FILED
Jul 21 2016, 7:06 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mikel An Krueger, July 21, 2016
Appellant-Defendant, Court of Appeals Cause No.
82A01-1509-CR-1392
v. Appeal from the Vanderburgh
Superior Court
State of Indiana, The Honorable Robert J. Pigman,
Appellee-Plaintiff. Judge
Trial Court Cause No.
82D02-1403-FB-361
Barnes, Judge.
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Case Summary
[1] Mikel An Krueger appeals her conviction for Class B felony neglect of a
dependent. We affirm.
Issue
[2] Krueger raises one issue, which we restate as whether the evidence is sufficient
to sustain her conviction.
Facts
[3] A.G. was born in March 2011 to Krueger and Kenneth Galloway. Krueger and
Galloway were not married, and A.G. lived with Krueger. Galloway and
several members of his extended family have been diagnosed with primary
pulmonary hypertension, a condition that causes the blood pressure within the
arteries that supply the lungs to be elevated. A patient with pulmonary
hypertension will become easily fatigued and can have difficulty breathing.
They may have “intermittent spells where they look blue.” Tr. p. 234. Sudden
events, such as fainting or cardiac arrest, are more common as the disease
progresses over months or years.
[4] Beginning in May 2011, A.G. began suffering from episodes in which he would
suddenly make a choking noise, turn blue, become stiff, and lose consciousness.
Krueger was with A.G. during each of the episodes. Dr. Julio Morera, a
pediatric cardiologist, treated A.G. in Evansville, but A.G. continued having
the episodes. A.G. was lifelined to Riley Hospital for Children in Indianapolis,
and he underwent a heart catheterization in July 2011. The heart
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catheterization showed that A.G. had mild pulmonary hypertension. A.G. was
treated with sildenafil, a medication that alleviates pulmonary hypertension by
dilating blood vessels. However, Krueger decided to stop giving the medication
to A.G. because she claimed that he was experiencing acid reflux as a side
effect. A.G.’s episodes continued, and in June 2012, Dr. Morera placed A.G.
on an EKG monitor. The monitor showed A.G.’s heart quicken and then stop
for a few seconds. A.G. was again transported to Riley Hospital, and a
pacemaker was implanted. Two days after the pacemaker was implanted, A.G.
had another episode. Because the doctors were concerned about the
functioning of the pacemaker, they performed an exploratory surgery, which
did not reveal a mechanical problem with the pacemaker.
[5] A.G. was later referred to Dr. Chris Johnsrude at Kosair Children’s Hospital in
Louisville. Dr. Johnsrude performed extensive testing on A.G. to determine
the cause of the episodes. He determined that A.G.’s pulmonary hypertension
was too mild to be causing the episodes. He also determined that the
pacemaker was unnecessary. Dr. Johnsrude placed A.G. on continuous EKG
monitoring, which revealed no abnormalities. A video EEG was also
performed, which also revealed no abnormalities. Krueger asked if A.G. could
be removed from the monitoring so that she could give him a bath. While
Krueger was alone with A.G. giving him a bath, A.G. had another episode.
Dr. Johnsrude was “despondent” that A.G. had an episode without the
monitoring equipment being connected. Id. at 180. Dr. Johnsrude suggested
sending A.G. home with video monitoring equipment to record an episode, but
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Krueger refused to permit the video monitoring. At that point, Krueger’s
mother, Staci Krueger, approached Dr. Johnsrude and expressed suspicion that
Krueger was somehow causing A.G.’s episodes.
[6] Dr. Johnsrude explained that A.G.’s episodes could be triggered by an adult in
several different ways by pressing on certain locations on A.G.’s body for a few
seconds. A.G. was referred to Kosair’s pediatric forensic medicine team, which
conducts child abuse examinations. Krueger was interviewed by detectives and
the Department of Child Services (“DCS”). DCS took custody of A.G. and
placed him with Galloway.1 Krueger was allowed supervised visitations. Grant
Wargel supervised a visitation on September 26, 2012. The visit was
videotaped. At one point during the visit, Krueger looked directly at the video
camera. A few minutes later, she moved to a location on a couch that was in
one of the camera’s blind spots. Wargel was taking notes and was not watching
Krueger, and Krueger said, “Grant I think he’s having a spell. I didn’t do it.”
Tr. p. 256. A.G. was stiff and unconscious.
[7] DCS referred Krueger to Dr. Susanne Blix, who diagnosed Krueger with
factitious disorder by proxy, which was formerly known as Munchausen
Syndrome by Proxy. Factitious disorder by proxy involves a caretaker
1
Krueger appealed the determination that A.G. and her other child were children in need of services. We
affirmed the trial court’s determination. See In re A.G., 6 N.E.3d 952 (Ind. Ct. App. 2014).
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exaggerating or causing medical symptoms in a dependent to gain attention,
validation, or some other perceived benefit.
[8] The State charged Krueger with Class B felony aggravated battery, Class B
felony battery resulting in serious bodily injury to a person less than fourteen
years of age, and Class B felony neglect of a dependent resulting in serious
bodily injury. A jury trial was held in July 2015. The jury found Krueger guilty
of Class B felony neglect of a dependent but not guilty of the other charges.
The trial court sentenced Krueger to ten years with eight years executed in the
Department of Correction, one year on work release, and one year on
probation.
Analysis
[9] Krueger argues that the evidence is insufficient to sustain her conviction for
neglect of a dependent. When reviewing the sufficiency of the evidence needed
to support a criminal conviction, we neither reweigh evidence nor judge witness
credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider
only the evidence supporting the judgment and any reasonable inferences that
can be drawn from such evidence.” Id. We will affirm if there is substantial
evidence of probative value such that a reasonable trier of fact could have
concluded the defendant was guilty beyond a reasonable doubt. Id.
[10] At the time of Krueger’s offense, Indiana Code Section 35-46-1-4 governed the
offense of neglect of a dependent and provided: “A person having the care of a
dependent, whether assumed voluntarily or because of a legal obligation, who
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knowingly or intentionally: (1) places the dependent in a situation that
endangers the dependent’s life or health . . . commits neglect of a dependent.”
Ind. Code § 35-46-1-4(a). The offense was a Class B felony if it resulted in
serious bodily injury. I.C. § 35-46-1-4(b)(2).
[11] Krueger argues that the evidence is insufficient to sustain her conviction
because the case against her was based on “sheer conjecture and surmise.”
Appellant’s Br. p. 17. According to Krueger, the State failed to present
sufficient evidence that a crime was even committed. Krueger points out that,
contrary to Dr. Johnsrude’s testimony, Dr. Morera testified that A.G.’s
episodes were consistent with primary pulmonary hypertension. She also
points out that no one saw Krueger inflict harm on A.G. or touch him
inappropriately. Krueger’s ex-boyfriend, Christopher Crowe, testified that he
was present during one of the episodes and that Krueger was driving when the
episode started. Further, even after A.G. was removed from Krueger’s care, he
allegedly had another three episodes while in the care of Krueger’s mother,
Staci. Contrary to Dr. Blix’s testimony, two other psychologists found no
indication that Krueger had factitious disorder by proxy. Krueger contends that
her argument is not an invitation to reweigh the evidence; rather, she contends
a conviction may not stand on mere speculation.
[12] The State argues that Krueger does, in fact, request that this court reweigh the
evidence. We agree. A.G. was diagnosed with mild primary pulmonary
hypertension based on extensive testing, and Dr. Johnsrude testified that A.G.’s
episodes were not consistent with that diagnosis. None of the treatments were
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effective in stopping the episodes. Dr. Johnsrude and his team of physicians
examined and ruled out every reasonable medical cause for the episodes. After
A.G. was removed from Krueger’s care in September 2012, he lived with
Galloway and Galloway’s family and then with Galloway and his girlfriend.
Galloway and his mother testified that, since being removed from Krueger,
A.G. had not had any episodes where he turned blue and lost consciousness.
Although Krueger’s mother and grandfather testified regarding three incidents
while A.G. was in their care, the State points out that the jury was entitled to
find them biased.
[13] We acknowledge that there were differing expert opinions presented here and
that some witness testimony conflicted with other witness testimony. However,
resolving those conflicts was the jury’s responsibility. On appeal, we cannot
reweigh the evidence or judge the credibility of the witnesses. Bailey, 907
N.E.2d at 1005. We conclude that the State presented sufficient evidence to
show that Krueger knowingly or intentionally placed A.G. in a situation that
endangered his life or health and resulted in serious bodily injury.
Conclusion
[14] The evidence is sufficient to sustain Krueger’s conviction for Class B felony
neglect of a dependent. We affirm.
[15] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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