Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the May 22 2013, 10:32 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LEANNA WEISSMANN GREGORY F. ZOELLER
Lawrenceburg, Indiana Attorney General of Indiana
IAN MCCLEAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ZEBULAN HILDEBRAND,
)
Appellant-Defendant, )
)
vs. ) No. 69A01-1210-CR-459
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE RIPLEY CIRCUIT COURT
The Honorable Jonathan Cleary, Special Judge
Cause No. 69C01-1109-FB-12
May 22, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issues
Zebulan Hildebrand appeals his conviction for aggravated battery as a Class B
felony. Hildebrand presents three restated issues on appeal: 1) whether it was
fundamental error for the trial court to allow certain expert testimony; 2) whether
Hildebrand’s sentence is inappropriate in light of his character and the nature of the
offense; and 3) whether the judgment of conviction should be corrected to clarify his
conviction. Concluding that there was no fundamental error in admission of the
testimony, that Hildebrand’s sentence is not inappropriate, and that the judgment of
conviction should be amended for clarification, we affirm in part and remand for
correction of the judgment of conviction.
Facts and Procedural History
On August 12, 2011, Hildebrand brought his two-month-old son, S.H., into the
emergency room. Hildebrand indicated that he had been watching S.H. along with his
two older children, a one-year-old and a two-year-old, when the older children ran
through the room, knocked Hildebrand off balance, and Hildebrand dropped S.H.
Hildebrand stated that after being dropped, S.H. became limp and stopped breathing.
Upon arrival at the emergency room, S.H. was having difficulty breathing, and was
displaying abnormal limb movement. S.H. was rated as being a five on the Glasgow
coma scale; anything under an eight is considered to be a coma. S.H. was then
transported to a larger children’s hospital in Cincinnati, which was better equipped to
deal with his condition.
Upon arrival in Cincinnati, it was discovered that S.H. had subdural hematomas
(bleeding on the brain) on both sides of the brain, and a lacerated (torn) liver. It appears
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that at one point, Hildebrand told a hospital staff member that he had fallen on S.H. after
being tripped by the older children, but later he was not able to tell physicians whether or
not he had fallen on S.H. Hildebrand also could not recall whether he had given S.H.
chest compressions. One of the physicians with whom Hildebrand spoke was Dr.
Makoroff. Dr. Makoroff was concerned by the vagueness with which Hildebrand
described the incident, and the inconsistencies between his story and S.H.’s injuries, and
eventually she alerted police that she suspected child abuse. When Indiana State Police
Detective Rohlfing spoke to Hildebrand, Hildebrand stated that he had shaken S.H. In
his discussion with Detective Rohlfing, Hildebrand implied that the shaking had occurred
when he tried to catch S.H. mid-fall and had jerked him back up, but then lost his grip
again and S.H. fell to the floor.1 That same day, tests revealed that S.H. exhibited retinal
hemorrhages, and the pediatric ophthalmologist, Dr. West, diagnosed S.H. with abusive
head trauma. In talking to Detective Rohlfing, Hildebrand admitted that he had not
initially told doctors the whole story surrounding S.H.’s injuries, and admitted that his
failure to tell the doctors the truth was an attempt to help himself.
On September 19, 2011, Hildebrand was charged with battery resulting in serious
bodily injury, a Class B felony, and aggravated battery, a Class B felony. In August
2012, Hildebrand was tried before a jury. At trial, Dr. Makoroff testified that she
diagnosed S.H. with child abuse or abusive head trauma; Dr. West testified that the
trauma to S.H. was non-accidental. The jury found Hildebrand guilty of both counts.
1
At some point, either at trial or before, Hildebrand indicated that he shook S.H. after he had fallen, in an
attempt to revive him.
3
The court held a sentencing hearing in September 2012, and noted the following
considerations as impacting sentencing:
The victim, [S.H.], was two (2) months old.
The Defendant does not have a criminal history.
The Defendant told Indiana State Police Detective Tracy Rohlfing that you
do not admit to doing this, wanted to hide the fact that he almost killed
[S.H.], he jerked the shit out of [S.H.] two to three times, and he thought he
broke [S.H.]’s neck.
The Defendant was in a position of trust, as he is the father of [S.H.], and
was the sole caretaker in the home at the time the two month old was
injured.
Brief of Appellant at 32. The court also noted other considerations, including the
multiple injuries that S.H. was found to have sustained. The court sentenced Hildebrand
to sixteen years at the Department of Correction with two years suspended to probation.
This appeal followed. Additional facts will be supplied as necessary.
Discussion and Decision
I. Fundamental Error
A. Standard of Review
We will review errors not preserved at trial only if they rise to the level of
fundamental error. Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994). The burden of
proving that an alleged error occurred and that it constitutes fundamental error rests with
the defendant. Id. The fundamental error rule 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 denies the defendant fundamental due process.
Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct. App. 2010), trans. denied. Fundamental
error is defined as error so prejudicial to the rights of a defendant that a fair trial is
rendered impossible. Id. The mere fact that error occurred and that it was prejudicial
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will not satisfy the fundamental error rule. Id. In determining whether an alleged error
denied the defendant a fair trial, we must consider whether the resulting harm or potential
for harm is substantial. Townsend, 632 N.E.2d at 730. We look to the totality of the
circumstances and decide whether the error had substantial influence upon the verdict to
determine if the trial was unfair. Id.
B. Admission of Physician Testimony
Hildebrand first challenges the testimony of Drs. Makoroff and West, claiming
that the testimony was too speculative because the doctors did not have all of the facts—
namely Hildebrand’s later admission that he shook S.H.—when they made their
diagnoses. Further, Hildebrand argues that the testimonies regarding S.H.’s injuries
being the result of child abuse or non-accidental trauma were in violation of Indiana
Evidence Rule 704 in that they went to the issue of intent. Because Hildebrand moved in
limine to prevent the testimony but did not object at the time of the testimony, any error
was not preserved for appeal. Raess v. Doescher, 883 N.E.2d 790, 796-97 (Ind. 2008).
We thus analyze the challenged testimonies under the fundamental error doctrine.
Regarding the nature of the doctors’ conclusions, we disagree that the testimony
was too speculative. While Dr. Makoroff formed an initial opinion about the nature of
S.H.’s injuries, her diagnosis of child abuse did not solidify until Dr. West examined S.H.
and discovered retinal hemorrhaging. That was the same day that Detective Rohlfing
first spoke with Hildebrand and Hildebrand admitted to shaking S.H. It appears that that
additional background information did not change either doctor’s opinion as to the nature
of the injuries, either that day or at any time up to and including when they gave their
testimony at trial.
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Moreover, a review of the record shows that Dr. Makoroff is a child abuse
specialist, and her transcript testimony was over one hundred and fifty pages. At trial,
she discussed her extensive background and experience, as well as her exam of S.H.’s
medical records and CT scans, examination of S.H. himself, and conversation with S.H.’s
parents. She specifically noted that she felt her job was not only to make sure that no
incidents of child abuse were missed, but also that child abuse was not mistakenly
diagnosed. She testified as to other possible causes for each of S.H.’s injuries, and then
explained how those possible causes had been ruled out or were not consistent with
Hildebrand’s account of the accident or with the totality of the combination of S.H.’s
particular injuries. She went through each test and finding and explained how it
contributed to her analysis and how she reached her ultimate diagnosis. In sum, we are
convinced that her diagnosis was far from speculative.
Dr. West’s testimony was shorter and more specific because she was the
ophthalmologist who examined S.H.’s eyes and discovered the retinal hemorrhages, and
her testimony focused on her findings. Nonetheless, she also discussed other possible
causes for the type and severity of S.H.’s hemorrhages, and then explained how those
other causes—for example, diabetes, CPR, or a fall as Hildebrand described it—had been
ruled out or were inconsistent, and she was left with abusive head trauma as the only
possibility within a medical certainty. She was specifically asked whether the
hemorrhages could have been caused by a shaking to revive S.H., and she testified that
they could not. Her testimony was also not too speculative.
Hildebrand also contends that the doctors’ testimony violated Indiana Evidence
Rule 704, arguing that the opinion that S.H.’s injuries were caused by child abuse rather
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than accidental injury went to intent and/or the ultimate issue. Indiana Evidence Rule
704 states:
(a) Testimony in the form of an opinion or inference otherwise admissible
is not objectionable merely because it embraces an ultimate issue to be
decided by the trier of fact.
(b) Witnesses may not testify to opinions concerning intent, guilt, or
innocence in a criminal case; the truth or falsity of allegations; whether a
witness has testified truthfully; or legal conclusions.
Hildebrand cites no Indiana authority to support his argument, but cites to two
cases from other jurisdictions, Wyatt v. State, 405 So.2d 154 (Ala. Crim. App. 1981), and
State v. Sanchez-Alfonso, 293 P.3d 1011 (Or. 2012). However, in Wyatt, the court
disapproved of a doctor testifying that the child was a victim of child abuse because the
facts and medical findings were simple enough to be understood by a jury, and therefore
the ultimate determination of abuse was their conclusion to draw. 405 So.2d at 158. And
in Sanchez-Alfonso, the problem with the doctor’s testimony was not that it went to
whether the child had been abused, but that the doctor testified that the defendant was the
abuser. 293 P.3d at 1017.
The State notes that Rule 704 specifically allows that testimony is not
objectionable merely because it goes to an ultimate issue. The State also cites to a case
more generally on point, Julian v. State, 811 N.E.2d 392 (Ind. Ct. App. 2004), trans.
denied, in which we determined that expert testimony was not in violation of Rule 704.
In that case, an arson case, an expert testified that the fire in question had been
intentionally set. We determined that because the expert did not testify that the defendant
had intentionally set the fire, the testimony was not in violation of Rule 704. Julian, 811
N.E.2d at 400. Likewise, here the doctors testified as to their diagnosis of child abuse,
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but neither doctor testified that Hildebrand had intentionally injured S.H. It is true that
Hildebrand admitted to being the only caretaker for S.H. that day. However, we agree
with the State that the fact that the doctors’ testimonies, if believed, and when combined
with other evidence, might have led the jury to conclude that Hildebrand intentionally
injured S.H., does not mean that the testimony was in violation of Rule 704. We
conclude that the doctors’ testimonies did not violate Rule 704.
Because the doctors’ testimony as a whole was broad and thorough and took into
account S.H.’s multiple injuries and the backstory provided by Hildebrand, we conclude
that the testimony was not too speculative. Further, the testimony was not in violation of
Indiana Evidence Rule 704. We conclude that there was no fundamental error in
allowing Drs. Makoroff and West to testify to their diagnoses of child abuse and non-
accidental trauma.
II. Appropriateness of Sentence
A. Standard of Review
We are empowered by Indiana Appellate Rule 7(B) to revise a sentence “if, after
due consideration of the trial court’s decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the offender.” The
burden is on the defendant to persuade us that his sentence has met this inappropriateness
standard of review. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). When
conducting this inquiry, we may look to any factors appearing in the record. Roney v.
State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied.
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B. Hildebrand’s Aggravated Battery Sentence
Next, Hildebrand challenges his sentence, arguing that it is inappropriate in light
of his character and the nature of the offense. We disagree. Hildebrand was convicted of
aggravated battery as a Class B felony, and the statutory sentencing range was thus
between six and twenty years, with an advisory sentence of ten years. Ind. Code § 35-50-
2-5. Hildebrand was sentenced to sixteen years, with two years suspended to probation.
Hildebrand argues that the nature of the offense was not egregious enough to
warrant his sentence, because S.H.’s injuries were “typical” of what one would expect of
a Class B felony. Br. of Appellant at 23. Under this reasoning, rarely would any offense
warrant an enhanced sentence. Moreover, Hildebrand downplays the continuing and
potential life-long repercussions of S.H.’s injuries, as it appears that while S.H. has
improved since being released from this hospital, he continues to be delayed in reaching
developmental milestones.
Hildebrand also argues that his character suggests that a reduced sentence would
be more appropriate. Hildebrand notes his remorse for S.H.’s injuries, his supportive
family, and his lack of criminal history. He fails, however, to address his admission to
Detective Rohlfing that he initially lied to doctors about the accident in an effort to
protect himself. He also fails to address what we believe to be an important factor—that
the victim was his own two-month-old son. Abuse of that position of trust speaks to his
character, and perhaps says more than any later regret can. In light of the totality of the
nature of the offense and Hildebrand’s character, we conclude that the sentence imposed
by the trial court was not inappropriate.
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III. Abstract of Judgment
Finally, Hildebrand claims that the trial court orders are not clear as to whether he
was convicted of both charged counts, and that if both convictions stand, double jeopardy
is implicated. The trial court’s judgment of conviction and sentencing order notes that
Hildebrand was “convicted by a jury . . . of Count I . . . and Count II . . .” but that the
court
now enters judgment of conviction for Count II: Aggravated Battery, a
Class B felony and does not enter a conviction or sentence on Count I:
Battery Resulting in Serious Bodily Injury, a Class B felony, because said
convictions are based upon the same essential material facts and
convictions and sentencing on both would violate double jeopardy.
Br. of Appellant at 31. The abstract of judgment notes Hildebrand’s sentence for Count
II but does not address Count I. The State does not object to remanding this case with
instructions to clarify that judgment of conviction was entered only for Count II of the
information. We agree with Hildebrand that a conviction can have ramifications even if a
defendant is not sentenced for it, and we remand to the trial court to correct the abstract
of judgment to indicate that judgment of conviction was not entered for Count I, battery
resulting in serious bodily injury.
Conclusion
Concluding that the expert testimony was not overly speculative and did not
violate Indiana Evidence Rule 704, that Hildebrand’s sentence is not inappropriate in
light of his character and the nature of the offense, and that the abstract of judgment
should be clarified, we affirm in part and remand to amend the abstract of judgment
consistent with this opinion.
Affirmed in part and remanded.
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FRIEDLANDER, J., and CRONE, J., concur.
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