Robin Kraemer v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 26, 2018
• Docket: 84A01-1711-CR-2703
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 26 2018, 7:12 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 Cara Schaefer Wieneke Curtis T. Hill, Jr. Brooklyn, Indiana Attorney General of Indiana

Katherine Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robin Kraemer, June 26, 2018 Appellant-Defendant, Court of Appeals Case No. 84A01-1711-CR-2703 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Michael J. Lewis, Appellee-Plaintiff Judge Trial Court Cause No. 84D06-1702-F1-563

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018 Page 1 of 13 Case Summary

[1] Following a jury trial, Robin Lee Kraemer was convicted of neglect of a

dependent resulting in death, a Level 1 felony; failure to report, a Class B

misdemeanor; four counts of neglect of a dependent as Level 6 felonies;

maintaining a common nuisance, a Level 6 felony; and visiting a common

nuisance, a Class A misdemeanor. Kraemer was sentenced to an aggregate

term of 36.5 years imprisonment. On appeal, Kraemer presents three issues for

our review, which we restate as follows:

1. Does Kraemer’s conviction for failure to report abuse or neglect of a child violate her federal and state constitutional privilege against self-incrimination?

2. Did the State present sufficient evidence to support Kraemer’s conviction for Class A misdemeanor visiting a common nuisance?

3. Do Kraemer’s convictions for neglect of a dependent based on her use of methamphetamine violate principles of double jeopardy?

[2] We affirm in part, reverse in part, and remand with instructions.

Facts & Procedural History

[3] C.H. was born on August 21, 2007. Kraemer was his guardian and cared for

C.H. since he was three days old. After his birth, C.H. was diagnosed with

several brain disorders, collectively described as cerebral palsy. C.H. was

Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018 Page 2 of 13 completely dependent on Kraemer for his daily needs, including feeding,

bathing, and physical/occupational therapy. C.H. was also blind and

developed seizures, for which his physician, Dr. Pablito Dela Cruz, prescribed

an anticonvulsant that proved beneficial. Because C.H. had increased muscle

tone in his extremities, his body was stiff and not easy to move thus

necessitating physical and occupational therapy from an early age.

[4] Given C.H.’s condition, Dr. Dela Cruz wanted C.H. to ultimately achieve and

maintain a weight of between twenty-two and twenty-five pounds. When it

became apparent that C.H. was not gaining weight appropriately, Dr. Dela

Cruz diagnosed him as failure to thrive and recommended supplementation. In

June 2014, C.H. weighed twenty-two pounds. Dr. Dela Cruz became

concerned when less than three months later C.H.’s weight had decreased to

nineteen pounds. Dr. Dela Cruz referred C.H. to a gastroenterologist at Riley

Children’s Hospital in Indianapolis. Based on results from blood work, C.H.

was seen in the emergency room at Riley on September 9, 2014. Upon his

release, he was directed to follow up with Dr. Dela Cruz in two weeks. C.H.,

however, was not seen by Dr. Dela Cruz until June 2015, at which time, he

weighed twenty-four pounds. At this appointment, Dr. Dela Cruz refilled three

different prescriptions for C.H. and recommended continuation of physical and

occupational therapy. He also requested a follow-up with C.H. in four months,

which never occurred.

[5] According to Kraemer, around 1:00 a.m. on February 21, 2017, she woke up

and went to make something to eat. C.H. also woke up, so she made him a

Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018 Page 3 of 13 bottle of formula, which he would not eat. Kraemer changed C.H.’s diaper,

noting that it was wet, but not saturated. She noticed nothing unusual about

C.H.’s breathing, and C.H. eventually went back to sleep. Around 3:00 a.m.

Kraemer awoke again and discovered that C.H. was not breathing. Kraemer

called 911, and her husband began resuscitation efforts.

[6] Vigo County Sheriff’s Deputy Dayton Huebner responded to the emergency

call and, upon arrival, encountered Kraemer, who was “hysterical and crying.”

Transcript Vol. 2 at 35. Kraemer informed Deputy Huebner that C.H. had been

sick and spontaneously told him that C.H. had a nine-year life expectancy. En

route to the hospital, paramedics ceased attempts to resuscitate C.H., and he

was declared dead upon arrival.

[7] Jim Hayne, an emergency room nurse at Terre Haute Union Hospital,

conducted a post-mortem assessment of C.H. in which he found no signs of

trauma to C.H.’s body, no skin breakdown, and no bedsores. Nurse Hayne

noted, however, “extreme dehydration,” that C.H. had sunken eyes, and that

he had been dead for “quite awhile.” Id. at 82. He also noted that C.H. was

“severely emaciated” and documented that C.H., then nine and a half years

old, weighed approximately fifteen pounds. Id. at 86. Nurse Hayne testified

that he had been in the military and had seen malnourished children in other

countries, but that C.H. presented the “worst” case of malnutrition he had ever

seen. Id. at 93.

Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018 Page 4 of 13 [8] Jason Fischer, a detective with the Vigo County Sheriff’s Department, spoke

with Kraemer at the hospital, and one of the first things she stated was that

C.H. had a nine-year life expectancy. Kraemer also informed Detective Fischer

that C.H. had been sick with the flu, although she admitted that he had not

been to a doctor in over a year. Detective Fischer permitted Kraemer to leave

the hospital before he had the opportunity to view C.H.’s body. He then went

to see C.H. and testified that he was unprepared for what he saw, describing

C.H. as a “small, small child” who looked like “a skeleton with skin stretched

over it.” Id. at 46. The sight of C.H. in such an emaciated state was

“something [Detective Fischer had] never seen before.” Id. Based on his

observations, Detective Fischer immediately contacted the Department of Child

Services (DCS) and opened a criminal investigation.

[9] Erin Gonthier, a family case manager (FCM) with DCS, arrived at Union

Hospital just before 7:00 a.m. She was taken to see C.H. and noted that what

she observed was “very alarming and very concerning” in that it appeared that

C.H. had been neglected because he appeared “severely emaciated.” Id. at 103,

102. FCM Gonthier and Detective Fischer then went to Kraemer’s home,

which Kraemer shared with her husband. At that time, Kraemer’s son, his

girlfriend, and their two children, five-year-old L.K. and two-year-old L.K.

(Grandchildren), also lived in Kraemer’s home.

[10] FCM Gonthier approached Kraemer in the driveway, and initially, Kraemer

was cooperative. When FCM Gonthier asked her to submit to a drug screen,

Kraemer “immediately became defensive and combative,” yelled at FCM

Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018 Page 5 of 13 Gonthier, refused to submit to the drug screen, and told FCM Gonthier to

leave. Id. at 108. The other adults in the home, especially Kraemer’s son, were

also belligerent toward FCM Gonthier. Eventually, Kraemer submitted to a

drug screen, which was positive for amphetamines, methamphetamine, and

THC. A sample of Kraemer’s Grandchildren’s hair follicles tested positive for

methamphetamine. Given the test that was run, it was not possible that the

children were merely exposed to methamphetamine through use by others. The

test established that the children had methamphetamine in their systems.

[11] Dr. Roland Kohr performed an autopsy of C.H. Dr. Kohr noted that at the

time of his death, C.H. weighed approximately fifteen pounds and had a severe

lack of muscle mass, which condition had most likely developed over several

months. He described C.H.’s condition as “by far the most extreme loss of

tissue and lack of normal nutrition” he had ever seen. Transcript Vol. 3 at 7.

Toxicology testing revealed that C.H. had trace amounts of methamphetamine

in his system. Dr. Kohr ultimately concluded that C.H. died as the result of

severe malnutrition with bronchopneumonia as a contributing cause.

[12] On March 15, 2017, the State charged Kraemer with Count I, Level 1 felony

neglect of a dependent resulting in death; Count II, Level 3 felony neglect of a

dependent resulting in serious bodily injury; Count III, Class B misdemeanor

failure to make a report; Count IV, Level 6 felony neglect of a dependent;

Count V, Level 6 felony neglect of a dependent; Count VI, Level 6 felony

maintaining a common nuisance; Count VII, Class A misdemeanor visiting a

common nuisance; and Counts VIII and IX, Level 6 felony neglect of a

Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018 Page 6 of 13 dependent.1 A four-day jury trial commenced on September 18, 2017, at the

conclusion of which the jury found Kraemer guilty as charged. On October 19,

2017, the trial court merged Count II with Count I, and entered judgments of

conviction on the remaining offenses. The trial court sentenced Kraemer to the

advisory sentence of thirty years on Count I; 180 days on Count III, and one

year on each Level 6 felony and the Class A misdemeanor. The court ordered

the sentences be served consecutively for an aggregate sentence of 36.5 years

imprisonment. Kraemer now appeals. Additional facts will be provided as

necessary.

Discussion & Decision

Constitutional Right

[13] Kraemer argues that prosecuting her for failure to report her own child abuse or

neglect violated her federal and state constitutional right against compulsory

self-incrimination. See U.S. Const. amend. V; Ind. Const. art. 1, section 14 .

This privilege “protects against any disclosures which the witness reasonably

believes could be used in a criminal prosecution or could lead to other evidence

that might be so used.” Kastigar v. U.S., 406 U.S. 441, 445 (1972). Kraemer

maintains that “the State used [her] failure to incriminate herself not just to

imply guilt, but as the sole evidence to establish guilt for failing to report.”

Appellant’s Brief at 11. Acknowledging that she did not file a motion to dismiss

1 In Counts VIII and IX, Kraemer’s Grandchildren were the alleged victims.

Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018 Page 7 of 13 alleging the constitutional challenge she presents on appeal, Kraemer asserts

that her challenge amounts to fundamental error.

[14] “Generally, the failure to file a proper motion to dismiss raising the

Constitutional challenge waives the issue on appeal.” Baumgartner v. State, 891

N.E.2d 1131, 1135-36 (Ind. Ct. App. 2008). Still, some cases have considered

challenges to the constitutionality of statutes even where the defendant failed to

file a motion to dismiss. Notably, in Morse v. State, 593 N.E.2d 194, 197 (Ind.

1992), the court addressed the defendant’s challenge to the constitutionality of a

statute even though the issue was raised for the first time on appeal in a pro se

motion filed with the court by a defendant who was represented by counsel. See

also Vaughn v. State, 782 N.E.2d 417, 420 (Ind. Ct. App. 2003) (citing Morse in

deciding to address defendant’s challenge to constitutionality of statute even

though defendant filed no motion to dismiss and State argued waiver on

appeal), trans. denied; Boyd v. State, 889 N.E.2d 321, 323-24 (Ind. Ct. App. 2008)

(following Morse and Vaughn in choosing to address defendant’s claim that

statute was unconstitutionally vague even though he did not file proper motion

to dismiss and the State argued waiver on appeal), trans. denied.

[15] Ind. Code § 31-33-5-1 imposes a duty upon an individual “who has reason to

believe that a child is a victim of child abuse or neglect” to “make a report” of

such abuse or neglect. A person who fails to make a report as required under

I.C. § 31-33-5-1 commits a Class B misdemeanor. In this case, the charging

information simply tracked the statutory language and did not specify the abuse

Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018 Page 8 of 13 or neglect that Kraemer failed to report. During closing argument, however,

the prosecutor argued to the jury as follows:

Failure to make a report. [Kraemer] being required to make a report failed to do so. Gonna get the instruction related to the Indiana code that says that an individual who has reason to believe [t]hat a child is a victim of child abuse or neglect has to make a report. . . . [Kraemer] wasn’t gonna make any report. She was the one doing the meth, she was the one smoking the marijuana. There was no report made.

Transcript Vol. 3 at 230.

[16] We acknowledge that the State presented evidence concerning neglect or abuse

of Kraemer’s Grandchildren by their parents who chose to use

methamphetamine and who exposed the children to the dangers of the drug.

We cannot agree with the State, however, that the jury was asked to find

Kraemer guilty for failing to report such neglect. As we read the State’s closing

argument, the jury was asked to find Kraemer guilty of failing to report her own

neglect based upon her own use of methamphetamine. The State’s prosecution

of Kraemer in this regard directly conflicts with her constitutional privilege

against self-incrimination. See, e.g., U.S. v. Kuh, 541 F.2d 672 (7th Cir. 1976)

(noting that “[t]he object of the Fifth Amendment is to insure that a person

should not be compelled to give information which might tend to show he

himself has committed a crime”).

[17] The State asserts that there is nothing in the statute itself that exempts a person

with knowledge of child abuse or neglect from the duty to make a report to

Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018 Page 9 of 13 DCS or local law enforcement. Regardless, we conclude that the federal and

state constitutions render invalid Kraemer’s conviction for failure to report her

own abuse. We direct the trial court to vacate Kraemer’s conviction and

sentence for failure to report as a Class B misdemeanor.

Sufficiency of the Evidence

[18] Kraemer next argues that the State failed to present sufficient evidence to

support her conviction for visiting a common nuisance with C.H. When we

consider a challenge to the sufficiency of the evidence, we neither reweigh the

evidence nor assess the credibility of the witnesses. Suggs v. State, 51 N.E.3d

1190, 1193 (Ind. 2016). Instead, we consider only the evidence and reasonable

inferences supporting the verdict. Id. We will affirm the conviction if there is

probative evidence from which a reasonable jury could have found the

defendant guilty beyond a reasonable doubt. Id.

[19] Pursuant to Ind. Code § 35-45-1-5(a)(3)(A), a common nuisance is defined, in

pertinent part, as “a building, structure, vehicle, or other place that is used . . .

to unlawfully use a controlled substance or an item of drug paraphernalia.” A

person who “knowingly or intentionally visits a common nuisance . . . commits

visiting a common nuisance.” I.C. § 35-45-1-5(b) (emphasis supplied). The

offense is a Class A misdemeanor if the person “knowingly, intentionally, or

recklessly takes a person less than eighteen (18) years of age . . . into a common

nuisance.” I.C. § 35-45-1-5(b)(2)(B). Here, the State charged Kraemer with

visiting a common nuisance as a Class A misdemeanor, alleging that she

Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018 Page 10 of 13 knowingly, intentionally, or recklessly took C.H. to visit a common nuisance,

i.e., the home in which they lived. Kraemer does not dispute that her home is a

common nuisance. Rather, Kraemer argues that because C.H. lived in her

home, she cannot be found to have taken him to visit his own home. The State

asserts that “[t]here can be no dispute that [Kraemer] took C.H. into her

home.” Appellee’s Brief at 16.

[20] We agree with Kraemer. It is not enough that Kraemer took C.H. into their

home. The notion of a visit remains a key element to the offense of visiting a

common nuisance. Thus, the issue before us is what does it mean to “visit” a

common nuisance. In its most common connotation, to visit a place is to come

and go and stay for a short time period of time. We think it is a stretch to say

that one visits his own home. As Kraemer asserts, the State did not present any

evidence that she used methamphetamine outside of her home or that she took

C.H. into a common nuisance that was not their home. We thus conclude that

the State’s evidence is insufficient to support Kraemer’s conviction for visiting a

common nuisance as a Class A misdemeanor.2 We direct the trial court to

vacate Kraemer’s conviction and sentence for this offense.

Double Jeopardy

[21] Indiana’s Double Jeopardy Clause was intended to prevent the State from being

able to proceed against a person twice for the same criminal transgression.

2 Kraemer’s conviction for maintaining a common nuisance as a Level 6 felony is unaffected.

Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018 Page 11 of 13 Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). This clause prohibits, among

other things, multiple punishments for the same conduct. Jarrell v. State, 818

N.E.2d 88, 92 (Ind. Ct. App. 2004). Multiple punishments are for the same

offense in violation of double jeopardy, “if, with respect to . . . the actual

evidence used to convict, the essential elements of one challenged offense also

establish the essential elements of another challenged offense.” Id.

[22] In Count IV, the State charged Kraemer with neglect of a dependent based on

the fact that she knowingly placed C.H. in a situation that endangered his life or

health as evidenced by the fact that she tested positive for methamphetamine

and THC. In Count V, the State charged Kramer with the same offense, but

alleged that she placed C.H. in a situation that endangered his life or health as

evidenced by the fact that at the time of his autopsy, C.H. tested positive for

methamphetamine. Kraemer argues these convictions violate double jeopardy

principles in that they “arose from a single criminal transgression.”3 Appellant’s

Brief at 16. We agree. The basis for the neglect convictions under both Counts

IV and V is Kraemer’s use of illegal drugs in her home which placed C.H. in a

situation that endangered his life or health. Double jeopardy principles prohibit

multiple punishments for the same conduct. Cf. Williams v. State, 829 N.E.2d

198 (finding multiple convictions for neglect of a dependent did not violate

double jeopardy principles where the State proved five distinct acts occurring at

3 Kraemer does not challenge her Level 6 felony neglect convictions with regard to separate victims.

Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018 Page 12 of 13 different times). We therefore direct the trial court to reverse Kraemer’s

conviction and sentence for neglect of a dependent under Count IV.

[23] In sum, we reverse Kraemer’s convictions for failure to report (Count III),

visiting a common nuisance (Count VII), and neglect of a dependent (Count

IV) and direct the trial court to vacate the convictions and sentences thereon.

[24] Judgment affirmed in part, reversed in part, and remanded with instructions.

Najam, J. and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 84A01-1711-CR-2703 | June 26, 2018 Page 13 of 13