowing” mens rea

requires a subjective awareness of a “high probability” that a dependent has been placed

in a dangerous situation. Villagrana, 954 N.E.2d at 468. Because, in most cases, such a

finding requires the factfinder to infer the defendant’s mental state, this court must look

to all the surrounding circumstances of a case to determine if a guilty verdict is proper.

Id.

       A review of the evidence most favorable to Sandoval’s conviction indicates that

on January 15, 2009, Sandoval had care and control of M.S., his dependent. Sandoval

does not contest that M.S. sustained severe burns as a result of being immersed in or

coming into contact with hot water in the bathtub, which Sandoval had obtained from a

                                            11
hot water spigot for a washing machine where the hot water heater was set to the

maximum temperature of 150 degrees. The singular dispute was whether the injuries

were inflicted knowingly or intentionally rather than accidentally.

       At trial, the State presented the testimony of Dr. Winther, Dr. Berning, and Dr.

Laskey, and each testified that the nature, pattern, and distribution of M.S.’s burn

injuries, including the nature of the line of demarcation and the lack of splash marks

outside the burn area or upper extremities, was consistent with Sandoval lowering M.S.

into the hot water and was inconsistent with M.S. entering the water of her own accord.

In addition, the State presented testimony that M.S. would have experienced pain within

seconds of being placed in the hot water and that, in order for M.S. to sustain her injuries,

M.S. must have been immersed in the hot water for approximately five to thirty seconds.

Further, the State presented photographs of the bathroom, bathtub, the bathtub fixtures,

and numerous photographs showing M.S.’s multiple burn injuries together with the

physicians’ testimony explaining the nature and pattern of burns revealed in those

photographs.

       A jury could have reasonably found from the evidence presented at trial that

Sandoval knowingly placed M.S. in a situation that endangered M.S.’s life or health and

that the placement resulted in serious bodily injury to M.S. Based upon the evidence

most favorable to the conviction, we conclude that sufficient evidence exists from which

the jury could find Sandoval guilty beyond a reasonable doubt of neglect of a dependent

as a class B felony. See Taylor v. State, 644 N.E.2d 612, 613-614 (Ind. Ct. App. 1994)

(holding that the State presented credible evidence supporting the judgment that the

                                             12
defendant intentionally immersed the face of a four-month old child in scalding water,

resulting in burns, and noting that the evidence showed that the burns were not consistent

with splash burns because of the uniform depth of the burns and not consistent with the

defendant’s testimony that the child’s injuries were the result of an accident); Sipress v.

State, 562 N.E.2d 758, 759-760 (Ind. Ct. App. 1990) (holding that a reasonable trier of

fact could infer that the defendant knowingly placed his child in a situation which might

and in fact did endanger her life and health, observing that the State presented evidence

that the clear line of demarcation between the unburned and burned skin indicated that

the injury was caused by an immersion or a non-accidental pour and was not the result of

an accidental or splash-type injury and noting that the defendant’s conviction may be

supported by circumstantial evidence alone), reh’g denied.

       For the foregoing reasons, we affirm Sandoval’s conviction for neglect of a

dependent as a class B felony.

       Affirmed.

FRIEDLANDER, J., and PYLE, J., concur.




                                            13
