Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before FILED any court except for the purpose of Sep 18 2012, 8:44 am establishing the defense of res judicata, collateral estoppel, or the law of the CLERK of the supreme court, case. court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
THOMAS C. ALLEN GREGORY F. ZOELLER Fort Wayne, Indiana Attorney General of Indiana
RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
SERGIO SANDOVAL, ) ) Appellant-Defendant, ) ) vs. ) No. 02A02-1111-CR-1113 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable John F. Surbeck, Jr., Judge Cause No. 02D04-0906-FB-110
September 18, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge Sergio Sandoval appeals his conviction for neglect of a dependent as a class B
felony.1 Sandoval raises one issue, which we restate as whether the evidence is sufficient
to sustain his conviction. We affirm.
The facts most favorable to Sandoval’s conviction follow. In January of 2009,
Sandoval lived with Brittney Shaw and their two daughters, A.S. and M.S., who was born
on May 1, 2007, in a mobile home in Fort Wayne, Allen County, Indiana. On January
15, 2009, Sandoval filled a five-gallon bucket with hot water from the spigot for the
washing machine hook up and poured the water into the bathtub in the bathroom. The
mobile home’s hot water heater had been set to its maximum temperature setting of 150
degrees. M.S. was immersed in the water and sustained extensive and second-degree
burns.
M.S. was taken to the emergency room at Parkview Hospital. Sandoval initially
reported to medical personnel that he was running bath water, that he left the room to
obtain supplies and asked Shaw to watch M.S., that Shaw ignored him and went to watch
television, and that M.S. had turned the water to hot and stepped in the tub. Emergency
room physician Dr. John Winther examined M.S. and observed extensive burns on her
feet and perineal area of the buttocks and prescribed morphine for M.S.’s pain. Sandoval
reported to Dr. Winther that he was preparing a bath for M.S., that he had left both the
hot and cold faucets on and had left the room, that he heard M.S. scream, that he returned
to the bathroom to find M.S. squatting in the bathtub, and that he thought that M.S. had
turned off the cold water and stepped into the bathtub. Dr. Winther considered M.S.’s
1 Ind. Code § 35-46-1-4 (Supp. 2007) (subsequently amended by Pub. L. 6-2012, § 227 (eff. Feb. 22, 2012)). 2 burns to be significant and had M.S. transferred to the burn center at St. Joseph’s Hospital
in Fort Wayne. Dr. Winther also asked the nursing staff to contact the Department of
Child Services (“DCS”).
M.S. was treated at St. Joseph’s Hospital by Dr. Kevin Berning, a plastic surgeon
who treated patients in the hospital’s burn center. A DCS intake family case manager
took photographs of M.S.’s burns at St. Joseph’s Hospital. M.S. remained at St. Joseph’s
Hospital until her discharge on January 26, 2009. Following her discharge from the
hospital, M.S. received additional follow up treatment from the outpatient burn clinic at
St. Joseph’s Hospital.
Sandoval initially reported to police at St. Joseph’s Hospital that he had been
drawing a bath for M.S. while M.S. was standing looking over the tub, that he left to
retrieve a towel, and that when he returned M.S. was standing in the tub and then sat
down. Sandoval also stated that M.S. had turned off the cold water leaving only the hot
water running. Several minutes later, Sandoval reported that he had left the bathroom to
get a towel, heard M.S. scream, and returned to the bathroom to find M.S. already sitting
in the bathtub. Sandoval provided a written statement that he went to retrieve a towel,
that M.S. turned off the cold water and stepped inside the tub, and that M.S. was already
sitting in the water by the time Sandoval returned.
During their investigation, police and the CPS case manager assigned to the case
visited Sandoval’s residence and observed that there was no handle for the hot water in
the bathtub where M.S. received her burns. In a subsequent interview with a police
detective, Sandoval stated that when he exited the bathroom to retrieve a towel there was
3 approximately one inch of water in the bathtub and that when he returned there was one
and one-half to two inches of water in the tub. Sandoval also stated that approximately
three years earlier the heating elements of the hot water heater had been replaced, that
there was still insufficient hot water for a full shower or bath, and thus that the
temperature of the hot water heater had been set to the maximum.
During the investigation, a police officer inspected the hot water heater and
observed that the temperature was set at 150 degrees, which was the highest possible
temperature setting. In examining the bathtub where M.S. received her burns, police
again observed that no knob or fixture existed where the hot water knob would have been
and that the handle or knob for the cold water was very difficult to turn and that a person
would need to use a lot of force to turn it.
Also during their investigation, police took the temperature of the water in the
bathtub at various intervals to determine how quickly the water heated up. Sandoval
demonstrated to the officers the temperature and depth of the water at the time he exited
the bathroom, which police determined to be approximately ninety-five degrees and one
inch, respectively. Officers then turned off the cold water and determined that, after two
minutes of running the hot water only, the temperature of the water in the bathtub was
between approximately 98 degrees and 112 degrees at different locations in the tub.
Officers continued to fill the bathtub with hot water until the water in the tub was
approximately two inches deep and determined that the temperature of the water was 119
to 122 degrees at different locations in the tub. After fifteen minutes of running the hot
4 water only, the depth of the water was three and three-eighths inches deep and was 127.3
degrees.
In a subsequent interview with police, Shaw stated that the bathtub was not filled
using the faucet as reported by Sandoval and that Sandoval had instructed her not to say
how M.S. was really burned “because he didn’t want to get in trouble.” Transcript at
263. After police further questioned Sandoval and presented the information provided by
Shaw, Sandoval informed police that he had filled a five-gallon bucket with water
through the hot water spigot for the washing machine and poured the water into the
bathtub. Sandoval also stated that Shaw was not in the area when the incident took place.
Sandoval also stated to police that he spoke with Shaw about “getting their story straight”
before he took M.S. to the hospital and “explained the water was blazing hot” and “didn’t
want them to look like dumb asses.” Id. at 267.
Police recovered the five-gallon bucket which Sandoval used to fill the bathtub
and asked Sandoval to fill the bucket and pour it into the bathtub the way he had done
when he prepared a bath for M.S. The temperature of the water from the washing
machine spigot was approximately 152 degrees. After Sandoval poured the water from
the bucket into the bathtub, the depth of the water was one and one-quarter to one and
one-half inches and the temperature of the water was approximately 136 degrees. After
five minutes, the temperature of the water in the tub was approximately 132 degrees.
The State charged Sandoval with neglect of a dependent as a class B felony in
January 2009, and the State filed an amended information in November 2009. At
Sandoval’s jury trial, the State presented testimony from, among others, Shaw, the DCS
5 case manager, the police detective and officers who were involved with the investigation,
Dr. Winther, Dr. Kevin Berning, and Dr. Antoinette Laskey.
Dr. Winther testified that he observed that M.S. had suffered “significant
symmetrical [] burns involving the feet and the perineal area of the buttocks.” Id. at 141.
Dr. Winther testified that the burns were “[a]t least second degree burns.” Id. Pointing to
a photograph of M.S.’s burn injuries, Dr. Winther directed the jury to the burn line and
pointed out that “the reddened areas of the buttocks here are very symmetrical with a
horizontal line and then both feet, kind of a stocking distribution going up the leg.” Id. at
146. Dr. Winther testified that he did not notice any burns to M.S.’s hands or upper
extremities and that he did not notice any splash marks on M.S.’s body at all. Dr.
Winther testified as to the burns and blistering on M.S.’s feet and calf areas and as to the
“line of demarcation” suggesting that “it appears that the child entered hot water in an
upright position with the feet and legs drawn up . . . such that the lowest part[s] of the
body that [were] in the water were the feet and the perineum and the buttocks.” Id. at
146-147. Dr. Winther indicated that the lack of splash marks and burns on M.S.’s hands
indicates “[a] very classic description of a dipping or emersion [sic] type of burn pattern.”
Id. at 147. Dr. Winther testified that he did not think that Sandoval’s report regarding the
manner in which M.S. received the burns was accurate as there were no splash marks or
burns on M.S.’s hands and that if M.S. had entered the water on her own, she would have
withdrawn or burned her hands “in an attempt to try to scramble and get out of the
water.” Id. at 148. Dr. Winther testified that M.S.’s burns were very consistent with the
actions of “another person [taking] a child under the arms or by the hands and then
6 lower[ing] them into the water, to see these classic burn patterns.” Id. at 149. When
asked to elaborate on the burn pattern M.S. sustained, Dr. Winther testified that “as the
feet go in the water, it’s hot, so they withdraw because of pain and the legs go up and as
the child is entered into the water, the hot water . . . level goes up to a kind of stocking
distribution and because of the child trying to get away, withdrawal flexes up, the next
part to enter the water is the buttock and perineum and then it goes to a certain level and
then brought out of the water.” Id. at 152.
Dr. Berning testified that M.S. suffered second-degree burns and that M.S. had
burns over nearly fourteen percent of her total body surface area. Dr. Berning testified
that M.S.’s hands were not burned and that he did not recall observing any splash marks.
Dr. Berning testified that the version of events reported by Sandoval that M.S. climbed
into the tub, turned off the cold water, and sat down before Sandoval could remove her
was not consistent with M.S.’s injuries. Dr. Berning pointed to photographs presented to
the jury and noted that “the line of demarcation where the injury occurs is pretty much a
straight line” and that there were “no splash marks outside of the area.” Id. at 206. When
asked about the pattern of M.S.’s burns, Dr. Berning testified that it appeared that M.S.
“had what we consider a dipping type injury” and explained that “when you have a child
and you hold the child, dip them into liquid, that they would pull up their feet and you’d
have a line of demarcation across the buttock area and generally the feet.” Id. at 210. Dr.
Berning indicated that M.S.’s burns were not consistent with M.S. standing in hot water
and suddenly sitting down, in part because the pattern of injury shows that the feet were
angled at some point and because of the lack of splash marks. Dr. Berning further
7 indicated that M.S.’s burns were not consistent with M.S. standing in cooler water and
then turning off the cold water because in that case the child would have a layered effect
of the injury which did not occur. Dr. Berning also indicated that M.S.’s burns were not
consistent with M.S. climbing into the bathtub one foot at a time or sliding down into the
tub, due to the consistencies of the burns on the feet and the lack of splash injuries.
Dr. Laskey, an associate professor of pediatrics at Indiana University School of
Medicine who was board certified in child abuse pediatrics, consulted on M.S.’s case.
Dr. Laskey testified that, based upon a temperature of the water in the bathtub of 136
degrees, the pattern of injuries was not consistent with M.S. standing in the tub and then
sitting as that temperature would have been immediately painful and would have caused
at a minimum a first degree burn. Dr. Laskey testified that an adult initially perceives
pain at 119 degrees and that at 130 degrees it would take approximately thirty seconds to
cause a burn that would cause blistering. Dr. Laskey testified that the temperature for a
comfortable baby bath should be ninety-eight degrees. Dr. Laskey testified that
immersion in water with a temperature of 136 degrees would cause second-degree burns
in less than approximately thirty seconds and that M.S. would have experienced pain
within seconds at that temperature. Dr. Laskey testified that M.S.’s burns were consistent
with an adult caregiver picking her up and placing her in the water and not with stepping
into the tub based on M.S.’s size and developmental capabilities. Dr. Laskey also
testified that, given the nature of M.S.’s burns, she was in the water for approximately
five to thirty seconds.
8 The jury found Sandoval guilty of neglect of a dependent as a class B felony. The
trial court sentenced Sandoval to twelve years with ten years executed and two years
suspended to probation.
The sole issue is whether the evidence was sufficient to sustain Sandoval’s
conviction for neglect of a dependent as a class B felony. When reviewing claims of
insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of
witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we
look to the evidence and the reasonable inferences therefrom that support the verdict. Id.
We will affirm the conviction if there exists evidence of probative value from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Id.
Sandoval contends that the evidence was insufficient to show that he knowingly
placed M.S. in a situation that endangered the child’s health. Sandoval argues that
“whether the child was placed in the water by [him] or the child placed herself in the
water while unsupervised the ultimate question is whether [Sandoval] knew that the water
he had put into the bathtub was so hot as to burn the child.” Appellant’s Brief at 10-11.
Sandoval asserts that “[t]here is little evidence [from] which a reasonable jury could infer
that [he] knew that the hot water in the bathtub was hot enough to burn M.S.” Id. at 11.
Sandoval argues that visually cold water and hot water look the same, that he used water
directly from the hot water heater which presumably was not a normal occurrence, that
the water heater was turned to the highest setting of 150 degrees but this does not in any
way suggest that he was aware that the water coming out at that temperature would be
dangerous, that it would be hard for a reasonable jury to deduce that it is common
9 knowledge that 150 degree water is dangerous, and that although he later stated during
the investigation that water was blazing hot this fact does not demonstrate that he was
aware of the danger at the time of the injuries. Sandoval further argues that his attempt to
mislead law enforcement on how M.S. was injured does not demonstrate guilt as it is
readily possible that having accidentally hurt the child he was trying to avoid a case with
DCS.
The State argues that the totality of the circumstances show that Sandoval had
knowledge he was placing M.S. in a dangerous situation. The State asserts that Sandoval
“was subjectively aware that the hot water was extremely hot because [he] had set the
water temperature of the water heater at the maximum of 150 degrees” and that “it is
reasonable to infer that [he] was aware for quite some time that the hot water was
extremely hot.” Appellee’s Brief at 11. The State argues that there was sufficient
evidence, both direct and circumstantial, to support Sandoval’s conviction and that
Sandoval’s argument is merely an invitation for this court to reweigh the evidence and
the credibility of the witnesses.
The offense of neglect of a dependent is governed by Ind. Code § 35-46-1-4,
which at the time of the offense and the charging information provided in part under
subsection (a) that “[a] person having the care of a dependent, whether assumed
voluntarily or because of a legal obligation, who knowingly or intentionally: (1) places
the dependent in a situation that endangers the dependent’s life or health . . . commits
neglect of a dependent, a Class D felony.” However, the offense is a class B felony if “it
is committed under subsection (a)(1) . . . and results in serious bodily injury.” Ind. Code
10 § 35-46-1-4(b)(2). “Serious bodily injury” means bodily injury that creates a substantial
risk of death or that causes serious permanent disfigurement, unconsciousness, extreme
pain, permanent or protracted loss or impairment of the function of a bodily member or
organ, or loss of a fetus. Ind. Code § 35-41-1-25. The amended charging information
alleged that “Sandoval, having the care of M.S. . . . , a dependent, whether assumed
voluntarily or because of a legal obligation, did knowingly or intentionally place M.S., in
a situation that endangered her life or health, resulting in serious bodily injury . . . .”
Appellant’s Appendix at 79.
A person engages in conduct “intentionally” if, when he engages in the conduct, it
is his conscious objective to do so. Ind. Code § 35-41-2-2(a). A person engages in
conduct “knowingly” if, when he engages in the conduct, he is aware of a high
probability that he is doing so. Ind. Code § 35-41-2-2(b); Villagrana v. State, 954 N.E.2d
466, 468 (Ind. Ct. App. 2011). Under the child neglect statute a “knowing” mens rea
requires a subjective awareness of a “high probability” that a dependent has been placed
in a dangerous situation. Villagrana, 954 N.E.2d at 468. Because, in most cases, such a
finding requires the factfinder to infer the defendant’s mental state, this court must look
to all the surrounding circumstances of a case to determine if a guilty verdict is proper.
Id.
A review of the evidence most favorable to Sandoval’s conviction indicates that
on January 15, 2009, Sandoval had care and control of M.S., his dependent. Sandoval
does not contest that M.S. sustained severe burns as a result of being immersed in or
coming into contact with hot water in the bathtub, which Sandoval had obtained from a
11 hot water spigot for a washing machine where the hot water heater was set to the
maximum temperature of 150 degrees. The singular dispute was whether the injuries
were inflicted knowingly or intentionally rather than accidentally.
At trial, the State presented the testimony of Dr. Winther, Dr. Berning, and Dr.
Laskey, and each testified that the nature, pattern, and distribution of M.S.’s burn
injuries, including the nature of the line of demarcation and the lack of splash marks
outside the burn area or upper extremities, was consistent with Sandoval lowering M.S.
into the hot water and was inconsistent with M.S. entering the water of her own accord.
In addition, the State presented testimony that M.S. would have experienced pain within
seconds of being placed in the hot water and that, in order for M.S. to sustain her injuries,
M.S. must have been immersed in the hot water for approximately five to thirty seconds.
Further, the State presented photographs of the bathroom, bathtub, the bathtub fixtures,
and numerous photographs showing M.S.’s multiple burn injuries together with the
physicians’ testimony explaining the nature and pattern of burns revealed in those
photographs.
A jury could have reasonably found from the evidence presented at trial that
Sandoval knowingly placed M.S. in a situation that endangered M.S.’s life or health and
that the placement resulted in serious bodily injury to M.S. Based upon the evidence
most favorable to the conviction, we conclude that sufficient evidence exists from which
the jury could find Sandoval guilty beyond a reasonable doubt of neglect of a dependent
as a class B felony. See Taylor v. State, 644 N.E.2d 612, 613-614 (Ind. Ct. App. 1994)
(holding that the State presented credible evidence supporting the judgment that the
12 defendant intentionally immersed the face of a four-month old child in scalding water,
resulting in burns, and noting that the evidence showed that the burns were not consistent
with splash burns because of the uniform depth of the burns and not consistent with the
defendant’s testimony that the child’s injuries were the result of an accident); Sipress v.
State, 562 N.E.2d 758, 759-760 (Ind. Ct. App. 1990) (holding that a reasonable trier of
fact could infer that the defendant knowingly placed his child in a situation which might
and in fact did endanger her life and health, observing that the State presented evidence
that the clear line of demarcation between the unburned and burned skin indicated that
the injury was caused by an immersion or a non-accidental pour and was not the result of
an accidental or splash-type injury and noting that the defendant’s conviction may be
supported by circumstantial evidence alone), reh’g denied.
For the foregoing reasons, we affirm Sandoval’s conviction for neglect of a
dependent as a class B felony.
Affirmed.
FRIEDLANDER, J., and PYLE, J., concur.