MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Jul 08 2019, 10:23 am
court except for the purpose of establishing
                                                                              CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Thomas C. Allen                                           Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana

                                                          Caroline G. Templeton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Morgan J. Braun,                                          July 8, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-295
        v.                                                Appeal from the Allen Superior
                                                          Court
State of Indiana,                                         The Honorable Frances C. Gull,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          02D05-1709-F3-47



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-295 | July 8, 2019                       Page 1 of 10
                                        Statement of the Case
[1]   Morgan J. Braun appeals her conviction for neglect of a dependent, as a Level 3

      felony, following a jury trial. Braun raises one issue for our review, namely,

      whether the trial court committed fundamental error when it admitted certain

      evidence.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Braun is the mother of E.E. (“Child”), who was born on September 26, 2016.

      On December 28, Joshua Meyers, a family case manager with the Indiana

      Department of Child Services (“DCS”), performed a wellness check on Child.

      Meyers did not observe any visible injuries on Child. Later that day, Braun

      took Child to the home of Regina Braun, Child’s paternal grandmother. While

      Child was in Regina’s care that day, he was “absolutely fine[.]” Tr. Vol. II at

      117. Braun again took Child to Regina’s home the next day, which was

      Thursday, December 29. Regina watched Child from approximately 9:00 a.m.

      until noon. Child was “absolutely normal.” Id. at 118.


[4]   That afternoon, Braun dropped Child off at the home of Eugene Estrada, Jr.,

      Child’s father (“Father”), prior to the start of her shift at a local restaurant.

      Shortly after she had arrived at work, Braun got a call from Father. Father told

      Braun that he had taken a shower with Child and that he had slipped in the

      shower while holding Child. Father told Braun that Child did not hit his head

      but that the shower rod had fallen and hit Child in the face.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-295 | July 8, 2019   Page 2 of 10
[5]   Braun was still at work, so she called Regina. Braun was “panicked and upset,”

      and she told Regina “that something had happened with” Child. Id. at 118.

      Braun asked Regina what she should do, and Regina suggested that Braun

      leave work. Braun was unable to leave work, so Regina suggested that Braun

      ask Father to send a picture of Child. Braun told Regina that she would call

      Regina back to “let [her] know what the results of that situation were.” Id. at

      119. That night, Regina sent a text message to Braun asking about Child.

      Braun told Regina that Child was “fine.” Id.


[6]   The next morning, Braun took Child to a prescheduled wellness check. Dr.

      Thomas Van Den Driessche examined Child. Braun did not tell Dr. Van Den

      Driessche about Child’s fall. Child’s exam was “totally normal.” Id. at 238.


[7]   Following the doctor’s appointment, Braun again took Child to Regina’s house.

      While in Regina’s care, Child remained in his car seat. Regina “didn’t like the

      position of his head” while he was in the seat. Id. at 120. “[I]t looked like it

      was farther down than it normally would be and like it might interfere with his

      airway[.]” Id. Regina asked Braun if everything was okay with Child. Braun

      told Regina that the doctors had “said it was okay.” Id. Regina watched Child

      for approximately forty-five minutes that day. During that time, Child had

      “bubbles” coming out of his mouth, which “concerned” Regina because Child

      was not teething. Id. Child did not wake up, and he stayed in the same

      position in the car seat “the whole time” he was with Regina. Id. at 121. That

      evening, Braun worked from 4:00 p.m. until just before 9:00 p.m.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-295 | July 8, 2019   Page 3 of 10
[8]    In the early morning hours of Saturday, December 31, Braun took Child to the

       emergency room. Jamie Chaffe, a physician assistant, was the first medical

       professional to examine Child. Braun told Chaffe that Child had not been

       eating well, that he had an “abnormal” leg twitch, that Child was drooling, that

       Child was not following with his eyes as usual, and that Child “just wasn’t

       himself.” Id. at 150. Braun told Chaffe that Child’s symptoms had started on

       Thursday. Chaffe ordered a CT scan for Child. That scan showed that Child

       had a subdural hematoma on the right and multiple hemorrhages on the left.

       Dr. Barbara Schroeder, an ophthalmologist, then examined Child. Dr.

       Schroeder observed that Child had hemorrhages throughout his entire right eye,

       and he had a few hemorrhages in his left eye. Child began to have seizures, and

       his condition deteriorated. Child’s injuries were life threatening.


[9]    Child was placed in a medically induced coma, and he was placed on life

       support. Child was ultimately in the hospital for fourteen days. As a result of

       his injuries, Child suffers from a traumatic brain injury and cerebral palsy.

       Since his release from the hospital, Child attends five appointments per week

       for occupational therapy, physical therapy, and speech therapy.


[10]   The State charged Mother with neglect of a dependent, as a Level 3 felony. 1

       The trial court then held a jury trial on November 14 and 15, 2018. During the

       State’s opening argument, the State twice informed the jury that it would hear




       1
           In a separate case, Father pleaded guilty to neglect of a dependent.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-295 | July 8, 2019   Page 4 of 10
       evidence that Child had two healing rib fractures when he went to the

       emergency room on December 31. Braun, who was represented by counsel, did

       not object to either statement.


[11]   During the trial, the State presented the testimony of Dr. Chandrashekhar

       Yalamanchali. Dr. Yalamanchali testified that Child’s drooling, not eating,

       and not being himself were symptoms of a head injury. Dr. Yalamanchali

       further testified that waiting to take Child to the hospital on Saturday morning

       when the symptoms had started on Thursday could have “[a]bsolutely” resulted

       in Child’s death or caused Child’s symptoms to be worse or to last longer. Id. at

       161. Dr. Yalamanchali also testified that, given the severity of Child’s injuries,

       Child would have had symptoms prior to arriving at the hospital. In addition,

       Dr. Yalamanchali testified that the cause of Child’s injuries was not having

       been hit by the shower rod but, rather, that Child was “shaken.” Id. at 162.


[12]   The State also presented the testimony of Chaffe and Dr. Schroeder. Chaffe

       testified that Child’s injuries were not consistent with a fall in the shower. And

       Schroeder testified that the hemorrhages in Child’s eyes were caused by a

       “severe shaking injury.” Id. at 189.


[13]   Dr. Ralph Hicks, a pediatrician, also testified at Braun’s trial. Dr. Hicks did not

       examine or treat Child, but he reviewed Child’s medical records at the request

       of DCS. During Dr. Hicks’ testimony, the State moved to admit as evidence X-

       rays that the hospital had taken of Child. Braun stated that she had “no

       objection” to the admission of that evidence. Id. at 205. Dr. Hicks testified that


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-295 | July 8, 2019   Page 5 of 10
       poor eye contact, drooling, poor feeding, difficulty swallowing, and seizures are

       all symptoms of a traumatic brain injury in a three-month-old baby. Further,

       Dr. Hicks testified that, given Child’s injuries, Child would have developed his

       symptoms within “seconds or perhaps minutes” after “whatever happened to

       him happened.” Id. at 220. He also testified that a reasonable caretaker would

       have noticed Child’s symptoms. Dr. Hicks further testified that a delay in

       treatment “certainly increases the risk of more severe complications and also

       increases the risk of death[.]” Id. at 218.


[14]   Along with the injuries to Child’s brain, Dr. Hicks testified that the X-rays

       showed that Child had previously sustained fractures to two of his ribs, which

       fractures had occurred ten days to two weeks prior to Child’s admission to the

       hospital. He testified that the rib fractures were likely caused by “squeezing,

       forceful compression to the chest, . . . the result of an impact or drop, [or] some

       sort of direct trauma[.]” Id. at 213. He further testified that the rib fractures

       “would have been painful[.]” Id. Dr. Hicks testified that he did not believe

       Child’s injuries were caused by a fall in the shower because he “wouldn’t expect

       the . . . severity of the injuries” Child had from a shower rod and because falling

       in the shower “wouldn’t explain the . . . healing rib fractures.” Id. at 216.

       Braun did not object to any of Dr. Hicks’ testimony concerning the rib

       fractures.


[15]   Dr. Mark Kelly, a neurologist, also testified. Dr. Kelly testified that, based on

       the results of an MRI scan, Child’s brain injuries happened twenty-four to forty-



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-295 | July 8, 2019   Page 6 of 10
       eight hours before the scan had been taken. He also testified, without objection,

       that Child had healing rib fractures on two of his ribs.


[16]   Finally, Dr. Van Den Driessche testified. Dr. Van Den Driessche testified that,

       during the wellness check he had performed on Child, Braun did not give him

       any information that Child had suffered a fall, had a leg twitch, had been

       drooling, had a loss of appetite, or otherwise was not himself.


[17]   At the close of the evidence, the State presented its closing argument. During

       that argument, the State twice mentioned that Child had rib fractures that were

       healing at the time he was admitted to the hospital. Specifically, the State

       argued that, “this Child also had a healing rib fracture that . . . even if you

       weren’t the one inflicting the rib fracture, in normal caretaking of the child you

       would have noticed something’s going on, at least for the first few days of that

       rib fracture[.]” Tr. Vol. III at 33. Braun did not object to the State’s discussion

       of the fractures during its closing argument. The jury found Braun guilty of

       neglect of a dependent, as a Level 3 felony. The trial court entered judgment of

       conviction accordingly and sentenced Braun to ten years in the Department of

       Correction. This appeal ensued.


                                      Discussion and Decision
[18]   Braun appeals her conviction for neglect of a dependent, as a Level 3 felony.

       Braun’s only argument on appeal is that the trial court committed fundamental

       error when it did not sua sponte disallow the State’s arguments and evidence

       with respect to Child’s prior rib fractures. As our Supreme Court has explained:

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-295 | July 8, 2019   Page 7 of 10
               A claim that has been waived by a defendant’s failure to raise a
               contemporaneous objection can be reviewed on appeal if the
               reviewing court determines that a fundamental error occurred.
               The fundamental error exception is extremely narrow, and
               applies only when the error constitutes a blatant violation of
               basic principles, the harm or potential for harm is substantial,
               and the resulting error denied the defendant fundamental due
               process. The error claimed must either make a fair trial impossible or
               constitute clearly blatant violations of basic and elementary principles of
               due process. This exception is available only in egregious
               circumstances.


       Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (emphasis added; quotation

       marks and citations omitted). “To prove fundamental error,” the appellant

       must show “that the trial court should have raised the issue sua sponte . . . .”

       Taylor v. State, 86 N.E.3d 157, 162 (Ind. 2017).


[19]   On appeal, Braun contends that “[t]he court committed fundamental error by

       allowing extrinsic evidence of prior bad conduct to be admitted into evidence.”

       Appellant’s Br. at 18. Specifically, Braun contends that the statements and

       exhibits regarding Child’s prior rib fractures were inadmissible evidence of a

       prior bad act under Indiana Evidence Rule 404(b), and that that evidence

       allowed the jury to make a “forbidden inference” regarding her guilt. Id. at 21.


[20]   However, the question is not whether the evidence of the prior rib fractures was

       inadmissible. Rather, the question is whether the trial court committed

       fundamental error, which considers whether the complained-of failure to act by

       the court made “a fair trial impossible” or was a “clearly blatant violation[] of

       basic and elementary principles of due process.” Brown, 929 N.E.2d at 207.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-295 | July 8, 2019           Page 8 of 10
       Indeed, as we have noted before, “fundamental error in the evidentiary

       decisions of our trial courts is especially rare.” Merritt v. State, 99 N.E.3d 706,

       709 (Ind. Ct. App. 2018), trans. denied. For example, our Supreme Court has

       explained that


               an error in ruling on a motion to exclude improperly seized
               evidence is not per se fundamental error. Indeed, because
               improperly seized evidence is frequently highly relevant, its
               admission ordinarily does not cause us to question guilt. That is
               the case here. The only basis for questioning [the defendant’s]
               conviction lies not in doubt as to whether [she] committed these
               crimes, but rather in a challenge to the integrity of the judicial
               process. We do not consider that admission of unlawfully seized
               evidence ipso facto requires reversal. Here, there is no claim of
               fabrication of evidence or willful malfeasance on the part of the
               investigating officers and no contention that the evidence is not
               what it appears to be. In short, the claimed error does not rise to
               the level of fundamental error.


       Brown, 929 N.E.2d at 207.


[21]   Here, Braun makes no argument on appeal to explain how the allegedly

       erroneous admission of evidence made a fair trial impossible or was contrary to

       basic and elementary principles of due process. Rather, as in Brown, the only

       basis Braun presents for challenging her conviction lies not in a challenge to

       whether she committed the crime but, rather, in a challenge to the integrity of

       the judicial process. See id. However, Braun was present at her trial and

       represented by counsel when the State discussed the rib fractures during its

       opening and closing arguments and when the State presented as evidence the X-

       rays and doctors’ testimony about the rib fractures. Indeed, when the State
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-295 | July 8, 2019   Page 9 of 10
       moved to admit the X-rays as evidence, Braun explicitly stated that she had “no

       objection.” Tr. Vol. II at 205. Braun had the opportunity to object and to

       respond to that evidence either through cross-examination or by presenting her

       own evidence on the rib fractures. Further, Braun makes no claim that the

       State’s evidence was fabricated or otherwise not what it appeared to be.

       Accordingly, “the claimed error does not rise to the level of fundamental error.”

       Brown, 929 N.E.2d at 207. We affirm Braun’s conviction.


[22]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-295 | July 8, 2019   Page 10 of 10
