                                                                              FILED
                                                                        Dec 27 2017, 7:53 am

                                                                              CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Nikos C. Nakos                                            Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana
                                                          Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christine Marie Lindhorst,                                December 27, 2017

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          02A03-1704-CR-696
        v.                                                Appeal from the Allen Superior
                                                          Court.
                                                          The Honorable Frances C. Gull,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          02D06-1510-F3-68




Barteau, Senior Judge




Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017                      Page 1 of 16
                                          Statement of the Case
[1]   Christine Marie Lindhorst appeals her convictions of battery resulting in serious
                                                                                           1
      bodily injury to a person less than fourteen years of age, a Level 3 felony; and
                                                                                            2
      neglect of a dependent resulting in serious bodily injury, a Level 3 felony. She

      also appeals the sentence imposed by the court. We affirm.


                                                     Issues
[2]   Lindhorst raises three issues, which we restate as:

                 I.       Whether the trial court abused its discretion in limiting
                          Lindhorst’s cross-examination of an expert witness.
                 II.      Whether there is sufficient evidence to support Lindhorst’s
                          convictions.
                 III.     Whether Lindhorst’s sentence is inappropriate in light of
                          the nature of the offense and the character of the offender.

                                   Facts and Procedural History
[3]   The parents of S.E., an infant girl, hired Lindhorst to babysit her at Lindhorst’s

      house while they were at work. Lindhorst began taking care of S.E. when S.E.

      was eight weeks old. On the morning of May 26, 2015, two days before S.E.’s

      first birthday, S.E.’s father dropped her off at Lindhorst’s house. At that time,

      S.E. could crawl, but she could not walk or climb, and she could not pull herself




      1
          Ind. Code § 35-42-2-1 (2014).
      2
          Ind. Code § 35-46-1-4 (2014).


      Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017        Page 2 of 16
      up to a standing position. Her father recalled that S.E. appeared normal and

      healthy that morning, with no signs of injury.


[4]   Later that morning, Lindhorst called S.E.’s mother to inform her that S.E. had

      fallen on a wooden floor “an hour ago” and had a “bump on her head.” Tr.

      Vol. II, p. 80. She further stated S.E. had begun vomiting and she was taking

      her to the hospital.


[5]   Lindhorst took S.E. to Dupont Hospital, arriving there at 11:36 a.m. Lindhorst

      told hospital staff that S.E. had been standing up and fell over onto a wooden

      floor two hours prior to arriving at the hospital. Nurse Cory Hentgen examined

      S.E. and saw swelling on the left side of her head. S.E. was responsive but

      fussy and irritable. S.E.’s parents arrived at the emergency room, and her father

      noted she had swelling on the left side of her head and was whimpering.


[6]   Hospital staff took a CAT scan of S.E., which revealed she had a fractured skull

      and cerebral bleeding. After the scan, S.E. was less responsive to stimuli.

      Hospital staff sedated S.E., put her on a ventilator, and transferred her to

      Lutheran Children’s Hospital. To Hentgen, S.E.’s injury seemed too severe to

      have resulted from a simple fall. In twenty years of working as a nurse,

      Hentgen had never seen such an injury result from a child falling over onto the

      floor. Hentgen notified Lutheran’s staff that they needed to call Child

      Protective Services (CPS) for an investigation of the circumstances of her injury.


[7]   S.E. arrived at Lutheran’s emergency room at 1:39 p.m., where she was

      examined by Nurse Donna Ancil. Ancil saw redness and swelling on her head.

      Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017   Page 3 of 16
      Ancil read S.E.’s chart and determined, based on her experience as a nurse

      trained in treating neurological injuries, that S.E.’s injury could not have

      resulted from merely falling over onto the floor. Instead, that type of injury was

      caused by “either a blow to the head or propulsion, as in a push and propulsion

      into something.” Id. at 70-71.


[8]   Several doctors examined S.E. and her scans. Dr. John Bormann, a radiologist,

      determined S.E. had a “depressed skull fracture,” which is a “pretty significant

      injury” involving a portion of bone being pushed into the brain. Id. at 120. The

      bone fragment was depressed by four millimeters and caused bleeding that was

      putting pressure on the brain. Dr. Bormann later stated that such a head injury

      could only have been caused by a “high-velocity impact,” such as a fall from

      ten to twenty feet onto hard ground, meaning concrete. Id. at 122. Falling

      from a standing position or even from a couch or bed would be “very unlikely”

      to cause the injury. Id. In over twenty years as a radiologist, Dr. Bormann had

      never seen an injury like S.E.’s caused by a fall onto the floor. To the contrary,

      an injury like this caused him to consider whether there was a “non-accidental”

      cause. Id. at 129.


[9]   Dr. Jeffrey Kachmann performed emergency surgery on S.E. to relieve the

      cranial pressure, stop the bleeding, and correct the fracture. He cut out a piece

      of her skull and installed a temporary drain in her scalp to remove excess blood.

      Dr. Kachmann observed S.E.’s brain was contused “because of the tremendous

      impact of the force that occurred here.” Tr. Vol. II, pp. 229-230. A large blood

      clot had formed, which had pushed the brain against the right side of the skull.

      Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017   Page 4 of 16
       Based on his examination of S.E. and later seeing a picture of the floor where

       Lindhorst alleged the fall occurred, Dr. Kachmann concluded “there’s no way,

       no way this injury could have occurred from that impact.” Id. at 230.


[10]   Dr. David Smith, a pediatric surgeon, examined S.E. on May 26, 2015, after

       her emergency surgery. He reviewed her CAT scan and other doctors’ reports

       and examined her “head to foot.” Id. at 138. He concluded S.E.’s skull fracture

       and resulting hematoma and retinal hemorrhages were caused by a “significant

       blow to the head” involving “a large amount of force.” Id. at 139. Based on his

       experience, a ground-level fall or a fall from a couch or chair would not usually

       result in this severe of an injury. Simply falling onto the floor was “very

       unlikely” to cause S.E.’s injuries. Id. at 140. In his opinion, the injury was

       caused by “non-accidental trauma.” Id. at 148. He further concluded that

       S.E.’s condition had been life-threatening, and she would have had visible

       symptoms of distress up to hours before arriving at the emergency room.


[11]   S.E.’s father spoke with Lindhorst after he arrived at Lutheran. She told him

       the same thing she told S.E.’s mother and hospital staff: S.E. had fallen over

       onto a wooden floor. Meanwhile, police officers and CPS arrived at Lutheran

       to investigate the incident. Detective Randy Morrison spoke with S.E.’s

       parents and Lindhorst separately. Lindhorst told Detective Morrison that S.E.

       fell over onto a wooden floor and hit her head. She also told Morrison that S.E.

       vomited on her, but Morrison did not see or smell vomit on Lindhorst. Later

       that evening, Lindhorst gave a written statement to Detective Morrison,

       restating that S.E. was injured by falling onto the floor.

       Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017   Page 5 of 16
[12]   After S.E.’s surgery, S.E.’s parents were barred from visiting S.E. at the hospital

       pending the results of CPS’s investigation. S.E. stayed at Lutheran for a week.

       Lindhorst and S.E.’s father had a conversation via text messages during the

       week, and Lindhorst asked him “if we were pressing charges on her.” Id. at 31.


[13]   CPS would not allow S.E.’s parents to take her home after the hospital released

       her. Instead, she was placed in her uncle’s custody for two days, until CPS

       ended its investigation. S.E.’s parents took her to follow-up appointments with

       her pediatrician and a pediatric neurologist. They also took her to an

       ophthalmologist to examine her retinal hemorrhages. As of the time of trial,

       S.E. had started walking and seemed to be developing normally, but there is

       permanent scarring on her brain tissue. As she ages, there is a risk that she will

       develop behavioral problems, learning difficulties, and long-term memory

       challenges that may require developmental services to address them.


[14]   The State charged Lindhorst with battery resulting in serious bodily injury to a

       person under fourteen and neglect of a dependent resulting in serious bodily

       injury. The case was tried to the bench. The court determined Lindhorst was

       guilty as charged and sentenced her to six years on each conviction, to be

       served concurrently. This appeal followed.




       Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017   Page 6 of 16
                                     Discussion and Decision
                                         I. Cross-Examination
[15]   Lindhorst argues the trial court erred in limiting her cross-examination of one of

       the State’s expert witnesses about a medical journal and violated her federal and

       state constitutional right to confront witnesses. As we have previously stated:

               The Sixth Amendment right of confrontation requires that a
               defendant be afforded an opportunity to conduct a full, adequate,
               and effective cross-examination. In addition, the Indiana
               Constitution guarantees a defendant the right to face-to-face
               confrontation with witnesses against him. However, this right is
               subject to the reasonable limits a trial court may impose upon
               cross-examination. In such a situation, we will reverse only for a
               clear abuse of the trial court’s discretion. In order to show the
               trial court abused its discretion, a defendant must prove that he
               was prejudiced by the limits imposed by the trial court.

       Belser v. State, 727 N.E.2d 457, 463 (Ind. Ct. App. 2000) (citations omitted),

       trans. denied.


[16]   In general, excerpts from a journal or treatise offered to discredit an expert’s

       testimony would meet the definition of hearsay, which is an out-of-court

       statement “offered in evidence to prove the truth of the matter asserted.” Ind.

       Evidence Rule 801. Hearsay evidence is not admissible unless it meets one of

       the exceptions set by statute or rule. Ind. Evidence Rule 802. One of the

       exceptions applies to treatises and periodicals, stating as follows:

               A statement contained in a treatise, periodical, or pamphlet [is
               not excluded by the rule against hearsay] if:




       Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017   Page 7 of 16
               (A) the statement is called to the attention of an expert witness on
               cross-examination or relied on by the expert on direct
               examination;
               (B) the statement contradicts the expert’s testimony on a subject
               of history, medicine, or other science or art; and
               (C) the publication is established as a reliable authority by the
               expert’s admission or testimony, by another expert’s testimony,
               or by judicial notice.
               If admitted, the statement may be read into evidence but not
               received as an exhibit.

       Ind. Evidence Rule 803(18).


[17]   In the current case, Lindhorst cross-examined State’s witness Dr. David Smith,

       and the following exchange occurred:

               Q      You recognize though that the American Journal of
               Forensic Medicine and Pathology is a reliable source; would you
               agree?
               A        I don’t know anything about the journal, sir.
               Q        You’ve never read the journal?
               A     No, I do not read that journal routinely as a pediatric
               surgeon.
               Q        Okay. Are you familiar with Dr. Plunkett?
               A        No, I am not.
               Q      Do you know Dr. Plunkett to be a board-certified doctor in
               forensic pathology?
               A     I am not familiar with Dr. Plunkett, I cannot stipulate to
               that.
               Q      I’m gonna tell you, Doctor, that his study on fatal pediatric
               head injuries caused by short-distance falls states that physicians
               disagree on several issues regarding head injury in infants and
               children, including the potential lethality of short-distance fall, a

       Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017   Page 8 of 16
               lucid interval in an ultimately fatal head injury, and specificity of
               retinal hemorrhage for inflicted trauma; do you agree with that
               statement?

       Tr. Vol. II, pp. 153-54.


[18]   The State objected to that question because Dr. Smith was unfamiliar with the

       Plunkett study. Lindhorst responded that she should be permitted to question

       Dr. Smith about the study under Indiana Evidence Rule 803(18), and she

       would “tie up later that it’s a reliable, authoritative periodical.” Id. at 154. The

       court sustained the State’s objection “based on the fact that he has not read

       whatever journal it is that you had referenced.” Id. at 155. Dr. Smith later

       stated he reads only the Journal of Pediatric Surgery.


[19]   We find no abuse of discretion in the trial court’s ruling. Indiana Evidence

       Rule 803(18) requires that a treatise must be “established as a reliable

       authority” by a witness or by judicial notice, and Dr. Smith specifically refused

       to agree that the Journal of Forensic Medicine and Pathology, in which Dr.

       Plunkett’s article appeared, was a reliable source. Lindhorst’s attorney stated

       he would demonstrate later in the case that the periodical was a reliable

       authority, but the court was not obligated to accept that statement. In the

       absence of authentication, the trial court did not err in limiting Lindhorst’s

       questioning on this subject. See U.S. v. Turner, 104 F.3d 217, 221 (8th Cir. 1997)

       (no error in refusing to allow medical text into evidence; party did not offer any

       testimony to establish the text as authoritative).




       Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017   Page 9 of 16
[20]   In any event, Lindhorst must demonstrate the limits set by the trial court

       prejudiced her right to confront witnesses. Although Dr. Smith was unfamiliar

       with the Plunkett study, one of the State’s other experts, Dr. Shannon

       Thompson, had read it. Lindhorst had the opportunity to cross-examine her on

       that study and others. In addition, Dr. Michael Weinraub testified on behalf of

       Lindhorst as an expert. Dr. Weinraub stated the Plunkett article was reliable

       and testified about the article’s contents at length. Thus, the article was

       established at trial as authoritative, and its contents were read to the finder of

       fact through other witnesses. Any error in limiting Lindhorst’s cross-

       examination of Dr. Smith did not prejudice Lindhorst’s defense and was

       harmless. See Koenig v. State, 933 N.E.2d 1271, 1274 (Ind. 2010) (erroneous

       admission of out-of-court lab report, in violation of defendant’s right to confront

       witnesses, was harmless considering other evidence presented).


                                  II. Sufficiency of the Evidence
[21]   Lindhorst argues there is insufficient evidence to support her convictions,

       describing the State’s case as “speculation and conjecture.” Appellant’s Br. p.

       13. We will affirm a conviction if, after considering only the probative evidence

       and reasonable inferences supporting the verdict, we conclude that a reasonable

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

       State, 783 N.E.2d 1191, 1195 (Ind. Ct. App. 2003). We will not reweigh the

       evidence or assess witness credibility. Id. It is not necessary that the evidence

       overcome every reasonable hypothesis of innocence. Lay v. State, 933 N.E.2d



       Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017   Page 10 of 16
       38, 41-42 (Ind. Ct. App. 2010), trans. denied. Further, a conviction may be

       sustained based on circumstantial evidence alone. Id. at 42.


[22]   To obtain a conviction for battery of a person under fourteen years of age

       resulting in serious bodily injury, a Level 3 felony, the State was required to

       prove beyond a reasonable doubt that Lindhorst (1) was a person at least

       eighteen years of age (2) and knowingly or intentionally (3) touched (4) a

       person under fourteen years of age (5) in a rude, insolent or angry manner (6)

       resulting in serious bodily injury to the child. Ind. Code § 35-42-2-1. The key

       evidentiary question for this conviction is whether S.E.’s life-threatening injury

       resulted from Lindhorst knowingly or intentionally touching her in a rude,

       insolent, or angry manner.


[23]   To obtain a conviction for neglect of a dependent resulting in serious bodily

       injury, a Level 3 felony, the State was required to prove beyond a reasonable

       doubt that Lindhorst (1) had the care of a dependent and (2) knowingly or

       intentionally (3) placed the dependent in a situation endangering the

       dependent’s life or health (4) resulting in serious bodily injury. Ind. Code § 35-

       46-1-4. The accused must have been subjectively aware of a high probability

       that he or she placed the dependent in a dangerous situation. Armour v. State,

       479 N.E.2d 1294, 1297 (Ind. 1985). The key evidentiary question for this

       conviction is whether Lindhorst knowingly or intentionally placed S.E. in a

       situation endangering her life.




       Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017   Page 11 of 16
[24]   The evidence most favorable to the judgment indicates S.E. was not injured in

       the manner described by Lindhorst, specifically that she fell over onto a wooden

       floor. Every one of the State’s expert witnesses explained that, at the least, it

       was extremely unlikely that S.E.’s injury resulted from a mere ground-level fall.

       Dr. Bormann stated that only a high degree of force could have caused the

       injury, such as the force involved in falling ten or more feet onto a hard surface

       such as concrete. Detective Morrison noted that when he walked across

       Lindhorst’s wooden floor, it had “a little bit of give.” Tr. Vol. II, p. 249.


[25]   In addition, both emergency room nurses who examined S.E., as well as Dr.

       Bormann and Dr. Thompson, had never seen such a severe skull fracture result

       from a mere fall to the floor. Dr. Kachmann concluded “there’s no way, no

       way this injury could have occurred” from falling over onto a wooden floor. Id.

       at 230. Dr. Thompson further explained that the location of S.E.’s injury on

       the side of her head did not match Lindhorst’s explanation because injuries

       from a child’s fall tend to appear on the front or back of the head. The injury is

       further remarkable because S.E., who was almost one year old, was not able to

       walk, climb, or pull herself up to a standing position at that time.


[26]   In further contrast to Lindhorst’s explanation for S.E.’s injury, Dr. Smith stated

       S.E.’s injury was caused by “non-accidental trauma.” Id. at 148. Dr. Bormann

       similarly thought a non-accidental cause should be considered. S.E.’s

       pediatrician, Dr. James Steigmeyer, testified the most likely cause of the injury

       was “blunt force trauma to the head.” Id. at 213. Lindhorst was the only adult

       present when S.E. sustained her injury.

       Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017   Page 12 of 16
[27]   Further, the evidence shows Lindhorst unnecessarily delayed seeking treatment

       for S.E.’s life-threatening injury by as much as two hours. Several doctors

       testified S.E. would have displayed obvious serious symptoms soon after being

       injured, including:

               inconsolable crying . . . loss of consciousness or lethargy or just
               sleepy and not moving, not really wanting to do anything,
               vomiting, seizure activity, or just sometimes problems with
               breathing itself. A lot of those things aren’t immediate, but after
               that-the kind of injury she had with the large skull fracture, I
               would have at least have expected her to be inconsolable crying
               and at least sleepy fairly quickly.

       Id. at 181. Dr. Thompson “found it difficult to believe” that S.E. would seem

       normal for up to an hour after sustaining such a grievous injury. Id.


[28]   Finally, Lindhorst stated she took S.E. to the hospital after she began vomiting,

       and that S.E. vomited on her clothes, but Detective Morrison did not see or

       smell any vomit on Lindhorst when he interviewed her at Lutheran in a small,

       enclosed conference room.


[29]   It is perhaps possible that S.E.’s injury was caused by an unusual “freak”

       accident, as described by Lindhorst. Tr. Vol. III, p. 144. But the finder of fact

       determined otherwise, and we may not reweigh the evidence as Lindhorst

       requests. There is sufficient evidence to support the trial court’s determination

       that Lindhorst knowingly or intentionally inflicted the injury upon S.E. and that

       Lindhorst knowingly or intentionally placed S.E. in a dangerous situation by

       delaying medical assistance. See Hughes v. State, 508 N.E.2d 1289, 1296 (Ind.

       Ct. App. 1987) (affirming conviction for battery on a child; sufficient

       Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017   Page 13 of 16
       circumstantial evidence established defendant battered the victim, despite

       defendant’s claim the victim fell out of a crib), trans. denied; Sample v. State, 601

       N.E.2d 457, 459-60 (Ind. Ct. App. 1992) (evidence sufficient to support

       conviction of neglect of a dependent; defendant unreasonably delayed getting

       medical help for infant in her care).


                                                III. Sentencing
[30]   Lindhorst asserts her sentence is inappropriately high and asks the Court to

       reduce it to a term of six years, but with one year suspended and five years of

       probation. In other words, she does not object to the length of her sentence but
                                                                  3
       argues she should serve it outside of prison.


[31]   In general, sentencing decisions rest within the sound discretion of the trial

       court and are reviewed on appeal for an abuse of discretion. Anglemyer v. State,

       868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). Even

       if a trial court imposes a sentence within its discretion, the Court retains

       constitutional authority to review and revise sentences. Ind. Const. art. 7, § 6.

       This constitutional authority is implemented through Indiana Appellate Rule

       7(B), which provides we “may revise a sentence authorized by statute if, after

       due consideration of the trial court’s decision, the Court finds that the sentence




       3
        Lindhorst also states in passing that the trial court abused its discretion in sentencing her, but her
       substantive arguments are directed solely to this Court’s power to revise sentences. We thus decline to
       consider whether the court abused its discretion.

       Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017                     Page 14 of 16
       is inappropriate in light of the nature of the offense and the character of the

       offender.”


[32]   The principal role of sentencing review under Appellate Rule 7(B) is to attempt

       to leaven the outliers. Perry v. State, 78 N.E.3d 1, 12 (Ind. Ct. App. 2017). The

       appellant bears the burden of demonstrating the sentence is inappropriate. Id.

       at 13. We may consider not only the aggravators and mitigators found by the

       trial court, but also any other factors appearing in the record. Walters v. State,

       68 N.E.3d 1097, 1101 (Ind. Ct. App. 2017), trans. denied.


[33]   The advisory sentence is the starting point in determining the appropriateness of

       a sentence. At the time Lindhorst committed her offenses, the advisory

       sentence for a Level 3 felony was nine years, with a minimum sentence of three

       years and a maximum sentence of sixteen years. Ind. Code § 35-50-2-5 (2014).

       The court sentenced Lindhorst to six years for each offense, to be served

       concurrently, resulting in an aggregate sentence well below the advisory

       amount set by statute.


[34]   The nature of the offense is found in the details and circumstances of the

       offenses and the defendant’s participation. Perry, 78 N.E.3d at 13. In this case,

       Lindhorst inflicted a grievous, potentially fatal injury on a helpless infant in her

       care and delayed seeking medical help. Although doctors saved S.E.’s life and

       she appears to be developing normally at this point, her brain has suffered

       permanent scarring. As S.E. ages she may experience behavioral problems,

       learning difficulties, and long-term memory challenges.


       Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017   Page 15 of 16
[35]   The character of the offender is found in what we learn of the offender’s life and

       conduct. Id. (quotation omitted). Lindhorst, who was thirty-seven years old at

       the time of sentencing, had no prior criminal history and had custody of five

       children. In addition, her friends submitted almost sixty letters of support to the

       trial court, which demonstrates she has substantial support in the community.

       Despite these positive factors, she committed two Level 3 felonies which have

       the potential to harm S.E. for the rest of her life. We agree with the trial court

       that a sentence without executed time would “greatly depreciate” the

       seriousness of the crimes. Tr. Vol. III, p. 216. As a result, we cannot conclude

       Lindhorst’s six-year executed sentence, which is well below the advisory

       amount, is inappropriate.


                                                 Conclusion
[36]   For the reasons stated above, we affirm the judgment of the trial court.


[37]   Affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017   Page 16 of 16
