Pursuant to Ind. Appellate Rule 65(D), this 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:
LEANNA WEISSMANN GREGORY F. ZOELLER Lawrenceburg, Indiana Attorney General of Indiana
BRIAN REITZ Deputy Attorney General Indianapolis, Indiana
Jun 05 2013, 9:01 am IN THE COURT OF APPEALS OF INDIANA
JOSHUA SCHULKERS, ) ) Appellant-Defendant, ) ) vs. ) No. 15A05-1210-CR-497 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE DEARBORN SUPERIOR COURT The Honorable Sally Blankenship, Judge Cause No. 15D02-1110-FB-042
June 5, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issues
After a jury trial, Joshua Schulkers was convicted of aggravated battery, a Class B
felony, two counts of neglect of a dependent, both Class B felonies, battery resulting in
serious bodily injury on a child less than fourteen, a Class B felony, neglect of a
dependent, a Class C felony, and battery resulting in bodily injury on a child less than
fourteen, a Class D felony. He now appeals his convictions, raising two issues for our
review: 1) whether the trial court erred in excluding certain evidence during his trial, and
2) whether his convictions violate principles of double jeopardy. Concluding there was a
double jeopardy violation with regard to only two of the counts and there was no abuse of
discretion in the exclusion of evidence, we affirm in part, reverse in part, and remand.
Facts and Procedural History
The facts most favorable to the jury’s verdicts reveal that in 2011, Schulkers and
Ashley Dilbeck lived together in a garage apartment owned by Dilbeck’s grandmother,
Rosie Moore. On August 11, 2011, their daughter, D.S., was born. On October 2, 2011,
Dilbeck left a then seven-week old D.S. in the care of Schulkers for the first time when
she went to work. Prior to this date, Dilbeck left D.S. with Moore if she needed a
babysitter. However, the day before, she had told Schulkers to “man up” and start taking
responsibility for their daughter. Transcript at 319-20. While Dilbeck was at work,
Moore heard D.S. crying. She knocked on the door of the apartment and Schulkers
opened it and said he was changing D.S.’s diaper and then shut the door in Moore’s face.
Moore heard a loud thump and D.S. stopped crying. Moore then called Dilbeck at work
and told her to come home or she might call the police. Dilbeck refused to come home
and hung up. Moore then called Dilbeck’s mother, who lived in Florida, and she 2 suggested standing outside the air conditioning vent to see if she could hear any sounds.
Moore did that and saw Schulkers through the glass looking “like a wild person.” Id. at
153. Moore then called her other daughter, Dilbeck’s aunt, Bonnie. Bonnie came over
and Schulkers let her inside the apartment. D.S. was covered in blankets and appeared to
be sleeping. Bonnie did not pick her up because she did not want to wake her.
Dilbeck returned home from work that night at around 1:00 am. Schulkers told
Dilbeck that D.S. had bumped her head on the changing table but that she was fine and
sleeping. When Dilbeck saw D.S., she had her eyes open and was moaning. Dilbeck
picked her up and when the blankets fell away, Dilbeck saw a bump on D.S.’s head. She
took her to the hospital. After D.S. was transferred to Children’s Hospital in Cincinnati,
Ohio, it was discovered that she had a skull fracture, bleeding on the brain, rib fractures
(six new and one old), and a liver laceration. D.S.’s upper frenulum (a flap of skin in the
mouth) was also torn but it was healing and Dilbeck reported that this was an older injury
that she sought treatment for and was assured would heal.
Schulkers was charged with aggravated battery, two counts of neglect of
dependent, and battery resulting in serious bodily injury on a child less than fourteen
years of age, all Class B felonies, stemming out of the skull fracture, new rib fractures,
and liver laceration, allegedly occurring between October 2 and 3. He was also charged
with neglect of a dependent and battery resulting in serious bodily injury on a child less
than fourteen years of age as Class B felonies, stemming from the old rib fracture, which
allegedly occurred between August 11 and October 2.
Prior to trial, the State filed a motion in limine to preclude Schulkers from
presenting, without first approaching the bench, any evidence with regard to the CHINS 3 proceedings that followed the criminal charges in this case or Dilbeck’s voluntary
relinquishment of her parental rights to D.S. The trial court granted the motion. During
trial, Schulkers attempted to present evidence of Dilbeck’s voluntary relinquishment, but
the trial court consistently disallowed this evidence, at one point stating:
you have not provided to the Court, a reason that the Court should allow at this time the question in regards to her actions after um, this incident as to termination of parental rights; not show any nexis [sic] to this situation, um, and it is outside the scope of direct examination.
Id. at 359. During the jury trial, the State relied upon the expert testimony of Drs.
Makoroff and Keeshin. Dr. Makoroff testified that in her opinion, the injuries were
“definitely” the result of child abuse, id. at 221, the head and liver injuries were life-
threatening, and the injuries could have caused “a lot of pain,” id. at 246. Both Drs.
Makoroff and Keeshin testified that liver lacerations are usually a result of blunt force
trauma to the abdomen and that none of the history provided by Schulkers could account
for the injuries. The State also entered into evidence several interviews during which
Schulkers made incriminating statements but did not confess.
The jury found Schulkers guilty of the first four counts as charged. With regard to
the charges stemming from the old rib injury, the jury found him guilty of the lesser
included offenses of neglect of a dependent as a Class C felony and battery resulting in
bodily injury as a Class D felony. The trial court convicted and sentenced Schulkers
accordingly, giving him the maximum sentence allowed under the law, forty-eight years
executed. Schulkers now appeals. Additional facts will be provided as necessary.
4 Discussion and Decision
I. Admissibility of Evidence
A. Standard of Review
A trial court has broad discretion in ruling on the admissibility of evidence.
Packer v. State, 800 N.E.2d 574, 578 (Ind. Ct. App. 2003), trans. denied. We will reverse
a trial court’s ruling on the admissibility of evidence only when the trial court abused its
discretion. Id. An abuse of discretion occurs where the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before the court. Id.
B. Excluded Evidence
Schulkers argues on appeal that the trial court violated his constitutional right of
confrontation and abused its discretion by excluding evidence that Dilbeck voluntarily
relinquished her parental rights to D.S. He argues that this evidence was relevant to his
theory that Dilbeck was the one who abused D.S. He also argues that this was relevant to
show motive on the part of Dilbeck and her family to falsely accuse him of hurting D.S.
to pave the way for her adoption by Dilbeck’s mother.
Evidence which is not relevant is not admissible. Ind. Evidence Rule 402.
Relevant evidence is “evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Ind. Evidence Rule 401. We agree with the State
that evidence of Dilbeck’s later relinquishment of her parental rights was not relevant to
the issue of Schulkers’s guilt. While Schulkers was free to argue in his own defense that
Dilbeck had been the one to hurt D.S., her relinquishment of her parental rights—which 5 took place after she sought treatment for D.S.’s injuries—made it no more or less
probable that this was true.
And while evidence of bias, prejudice, or ulterior motives on the part of a witness
is relevant at trial because it may discredit the witness or affect the weight of the
witness’s testimony, Zawacki v. State, 753 N.E.2d 100, 102 (Ind. Ct. App. 2001), trans.
denied, “[i]t is not reversible error to disallow cross-examination for bias and prejudice if
the line of questioning would not give rise to a reasonable degree of probability of bias
and prejudice,” Hossman v. State, 467 N.E.2d 416, 417 (Ind. 1984), cert. denied, 469
U.S. 1195 (1985). Here, the evidence indicated that Dilbeck took D.S. to the hospital
upon arriving home from work and discovering her head injury despite Schulkers’s
insistence that she was fine. Thus, the trial court was within its discretion in finding that
there was no nexus between Dilbeck’s alleged motive to falsely accuse Schulkers and her
later relinquishment of her parental rights. See id. (finding that the trial court was within
its discretion “in finding that there was no, or at best remote, nexus connecting the
excluded evidence and the conclusion of bias”). And to the extent Schulkers relies on the
case of Zawacki, 753 N.E.2d at 100, that reliance is misplaced. In that case, the issue
was whether the excluded evidence fell within the confines of the Rape Shield Law,
which prohibits evidence of a victim’s past sexual conduct in a prosecution for a sex
crime. Id. at 102-03. Moreover, while the majority opinion concluded that the evidence
was not properly excluded under the Rape Shield Law and should have been admitted to
show bias on the part of the victim, that evidence was in the form of letters written by the
victim prior to the incident of alleged sexual misconduct, id. at 103, which is unlike the
6 facts here, where the relinquishment of parental rights took place after Dilbeck sought
treatment for D.S.’s injuries.
Moreover, we note that short of admitting into evidence Dilbeck’s later
relinquishment of her parental rights, Schulkers had sufficient opportunity to cross-
examine the witnesses regarding the family’s desire to care for D.S., Dilbeck’s alleged
lack of love for her child, and any reasons they may have had to falsely accuse Schulkers.
Indeed, during trial, Schulkers attempted to paint Dilbeck as an unconcerned mother by
asking both Moore and Dilbeck several questions in cross-examination about Dilbeck’s
reaction—or alleged lack thereof—to her grandmother’s phone call on October 2nd. He
also asked Dilbeck questions regarding her interview with an investigator shortly after
D.S.’s injuries were discovered during which she appeared to indicate that she believed
Schulkers’s story that D.S.’s head injury had taken place accidentally during a diaper
change. Schulkers also asked the investigator who testified why he did not consider
Dilbeck a suspect in the case. There was also evidence presented to the jury that
Dilbeck’s grandmother was biased against Schulkers. Moore testified that she did not
“trust [Schulkers] with that baby,” tr. at 151, and Dilbeck testified that her grandmother
“was acting mad because didn’t want her left with him. She wanted to watch her,” id. at
348. See Beaty v. State, 856 N.E.2d 1264, 1270 (Ind. Ct. App. 2006) (finding that even if
the prior bad acts evidence was offered to show bias rather than character, the trial court
did not abuse its discretion in excluding it because the jury was “well aware” of the
witness’s possible bias), trans. denied. In sum, we conclude that the trial court did not
abuse its discretion in excluding evidence of Dilbeck’s later relinquishment of her
parental rights. 7 II. Double Jeopardy
We generally consider the issue of whether multiple convictions violate double
jeopardy to be a matter of law for de novo review by appellate courts. See Spears v.
State, 735 N.E.2d 1161, 1166 (Ind. 2000). The analysis of double jeopardy claims under
the Indiana Constitution is governed by Richardson v. State, in which our supreme court
held that “two or more offenses are the ‘same offense’ in violation of Article I, Section
14 of the Indiana Constitution, if, with respect to either the statutory elements of the
challenged crimes or the actual evidence used to convict, the essential elements of one
challenged offense also establish the essential elements of another challenged offense.”
717 N.E.2d 32, 49 (Ind. 1999) (emphasis in original).
Under the actual evidence test, the actual evidence presented at trial is examined to
determine whether each challenged offense was established by separate and distinct facts.
Id. at 53. The defendant bears the burden of showing 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. Id. As long as each conviction requires proof of at least one unique evidentiary
fact, no violation of the actual evidence test occurs. Bald v. State, 766 N.E.2d 1170,
1172 (Ind. 2002).
“Even where no constitutional violation has occurred, multiple convictions may
nevertheless violate the ‘rules of statutory construction and common law that are often
described as double jeopardy, but are not governed by the constitutional test set forth in
8 Richardson.’” Vandergriff v. State, 812 N.E.2d 1084, 1088 (Ind. Ct. App. 2004) (quoting
Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002)), trans. denied. These rules fall within
five categories, which were first enumerated by Justice Sullivan in his concurrence in
Richardson:
1. Conviction and punishment for a crime which is a lesser-included offense of another crime for which the defendant has been convicted and punished. . . . 2. Conviction and punishment for a crime which consists of the very same act as another crime for which the defendant has been convicted and punished. . . . 3. Conviction and punishment for a crime which consists of the very same act as an element of another crime for which the defendant has been convicted and punished. . . . 4. Conviction and punishment for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime for which the defendant has been convicted and punished. . . . 5. Conviction and punishment for the crime of conspiracy where the overt act that constitutes an element of the conspiracy charge is the very same act as another crime for which the defendant has been convicted and punished.
717 N.E.2d at 55-56 (Sullivan, J., concurring).
B. October 2-3 Counts
1. Actual Evidence Test
Schulkers was convicted of aggravated battery, two counts of neglect of a
dependent, and battery resulting in serious bodily injury on a child less than fourteen
years of age, all Class B felonies, as a result of D.S.’s new injuries that allegedly occurred
on or about October 2 and 3, 2011. Schulkers contends that three of these convictions
violate the actual evidence test.1
1 One neglect of a dependent conviction was based upon Schulkers’s failure to seek immediate medical attention for D.S. and Schulkers does not contend that this conviction violates the actual evidence test. 9 Even though Schulkers causing D.S.’s skull fracture, rib fractures, and liver
laceration were relied upon to establish that Schulkers knowingly inflicted injury on D.S.
(for the aggravated battery), knowingly placed her in a situation that endangered her life
or health (for neglect of a dependent), and touched her in a rude, insolent, and/or angry
manner (for the battery resulting in serious bodily injury), a comparison of the elements
of the offenses establishes that each conviction required proof of at least one additional
evidentiary fact. To find Schulkers guilty of aggravated battery, the jury had to find that
the injuries created a substantial risk of death.2 To prove this, the State presented the
testimony of Dr. Makoroff in which she stated that D.S.’s head and liver injuries were
life-threatening. For neglect of a dependent, the jury had to find that D.S. was a
dependent and that Schulkers had the care of D.S.3 And, finally, for battery resulting in
serious bodily injury on a child less than fourteen, the jury had to find that D.S. was less
than fourteen and Schulkers was at least eighteen years of age. 4 While the same evidence
may have been used to prove both that D.S. was a dependent and under fourteen years of
age, additional evidentiary facts were needed to prove that Schulkers had the care of D.S.
and that Schulkers was at least eighteen years of age. Vandergriff, 812 N.E.2d at 1087
(holding that convictions for neglect and battery did not violate the actual evidence test
2 Aggravated battery is defined by statute to be committed by “[a] person who knowingly or intentionally inflicts injury on a person that creates a substantial risk of death . . . .” Ind. Code § 35-42-2-1.5. 3 Neglect of a dependent as a Class B felony requires proof that “[a] person having the care of a dependent . . . knowingly or intentionally places the dependent in a situation that endangers the dependent’s life or health . . . and results in serious bodily injury.” Ind. Code § 35-46-1-4(b). 4 Battery as a Class B felony requires proof that “[a] person . . . knowingly or intentionally touches another person in a rude, insolent, or angry manner,” resulting “in serious bodily injury to a person less than fourteen (14) years of age and is committed by a person at least eighteen (18) years of age.” Ind. Code § 35-42-2-1(a)(4).
10 because additional evidentiary facts were required to prove each offense). Thus, there
was no constitutional double jeopardy violation based on the actual evidence test.
2. Lesser Included Offense
Schulkers also contends that battery resulting in serious bodily injury is a lesser
included offense of aggravated battery. This is an alleged violation of the first of the five
categories set forth by Justice Sullivan in his concurrence in Richardson. “A lesser
included offense is necessarily included within the greater offense if it is impossible to
commit the greater offense without first having committed the lesser.” Iddings v. State,
772 N.E.2d 1006, 1016 (Ind. Ct. App. 2002), trans. denied. Contrary to Schulkers’s
argument, the less serious harm was not the only difference between the aggravated
battery and battery convictions. As discussed above, because Schulkers was convicted of
battery as a Class B felony, the State was also required to prove that D.S. was less than
fourteen years of age and that Schulkers was at least eighteen years of age. See Ind.
Code § 35-42-2-1(a)(4). Thus, because it is possible to commit aggravated battery
without first committing battery resulting in serious bodily injury on a child less than
fourteen, these convictions do not violate this principle of double jeopardy.
C. Prior to October 2 Counts
Schulkers was convicted of two offenses based on his actions prior to October 2:
neglect of a dependent as a Class C felony and battery resulting in bodily injury on a
child less than fourteen years of age as a Class D felony. As discussed above, these
convictions do not violate the actual evidence test because neglect of a dependent
required proof that Schulkers had the care of D.S. and battery resulting in bodily injury
11 on a child less than fourteen required proof that Schulkers was at least eighteen years of
age.5 However, as the State concedes, these convictions violate double jeopardy
principles because they are based on a single rib injury. 6 This is a violation of another
one of the categories set forth by Justice Sullivan in his concurrence in Richardson:
“[c]onviction and punishment for a crime which consists of the very same act as another
crime for which the defendant has been convicted and punished.” 717 N.E.2d at 55
(Sullivan, J., concurring). Because there was a single rib fracture and there is no
evidence that this injury was a result of more than one “act,” these convictions violated
this common law double jeopardy principle and cannot stand. Cf. Vandergriff, 812
N.E.2d at 1090 (finding no violation of this common law double jeopardy principle
because the State relied upon a grabbing incident as the basis for the neglect conviction
and a tossing incident as the basis for the battery conviction). Because the battery was a
Class D felony, it has less severe penal consequences, and we accordingly order it
vacated and leave the neglect conviction standing. See Richardson, 717 N.E.2d at 55.
III. Continuing Crime Doctrine
Schulkers also contends that his convictions of aggravated battery, two counts of
neglect of a dependent, and battery resulting in serious bodily injury on a child less than
fourteen, stemming from the same skull fracture, rib fractures, and liver laceration,
violate the continuing crime doctrine. The continuing crime doctrine provides that
actions that are sufficient to constitute separate criminal offenses may be so compressed 5 Similar to battery as a Class B felony, battery as a Class D felony required proof that D.S. was less than fourteen and that Schulkers was at least eighteen. See Ind. Code § 35-42-2-1(a)(2)(B). 6 Because we conclude that one of the two convictions stemming from Schulkers’s conduct prior to October 2 must be vacated, we need not address his argument that these convictions violate the continuing crime doctrine. 12 in terms of time, place, singleness of purpose, and continuity of action that they constitute
a single transaction. Firestone v. State, 838 N.E.2d 468, 471 (Ind. Ct. App. 2005).
Although Schulkers frames this issue as an alternate theory for why his convictions
violate double jeopardy principles, the purpose of the continuous crime doctrine is not to
reconcile the double jeopardy implications of two distinct chargeable crimes but rather to
define those instances where a defendant’s conduct amounts only to one chargeable
crime. Id.
Schulkers analogizes this case to Buchanan v. State, 913 N.E.2d 712 (Ind. Ct. App.
2009), trans. denied. In that case, a panel of this court vacated the defendant’s false
reporting and intimidation convictions but left his robbery conviction standing based on
the continuing crime doctrine because the defendant had phoned in false bomb threats as
a diversionary tactic to facilitate his robbery of the bank, during which he used his gun to
intimidate bank employees into giving him money. Id. at 720-21. Here, unlike
Buchanan, however, the behavior that led to any one of Schulkers’s convictions was not
necessary to facilitate his remaining actions. After injuring D.S., Schulkers could have
immediately sought medical attention for her injuries. Instead, he put her to sleep and
told Dilbeck upon arriving home that she was fine; this behavior was the basis for one of
his convictions for neglect of a dependent. Moreover, Schulkers did not need to fracture
D.S.’s skull in order to fracture her ribs or cause a liver laceration and vice versa. And,
finally, while it is unclear how Schulkers injured D.S., the multiple injuries she suffered
and the severity of those injuries suggest that his actions were not so compressed in terms
of time, place, singleness of purpose, and continuity of action that they constituted a
single transaction. See Firestone, 838 N.E.2d at 472 (finding that the defendant’s 13 convictions for rape and criminal deviate conduct did not violate the continuing crime
doctrine despite the “continuity of the actions” because they were different sexual acts
committed at different times). Schulkers’s convictions stemming from D.S.’s new
injuries do not violate the continuing crime doctrine.
Conclusion
The trial court did not abuse its discretion by excluding evidence that Dilbeck
relinquished her parental rights to D.S. after the events that led to Schulkers’s convictions
took place. And while Schulkers’s first four convictions do not violate double jeopardy
principles, as the State concedes, the last two of his six convictions do. Thus, we reverse
and remand with instructions for the trial court to vacate Schulkers’s conviction and
sentence for battery resulting in bodily injury on a child less than fourteen as a Class D
felony, but affirm in all other respects.
Affirmed in part, reversed in part, and remanded.
FRIEDLANDER, J., and CRONE, J., concur.