Jeffrey A. Dice, II v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 9, 2015
• Docket: 34A04-1407-CR-318
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Mar 09 2015, 9:12 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark A. King Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jeffrey A. Dice, II, March 9, 2015

Appellant-Defendant, Court of Appeals Case No. 34A04-1407-CR-318 v. Appeal from the Howard Superior Court The Honorable George A. Hopkins, State of Indiana, Judge Appellee-Plaintiff Case No. 34D04-1107-FB-116

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015 Page 1 of 11 Case Summary [1] Jeffrey1 A. Dice, II, appeals his convictions and sentences for class B felony

neglect of a dependent resulting in serious bodily injury and class B felony

battery resulting in serious bodily injury. He argues that the trial court

committed fundamental error by permitting the State’s expert witness to testify

to the cause of the victim’s injuries when the witness was not qualified to do so,

that his convictions violate the Indiana Constitution’s prohibition against

double jeopardy, and that his sixteen-year sentence is inappropriate. We

conclude that the State’s witness was qualified to testify to the cause of the

victim’s injury and therefore the trial court committed no error, let alone

fundamental error, in permitting her to testify. The State concedes that Dice’s

convictions violate the prohibition against double jeopardy, and we agree.

Finally, we conclude that Dice has waived his inappropriateness argument by

failing to present a cogent argument. Therefore, we affirm Dice’s conviction

and sentence for battery and vacate his conviction for neglect of a dependent.

Facts and Procedural History [2] The facts most favorable to the verdicts follow. In May 2011, Dice was married

to and living with Tara and her nineteen-month-old daughter, B.S. Dice agreed

to watch B.S. while Tara was at work. Dice took Tara to work and returned

home with B.S. No one else was present at the house. While in Dice’s

1 This is the correct spelling of appellant’s first name. His name is misspelled on trial court documents as “Jeffery.”

Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015 Page 2 of 11 custody, B.S. suffered severe burns to her face, left hand, and left foot. Dice

called Tara at work, told her that B.S. had burned her hand, and asked Tara

what to do. Tara did not ask Dice how B.S. had been burned but told him to

take B.S. to the hospital near her workplace.

[3] Dice took B.S. to the hospital, although it was not the one that Tara had

requested. Tara went to the hospital and saw that B.S.’s hand and foot were

burned. Tara’s mother and sisters also came to the hospital. One of Tara’s

sister observed that Dice “didn’t seem regretful at all. He just kind of sat there

with a stone look on his face.” Tr. at 91. Another sister noticed that Dice

“seemed normal, not really worried or upset. [B.S.] was freaking out and

screaming, you could hear it, and he just sat there. He had no emotion

whatsoever.” Id. at 95. Tara’s mother also observed that Dice showed “a total

lack of emotion, no remorse.” Id. at 112. Dice provided inconsistent

explanations to Tara’s sister as to how B.S. got burned. In one account, he told

her that he was boiling water for noodles and the water boiled over his hand,

causing him to jump back and drop the pan. Later, he told her that B.S.

grabbed the pan off the stove and the water splashed out on her. Id. at 98.

[4] B.S. was transported by ambulance to Riley Hospital for Children for treatment

of her wounds. Tara and Dice followed. While they were driving, Dice told

Tara that he had been boiling water to cook noodles and was unaware that B.S.

was in the room with him. Something startled him, and he knocked the pan off

the stove. It was only when B.S. started crying that he realized that she was in

the room. Tara was frustrated because Dice was unable to provide details such

Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015 Page 3 of 11 as where B.S. was standing, exactly how she got burnt, and how the pot fell off

the stove.

[5] At Riley, Dr. Roberta Hibbard consulted with and assisted the burn surgeons in

treating B.S. Dr. Hibbard is a professor of pediatrics at Indiana University

School of Medicine at Riley. She has been at Riley since 1985. She is also the

director of the Section of Child Protection Programs in the Department of

Pediatrics. The Child Protection Programs “provide consultation to other

health care providers, to child protection services, to law enforcement and other

professionals when there are concerns about the possibility of child abuse and

neglect.” Id. at 194. The consultations vary from a simple phone call, to a

review of medical records and other available information, scene investigation,

examination of the patient, interviews of family members, and participation in

the direct medical care of the patient. Id. at 195. During her time at Riley, Dr.

Hibbard has been involved in a couple hundred burn cases. Id. at 217.

[6] Dr. Hibbard examined B.S. the day after she was admitted to Riley. B.S.’s left

hand and left foot were bandaged, but Dr. Hibbard was able to see her other

hand and foot and her face. Dr. Hibbard observed redness and blistering on

B.S.’s left cheek and under her chin. Dr. Hibbard also reviewed photographs of

B.S.’s left hand and left foot before they were bandaged. Dr. Hibbard noted the

“fairly clear line or straight line of where the skin has been burned and where

it’s not been burned” on B.S.’s left hand and the “fairly straight line of

demarcation” involving all of [B.S.’s] toes of her left foot, which she concluded

are “clear evidence of a dip or an immersion burn to the hand and foot.” Id. at

Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015 Page 4 of 11 204, 205-08. Dr. Hibbard also interviewed Tara and Dice. She concluded that

Dice’s explanation regarding how B.S. got burned did not “make any sense for

the pattern of injury that [B.S.] sustained.” Id. at 209. She further concluded

that B.S.’s injuries were “most characteristic of non-accidental injury in the

absence of a clear history to account for them.” Id. at 211. B.S. was released

from Riley after two weeks and placed with her maternal grandmother. B.S.

required further surgery and years of physical therapy. She has permanent

scarring.

[7] The State charged Dice with class B felony neglect of a dependent resulting in

serious bodily injury and class B felony battery resulting in serious bodily injury

to a person less than fourteen years of age. Dice’s first trial ended in a mistrial.

At Dice’s second trial, Dr. Hibbard testified without objection. Dice’s expert

Dr. Richard Kagan testified that the burns on B.S.’s hand and foot appeared to

be immersion burns. Id. at 297-98. However, he also testified that the burn

pattern shown in the photographs was not consistent “with a single intentional

injury that would be inflicted by a perpetrator.” Id. at 285. It was Dr. Kagan’s

belief that the injuries to B.S. were “more likely accidental” because of “the

multiple areas that are involved where I cannot in my mind come up with a

system to replicate how this could have happened. I cannot explain in one

instance of intent how that could have possibly happened.” Id. at 301. The

jury found Dice guilty as charged. The trial court sentenced Dice to concurrent

sixteen-year executed terms. Dice appeals.

Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015 Page 5 of 11 Discussion and Decision

Section 1 – The trial court committed no error by allowing Dr. Hibbard to testify regarding the cause of B.S.’s burns. [8] Dice contends that the trial court erred by permitting Dr. Hibbard to offer her

opinion as an expert witness on the cause of B.S.’s burns. Because Dice did not

object to Dr. Hibbard’s testimony at trial, his claim of error is waived and he

can win reversal only by establishing fundamental error. See Benson v. State, 762

N.E.2d 748, 755 (Ind. 2002) (“As a general rule, the failure to object at trial

results in a waiver of the issue on appeal.”).

[9] “[T]the fundamental error doctrine is an ‘extremely narrow’ doctrine that is

available only in ‘egregious circumstances.’” Hale v. State, 976 N.E.2d 119, 124

(Ind. Ct. App. 2012) (quoting Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)).

To rise to the level of fundamental error, “‘an error must be so prejudicial to the

rights of the defendant as to make a fair trial impossible.’” Benson, 762 N.E.2d

at 755 (quoting Willey v. State, 712 N.E.2d 434, 444-45 (Ind. 1999)). Put

another way, “the error ‘must constitute a blatant violation of basic principles,

the harm or potential for harm must be substantial, and the resulting error must

deny the defendant fundamental due process.’” Id. (quoting Wilson v. State, 514

N.E.2d 282, 284 (Ind. 1987)).

[10] Under Indiana Evidence Rule 702, if scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine

a fact in issue, a witness qualified as an expert by knowledge, skill, experience,

Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015 Page 6 of 11 training, or education, may testify thereto in the form of an opinion or

otherwise. “[O]nly one characteristic is necessary to qualify an individual as an

expert.” Burnett v. State, 815 N.E.2d 201, 204 (Ind. Ct. App. 2004). “As such, a

witness may qualify as an expert on the basis of practical experience alone.”

Id.; see also Clark v. State, 6 N.E.3d 992, 998 (Ind. Ct. App. 2014) (“The

qualifications of an expert may be established by practical experience as well as

by formal training.”).

[11] Dice’s sole argument is that the State failed to show that Dr. Hibbard had

sufficient knowledge, skill, experience, training, or education to opine on

whether B.S.’s burns were the result of an accident or an intentional act.

Specifically, he contends that she was not qualified because she is not an expert

on the causes and treatments of burns. We disagree. Dr. Hibbard is a professor

of pediatrics at Riley Hospital for Children. She has worked at Riley for

twenty-nine years. During her tenure, she has been involved with a couple

hundred burn cases. She is also director for the Section of Child Protection

Programs, which assists health care providers, child protection services, law

enforcement, and other professionals when there are concerns that a child has

been abused and neglected. Dr. Hibbard examined B.S. and reviewed pictures

of her injuries. We conclude that the State showed that Dr. Hibbard had

sufficient knowledge and experience regarding the causes of burns suffered by

children to provide her opinion on the cause of B.S.’s burns. See Myers v. State,

887 N.E.2d 170, 186 (Ind. Ct. App. 2008) (concluding that forensic pathologist

who performed victim’s autopsy was qualified to give opinion that victim was

Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015 Page 7 of 11 raped), trans. denied. We find no error, let alone fundamental error, in the

admission of Dr. Hibbard’s testimony.2

Section 2 – Dice’s convictions violate double jeopardy principles. [12] Dice asserts that his convictions for class B felony neglect of a dependent and

class B felony battery resulting in serious bodily injury violate the Double

Jeopardy Clause of the Indiana Constitution, which provides that “[n]o person

shall be put in jeopardy twice for the same offense.” Ind. Const. art. 1, § 14.

The double jeopardy rule prohibits multiple punishments for the same offense.

Johnson v. State, 749 N.E.2d 1103, 1107-08 (Ind. 2001).

[T]wo or more offenses are the same offense in violation of article 1, section 14 if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to obtain convictions, the essential elements of one challenged offense also establish the essential elements of another challenged offense. Under the actual evidence test, we examine the actual evidence presented at trial in order to determine whether each challenged offense was established by separate and distinct facts. To find a double jeopardy violation under this test, we must conclude that there is a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.

Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013) (citations and quotation marks

omitted).

2 Dice also argues that the evidence was insufficient to support his convictions because the only evidence that the State presented on his culpability was Dr. Hibbard’s. Because we conclude that Dr. Hibbard’s testimony was properly offered to the jury, we need not address his claim of insufficient evidence.

Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015 Page 8 of 11 [13] To determine whether there is a reasonable possibility that that the factfinder

used the same evidence to find the defendant guilty of two offenses, we

“‘identify the essential elements of each of the challenged crimes and [] evaluate

the evidence from the jury’s perspective....’ In determining the facts used by the

fact-finder to establish the elements of each offense, it is appropriate to consider

the charging information, jury instructions, and arguments of counsel.” Lee v.

State, 892 N.E.2d 1231, 1234 (Ind. 2008) (quoting Spivey v. State, 761 N.E.2d

831, 832 (Ind. 2002)).

[14] To convict Dice of class B felony neglect of a dependent, the State had to prove

that he knowingly or intentionally placed the dependent in a situation that

endangered the dependent’s life – allowed her to come in contact with boiling

water – and it resulted in serious bodily injury. Appellant’s App. at 16; Ind.

Code § 35-46-1-4(a)(1) and -(b)(2). To convict Dice of class B felony battery,

the State had to prove that he knowingly or intentionally touched a person who

was less than fourteen years of age in a rude, insolent or angry manner – burned

her with boiling water – that resulted in serious bodily injury to that person. Id.

at 17; Ind. Code § 35-42-2-1(a)(4).

[15] The State acknowledges that the prosecutor argued in closing and rebuttal that

Dice knowingly immersed B.S. in boiling water resulting in serious burns to the

child’s face, left hand, and left foot. As such, the State concedes that there is a

reasonable probability that the evidentiary facts used by the jury to establish

battery were also used to establish neglect of a dependent. We agree.

Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015 Page 9 of 11 [16] “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) (citation omitted). Because the evidence and the

prosecutor’s argument best fit the class B felony battery charge, we leave the

battery conviction intact and vacate Dice’s conviction for class B felony neglect

of a dependent.

Section 3 – Dice has waived his argument that his sentence is inappropriate. [17] Dice contends that his sentence is inappropriate 3 pursuant to Indiana Appellate

Rule 7(B), which states, “The Court may revise a sentence authorized by statute

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

sentence is inappropriate in light of the nature of the offense and the character

of the offender.” Dice has the burden to show that his sentence is

inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on

reh’g, 875 N.E.2d 218.

[18] Although Dice cites Appellate Rule 7(B), he argues that the trial court relied on

impermissible aggravators and improperly weighed the aggravating and

3 Dice uses the term “unreasonable” rather than “inappropriate.” Prior to January 1, 2003, we reviewed a sentence to determine if it was “manifestly unreasonable.” However, the Indiana Supreme Court amended Indiana Appellate Rule 7(B), effective January 1, 2003, to replace “manifestly unreasonable” with “inappropriate.”

Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015 Page 10 of 11 mitigating factors.4 He fails to present a cogent argument that his sentence is

inappropriate based on the nature of the offense and his character. “Failure to

put forth a cogent argument acts as a waiver of the issue on appeal.” Whaley v.

State, 843 N.E.2d 1, 18 n.15 (Ind. Ct. App. 2006); see also Ind. Appellate Rule

46(A)(8)(a) (“The argument must contain the contentions of the appellant on

the issues presented, supported by cogent reasoning.”). Therefore, Dice has

waived his inappropriateness argument.

Conclusion [19] We affirm Dice’s conviction and sentence for class B felony battery and vacate

his conviction for class B felony neglect of a dependent.

[20] Affirmed in part and vacated in part.

Friedlander, J., and Kirsch, J., concur.

4 Appellate courts no longer review the trial court’s weighing and balancing of aggravators and mitigators. See Anglemyer, 868 N.E.2d at 491 (“Because the trial court no longer has any obligation to ‘weigh’ aggravating and mitigating factors against each other when imposing a sentence,… a trial court cannot now be said to have abused its discretion by failing to properly weigh such factors.”).

Court of Appeals of Indiana | Memorandum Decision 34A04-1407-CR-318 | March 9, 2015 Page 11 of 11