FILED
Dec 27 2017, 7:53 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Nikos C. Nakos Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christine Marie Lindhorst, December 27, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1704-CR-696
v. Appeal from the Allen Superior
Court.
The Honorable Frances C. Gull,
State of Indiana, Judge.
Appellee-Plaintiff. Trial Court Cause No.
02D06-1510-F3-68
Barteau, Senior Judge
Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017 Page 1 of 16
Statement of the Case
[1] Christine Marie Lindhorst appeals her convictions of battery resulting in serious
1
bodily injury to a person less than fourteen years of age, a Level 3 felony; and
2
neglect of a dependent resulting in serious bodily injury, a Level 3 felony. She
also appeals the sentence imposed by the court. We affirm.
Issues
[2] Lindhorst raises three issues, which we restate as:
I. Whether the trial court abused its discretion in limiting
Lindhorst’s cross-examination of an expert witness.
II. Whether there is sufficient evidence to support Lindhorst’s
convictions.
III. Whether Lindhorst’s sentence is inappropriate in light of
the nature of the offense and the character of the offender.
Facts and Procedural History
[3] The parents of S.E., an infant girl, hired Lindhorst to babysit her at Lindhorst’s
house while they were at work. Lindhorst began taking care of S.E. when S.E.
was eight weeks old. On the morning of May 26, 2015, two days before S.E.’s
first birthday, S.E.’s father dropped her off at Lindhorst’s house. At that time,
S.E. could crawl, but she could not walk or climb, and she could not pull herself
1
Ind. Code § 35-42-2-1 (2014).
2
Ind. Code § 35-46-1-4 (2014).
Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017 Page 2 of 16
up to a standing position. Her father recalled that S.E. appeared normal and
healthy that morning, with no signs of injury.
[4] Later that morning, Lindhorst called S.E.’s mother to inform her that S.E. had
fallen on a wooden floor “an hour ago” and had a “bump on her head.” Tr.
Vol. II, p. 80. She further stated S.E. had begun vomiting and she was taking
her to the hospital.
[5] Lindhorst took S.E. to Dupont Hospital, arriving there at 11:36 a.m. Lindhorst
told hospital staff that S.E. had been standing up and fell over onto a wooden
floor two hours prior to arriving at the hospital. Nurse Cory Hentgen examined
S.E. and saw swelling on the left side of her head. S.E. was responsive but
fussy and irritable. S.E.’s parents arrived at the emergency room, and her father
noted she had swelling on the left side of her head and was whimpering.
[6] Hospital staff took a CAT scan of S.E., which revealed she had a fractured skull
and cerebral bleeding. After the scan, S.E. was less responsive to stimuli.
Hospital staff sedated S.E., put her on a ventilator, and transferred her to
Lutheran Children’s Hospital. To Hentgen, S.E.’s injury seemed too severe to
have resulted from a simple fall. In twenty years of working as a nurse,
Hentgen had never seen such an injury result from a child falling over onto the
floor. Hentgen notified Lutheran’s staff that they needed to call Child
Protective Services (CPS) for an investigation of the circumstances of her injury.
[7] S.E. arrived at Lutheran’s emergency room at 1:39 p.m., where she was
examined by Nurse Donna Ancil. Ancil saw redness and swelling on her head.
Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017 Page 3 of 16
Ancil read S.E.’s chart and determined, based on her experience as a nurse
trained in treating neurological injuries, that S.E.’s injury could not have
resulted from merely falling over onto the floor. Instead, that type of injury was
caused by “either a blow to the head or propulsion, as in a push and propulsion
into something.” Id. at 70-71.
[8] Several doctors examined S.E. and her scans. Dr. John Bormann, a radiologist,
determined S.E. had a “depressed skull fracture,” which is a “pretty significant
injury” involving a portion of bone being pushed into the brain. Id. at 120. The
bone fragment was depressed by four millimeters and caused bleeding that was
putting pressure on the brain. Dr. Bormann later stated that such a head injury
could only have been caused by a “high-velocity impact,” such as a fall from
ten to twenty feet onto hard ground, meaning concrete. Id. at 122. Falling
from a standing position or even from a couch or bed would be “very unlikely”
to cause the injury. Id. In over twenty years as a radiologist, Dr. Bormann had
never seen an injury like S.E.’s caused by a fall onto the floor. To the contrary,
an injury like this caused him to consider whether there was a “non-accidental”
cause. Id. at 129.
[9] Dr. Jeffrey Kachmann performed emergency surgery on S.E. to relieve the
cranial pressure, stop the bleeding, and correct the fracture. He cut out a piece
of her skull and installed a temporary drain in her scalp to remove excess blood.
Dr. Kachmann observed S.E.’s brain was contused “because of the tremendous
impact of the force that occurred here.” Tr. Vol. II, pp. 229-230. A large blood
clot had formed, which had pushed the brain against the right side of the skull.
Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017 Page 4 of 16
Based on his examination of S.E. and later seeing a picture of the floor where
Lindhorst alleged the fall occurred, Dr. Kachmann concluded “there’s no way,
no way this injury could have occurred from that impact.” Id. at 230.
[10] Dr. David Smith, a pediatric surgeon, examined S.E. on May 26, 2015, after
her emergency surgery. He reviewed her CAT scan and other doctors’ reports
and examined her “head to foot.” Id. at 138. He concluded S.E.’s skull fracture
and resulting hematoma and retinal hemorrhages were caused by a “significant
blow to the head” involving “a large amount of force.” Id. at 139. Based on his
experience, a ground-level fall or a fall from a couch or chair would not usually
result in this severe of an injury. Simply falling onto the floor was “very
unlikely” to cause S.E.’s injuries. Id. at 140. In his opinion, the injury was
caused by “non-accidental trauma.” Id. at 148. He further concluded that
S.E.’s condition had been life-threatening, and she would have had visible
symptoms of distress up to hours before arriving at the emergency room.
[11] S.E.’s father spoke with Lindhorst after he arrived at Lutheran. She told him
the same thing she told S.E.’s mother and hospital staff: S.E. had fallen over
onto a wooden floor. Meanwhile, police officers and CPS arrived at Lutheran
to investigate the incident. Detective Randy Morrison spoke with S.E.’s
parents and Lindhorst separately. Lindhorst told Detective Morrison that S.E.
fell over onto a wooden floor and hit her head. She also told Morrison that S.E.
vomited on her, but Morrison did not see or smell vomit on Lindhorst. Later
that evening, Lindhorst gave a written statement to Detective Morrison,
restating that S.E. was injured by falling onto the floor.
Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017 Page 5 of 16
[12] After S.E.’s surgery, S.E.’s parents were barred from visiting S.E. at the hospital
pending the results of CPS’s investigation. S.E. stayed at Lutheran for a week.
Lindhorst and S.E.’s father had a conversation via text messages during the
week, and Lindhorst asked him “if we were pressing charges on her.” Id. at 31.
[13] CPS would not allow S.E.’s parents to take her home after the hospital released
her. Instead, she was placed in her uncle’s custody for two days, until CPS
ended its investigation. S.E.’s parents took her to follow-up appointments with
her pediatrician and a pediatric neurologist. They also took her to an
ophthalmologist to examine her retinal hemorrhages. As of the time of trial,
S.E. had started walking and seemed to be developing normally, but there is
permanent scarring on her brain tissue. As she ages, there is a risk that she will
develop behavioral problems, learning difficulties, and long-term memory
challenges that may require developmental services to address them.
[14] The State charged Lindhorst with battery resulting in serious bodily injury to a
person under fourteen and neglect of a dependent resulting in serious bodily
injury. The case was tried to the bench. The court determined Lindhorst was
guilty as charged and sentenced her to six years on each conviction, to be
served concurrently. This appeal followed.
Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017 Page 6 of 16
Discussion and Decision
I. Cross-Examination
[15] Lindhorst argues the trial court erred in limiting her cross-examination of one of
the State’s expert witnesses about a medical journal and violated her federal and
state constitutional right to confront witnesses. As we have previously stated:
The Sixth Amendment right of confrontation requires that a
defendant be afforded an opportunity to conduct a full, adequate,
and effective cross-examination. In addition, the Indiana
Constitution guarantees a defendant the right to face-to-face
confrontation with witnesses against him. However, this right is
subject to the reasonable limits a trial court may impose upon
cross-examination. In such a situation, we will reverse only for a
clear abuse of the trial court’s discretion. In order to show the
trial court abused its discretion, a defendant must prove that he
was prejudiced by the limits imposed by the trial court.
Belser v. State, 727 N.E.2d 457, 463 (Ind. Ct. App. 2000) (citations omitted),
trans. denied.
[16] In general, excerpts from a journal or treatise offered to discredit an expert’s
testimony would meet the definition of hearsay, which is an out-of-court
statement “offered in evidence to prove the truth of the matter asserted.” Ind.
Evidence Rule 801. Hearsay evidence is not admissible unless it meets one of
the exceptions set by statute or rule. Ind. Evidence Rule 802. One of the
exceptions applies to treatises and periodicals, stating as follows:
A statement contained in a treatise, periodical, or pamphlet [is
not excluded by the rule against hearsay] if:
Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017 Page 7 of 16
(A) the statement is called to the attention of an expert witness on
cross-examination or relied on by the expert on direct
examination;
(B) the statement contradicts the expert’s testimony on a subject
of history, medicine, or other science or art; and
(C) the publication is established as a reliable authority by the
expert’s admission or testimony, by another expert’s testimony,
or by judicial notice.
If admitted, the statement may be read into evidence but not
received as an exhibit.
Ind. Evidence Rule 803(18).
[17] In the current case, Lindhorst cross-examined State’s witness Dr. David Smith,
and the following exchange occurred:
Q You recognize though that the American Journal of
Forensic Medicine and Pathology is a reliable source; would you
agree?
A I don’t know anything about the journal, sir.
Q You’ve never read the journal?
A No, I do not read that journal routinely as a pediatric
surgeon.
Q Okay. Are you familiar with Dr. Plunkett?
A No, I am not.
Q Do you know Dr. Plunkett to be a board-certified doctor in
forensic pathology?
A I am not familiar with Dr. Plunkett, I cannot stipulate to
that.
Q I’m gonna tell you, Doctor, that his study on fatal pediatric
head injuries caused by short-distance falls states that physicians
disagree on several issues regarding head injury in infants and
children, including the potential lethality of short-distance fall, a
Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017 Page 8 of 16
lucid interval in an ultimately fatal head injury, and specificity of
retinal hemorrhage for inflicted trauma; do you agree with that
statement?
Tr. Vol. II, pp. 153-54.
[18] The State objected to that question because Dr. Smith was unfamiliar with the
Plunkett study. Lindhorst responded that she should be permitted to question
Dr. Smith about the study under Indiana Evidence Rule 803(18), and she
would “tie up later that it’s a reliable, authoritative periodical.” Id. at 154. The
court sustained the State’s objection “based on the fact that he has not read
whatever journal it is that you had referenced.” Id. at 155. Dr. Smith later
stated he reads only the Journal of Pediatric Surgery.
[19] We find no abuse of discretion in the trial court’s ruling. Indiana Evidence
Rule 803(18) requires that a treatise must be “established as a reliable
authority” by a witness or by judicial notice, and Dr. Smith specifically refused
to agree that the Journal of Forensic Medicine and Pathology, in which Dr.
Plunkett’s article appeared, was a reliable source. Lindhorst’s attorney stated
he would demonstrate later in the case that the periodical was a reliable
authority, but the court was not obligated to accept that statement. In the
absence of authentication, the trial court did not err in limiting Lindhorst’s
questioning on this subject. See U.S. v. Turner, 104 F.3d 217, 221 (8th Cir. 1997)
(no error in refusing to allow medical text into evidence; party did not offer any
testimony to establish the text as authoritative).
Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017 Page 9 of 16
[20] In any event, Lindhorst must demonstrate the limits set by the trial court
prejudiced her right to confront witnesses. Although Dr. Smith was unfamiliar
with the Plunkett study, one of the State’s other experts, Dr. Shannon
Thompson, had read it. Lindhorst had the opportunity to cross-examine her on
that study and others. In addition, Dr. Michael Weinraub testified on behalf of
Lindhorst as an expert. Dr. Weinraub stated the Plunkett article was reliable
and testified about the article’s contents at length. Thus, the article was
established at trial as authoritative, and its contents were read to the finder of
fact through other witnesses. Any error in limiting Lindhorst’s cross-
examination of Dr. Smith did not prejudice Lindhorst’s defense and was
harmless. See Koenig v. State, 933 N.E.2d 1271, 1274 (Ind. 2010) (erroneous
admission of out-of-court lab report, in violation of defendant’s right to confront
witnesses, was harmless considering other evidence presented).
II. Sufficiency of the Evidence
[21] Lindhorst argues there is insufficient evidence to support her convictions,
describing the State’s case as “speculation and conjecture.” Appellant’s Br. p.
13. We will affirm a conviction if, after considering only the probative evidence
and reasonable inferences supporting the verdict, we conclude that a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. Lush v.
State, 783 N.E.2d 1191, 1195 (Ind. Ct. App. 2003). We will not reweigh the
evidence or assess witness credibility. Id. It is not necessary that the evidence
overcome every reasonable hypothesis of innocence. Lay v. State, 933 N.E.2d
Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017 Page 10 of 16
38, 41-42 (Ind. Ct. App. 2010), trans. denied. Further, a conviction may be
sustained based on circumstantial evidence alone. Id. at 42.
[22] To obtain a conviction for battery of a person under fourteen years of age
resulting in serious bodily injury, a Level 3 felony, the State was required to
prove beyond a reasonable doubt that Lindhorst (1) was a person at least
eighteen years of age (2) and knowingly or intentionally (3) touched (4) a
person under fourteen years of age (5) in a rude, insolent or angry manner (6)
resulting in serious bodily injury to the child. Ind. Code § 35-42-2-1. The key
evidentiary question for this conviction is whether S.E.’s life-threatening injury
resulted from Lindhorst knowingly or intentionally touching her in a rude,
insolent, or angry manner.
[23] To obtain a conviction for neglect of a dependent resulting in serious bodily
injury, a Level 3 felony, the State was required to prove beyond a reasonable
doubt that Lindhorst (1) had the care of a dependent and (2) knowingly or
intentionally (3) placed the dependent in a situation endangering the
dependent’s life or health (4) resulting in serious bodily injury. Ind. Code § 35-
46-1-4. The accused must have been subjectively aware of a high probability
that he or she placed the dependent in a dangerous situation. Armour v. State,
479 N.E.2d 1294, 1297 (Ind. 1985). The key evidentiary question for this
conviction is whether Lindhorst knowingly or intentionally placed S.E. in a
situation endangering her life.
Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017 Page 11 of 16
[24] The evidence most favorable to the judgment indicates S.E. was not injured in
the manner described by Lindhorst, specifically that she fell over onto a wooden
floor. Every one of the State’s expert witnesses explained that, at the least, it
was extremely unlikely that S.E.’s injury resulted from a mere ground-level fall.
Dr. Bormann stated that only a high degree of force could have caused the
injury, such as the force involved in falling ten or more feet onto a hard surface
such as concrete. Detective Morrison noted that when he walked across
Lindhorst’s wooden floor, it had “a little bit of give.” Tr. Vol. II, p. 249.
[25] In addition, both emergency room nurses who examined S.E., as well as Dr.
Bormann and Dr. Thompson, had never seen such a severe skull fracture result
from a mere fall to the floor. Dr. Kachmann concluded “there’s no way, no
way this injury could have occurred” from falling over onto a wooden floor. Id.
at 230. Dr. Thompson further explained that the location of S.E.’s injury on
the side of her head did not match Lindhorst’s explanation because injuries
from a child’s fall tend to appear on the front or back of the head. The injury is
further remarkable because S.E., who was almost one year old, was not able to
walk, climb, or pull herself up to a standing position at that time.
[26] In further contrast to Lindhorst’s explanation for S.E.’s injury, Dr. Smith stated
S.E.’s injury was caused by “non-accidental trauma.” Id. at 148. Dr. Bormann
similarly thought a non-accidental cause should be considered. S.E.’s
pediatrician, Dr. James Steigmeyer, testified the most likely cause of the injury
was “blunt force trauma to the head.” Id. at 213. Lindhorst was the only adult
present when S.E. sustained her injury.
Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017 Page 12 of 16
[27] Further, the evidence shows Lindhorst unnecessarily delayed seeking treatment
for S.E.’s life-threatening injury by as much as two hours. Several doctors
testified S.E. would have displayed obvious serious symptoms soon after being
injured, including:
inconsolable crying . . . loss of consciousness or lethargy or just
sleepy and not moving, not really wanting to do anything,
vomiting, seizure activity, or just sometimes problems with
breathing itself. A lot of those things aren’t immediate, but after
that-the kind of injury she had with the large skull fracture, I
would have at least have expected her to be inconsolable crying
and at least sleepy fairly quickly.
Id. at 181. Dr. Thompson “found it difficult to believe” that S.E. would seem
normal for up to an hour after sustaining such a grievous injury. Id.
[28] Finally, Lindhorst stated she took S.E. to the hospital after she began vomiting,
and that S.E. vomited on her clothes, but Detective Morrison did not see or
smell any vomit on Lindhorst when he interviewed her at Lutheran in a small,
enclosed conference room.
[29] It is perhaps possible that S.E.’s injury was caused by an unusual “freak”
accident, as described by Lindhorst. Tr. Vol. III, p. 144. But the finder of fact
determined otherwise, and we may not reweigh the evidence as Lindhorst
requests. There is sufficient evidence to support the trial court’s determination
that Lindhorst knowingly or intentionally inflicted the injury upon S.E. and that
Lindhorst knowingly or intentionally placed S.E. in a dangerous situation by
delaying medical assistance. See Hughes v. State, 508 N.E.2d 1289, 1296 (Ind.
Ct. App. 1987) (affirming conviction for battery on a child; sufficient
Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017 Page 13 of 16
circumstantial evidence established defendant battered the victim, despite
defendant’s claim the victim fell out of a crib), trans. denied; Sample v. State, 601
N.E.2d 457, 459-60 (Ind. Ct. App. 1992) (evidence sufficient to support
conviction of neglect of a dependent; defendant unreasonably delayed getting
medical help for infant in her care).
III. Sentencing
[30] Lindhorst asserts her sentence is inappropriately high and asks the Court to
reduce it to a term of six years, but with one year suspended and five years of
probation. In other words, she does not object to the length of her sentence but
3
argues she should serve it outside of prison.
[31] In general, sentencing decisions rest within the sound discretion of the trial
court and are reviewed on appeal for an abuse of discretion. Anglemyer v. State,
868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (2007). Even
if a trial court imposes a sentence within its discretion, the Court retains
constitutional authority to review and revise sentences. Ind. Const. art. 7, § 6.
This constitutional authority is implemented through Indiana Appellate Rule
7(B), which provides we “may revise a sentence authorized by statute if, after
due consideration of the trial court’s decision, the Court finds that the sentence
3
Lindhorst also states in passing that the trial court abused its discretion in sentencing her, but her
substantive arguments are directed solely to this Court’s power to revise sentences. We thus decline to
consider whether the court abused its discretion.
Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017 Page 14 of 16
is inappropriate in light of the nature of the offense and the character of the
offender.”
[32] The principal role of sentencing review under Appellate Rule 7(B) is to attempt
to leaven the outliers. Perry v. State, 78 N.E.3d 1, 12 (Ind. Ct. App. 2017). The
appellant bears the burden of demonstrating the sentence is inappropriate. Id.
at 13. We may consider not only the aggravators and mitigators found by the
trial court, but also any other factors appearing in the record. Walters v. State,
68 N.E.3d 1097, 1101 (Ind. Ct. App. 2017), trans. denied.
[33] The advisory sentence is the starting point in determining the appropriateness of
a sentence. At the time Lindhorst committed her offenses, the advisory
sentence for a Level 3 felony was nine years, with a minimum sentence of three
years and a maximum sentence of sixteen years. Ind. Code § 35-50-2-5 (2014).
The court sentenced Lindhorst to six years for each offense, to be served
concurrently, resulting in an aggregate sentence well below the advisory
amount set by statute.
[34] The nature of the offense is found in the details and circumstances of the
offenses and the defendant’s participation. Perry, 78 N.E.3d at 13. In this case,
Lindhorst inflicted a grievous, potentially fatal injury on a helpless infant in her
care and delayed seeking medical help. Although doctors saved S.E.’s life and
she appears to be developing normally at this point, her brain has suffered
permanent scarring. As S.E. ages she may experience behavioral problems,
learning difficulties, and long-term memory challenges.
Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017 Page 15 of 16
[35] The character of the offender is found in what we learn of the offender’s life and
conduct. Id. (quotation omitted). Lindhorst, who was thirty-seven years old at
the time of sentencing, had no prior criminal history and had custody of five
children. In addition, her friends submitted almost sixty letters of support to the
trial court, which demonstrates she has substantial support in the community.
Despite these positive factors, she committed two Level 3 felonies which have
the potential to harm S.E. for the rest of her life. We agree with the trial court
that a sentence without executed time would “greatly depreciate” the
seriousness of the crimes. Tr. Vol. III, p. 216. As a result, we cannot conclude
Lindhorst’s six-year executed sentence, which is well below the advisory
amount, is inappropriate.
Conclusion
[36] For the reasons stated above, we affirm the judgment of the trial court.
[37] Affirmed.
Kirsch, J., and Crone, J., concur.
Court of Appeals of Indiana | Opinion 02A03-1704-CR-696 | December 27, 2017 Page 16 of 16