MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Mar 29 2016, 6:57 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeremy K. Nix Gregory F. Zoeller Matheny, Hahn, Denman & Nix, Attorney General of Indiana L.L.P. Huntington, Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Racheal Dawn Ruble, March 29, 2016 Appellant-Defendant, Court of Appeals Case No. 35A02-1507-CR-932 v. Appeal from the Huntington Circuit Court State of Indiana, The Honorable Thomas M. Appellee-Plaintiff. Hakes, Judge Trial Court Cause No. 35C01-1411-F3-260
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016 Page 1 of 14 [1] Racheal Dawn Ruble appeals her conviction for neglect of a dependent
resulting in serious bodily injury as a level 3 felony and raises two issues. We
find dispositive the issue of whether her conviction for neglect of a dependent
must be reduced from a level 3 felony to a level 6 felony. We reverse and
remand for resentencing.
Facts and Procedural History
[2] On September 9, 2014, Ruble took K.R., who was the grandson of her husband
Gary and just shy of four months old at the time, to a walk-in clinic in
Huntington, Indiana, and reported that she believed something was wrong with
K.R.’s ankle and that her dog had stepped on K.R.’s right foot. Marcy Pratt, a
nurse practitioner, examined K.R. and noted that he appeared to be normal
other than that he was bloated and irritable and, with respect to his leg, that it
looked normal, there was no swelling, no bruising, no scratches, and nothing
that indicated there had been any injury to the leg or ankle whatsoever. Pratt
also examined K.R.’s head and noted that, other than a small bruise on his right
cheek, his head appeared normal.
[3] At approximately 7:00 p.m. on September 11, 2014, Ruble returned to the clinic
with K.R., and Pratt immediately recognized that K.R.’s upper right leg was
very swollen, that it was twice the size of his left leg and the skin was tight, and
that, if you touched it, he would scream in pain. Pratt believed there was a
fracture to K.R.’s femur and was adamant with Ruble that K.R. needed to go to
the emergency room immediately. Pratt also noted that K.R.’s head appeared
Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016 Page 2 of 14 normal. Ruble made every indication that she was headed to the emergency
room.
[4] Approximately one to one and one-half hours after Ruble and K.R. left the
clinic, Pratt checked with the emergency room and learned that K.R. had not
arrived. Pratt eventually spoke with the emergency room physician, Dr. Sheila
Blakley, and then called child protective services. Huntington Police Officer
Shane Blair went to Ruble’s home close to 10:00 p.m., and Ruble informed him
that K.R. was not there but was with Gary. Officer Blair asked Ruble why she
had not taken K.R. to the hospital, and Ruble stated that she was waiting for
Gary to leave work and they could go together. Officer Blair advised Ruble
that she needed to meet her husband and take K.R. to the hospital. At some
point, Gary returned home from work and found K.R. at home and saw that
K.R.’s leg was swollen to twice the size it should be, and he and Ruble took
K.R. to the hospital. They arrived at the hospital “closer to 11:00 o’clock.”
Transcript at 181.
[5] At the emergency room, Dr. Blakley examined K.R. and found significant
swelling to his right thigh along with signs of a head injury. The swelling of
K.R.’s leg indicated a possible underlying facture, and the swelling of his
interior fontanel indicated there was increased pressure around the brain. A
C.T. scan of his head showed multiple areas of bleeding within and around his
brain. Dr. Blakley noticed that the bleeding appeared to be acute and had
occurred recently. Dr. Blakley also noted that the fact that K.R.’s fontanel was
flat at the clinic but swollen at the time he was admitted to the hospital
Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016 Page 3 of 14 indicates increasing pressure and continued bleeding, and would support a
finding of a more acute injury. An x-ray showed a spiral-type fracture in the
middle of K.R.’s femur. Dr. Blakley also observed hemorrhaging behind or
within K.R.’s eye, which is consistent with acceleration and deceleration or
rapid and vigorous shaking. Dr. Blakley believed that, if left untreated, K.R.’s
injuries could have been life threatening, and K.R. was transported to Riley
Children’s Hospital.
[6] Dr. Katherine Haider, a pediatric ophthalmologist, examined K.R. and
observed a pattern of retinal hemorrhages over his left eye which was consistent
with a child who had non-accidental trauma. Dr. Ralph Hicks, a child abuse
pediatrics specialist, examined K.R. in the morning on September 12, 2014, and
prepared reports. Dr. Hicks noted that K.R. had a spiral fracture to his right
femur, and the x-ray showed no evidence of healing so the fracture was recent.
Dr. Hicks further noted that M.R.I. images showed indications of collections of
blood around the brain and that the neuroradiologist felt that the collections
were probably of different ages, suggesting there had been more than one event
involving some sort of head injury.
[7] In their investigation, police determined that Cheyenne Hibbert, a
developmental disability professional, had a home visit with K.R. and Ruble on
September 3, 2014, and again on September 11, 2014, from 12:30 to 2:00 p.m.,
and she did not observe anything out of the ordinary or notice anything while
watching K.R. that made her believe that he was in any kind of pain or distress.
Also, Ruble’s sister had cared for K.R. overnight from September 5 to
Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016 Page 4 of 14 September 6, 2014, and K.R. appeared healthy at the time, and Ruble’s
probation officer met with Ruble on September 10, 2014, at which time K.R.
did not appear to be in pain and slept the entire time.
[8] On November 20, 2014, the State charged Ruble with: Count I, battery on a
child resulting in serious bodily injury, namely a broken femur, as a level 3
felony; Count II, battery on a child resulting in serious bodily injury, namely
abusive head trauma, as a level 3 felony; Count III, neglect of a dependent
resulting in serious bodily injury as a level 3 felony; Count IV, battery on a child
resulting in bodily injury of a subdural hematoma as a level 5 felony; and Count
V, battery on a child resulting in bodily injury of a broken tibia as a level 5
felony. The State later moved to dismiss Count V, and the court granted the
motion. Following a jury trial in May 2015, the jury found Ruble guilty as
charged on Counts I, II, and III and not guilty on Count IV, and the court
entered judgment of conviction on Counts I, II, and III. As to each of her
convictions under Counts I through III, the court sentenced Ruble to thirteen
years with four years suspended to probation, and ordered that Counts I and II
be served concurrently with each other and consecutive to Count III, for an
aggregate sentence of twenty-six years with eighteen years executed and eight
years suspended to probation.
Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016 Page 5 of 14 Discussion
[9] The issue is whether Ruble’s conviction of neglect of a dependent as a level 3
felony violates double jeopardy principles.1 The Indiana Constitution provides
that “[n]o person shall be put in jeopardy twice for the same offense.” IND.
CONST. art. 1, § 14. “Indiana’s Double Jeopardy Clause . . . prevent[s] the
State from being able to proceed against a person twice for the same criminal
transgression.” Hopkins v. State, 759 N.E.2d 633, 639 (Ind. 2001) (quoting
Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). The Indiana Supreme Court
has 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.” Richardson, 717 N.E.2d at 49.
[10] In addition, Indiana courts “have long adhered to a series of 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 Richardson.” Guyton v.
State, 771 N.E.2d 1141, 1143 (Ind. 2002) (quoting Pierce v. State, 761 N.E.2d
826, 830 (Ind. 2002) (citing Richardson, 717 N.E.2d at 55 (Sullivan, J.,
concurring))). “Even where no constitutional violation has occurred, multiple
1 To the extent the State argues that Ruble’s two convictions for battery as level 3 felonies under Counts I and II are based on separate injuries that occurred at separate times and thus do not violate the prohibition against double jeopardy, we note that Ruble does not challenge her battery convictions but rather challenges the enhancement of her conviction for neglect of a dependent under Count III to a level 3 felony.
Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016 Page 6 of 14 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 Richardson.’” Vandergriff v. State, 812
N.E.2d 1084, 1088 (Ind. Ct. App. 2004) (quoting Pierce, 761 N.E.2d at 830),
trans. denied. As enumerated in Justice Sullivan’s concurrence in Richardson and
endorsed by the Indiana Supreme Court in Guyton, five additional categories of
double jeopardy exist: (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; and (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. See Guyton, 771 N.E.2d at 1143; Richardson, 717
N.E.2d at 55-56 (Sullivan, J., concurring).
[11] Ruble maintains that her convictions for battery on a child resulting in serious
bodily injury as level 3 felonies and neglect of a dependent resulting in serious
bodily injury as a level 3 felony violate Indiana’s double jeopardy jurisprudence.
Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016 Page 7 of 14 After noting that the statutes governing the offenses of battery and neglect of a
dependent provide for an enhancement to a level 3 felony if the offenses result
in serious bodily injury, Ruble argues that the information charging her with
neglect of a dependent “did not specify the serious bodily injury that was caused
by the neglect as opposed to the batteries” and that the State did not elicit any
testimony or argue in closing argument that “any additional injury [was] caused
by [her] delay in seeking medical attention for K.R.” Appellant’s Brief at 8-9.
In support of her argument, Ruble cites to Strong v. State, 870 N.E.2d 442 (Ind.
2007), and Montgomery v. State, 21 N.E.3d 846 (Ind. Ct. App. 2014), trans.
denied. She requests that her conviction for neglect of a dependent be reduced
from a level 3 felony to a level 6 felony to remedy the double jeopardy
violation.
[12] The State responds that, although the offense under Count III was elevated to a
level 3 felony on the basis that serious bodily injury occurred, the battery counts
were elevated to level 3 felonies for that reason and because of the ages of the
victim and perpetrator. The State also argues that all three counts were based
on separate harms. With respect to Count III, the State notes that the count
“did not allege a specific serious bodily injury but was based on [Ruble] not
taking K.R. to the emergency room after it was obvious that he had a serious
problem with his leg” and that “[t]he neglect charge in Count III was not based
on any inflicted injury” but was based on the fact Ruble failed to obtain
immediate medical care “after it was obvious that he had a substantial leg
problem . . . .” Appellee’s Brief at 18, 20. The State argues that, if there is a
Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016 Page 8 of 14 double jeopardy problem, the solution is to reduce the conviction under Count
III from a level 3 felony to a level 6 felony and to remand to the trial court for
appropriate resentencing.
[13] Ind. Code § 35-42-2-1 governs the offense of battery and provides in part that a
person who knowingly or intentionally touches another person in a rude,
insolent, or angry manner commits battery as a class B misdemeanor. The
statute further provides that the offense is a level 6 felony “if one (1) or more of
the following apply: . . . (1) The offense results in moderate bodily injury to any
other person” or “(3) The offense is committed against 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(d). Finally, the statute provides the
offense is a level 3 felony “if it results in serious bodily injury to a person less
than fourteen (14) years of age if the offense is committed by a person at least
eighteen (18) years of age.” Ind. Code § 35-42-2-1(i).
[14] Ind. Code § 35-46-1-4 governs the offense of neglect of a dependent and
provides in part that a person having the care of a dependent, who knowingly or
intentionally places the dependent in a situation that endangers the dependent’s
life or health, commits neglect of a dependent as a level 6 felony. The statute
further provides in part that the offense above is a level 5 felony if it “results in
bodily injury” and a level 3 felony if it “results in serious bodily injury.” Ind.
Code § 35-46-1-4(b)(1), (b)(2). “Serious bodily injury” means in part “bodily
injury that creates a substantial risk of death or that causes . . . serious
permanent disfigurement, [] unconsciousness, [] extreme pain, [or] permanent
Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016 Page 9 of 14 or protracted loss or impairment of the function of a bodily member or organ . .
. .” Ind. Code § 35-31.5-2-292.
[15] In Strong, Chad Strong was convicted of the murder of his girlfriend’s three-
year-old daughter, Taranova Glick, and neglect of a dependent resulting in the
same child’s death as a class A felony. 870 N.E.2d at 442. The Court noted
that the murder count charged Strong with knowingly killing Taranova, and the
neglect of a dependent resulting in death count “alleged that [Strong], who had
care of three-year-old Taranova Glick as a dependent, knowingly placed her ‘in
a situation endangering her life or health,’ allowing her ‘to languish and suffer
without medical treatment knowing she had been gravely injured, all of which
resulted in the death of Taranova Glick.’” Id. at 443. The Court observed the
relevant statute, Ind. Code § 35-46-1-4, and noted that “[t]he offense of neglect
of a dependent, absent a resulting injury, [was] defined as a class D felony,” and
that the crime was a class C felony when it “results in bodily injury,” a class B
felony when it “results in serious bodily injury,” and a class A felony when it
“results in the death of a dependent who is less than fourteen (14) years of age.”
Id. The Court then noted that the State argued that the murder and neglect
convictions were based on two different sets of actions as the murder happened
when Strong “placed his knee into Taranova’s abdomen” and the “neglect
happened thereafter when he did not seek medical attention.” Id. The Court
held that “[s]uch a recharacterization of the charges, however, does not
eliminate the fact that both charged offenses would still be based on the same
bodily injury.” Id. at 444. The Court further held that “[t]he injuries urged to
Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016 Page 10 of 14 support the ‘serious bodily injury’ necessary for class B neglect are the same
injuries, the same harm, that resulted in the child’s death and are the basis of
the murder charge” and that “[o]nly when deemed a class D offense, which does
not include any element of bodily injury, does the conviction of neglect of a
dependent satisfy the common law/statutory construction aspect of Indiana’s
double jeopardy jurisprudence.” Id. (emphasis added). The Court remanded to
the trial court “to reduce the conviction for neglect of a dependent from a class
A felony to a class D felony, for which the sentence shall be a term of three
years, to be served consecutively to the sentence for murder.” Id.
[16] In Montgomery, the State charged Christopher Montgomery with, among other
counts, murder and two counts of neglect of a dependent as class A felonies,
and the jury found him guilty as charged. 21 N.E.3d at 851. The trial court
entered judgments of conviction on the murder count and the two neglect of a
dependent counts, including under count III for failing to seek immediate
medical help after Elijah sustained a head injury. Id. The trial court reduced
the conviction under count III to a class B felony based upon double jeopardy
concerns. Id. In addressing whether Montgomery’s conviction of neglect of a
dependent as a class B felony violated double jeopardy principles, this Court
held that the Indiana Supreme Court’s reasoning in Strong applied with equal
force to Montgomery’s neglect of a dependent conviction. Id. at 865-867. We
noted that Montgomery had been found guilty of neglect of a dependent as a
class A felony for causing the death of Elijah and that the court had entered the
conviction as a class B felony for failing to seek immediate medical help after
Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016 Page 11 of 14 Elijah sustained the head injury. Id. at 867. We further noted that, “[h]owever,
that serious bodily injury was the same injury which led to Elijah’s death” and
that thus the trial court “should have entered Montgomery’s conviction” on
count III “as a class D felony, which applies to the crime of neglect of a
dependent without any element of bodily injury.” Id. We accordingly
remanded with instructions to reduce Montgomery’s conviction under count III
from a class B felony to a class D felony and to enter a sentence of three years
to be served consecutive to his murder sentence. Id.
[17] In this case, the charging information alleged under Count I that Ruble
committed battery on K.R. “which resulted in serious bodily injury, to wit: a
broken femur,” under Count II that she committed battery on K.R. “which
resulted in serious bodily injury, to wit: Abusive Head Trauma,” and under
Count III that she committed neglect of a dependent by placing the dependent
in a situation that “endangered the life or health of K.R., a four month old male
child, said act resulting in serious bodily injury.” Appellant’s Appendix at 12-
16. The State acknowledges that Count III does not identify a specific “serious
bodily injury” in addition to the serious bodily injuries alleged in Counts I and
II or otherwise. Further, the prosecutor in closing arguments pointed to K.R.’s
broken femur and head trauma as the injuries supporting the enhancements to
level 3 felonies of the battery charges under Counts I and II, but did not point to
a specific alleged serious bodily injury or harm to support the enhancement to a
level 3 felony of the neglect of a dependent charge under Count III.
Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016 Page 12 of 14 [18] The State’s position, which appears to have support in the record, is that the
neglect charge under Count III was based on Ruble failing to obtain medical
care for K.R. after it was obvious he “had a substantial leg problem” and that “the
neglect charge was based on [Ruble] not immediately obtaining medical
treatment for K.R.’s leg after Pratt told her to immediately take the baby to the
emergency room.” Appellee’s Brief at 20 (emphases added). This is consistent
with the testimony presented at trial, which established that, when Pratt
examined K.R. at approximately 7:00 p.m. on September 11, 2014, she
observed that K.R.’s right leg had become badly swollen and K.R. was in pain,
she believed the leg was fractured, and she instructed Ruble to take K.R. to the
emergency room immediately. However, the serious bodily injury to K.R.’s leg
was the same injury, the same harm, which supports Ruble’s conviction for
battery as a level 3 felony under Count I. See Strong, 870 N.E.2d at 443-444 (the
same abdomen injury supported the defendant’s two convictions); Montgomery,
21 N.E.3d at 867 (the same head injury supported the defendant’s two
convictions). The State does not point to evidence that Ruble’s failure to seek
immediate treatment for K.R.’s leg resulted in additional serious bodily injury
or harm. We conclude that Ruble’s conviction for neglect of a dependent under
Count III must be reduced to a level 6 felony, which in this case does not
include an element of bodily injury. See Strong, 870 N.E.2d at 444 (“Only when
deemed a class D offense, which does not include any element of bodily injury, does
the conviction of neglect of a dependent satisfy the common law/statutory
construction aspect of Indiana’s double jeopardy jurisprudence . . . .”)
(emphasis added); Montgomery, 21 N.E.3d at 867 (holding that defendant’s Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016 Page 13 of 14 conviction for neglect of a dependent should have been entered as a class D
felony which applies to the crime without any element of bodily injury). We
remand with instructions to reduce Ruble’s conviction for neglect of a
dependent under Count III from a level 3 felony to a level 6 felony and to
resentence Ruble accordingly.2
Conclusion
[19] For the foregoing reasons, we reverse and remand with instructions to reduce
Ruble’s conviction for neglect of a dependent under Count III from a level 3
felony to a level 6 felony and to resentence Ruble accordingly.
[20] Reversed and remanded.
Kirsch, J., and Mathias, J., concur.
2 As we remand with instructions to reduce Ruble’s conviction under Count III to a level 6 felony and for resentencing, we need not address Ruble’s argument that her crimes were part of an episode of criminal conduct and thus that the aggregate sentence imposed exceeded the limitation provided by Ind. Code § 35-50- 1-2.
Court of Appeals of Indiana | Memorandum Decision 35A02-1507-CR-932|March 29, 2016 Page 14 of 14