MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be                                    Dec 18 2018, 10:55 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
Joshua Flowers                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Angela Sanchez
                                                        Assistant Section Chief, Criminal
                                                        Appeals
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Evan D. Huntsinger,                                     December 18, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        36A05-1707-CR-1610
        v.                                              Appeal from the Jackson Circuit
                                                        Court
State of Indiana,                                       The Honorable Richard W.
Appellee-Plaintiff.                                     Poynter, Judge
                                                        Trial Court Cause No.
                                                        36C01-1604-F3-7



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A05-1707-CR-1610 | December 18, 2018          Page 1 of 13
                                       Statement of the Case
[1]   Evan D. Huntsinger appeals his convictions for battery, as a Level 3 felony;

      neglect of a dependent, as a Level 3 felony; and three counts of neglect of a

      dependent, each as a Level 6 felony. Huntsinger raises five issues for our

      review, which we restate as follows:


              1.      Whether Huntsinger preserved for appellate review his
                      argument that the trial court abused its discretion when it
                      admitted into evidence a forensic interview of Kh.H., a
                      step-sibling of Huntsinger’s victim.


              2.      Whether the trial court abused its discretion when it
                      denied Huntsinger’s motion for a mistrial.


              3.      Whether the State presented sufficient evidence to support
                      Huntsinger’s three convictions for Level 6 neglect of a
                      dependent.


              4.      Whether Huntsinger’s convictions for battery, as a Level 3
                      felony, and neglect of a dependent, as a Level 3 felony,
                      violate Indiana’s prohibitions against double jeopardy.


              5.      Whether the trial court abused its discretion when it
                      sentenced Huntsinger to an aggregate term of nine years
                      with five years suspended.


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




      Court of Appeals of Indiana | Memorandum Decision 36A05-1707-CR-1610 | December 18, 2018   Page 2 of 13
                                 Facts and Procedural History
[3]   In February of 2016, Huntsinger and Lindsey Huntsinger were married, living

      together in Seymour, and had an infant son, L.H., who was just shy of seven

      months old. They lived with Huntsinger’s other minor children, Kh.H. and

      Ki.H., and Lindsey’s other minor child, J.W. Kh.H., the oldest child, was four

      years old at the time.


[4]   L.H. was “a healthy baby.” Jury Trial Tr. Vol. 1 at 224. Lindsey “never saw

      [L.H.] fall or strike his own head or get injured in any way.” Id. at 240. The

      children in the house “all got along pretty well,” and “none of them ever hit

      [L.H.]” Id. at 240-41.


[5]   While everyone was at home during the afternoon of February 22, Lindsey

      stepped outside to smoke a cigarette. When she went outside, Huntsinger was

      inside “holding [L.H.] to give him a bottle.” Id. at 234. Kh.H., Ki.H., and

      J.W. “were awake on the couch” in the same “area where [Huntsinger] was.”

      Id.


[6]   While she was outside, Lindsey “could hear [L.H.] inside being fussy.” Id. at

      236. Not more than four minutes after she had gone outside, Huntsinger came

      out holding L.H. and saying that L.H. needed to go to the hospital. Lindsey

      observed that L.H. “was completely limp.” Id. Huntsinger told Lindsey that he

      had been “feeding [L.H.] a bottle and trying to burp [L.H.] and [L.H.] just went

      limp.” Id. at 237.



      Court of Appeals of Indiana | Memorandum Decision 36A05-1707-CR-1610 | December 18, 2018   Page 3 of 13
[7]   Lindsey rushed L.H. to the Schneck Medical Center in Seymour. There,

      medical personnel observed that L.H. was “seizing,” which “in an infant you

      have to assume . . . [is] really serious” as it can “indicate some kind of brain

      damage . . . .” Id. at 178-79. Dr. Onyekachi Nwabuko ordered a CT scan of

      L.H.’s brain, which immediately revealed a “big bleed” on L.H.’s brain that

      “was actually shifting the brain from one side to the other . . . .” Id. at 184.

      The medical personnel at Schneck provided care to L.H. until he was

      transferred to Riley Children’s Hospital in Indianapolis.


[8]   At Riley, Dr. Tara Harris ordered an MRI and a skeletal survey of L.H., which

      revealed among other things that L.H. had also suffered rib fractures. Dr.

      Harris also conducted tests that ruled out a bleeding disorder as a cause for

      L.H.’s brain bleed. As a result of her examination of L.H., Dr. Harris

      concluded that L.H. had suffered “abusive head trauma,” which “we used to

      call Shaken Baby Syndrome.” Jury Trial Tr. Vol. 2 at 221. As she later

      explained, “with [L.H.] the fact that he ha[d] subdural[ hematomas] and

      subarachnoid[] and retinal hemorrhages and posterior rib fractures, all of those

      together can only be explained by abuse.” Id. at 223-24.


[9]   On February 23, case workers for the Indiana Department of Child Services

      removed the children from the home. J.W. was placed with his biological

      father, Cole Williamson. On at least one occasion shortly thereafter, J.W. told

      Williamson that Huntsinger had “hit [his] brother” L.H. Id. at 109. And, on

      February 26, Stephanie Back conducted a recorded forensic interview of Kh.H.



      Court of Appeals of Indiana | Memorandum Decision 36A05-1707-CR-1610 | December 18, 2018   Page 4 of 13
       at the Child Advocacy Center of Southeastern Indiana. In that interview,

       Kh.H. stated that she had seen Huntsinger shake L.H. on February 22.


[10]   The State charged Huntsinger as follows: Count 1: battery, as a Level 3 felony;

       Count 2: neglect of a dependent (L.H.), as a Level 3 felony; Count 3: neglect

       of a dependent (Kh.H.), as a Level 6 felony; Count 4: neglect of a dependent

       (Ki.H.), as a Level 6 felony; and Count 5: neglect of a dependent (J.W.), as a

       Level 6 felony. At his ensuing jury trial, Lindsey and Williamson both testified.

       Kh.H. testified in person and stated that she saw Huntsinger “shooked [L.H.]

       too hard and hurt him real hard.” Id. at 38. Kh.H. also testified that

       Huntsinger had told her not to tell anyone what he had done to L.H. The State

       also admitted into evidence L.H.’s medical records, and the State called L.H.’s

       treating physicians as witnesses. At the close of the State’s case-in-chief,

       Huntsinger moved for a directed verdict on Counts 3, 4, and 5, which related to

       endangerment of Kh.H.’s, Ki.H.’s, and J.W.’s mental health from having been

       near L.H. during the February 22 battery. The trial court denied Huntsinger’s

       motion.


[11]   During Huntsinger’s cross-examination of Kh.H., “some people in the

       audience” observed “the State communicate with one of the Jurors . . . .” Id. at

       85. Huntsinger brought the matter to the court’s attention outside the presence

       of the jury, and the prosecutor responded, “I know what he’s talking about.

       You were asking one of the questions for like the tenth time and one of the

       Jurors was nodding her head because [Kh.H. had] answered it and I was like

       nodding my head too. Yeah.” Id. The juror in question was an alternate juror.

       Court of Appeals of Indiana | Memorandum Decision 36A05-1707-CR-1610 | December 18, 2018   Page 5 of 13
       The court brought that juror into the courtroom and asked her about the

       incident, and she stated that she remembered “looking” in the direction of the

       prosecutor because of the “repetition” of the questions and the “lengthy

       process” of the cross-examination for Kh.H. Id. at 87. She acknowledged that

       she had “nodded” her head and “made eye contact” with the prosecutor in an

       “[o]h my gosh” expression. Id. at 88.


[12]   The court then admonished the juror that she was not to have “any kind

       of . . . communication . . . in any way” with anyone in the courtroom and that

       she was to instead “focus on the witness.” Id. The court further told her that

       communication with others was “inappropriate.” Id. The juror responded that

       she understood the court’s admonishment. Huntsinger then moved for a

       mistrial, which the court denied.


[13]   During his case-in-chief, Huntsinger attacked Kh.H.’s credibility. In particular,

       Huntsinger testified that Kh.H. was “on the sensory processing disorder

       spectrum” and that her perceptions are “like fantasy.” Jury Trial Tr. Vol. 3 at

       189-90. Huntsinger also called his own expert witness, Dr. Peter Dehnel, who

       testified that “it’s incredibly difficult to get reliable testimony from kids” and

       that an inexperienced child interviewer can affect the reliability of a child’s

       testimony. Id. at 135. After Huntsinger rested, the State on rebuttal moved to

       admit Kh.H.’s recorded forensic interview with Back to demonstrate Kh.H.’s

       credibility. Huntsinger objected to the admission of the forensic interview only

       on the ground that the court had simultaneously denied him his request to

       admit further evidence to challenge the interviewer. Id. at 230-50. The trial

       Court of Appeals of Indiana | Memorandum Decision 36A05-1707-CR-1610 | December 18, 2018   Page 6 of 13
       court overruled Huntsinger’s objection. The jury then found Huntsinger guilty

       as charged.


[14]   At the conclusion of the ensuing sentencing hearing, the trial court found the

       following aggravating and mitigating circumstances:


               [O]bviously one of the things I consider when announcing a
               sentence is the nature and circumstances of the offense . . . . The
               problem in this situation is we don’t know how [L.H.] will do,
               the child is just too young. The developmental injuries this child
               may have sustained will not be pronounced until probably the
               child is school . . . age, but the doctor was clear that there will be
               injuries to this child . . . . There is no doubt that this child will
               sustain long-term damage. The question is to what degree. . . .
               This child could’ve very easily died. . . . The injuries to this child
               were clear, the child was gripped . . . sufficiently to fracture the
               spinal area . . . . One of the things the State brought out . . . was
               involving the daughter. It’s one thing to deny one’s own guilt,
               but to me, getting a child, especially a child that you could tell
               was torn between a love for her father, trying to protect her
               father, not wanting to make her father mad and having to be
               ordered by a man in a black robe to answer questions. That was
               very concerning to me. Getting a child to lie or to cover for you
               because you don’t want to admit your guilt really bothers me.
               And I don’t doubt for a second this child is being honest in her
               testimony, what she saw. That, to me, is significant. Also,
               the . . . the victim’s age . . . . The crime requires you to be over
               eighteen years of age for [b]attery, but it says a child under the
               age of fourteen. This child is substantially younger than the age
               of fourteen. This child was completely defenseless.
               Completely. . . . That, to me, is a significant factor. The fact that
               relates to Count 1 that you were in a position of trust for this
               child. . . . [Y]ou abused a position of trust involving this
               child. . . . That, to me, is another significant aggravating factor.
               What are the mitigating factors? The mitigators are the fact that

       Court of Appeals of Indiana | Memorandum Decision 36A05-1707-CR-1610 | December 18, 2018   Page 7 of 13
               you have no criminal history. That is true. There could be some
               hardship on your family as a result of this, but I believe the
               seriousness of the offense outweighs any mitigation in this case.


       Sent. Tr. at 28-31. The court then ordered Huntsinger to serve an aggregate

       term of nine years with five years suspended. This appeal ensued.


                                      Discussion and Decision
                                      Issue One: Forensic Interview

[15]   On appeal, Huntsinger first asserts that the trial court violated Indiana’s

       protected person statute, Ind. Code § 35-37-4-6 (2018), when it admitted

       Kh.H.’s recorded forensic interview into evidence. However, Huntsinger did

       not object at trial on the ground that the interview was inadmissible under that

       statute. “It is well-settled law in Indiana that a defendant may not argue one

       ground for objection at trial and then raise new grounds on appeal.” Hitch v.

       State, 51 N.E.3d 216, 219 (Ind. 2016) (quotation marks omitted). Accordingly,

       Huntsinger has not preserved this issue for our review, and we do not consider

       it. See, e.g., Leonard v. State, 80 N.E.3d 878, 884 n.4 (Ind. 2017).


                                    Issue Two: Motion for a Mistrial

[16]   Huntsinger next asserts that the trial court abused its discretion when it denied

       his motion for a mistrial based on the “communication” between the prosecutor

       and the alternate juror. See Jury Trial Tr. Vol. 2 at 85-88. “Whether to grant or

       deny a motion for a mistrial lies within the sound discretion of the trial court.

       We afford great deference to the trial court’s decision and review the decision


       Court of Appeals of Indiana | Memorandum Decision 36A05-1707-CR-1610 | December 18, 2018   Page 8 of 13
       solely for an abuse of that discretion.” Isom v. State, 31 N.E.3d 469, 480 (Ind.

       2015) (citations omitted).


[17]   A mistrial “is an extreme remedy that is only justified when other remedial

       measures are insufficient to rectify the situation.” Id. at 481 (quotation marks

       omitted). Here, in response to the “communication” between the prosecutor

       and the alternate juror,1 the trial court issued an admonishment to the juror.

       “[A] properly submitted admonition to the jury is presumed to cure” error. Id.

       (quotation marks omitted). We are not persuaded by Huntsinger’s bald

       assertions on appeal that the trial court’s admonishment here was somehow

       insufficient. Rather, we agree with the State that Huntsinger’s argument

       “comes nowhere close to his heightened burden” to show that the extreme

       remedy of a mistrial was required despite the admonishment. Appellee’s Br. at

       23. We affirm the trial court’s denial of Huntsinger’s motion for a mistrial.


                  Issue Three: Sufficiency of the Evidence for Counts 3, 4, and 5

[18]   We next consider Huntsinger’s argument that the State failed to present

       sufficient evidence to support the three Level 6 felony convictions for neglect of

       a dependent. “When an appeal raises a sufficiency of evidence challenge, we

       do not reweigh the evidence or judge the credibility of the witnesses, and we




       1
         In his brief on appeal, Huntsinger asserts that he was denied an offer to prove that oral communication had
       also occurred between the prosecutor and the juror. We cannot agree—at no point during his colloquy with
       the trial court did Huntsinger affirmatively request an offer to prove some oral communication between the
       prosecutor and the juror. Accordingly, Huntsinger did not preserve his argument regarding the denial of any
       such request.

       Court of Appeals of Indiana | Memorandum Decision 36A05-1707-CR-1610 | December 18, 2018         Page 9 of 13
       respect a fact-finder’s exclusive province to weigh conflicting evidence.” Phipps

       v. State, 90 N.E.3d 1190, 1195 (Ind. 2018) (quotation marks omitted). We

       consider only the probative evidence and the reasonable inferences that support

       the verdict. Id. We will affirm if the probative evidence and reasonable

       inferences drawn from the evidence could have allowed a reasonable trier of

       fact to find the defendant guilty beyond a reasonable doubt. Id.


[19]   To prove its three charges of neglect of a dependent, as Level 6 felonies, the

       State here was required to show that Huntsinger, having the care of Kh.H.,

       Ki.H., and J.W., his dependents, did knowingly place those dependents in a

       situation that endangered their lives or health. I.C. § 35-46-1-4(a)(1). Our case

       law is clear that “mental and emotional” health is captured by the neglect

       statute. Harrison v. State, 644 N.E.2d 888, 890 (Ind. Ct. App. 1994), trans.

       denied. “[T]he purpose of the neglect statute is to protect a dependent from the

       failure of those entrusted with his or her care to take the action necessary to

       ensure the dependent is safe.” Id. However, the “risk of . . . mental harm”

       must “go[] substantially beyond the normal risk of bumps, bruises, or even

       worse that accompany the activities of the average child. This is consistent with

       a ‘knowing’ mens rea, which requires subjective awareness of a ‘high

       probability’ that a dependent has been placed in a dangerous situation . . . .”

       Gross v. State, 817 N.E.2d 306, 309 (Ind. Ct. App. 2004).


[20]   Huntsinger asserts that the three children “were not exposed to any danger or

       risk.” Appellant’s Br. at 23. In particular, Huntsinger argues that there was no

       evidence that, had he used on any of the three children the amount of force he

       Court of Appeals of Indiana | Memorandum Decision 36A05-1707-CR-1610 | December 18, 2018   Page 10 of 13
       used on L.H., any of the other three children would have been harmed. But

       Huntsinger’s argument misunderstands the State’s charges. As the prosecutor

       made clear during the jury trial, the three Level 6 felony charges were premised

       on Huntsinger having placed the children in a situation that endangered their

       mental health by abusing L.H. so near to them.


[21]   And the evidence most favorable to the verdict supports Huntsinger’s three

       Level 6 convictions. Kh.H., Ki.H., and J.W. were each in close proximity to

       the battery when it happened. Indeed, while not necessary to demonstrate the

       offenses, the evidence plainly demonstrates that at least two of the children,

       Kh.H. and J.W., actually observed the battery and remembered it some time

       later. We conclude that the evidence demonstrates that Huntsinger was aware

       of a high probability that his battery of L.H. placed the other three children in a

       situation that endangered their mental health. See I.C. § 35-46-1-4(a)(1). Thus,

       we affirm Huntsinger’s convictions on Counts 3, 4, and 5.


                           Issue Four: Double Jeopardy on Counts 1 and 2

[22]   Huntsinger next asserts that the trial court violated his right to be free from

       double jeopardy when it entered judgment of conviction on both Count 1 (his

       battery of L.H.) and Count 2 (neglect of L.H. that endangered L.H.’s life). The

       State properly concedes that the trial court violated Huntsinger’s right to be free

       from two convictions for the very same act when it entered its judgment of

       conviction on both Count 1 and Count 2. See Bradley v. State, ___ N.E.3d ___,

       No. 87A01-1711-CR-2584, 2018 WL 5578874, at *5-7 (Ind. Ct. App. Oct. 30,

       2018), not yet certified. We agree. Both Count 1 and Count 2 are based on the
       Court of Appeals of Indiana | Memorandum Decision 36A05-1707-CR-1610 | December 18, 2018   Page 11 of 13
       very same act, namely, Huntsinger’s shaking of L.H. Accordingly, we reverse

       Huntsinger’s conviction on Count 2 and remand with instructions for the trial

       court to vacate the judgment and sentence on that Count.


                                           Issue Five: Sentencing

[23]   Last, Huntsinger argues that the trial court abused its discretion when it

       sentenced him. Sentencing decisions rest within the sound discretion of the

       trial court and are reviewed on appeal only for an abuse of discretion. McElfresh

       v. State, 51 N.E.3d 103, 107 (Ind. 2016). One way in which a trial court may

       abuse its discretion is by omitting from its sentencing statement “reasons that

       are clearly supported by the record and advanced for consideration, or the

       reasons given are improper as a matter of law.” Anglemyer v. State, 868 N.E.2d

       482, 491 (Ind.), clarified on reh’g on other grounds, 875 N.E.2d 218 (2007).

       However, “a trial court can not . . . be said to have abused its discretion in

       failing to ‘properly weigh’” aggravators or mitigators. Id.


[24]   Huntsinger asserts that the trial court abused its discretion because “the victim’s

       age is a material element” of his Level 3 battery conviction. Appellant’s Br. at

       27. He also asserts that the fact that he was in a position of trust over the

       children is “an essential element” of his Level 6 neglect convictions. Id. at 27-

       28. Both of those assertions are incorrect. The statutory definition of battery as

       relevant here does not require the victim specifically to be seven months old.

       I.C. § 35-42-2-1(j). Neither does the statutory definition of neglect as relevant

       here require the dependent specifically to be the defendant’s child or step-child.

       I.C. § 35-46-1-4(a)(1). Rather, those fact-specific circumstances were properly
       Court of Appeals of Indiana | Memorandum Decision 36A05-1707-CR-1610 | December 18, 2018   Page 12 of 13
       considered by the trial court as the nature and circumstances of the offenses.

       See I.C. § 35-38-1-7.1(a). Accordingly, we reject Huntsinger’s argument.


[25]   Huntsinger further argues that the trial court failed to properly weigh various

       aggravating and mitigating circumstances. This argument is not properly before

       us and we do not consider it. Anglemyer, 868 N.E.2d at 491. And, insofar as

       Huntsinger argues that the trial court failed to consider mitigating

       circumstances advanced for the trial court’s consideration but then not

       mentioned by the trial court in its sentencing statement, Huntsinger has not met

       his burden on appeal to show that any such circumstances were significant in

       light of his aggregate term of nine years—the advisory term for a single Level 3

       felony conviction—with five years suspended. See, e .g., McElfresh, 51 N.E.3d at

       112. Accordingly, we cannot say that the trial court abused its discretion when

       it sentenced Huntsinger.


                                                 Conclusion
[26]   In sum, we affirm Huntsinger’s convictions on Counts 1, 3, 4, and 5, as well as

       his sentence. However, we reverse Huntsinger’s conviction on Count 2, and we

       remand with instructions for the trial court to vacate that conviction and its

       concurrent sentence.


[27]   Affirmed in part, reversed in part, and remanded with instructions.


       Crone, J., and Pyle, J., concur.




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