Morgan J. Braun v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 08 2019, 10:23 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas C. Allen Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Morgan J. Braun, July 8, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-295
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1709-F3-47
Najam, Judge.
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Statement of the Case
[1] Morgan J. Braun appeals her conviction for neglect of a dependent, as a Level 3
felony, following a jury trial. Braun raises one issue for our review, namely,
whether the trial court committed fundamental error when it admitted certain
evidence.
[2] We affirm.
Facts and Procedural History
[3] Braun is the mother of E.E. (“Child”), who was born on September 26, 2016.
On December 28, Joshua Meyers, a family case manager with the Indiana
Department of Child Services (“DCS”), performed a wellness check on Child.
Meyers did not observe any visible injuries on Child. Later that day, Braun
took Child to the home of Regina Braun, Child’s paternal grandmother. While
Child was in Regina’s care that day, he was “absolutely fine[.]” Tr. Vol. II at
117. Braun again took Child to Regina’s home the next day, which was
Thursday, December 29. Regina watched Child from approximately 9:00 a.m.
until noon. Child was “absolutely normal.” Id. at 118.
[4] That afternoon, Braun dropped Child off at the home of Eugene Estrada, Jr.,
Child’s father (“Father”), prior to the start of her shift at a local restaurant.
Shortly after she had arrived at work, Braun got a call from Father. Father told
Braun that he had taken a shower with Child and that he had slipped in the
shower while holding Child. Father told Braun that Child did not hit his head
but that the shower rod had fallen and hit Child in the face.
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[5] Braun was still at work, so she called Regina. Braun was “panicked and upset,”
and she told Regina “that something had happened with” Child. Id. at 118.
Braun asked Regina what she should do, and Regina suggested that Braun
leave work. Braun was unable to leave work, so Regina suggested that Braun
ask Father to send a picture of Child. Braun told Regina that she would call
Regina back to “let [her] know what the results of that situation were.” Id. at
119. That night, Regina sent a text message to Braun asking about Child.
Braun told Regina that Child was “fine.” Id.
[6] The next morning, Braun took Child to a prescheduled wellness check. Dr.
Thomas Van Den Driessche examined Child. Braun did not tell Dr. Van Den
Driessche about Child’s fall. Child’s exam was “totally normal.” Id. at 238.
[7] Following the doctor’s appointment, Braun again took Child to Regina’s house.
While in Regina’s care, Child remained in his car seat. Regina “didn’t like the
position of his head” while he was in the seat. Id. at 120. “[I]t looked like it
was farther down than it normally would be and like it might interfere with his
airway[.]” Id. Regina asked Braun if everything was okay with Child. Braun
told Regina that the doctors had “said it was okay.” Id. Regina watched Child
for approximately forty-five minutes that day. During that time, Child had
“bubbles” coming out of his mouth, which “concerned” Regina because Child
was not teething. Id. Child did not wake up, and he stayed in the same
position in the car seat “the whole time” he was with Regina. Id. at 121. That
evening, Braun worked from 4:00 p.m. until just before 9:00 p.m.
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[8] In the early morning hours of Saturday, December 31, Braun took Child to the
emergency room. Jamie Chaffe, a physician assistant, was the first medical
professional to examine Child. Braun told Chaffe that Child had not been
eating well, that he had an “abnormal” leg twitch, that Child was drooling, that
Child was not following with his eyes as usual, and that Child “just wasn’t
himself.” Id. at 150. Braun told Chaffe that Child’s symptoms had started on
Thursday. Chaffe ordered a CT scan for Child. That scan showed that Child
had a subdural hematoma on the right and multiple hemorrhages on the left.
Dr. Barbara Schroeder, an ophthalmologist, then examined Child. Dr.
Schroeder observed that Child had hemorrhages throughout his entire right eye,
and he had a few hemorrhages in his left eye. Child began to have seizures, and
his condition deteriorated. Child’s injuries were life threatening.
[9] Child was placed in a medically induced coma, and he was placed on life
support. Child was ultimately in the hospital for fourteen days. As a result of
his injuries, Child suffers from a traumatic brain injury and cerebral palsy.
Since his release from the hospital, Child attends five appointments per week
for occupational therapy, physical therapy, and speech therapy.
[10] The State charged Mother with neglect of a dependent, as a Level 3 felony. 1
The trial court then held a jury trial on November 14 and 15, 2018. During the
State’s opening argument, the State twice informed the jury that it would hear
1
In a separate case, Father pleaded guilty to neglect of a dependent.
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evidence that Child had two healing rib fractures when he went to the
emergency room on December 31. Braun, who was represented by counsel, did
not object to either statement.
[11] During the trial, the State presented the testimony of Dr. Chandrashekhar
Yalamanchali. Dr. Yalamanchali testified that Child’s drooling, not eating,
and not being himself were symptoms of a head injury. Dr. Yalamanchali
further testified that waiting to take Child to the hospital on Saturday morning
when the symptoms had started on Thursday could have “[a]bsolutely” resulted
in Child’s death or caused Child’s symptoms to be worse or to last longer. Id. at
161. Dr. Yalamanchali also testified that, given the severity of Child’s injuries,
Child would have had symptoms prior to arriving at the hospital. In addition,
Dr. Yalamanchali testified that the cause of Child’s injuries was not having
been hit by the shower rod but, rather, that Child was “shaken.” Id. at 162.
[12] The State also presented the testimony of Chaffe and Dr. Schroeder. Chaffe
testified that Child’s injuries were not consistent with a fall in the shower. And
Schroeder testified that the hemorrhages in Child’s eyes were caused by a
“severe shaking injury.” Id. at 189.
[13] Dr. Ralph Hicks, a pediatrician, also testified at Braun’s trial. Dr. Hicks did not
examine or treat Child, but he reviewed Child’s medical records at the request
of DCS. During Dr. Hicks’ testimony, the State moved to admit as evidence X-
rays that the hospital had taken of Child. Braun stated that she had “no
objection” to the admission of that evidence. Id. at 205. Dr. Hicks testified that
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poor eye contact, drooling, poor feeding, difficulty swallowing, and seizures are
all symptoms of a traumatic brain injury in a three-month-old baby. Further,
Dr. Hicks testified that, given Child’s injuries, Child would have developed his
symptoms within “seconds or perhaps minutes” after “whatever happened to
him happened.” Id. at 220. He also testified that a reasonable caretaker would
have noticed Child’s symptoms. Dr. Hicks further testified that a delay in
treatment “certainly increases the risk of more severe complications and also
increases the risk of death[.]” Id. at 218.
[14] Along with the injuries to Child’s brain, Dr. Hicks testified that the X-rays
showed that Child had previously sustained fractures to two of his ribs, which
fractures had occurred ten days to two weeks prior to Child’s admission to the
hospital. He testified that the rib fractures were likely caused by “squeezing,
forceful compression to the chest, . . . the result of an impact or drop, [or] some
sort of direct trauma[.]” Id. at 213. He further testified that the rib fractures
“would have been painful[.]” Id. Dr. Hicks testified that he did not believe
Child’s injuries were caused by a fall in the shower because he “wouldn’t expect
the . . . severity of the injuries” Child had from a shower rod and because falling
in the shower “wouldn’t explain the . . . healing rib fractures.” Id. at 216.
Braun did not object to any of Dr. Hicks’ testimony concerning the rib
fractures.
[15] Dr. Mark Kelly, a neurologist, also testified. Dr. Kelly testified that, based on
the results of an MRI scan, Child’s brain injuries happened twenty-four to forty-
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eight hours before the scan had been taken. He also testified, without objection,
that Child had healing rib fractures on two of his ribs.
[16] Finally, Dr. Van Den Driessche testified. Dr. Van Den Driessche testified that,
during the wellness check he had performed on Child, Braun did not give him
any information that Child had suffered a fall, had a leg twitch, had been
drooling, had a loss of appetite, or otherwise was not himself.
[17] At the close of the evidence, the State presented its closing argument. During
that argument, the State twice mentioned that Child had rib fractures that were
healing at the time he was admitted to the hospital. Specifically, the State
argued that, “this Child also had a healing rib fracture that . . . even if you
weren’t the one inflicting the rib fracture, in normal caretaking of the child you
would have noticed something’s going on, at least for the first few days of that
rib fracture[.]” Tr. Vol. III at 33. Braun did not object to the State’s discussion
of the fractures during its closing argument. The jury found Braun guilty of
neglect of a dependent, as a Level 3 felony. The trial court entered judgment of
conviction accordingly and sentenced Braun to ten years in the Department of
Correction. This appeal ensued.
Discussion and Decision
[18] Braun appeals her conviction for neglect of a dependent, as a Level 3 felony.
Braun’s only argument on appeal is that the trial court committed fundamental
error when it did not sua sponte disallow the State’s arguments and evidence
with respect to Child’s prior rib fractures. As our Supreme Court has explained:
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A claim that has been waived by a defendant’s failure to raise a
contemporaneous objection can be reviewed on appeal if the
reviewing court determines that a fundamental error occurred.
The fundamental error exception is extremely narrow, and
applies only when the error constitutes a blatant violation of
basic principles, the harm or potential for harm is substantial,
and the resulting error denied the defendant fundamental due
process. The error claimed must either make a fair trial impossible or
constitute clearly blatant violations of basic and elementary principles of
due process. This exception is available only in egregious
circumstances.
Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (emphasis added; quotation
marks and citations omitted). “To prove fundamental error,” the appellant
must show “that the trial court should have raised the issue sua sponte . . . .”
Taylor v. State, 86 N.E.3d 157, 162 (Ind. 2017).
[19] On appeal, Braun contends that “[t]he court committed fundamental error by
allowing extrinsic evidence of prior bad conduct to be admitted into evidence.”
Appellant’s Br. at 18. Specifically, Braun contends that the statements and
exhibits regarding Child’s prior rib fractures were inadmissible evidence of a
prior bad act under Indiana Evidence Rule 404(b), and that that evidence
allowed the jury to make a “forbidden inference” regarding her guilt. Id. at 21.
[20] However, the question is not whether the evidence of the prior rib fractures was
inadmissible. Rather, the question is whether the trial court committed
fundamental error, which considers whether the complained-of failure to act by
the court made “a fair trial impossible” or was a “clearly blatant violation[] of
basic and elementary principles of due process.” Brown, 929 N.E.2d at 207.
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Indeed, as we have noted before, “fundamental error in the evidentiary
decisions of our trial courts is especially rare.” Merritt v. State, 99 N.E.3d 706,
709 (Ind. Ct. App. 2018), trans. denied. For example, our Supreme Court has
explained that
an error in ruling on a motion to exclude improperly seized
evidence is not per se fundamental error. Indeed, because
improperly seized evidence is frequently highly relevant, its
admission ordinarily does not cause us to question guilt. That is
the case here. The only basis for questioning [the defendant’s]
conviction lies not in doubt as to whether [she] committed these
crimes, but rather in a challenge to the integrity of the judicial
process. We do not consider that admission of unlawfully seized
evidence ipso facto requires reversal. Here, there is no claim of
fabrication of evidence or willful malfeasance on the part of the
investigating officers and no contention that the evidence is not
what it appears to be. In short, the claimed error does not rise to
the level of fundamental error.
Brown, 929 N.E.2d at 207.
[21] Here, Braun makes no argument on appeal to explain how the allegedly
erroneous admission of evidence made a fair trial impossible or was contrary to
basic and elementary principles of due process. Rather, as in Brown, the only
basis Braun presents for challenging her conviction lies not in a challenge to
whether she committed the crime but, rather, in a challenge to the integrity of
the judicial process. See id. However, Braun was present at her trial and
represented by counsel when the State discussed the rib fractures during its
opening and closing arguments and when the State presented as evidence the X-
rays and doctors’ testimony about the rib fractures. Indeed, when the State
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moved to admit the X-rays as evidence, Braun explicitly stated that she had “no
objection.” Tr. Vol. II at 205. Braun had the opportunity to object and to
respond to that evidence either through cross-examination or by presenting her
own evidence on the rib fractures. Further, Braun makes no claim that the
State’s evidence was fabricated or otherwise not what it appeared to be.
Accordingly, “the claimed error does not rise to the level of fundamental error.”
Brown, 929 N.E.2d at 207. We affirm Braun’s conviction.
[22] Affirmed.
Baker, J., and Robb, J., concur.
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