Catherine Adkins v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 24, 2020
• Docket: 19A-CR-2121
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 24 2020, 7:06 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amy Noe Dudas Curtis T. Hill, Jr. Richmond, Indiana Attorney General of Indiana

Robert L. Yates Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Catherine Adkins, April 24, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2121 v. Appeal from the Wayne Circuit Court State of Indiana, The Honorable David A. Kolger, Appellee-Plaintiff. Judge Trial Court Cause No. 89C01-1602-F1-1

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2121 | April 24, 2020 Page 1 of 11 Case Summary [1] Following a bench trial, Catherine J. Adkins was convicted of neglect of a

dependent resulting in death, a Level 1 felony. On appeal, Adkins argues that

the evidence is insufficient to support her conviction.

[2] We affirm.

Facts & Procedural History [3] On October 24, 2015, Adkins, Meggan Himelick, and nine-year-old K.B., of

whom Himelick had guardianship, attended the Halloween Howl event in

Richmond. While there, they met up with Himelick’s longtime friend, Holly

Collette, who brought her eleven-month-old son K.S. and two other children.

K.S. had been acting normal all day and evening and had no visible bruising or

abrasions to his face.

[4] Around 6:30 p.m., Adkins, Himelick, and K.B. left the event and took K.S.

with them. Adkins and Himelick often watched K.S., and it was not unusual

for K.S. to stay overnight. After stopping for food, they made it back to their

apartment around 7:00 p.m. K.B. was in the family room watching television,

and Adkins and Himelick took K.S. back to their bedroom where K.S. took a

bottle and then fell asleep on their bed. In the meantime, Adkins and Himelick

smoked marijuana and watched a movie in the bedroom. After the movie

ended around 9:00 p.m., Himelick headed to the kitchen to do dishes, leaving

Adkins in the room with K.S., who was starting to wake.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2121 | April 24, 2020 Page 2 of 11 [5] According to Himelick, Adkins came out of the bedroom carrying K.S. between

9:15 and 9:30 p.m. Adkins told Himelick that she tripped over a pillow in the

bedroom and fell against the doorframe, but she did not think K.S. hit his head.

Using a flashlight, Himelick checked K.S.’s pupils and noted that he appeared

to be fine. Himelick said that K.S. then sat on the floor and drank more

formula from his bottle. At 9:54 p.m., Himelick sent the following text message

to Collette: “[K.S.] don’t feel good. He won’t let us put him down. He’s

crying real bad. Well [Adkins] has him calmed down now. Has he been like

that all day today?” State’s Exhibit 1. Soon after, K.S. started shaking and his

breathing became shallow. Their apartment was across the street from Reid

Hospital, so they then took K.S. to the emergency room.

[6] At 10:00 p.m., Adkins carried a “limp” K.S. into the emergency room.

Transcript Vol. II at 68. Tobey Gilmore, a triage nurse, asked what had

happened. Adkins stated that she did not know but explained that K.S. had

been fussy and did not take his bottle well. Noting that K.S.’s color was not

good and that he was not breathing properly, Gilmore immediately took him to

the trauma resuscitation room and called for a rapid response team. Thereafter,

Gilmore went back to the waiting room where he overheard Adkins and

Himelick discussing how Adkins fell into a doorframe while holding K.S.

[7] Dr. Michael Baldwin treated K.S. in the emergency room. Given his initial

observations that K.S. had a bruise on his left forehead, was unresponsive, was

not breathing, and had low blood pressure, Dr. Baldwin ordered a CT scan,

which confirmed that K.S. had a very serious brain injury. Dr. Baldwin opined

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2121 | April 24, 2020 Page 3 of 11 that K.S.’s head injury could not have occurred by Adkins falling with K.S. in

her arms and K.S. hitting his head on the doorframe, but rather, K.S.’s head

injury was consistent with inflicted trauma.

[8] K.S. was transferred to Riley Children’s Hospital in Indianapolis, where he

underwent emergency surgery to relieve pressure on his brain. When Collette

and K.S.’s father arrived at Riley, they were informed that despite the medical

intervention, K.S. was brain dead. The decision was made to remove K.S.

from life support, and he died on October 25, 2015.

[9] Dr. Mirfrida Geller, a forensic pathologist with the Marion County Coroner’s

Officer, performed an autopsy on K.S. As part of her external examination, Dr.

Geller noted several injuries consistent with inflicted, blunt-force trauma,

including a forehead contusion, an abrasion surrounded by a contusion on the

right cheek near the right ear, an abrasion surrounded by a contusion on the left

cheek near the left ear, a small abrasion near the right brow, a large bruise

around the right eye, and an abrasion and contusion on the top, right side of the

head. During her internal examination, Dr. Geller discovered a “severe”

subdural hematoma inside K.S.’s skull caused by several hemorrhages from the

meninges covering his brain tissue. Id. at 221. The hematoma covered all of

the right side and some of the left side of K.S.’s brain. The severity of the

hematoma was such that the pressure it created shifted the right hemisphere of

K.S.’s brain approximately seven millimeters to the left. This brain shift caused

extensive damage to the fluid-housing structures of K.S.’s brain, which

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2121 | April 24, 2020 Page 4 of 11 produced the respiratory failure and very low blood pressure K.S. presented

with at the emergency room.

[10] In addition to the hemorrhages of the meninges, Dr. Geller noted that K.S.

suffered a severe hemorrhage at the base of his skull, small contusions on the

brain cortex, and multilayer hemorrhages in the cortex on the right side of his

brain. K.S. also had retinal hemorrhaging in both eyes. Dr. Geller opined that

her findings were consistent with multiple acts of blunt force trauma and

specifically found them inconsistent with a stumble into a door as described by

Adkins. Dr. Geller concluded that K.S.’s cause of death was homicide as the

multiple injuries he suffered were inflicted by someone else.

[11] On February 19, 2016, the State charged Adkins with neglect of a dependent

resulting in death, a Level 1 felony. A bench trial was held July 24-25, 2019.

At trial, Dr. Ralph Hicks, a physician who is board certified in child abuse

pediatrics and a professor of clinical pediatrics at Indiana University School of

Medicine, testified that he performed an external examination of K.S. and

reviewed all available medical records. Dr. Hicks explained that severe retinal

hemorrhaging, like that seen in K.S., is consistent with inflicted trauma and

inconsistent with accidental head injuries or short falls. He described the

numerous bruises found on K.S.’s cheeks, around his eye, and about his head.

Because the five different locations of soft-tissue injuries on K.S.’s head were on

different planes of the body, Dr. Hicks concluded that K.S. suffered from

multiple blunt-force impacts. Dr. Hicks opined that Adkins’s explanation of

what happened did not “adequately explain . . . the number . . . of different

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2121 | April 24, 2020 Page 5 of 11 injuries” K.S. sustained. Transcript Vol. III at 12. Given Adkins’s explanation

of how she tripped while holding K.S., Dr. Hicks believed it would have been

“awfully unusual” for K.S. to have sustained a fatal injury. Id.

[12] Dr. Hicks further testified that when a child unable to talk presents with

significant injuries and the explanation offered by the child’s caregiver is not

consistent therewith or changes over time, such is evidence to a practitioner that

someone may have inflicted the child’s injuries. Dr. Hicks concluded that such

was the case here. Specifically, when Adkins arrived at Reid Hospital, she said

only that K.S. had been fussy and did not eat well and that she did not know

what had happened. She was later overhead explaining that she tripped and fell

into a door frame while carrying K.S. When Collette arrived at Reid Hospital,

she confronted Adkins and asked her what happened, and Adkins responded

that nothing happened. A short time later, Adkins voluntarily told the

discharge planner at Reid Hospital that she had tripped while holding K.S. and

hurt herself but that K.S. was not hurt. Later that night, when questioned by

police, Adkins stated that she had tripped over a pillow and fell into the door

frame but that she did not believe K.S. hit his head. When questioned by a

family case manager with the Department of Child Services, Adkins stated that

when she tripped, K.S.’s head “jerked forward very hard.” Transcript Vol. II at

118.

[13] Regardless of what caused K.S.’s injuries, Dr. Hicks testified that he would not

have expected K.S. to act normally, i.e., sitting up, making eye contact, eating,

or smiling, after sustaining such injuries. Dr. Hicks testified that immediately

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2121 | April 24, 2020 Page 6 of 11 after suffering the type of forceful blows that K.S. did, a reasonable person

would have known that K.S. was in immediate danger. Finally, Dr. Hicks

explained that in the case with active bleeding and brain swelling, prompt

medical care increases the likelihood of a more favorable outcome.

[14] On July 29, 2019, the trial court found Adkins guilty as charged. Following a

sentencing hearing on August 15, 2019, the trial court sentenced Adkins to

thirty years with ten years suspended. Adkins now appeals. Additional facts

will be provided as necessary.

Discussion & Decision [15] Our standard of review for sufficiency claims is well settled. Dickenson v. State,

835 N.E.2d 542, 551 (Ind. Ct. App. 2005), trans. denied. We do not reweigh the

evidence or assess the credibility of witnesses. Id. We look to the evidence and

the reasonable inferences to be drawn therefrom that support the verdict. Id.

We will affirm the convictions if there is sufficient probative evidence from

which a reasonable trier of fact could have found the defendant guilty beyond a

reasonable doubt. Id. at 552.

[16] Ind. Code § 35-46-1-4(a) provides, in pertinent part, that “[a] person having the

care of a dependent, whether assumed voluntarily or because of a legal

obligation, who knowingly or intentionally ... places the dependent in a

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

dependent, a Level 6 felony.” The offense is elevated to a Level 1 felony “if it is

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

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2121 | April 24, 2020 Page 7 of 11 death of a dependent who is less than fourteen (14) years of age.” I.C. § 35-46-

1-4(b)(3). “A person engages in conduct ‘intentionally’ if, when [s]he engages

in the conduct, it is [her] conscious objective to do so.” Ind. Code § 35-41-2-

2(a). “A person engages in conduct ‘knowingly’ if, when [s]he engages in the

conduct, [s]he is aware of a high probability that [s]he is doing so.” I.C. § 35-

41-2-2(b). For the purposes of the neglect statute, a knowing behavior means

that “the accused must have been subjectively aware of a high probability that

[s]he placed the dependent in a dangerous situation.” Armour v. State, 479

N.E.2d 1294, 1297 (Ind. 1985).

[17] Adkins does not challenge the sufficiency of the evidence as to the age-related

elements or that K.S. was a dependent in her care. She argues that the evidence

is insufficient to prove (1) that she knowingly or intentionally placed K.S. in a

situation that endangered his life or health and (2) that her conduct resulted in

his death. Specifically, Adkins argues that smoking marijuana in the same

room where K.S. was sleeping and later tripping over pillows on the floor while

carrying K.S., which caused K.S.’s head and neck to “whip hard,” does not

establish that she knowingly or intentionally placed K.S. in a situation that

endangered his life or health. Appellant’s Brief at 14. Adkins’s argument

overlooks evidence favorable to the conviction.

[18] Dr. Geller described five different areas of soft tissue damage about K.S.’s head

that resulted from blunt force trauma. These abrasions and contusions were not

present earlier in the evening but were inflicted during a short window of time

when K.S. was in Adkins’s care. Both Dr. Geller and Dr. Hicks testified that

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2121 | April 24, 2020 Page 8 of 11 Adkins’s explanation of how she tripped and fell against the door while

carrying K.S. did not account for the numerous injuries about K.S.’s head. Dr.

Geller also determined that the blunt force trauma inflicted on K.S. resulted in a

severe subdural hematoma that caused the right side of K.S.’s brain to shift

seven millimeters to the left in addition to bleeding at the base of his brain.

K.S. also suffered retinal hemorrhages that Dr. Hicks described as consistent

with inflicted trauma. Dr. Hicks testified that the force necessary to inflict such

injuries would have been such that a reasonable person would have known that

K.S. was in immediate danger. The evidence was that K.S. suffered the trauma

to his head while in the bedroom under Adkins’s exclusive care and that Adkins

came out of the bedroom between 9:15 p.m. and 9:30 p.m. K.S. was not taken

to the hospital until 10:00 p.m., by which time he had become unresponsive

and had shallow, labored breathing.

[19] In addition to the medical findings, Dr. Hicks noted that when the explanation

given by the caregiver does not adequately explain the injuries or when the

explanation changes, such indicates to a practitioner that the injuries may have

been inflicted. Here, aside from the fact that her explanation did not adequately

account for K.S.’s injuries, Adkins’s explanation of what happened to K.S. was

not consistent. Her story changed from nothing happened, to she tripped and

fell and K.S. was not injured, to she tripped and fell and K.S.’s head whipped

forward but did not hit the doorframe as she fell against it. Regardless of what

transpired while K.S. was in Adkins’s care, it was significant enough that when

Adkins came out of the bedroom and spoke with Himelick, Himelick used a

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2121 | April 24, 2020 Page 9 of 11 flashlight to see if K.S.’s pupils reacted. Further, Dr. Hicks explained that after

sustaining the serious injuries that K.S. did, he would not have expected K.S. to

act normally as Himelick described his behaviors shortly after he suffered the

trauma to his head. Further belying the claims that K.S. was acting normally is

Himelick’s text message to Collette. Mere minutes after sending the text

message, Adkins carried K.S.’s limp body into the emergency room.

[20] Although Adkins claims that she only tripped and fell while holding K.S., her

story does not adequately explain the number and severity of the injuries K.S.

sustained while in her care. In light of Dr. Geller’s medical findings and Dr.

Hick’s expert testimony, the trier of fact—here, the trial court—could have

reasonably concluded that Adkins should have been aware that her actions,

whatever they were, placed K.S. in a dangerous situation and that medical care

was warranted. This satisfies the knowing element of the neglect of a

dependent statute.

[21] Adkins also argues that the evidence is insufficient to prove that her actions

resulted in K.S.’s death. This Court has determined that “the phrase ‘results in

the death of a dependent’ for purposes of the neglect statute . . . implicates

proximate causation.” Patel v. State, 60 N.E.3d 1041, 1052 (Ind. Ct. App.

2016). Under this standard, the State must, at a minimum, prove beyond a

reasonable doubt that the death would not have occurred “but for” the

neglectful act. Id.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2121 | April 24, 2020 Page 10 of 11 [22] As noted above, K.S. suffered multiple severe injuries to his head that were not

adequately explained by the trip and fall scenario provided by Adkins and that

the force used to inflict such injuries was such that a reasonable person would

have known that the child was in immediate danger. Yet, from the evidence, it

took up to an hour before Adkins sought medical assistance for K.S. As Dr.

Hicks testified, in the case of bleeding on the brain, prompt medical care

increases the chances of a more positive outcome. Here, whether prompt

medical care would have changed the outcome in this case is unknown. The

delay in seeking medical care, however, clearly contributed to K.S.’s untimely

death. Adkins’s inflicted the lethal injuries on K.S. and delayed treatment for

him. The trier of fact could have reasonably concluded that her conduct

resulted in K.S.’s death.

[23] In light of the forgoing, we conclude that the evidence is sufficient to support

Adkins’s conviction for neglect of a dependent resulting in death as a Level 1

felony.

[24] Judgment affirmed.

Bailey, J. and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2121 | April 24, 2020 Page 11 of 11