MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jun 26 2018, 7:12 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Brooklyn, Indiana Attorney General of Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robin Kraemer, June 26, 2018
Appellant-Defendant, Court of Appeals Case No.
84A01-1711-CR-2703
v. Appeal from the Vigo Superior
Court
State of Indiana, The Honorable Michael J. Lewis,
Appellee-Plaintiff Judge
Trial Court Cause No.
84D06-1702-F1-563
Altice, Judge.
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Case Summary
[1] Following a jury trial, Robin Lee Kraemer was convicted of neglect of a
dependent resulting in death, a Level 1 felony; failure to report, a Class B
misdemeanor; four counts of neglect of a dependent as Level 6 felonies;
maintaining a common nuisance, a Level 6 felony; and visiting a common
nuisance, a Class A misdemeanor. Kraemer was sentenced to an aggregate
term of 36.5 years imprisonment. On appeal, Kraemer presents three issues for
our review, which we restate as follows:
1. Does Kraemer’s conviction for failure to report abuse
or neglect of a child violate her federal and state
constitutional privilege against self-incrimination?
2. Did the State present sufficient evidence to support
Kraemer’s conviction for Class A misdemeanor visiting a
common nuisance?
3. Do Kraemer’s convictions for neglect of a dependent
based on her use of methamphetamine violate principles of
double jeopardy?
[2] We affirm in part, reverse in part, and remand with instructions.
Facts & Procedural History
[3] C.H. was born on August 21, 2007. Kraemer was his guardian and cared for
C.H. since he was three days old. After his birth, C.H. was diagnosed with
several brain disorders, collectively described as cerebral palsy. C.H. was
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completely dependent on Kraemer for his daily needs, including feeding,
bathing, and physical/occupational therapy. C.H. was also blind and
developed seizures, for which his physician, Dr. Pablito Dela Cruz, prescribed
an anticonvulsant that proved beneficial. Because C.H. had increased muscle
tone in his extremities, his body was stiff and not easy to move thus
necessitating physical and occupational therapy from an early age.
[4] Given C.H.’s condition, Dr. Dela Cruz wanted C.H. to ultimately achieve and
maintain a weight of between twenty-two and twenty-five pounds. When it
became apparent that C.H. was not gaining weight appropriately, Dr. Dela
Cruz diagnosed him as failure to thrive and recommended supplementation. In
June 2014, C.H. weighed twenty-two pounds. Dr. Dela Cruz became
concerned when less than three months later C.H.’s weight had decreased to
nineteen pounds. Dr. Dela Cruz referred C.H. to a gastroenterologist at Riley
Children’s Hospital in Indianapolis. Based on results from blood work, C.H.
was seen in the emergency room at Riley on September 9, 2014. Upon his
release, he was directed to follow up with Dr. Dela Cruz in two weeks. C.H.,
however, was not seen by Dr. Dela Cruz until June 2015, at which time, he
weighed twenty-four pounds. At this appointment, Dr. Dela Cruz refilled three
different prescriptions for C.H. and recommended continuation of physical and
occupational therapy. He also requested a follow-up with C.H. in four months,
which never occurred.
[5] According to Kraemer, around 1:00 a.m. on February 21, 2017, she woke up
and went to make something to eat. C.H. also woke up, so she made him a
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bottle of formula, which he would not eat. Kraemer changed C.H.’s diaper,
noting that it was wet, but not saturated. She noticed nothing unusual about
C.H.’s breathing, and C.H. eventually went back to sleep. Around 3:00 a.m.
Kraemer awoke again and discovered that C.H. was not breathing. Kraemer
called 911, and her husband began resuscitation efforts.
[6] Vigo County Sheriff’s Deputy Dayton Huebner responded to the emergency
call and, upon arrival, encountered Kraemer, who was “hysterical and crying.”
Transcript Vol. 2 at 35. Kraemer informed Deputy Huebner that C.H. had been
sick and spontaneously told him that C.H. had a nine-year life expectancy. En
route to the hospital, paramedics ceased attempts to resuscitate C.H., and he
was declared dead upon arrival.
[7] Jim Hayne, an emergency room nurse at Terre Haute Union Hospital,
conducted a post-mortem assessment of C.H. in which he found no signs of
trauma to C.H.’s body, no skin breakdown, and no bedsores. Nurse Hayne
noted, however, “extreme dehydration,” that C.H. had sunken eyes, and that
he had been dead for “quite awhile.” Id. at 82. He also noted that C.H. was
“severely emaciated” and documented that C.H., then nine and a half years
old, weighed approximately fifteen pounds. Id. at 86. Nurse Hayne testified
that he had been in the military and had seen malnourished children in other
countries, but that C.H. presented the “worst” case of malnutrition he had ever
seen. Id. at 93.
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[8] Jason Fischer, a detective with the Vigo County Sheriff’s Department, spoke
with Kraemer at the hospital, and one of the first things she stated was that
C.H. had a nine-year life expectancy. Kraemer also informed Detective Fischer
that C.H. had been sick with the flu, although she admitted that he had not
been to a doctor in over a year. Detective Fischer permitted Kraemer to leave
the hospital before he had the opportunity to view C.H.’s body. He then went
to see C.H. and testified that he was unprepared for what he saw, describing
C.H. as a “small, small child” who looked like “a skeleton with skin stretched
over it.” Id. at 46. The sight of C.H. in such an emaciated state was
“something [Detective Fischer had] never seen before.” Id. Based on his
observations, Detective Fischer immediately contacted the Department of Child
Services (DCS) and opened a criminal investigation.
[9] Erin Gonthier, a family case manager (FCM) with DCS, arrived at Union
Hospital just before 7:00 a.m. She was taken to see C.H. and noted that what
she observed was “very alarming and very concerning” in that it appeared that
C.H. had been neglected because he appeared “severely emaciated.” Id. at 103,
102. FCM Gonthier and Detective Fischer then went to Kraemer’s home,
which Kraemer shared with her husband. At that time, Kraemer’s son, his
girlfriend, and their two children, five-year-old L.K. and two-year-old L.K.
(Grandchildren), also lived in Kraemer’s home.
[10] FCM Gonthier approached Kraemer in the driveway, and initially, Kraemer
was cooperative. When FCM Gonthier asked her to submit to a drug screen,
Kraemer “immediately became defensive and combative,” yelled at FCM
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Gonthier, refused to submit to the drug screen, and told FCM Gonthier to
leave. Id. at 108. The other adults in the home, especially Kraemer’s son, were
also belligerent toward FCM Gonthier. Eventually, Kraemer submitted to a
drug screen, which was positive for amphetamines, methamphetamine, and
THC. A sample of Kraemer’s Grandchildren’s hair follicles tested positive for
methamphetamine. Given the test that was run, it was not possible that the
children were merely exposed to methamphetamine through use by others. The
test established that the children had methamphetamine in their systems.
[11] Dr. Roland Kohr performed an autopsy of C.H. Dr. Kohr noted that at the
time of his death, C.H. weighed approximately fifteen pounds and had a severe
lack of muscle mass, which condition had most likely developed over several
months. He described C.H.’s condition as “by far the most extreme loss of
tissue and lack of normal nutrition” he had ever seen. Transcript Vol. 3 at 7.
Toxicology testing revealed that C.H. had trace amounts of methamphetamine
in his system. Dr. Kohr ultimately concluded that C.H. died as the result of
severe malnutrition with bronchopneumonia as a contributing cause.
[12] On March 15, 2017, the State charged Kraemer with Count I, Level 1 felony
neglect of a dependent resulting in death; Count II, Level 3 felony neglect of a
dependent resulting in serious bodily injury; Count III, Class B misdemeanor
failure to make a report; Count IV, Level 6 felony neglect of a dependent;
Count V, Level 6 felony neglect of a dependent; Count VI, Level 6 felony
maintaining a common nuisance; Count VII, Class A misdemeanor visiting a
common nuisance; and Counts VIII and IX, Level 6 felony neglect of a
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dependent.1 A four-day jury trial commenced on September 18, 2017, at the
conclusion of which the jury found Kraemer guilty as charged. On October 19,
2017, the trial court merged Count II with Count I, and entered judgments of
conviction on the remaining offenses. The trial court sentenced Kraemer to the
advisory sentence of thirty years on Count I; 180 days on Count III, and one
year on each Level 6 felony and the Class A misdemeanor. The court ordered
the sentences be served consecutively for an aggregate sentence of 36.5 years
imprisonment. Kraemer now appeals. Additional facts will be provided as
necessary.
Discussion & Decision
Constitutional Right
[13] Kraemer argues that prosecuting her for failure to report her own child abuse or
neglect violated her federal and state constitutional right against compulsory
self-incrimination. See U.S. Const. amend. V; Ind. Const. art. 1, section 14 .
This privilege “protects against any disclosures which the witness reasonably
believes could be used in a criminal prosecution or could lead to other evidence
that might be so used.” Kastigar v. U.S., 406 U.S. 441, 445 (1972). Kraemer
maintains that “the State used [her] failure to incriminate herself not just to
imply guilt, but as the sole evidence to establish guilt for failing to report.”
Appellant’s Brief at 11. Acknowledging that she did not file a motion to dismiss
1
In Counts VIII and IX, Kraemer’s Grandchildren were the alleged victims.
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alleging the constitutional challenge she presents on appeal, Kraemer asserts
that her challenge amounts to fundamental error.
[14] “Generally, the failure to file a proper motion to dismiss raising the
Constitutional challenge waives the issue on appeal.” Baumgartner v. State, 891
N.E.2d 1131, 1135-36 (Ind. Ct. App. 2008). Still, some cases have considered
challenges to the constitutionality of statutes even where the defendant failed to
file a motion to dismiss. Notably, in Morse v. State, 593 N.E.2d 194, 197 (Ind.
1992), the court addressed the defendant’s challenge to the constitutionality of a
statute even though the issue was raised for the first time on appeal in a pro se
motion filed with the court by a defendant who was represented by counsel. See
also Vaughn v. State, 782 N.E.2d 417, 420 (Ind. Ct. App. 2003) (citing Morse in
deciding to address defendant’s challenge to constitutionality of statute even
though defendant filed no motion to dismiss and State argued waiver on
appeal), trans. denied; Boyd v. State, 889 N.E.2d 321, 323-24 (Ind. Ct. App. 2008)
(following Morse and Vaughn in choosing to address defendant’s claim that
statute was unconstitutionally vague even though he did not file proper motion
to dismiss and the State argued waiver on appeal), trans. denied.
[15] Ind. Code § 31-33-5-1 imposes a duty upon an individual “who has reason to
believe that a child is a victim of child abuse or neglect” to “make a report” of
such abuse or neglect. A person who fails to make a report as required under
I.C. § 31-33-5-1 commits a Class B misdemeanor. In this case, the charging
information simply tracked the statutory language and did not specify the abuse
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or neglect that Kraemer failed to report. During closing argument, however,
the prosecutor argued to the jury as follows:
Failure to make a report. [Kraemer] being required to make a
report failed to do so. Gonna get the instruction related to the
Indiana code that says that an individual who has reason to
believe [t]hat a child is a victim of child abuse or neglect has to
make a report. . . . [Kraemer] wasn’t gonna make any report.
She was the one doing the meth, she was the one smoking the
marijuana. There was no report made.
Transcript Vol. 3 at 230.
[16] We acknowledge that the State presented evidence concerning neglect or abuse
of Kraemer’s Grandchildren by their parents who chose to use
methamphetamine and who exposed the children to the dangers of the drug.
We cannot agree with the State, however, that the jury was asked to find
Kraemer guilty for failing to report such neglect. As we read the State’s closing
argument, the jury was asked to find Kraemer guilty of failing to report her own
neglect based upon her own use of methamphetamine. The State’s prosecution
of Kraemer in this regard directly conflicts with her constitutional privilege
against self-incrimination. See, e.g., U.S. v. Kuh, 541 F.2d 672 (7th Cir. 1976)
(noting that “[t]he object of the Fifth Amendment is to insure that a person
should not be compelled to give information which might tend to show he
himself has committed a crime”).
[17] The State asserts that there is nothing in the statute itself that exempts a person
with knowledge of child abuse or neglect from the duty to make a report to
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DCS or local law enforcement. Regardless, we conclude that the federal and
state constitutions render invalid Kraemer’s conviction for failure to report her
own abuse. We direct the trial court to vacate Kraemer’s conviction and
sentence for failure to report as a Class B misdemeanor.
Sufficiency of the Evidence
[18] Kraemer next argues that the State failed to present sufficient evidence to
support her conviction for visiting a common nuisance with C.H. When we
consider a challenge to the sufficiency of the evidence, we neither reweigh the
evidence nor assess the credibility of the witnesses. Suggs v. State, 51 N.E.3d
1190, 1193 (Ind. 2016). Instead, we consider only the evidence and reasonable
inferences supporting the verdict. Id. We will affirm the conviction if there is
probative evidence from which a reasonable jury could have found the
defendant guilty beyond a reasonable doubt. Id.
[19] Pursuant to Ind. Code § 35-45-1-5(a)(3)(A), a common nuisance is defined, in
pertinent part, as “a building, structure, vehicle, or other place that is used . . .
to unlawfully use a controlled substance or an item of drug paraphernalia.” A
person who “knowingly or intentionally visits a common nuisance . . . commits
visiting a common nuisance.” I.C. § 35-45-1-5(b) (emphasis supplied). The
offense is a Class A misdemeanor if the person “knowingly, intentionally, or
recklessly takes a person less than eighteen (18) years of age . . . into a common
nuisance.” I.C. § 35-45-1-5(b)(2)(B). Here, the State charged Kraemer with
visiting a common nuisance as a Class A misdemeanor, alleging that she
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knowingly, intentionally, or recklessly took C.H. to visit a common nuisance,
i.e., the home in which they lived. Kraemer does not dispute that her home is a
common nuisance. Rather, Kraemer argues that because C.H. lived in her
home, she cannot be found to have taken him to visit his own home. The State
asserts that “[t]here can be no dispute that [Kraemer] took C.H. into her
home.” Appellee’s Brief at 16.
[20] We agree with Kraemer. It is not enough that Kraemer took C.H. into their
home. The notion of a visit remains a key element to the offense of visiting a
common nuisance. Thus, the issue before us is what does it mean to “visit” a
common nuisance. In its most common connotation, to visit a place is to come
and go and stay for a short time period of time. We think it is a stretch to say
that one visits his own home. As Kraemer asserts, the State did not present any
evidence that she used methamphetamine outside of her home or that she took
C.H. into a common nuisance that was not their home. We thus conclude that
the State’s evidence is insufficient to support Kraemer’s conviction for visiting a
common nuisance as a Class A misdemeanor.2 We direct the trial court to
vacate Kraemer’s conviction and sentence for this offense.
Double Jeopardy
[21] Indiana’s Double Jeopardy Clause was intended to prevent the State from being
able to proceed against a person twice for the same criminal transgression.
2
Kraemer’s conviction for maintaining a common nuisance as a Level 6 felony is unaffected.
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Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). This clause prohibits, among
other things, multiple punishments for the same conduct. Jarrell v. State, 818
N.E.2d 88, 92 (Ind. Ct. App. 2004). Multiple punishments are for the same
offense in violation of double jeopardy, “if, with respect to . . . the actual
evidence used to convict, the essential elements of one challenged offense also
establish the essential elements of another challenged offense.” Id.
[22] In Count IV, the State charged Kraemer with neglect of a dependent based on
the fact that she knowingly placed C.H. in a situation that endangered his life or
health as evidenced by the fact that she tested positive for methamphetamine
and THC. In Count V, the State charged Kramer with the same offense, but
alleged that she placed C.H. in a situation that endangered his life or health as
evidenced by the fact that at the time of his autopsy, C.H. tested positive for
methamphetamine. Kraemer argues these convictions violate double jeopardy
principles in that they “arose from a single criminal transgression.”3 Appellant’s
Brief at 16. We agree. The basis for the neglect convictions under both Counts
IV and V is Kraemer’s use of illegal drugs in her home which placed C.H. in a
situation that endangered his life or health. Double jeopardy principles prohibit
multiple punishments for the same conduct. Cf. Williams v. State, 829 N.E.2d
198 (finding multiple convictions for neglect of a dependent did not violate
double jeopardy principles where the State proved five distinct acts occurring at
3
Kraemer does not challenge her Level 6 felony neglect convictions with regard to separate victims.
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different times). We therefore direct the trial court to reverse Kraemer’s
conviction and sentence for neglect of a dependent under Count IV.
[23] In sum, we reverse Kraemer’s convictions for failure to report (Count III),
visiting a common nuisance (Count VII), and neglect of a dependent (Count
IV) and direct the trial court to vacate the convictions and sentences thereon.
[24] Judgment affirmed in part, reversed in part, and remanded with instructions.
Najam, J. and Robb, J., concur.
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