Opinion
No. 40A01-1102-CR-55
12-05-2011
AARON MICHAEL ROHR, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : JOSEPH LEON PAYNE Joseph L. Payne, P.C. Austin, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana KELLY A. MIKLOS Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
JOSEPH LEON PAYNE
Joseph L. Payne, P.C.
Austin, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
KELLY A. MIKLOS
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE JENNINGS CIRCUIT COURT
The Honorable Jon W. Webster, Judge
Cause No. 40C01-0504-MR-93
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD , Judge
Appellant-Defendant Aaron Michael Rohr appeals his convictions for Class A felony Neglect of a Dependent Resulting in Death, Class B felony Aggravated Battery, and Class B felony Battery of a Child by an Adult Causing Serious Bodily Injury. On appeal, Rohr raises numerous issues which we restate as follows: (1) whether his retrial violated the prohibitions against double jeopardy; (2) whether the trial court's decision to allow certain State's witnesses to testify at trial was clearly erroneous; (3) whether the trial court erroneously denied his motion for a change of judge; (4) whether the evidence is sufficient to support his convictions; and (5) whether the trial court properly sentenced him. We affirm.
Ind. Code § 35-46-1-4 (2004).
Ind. Code § 35-42-2-1.5 (2004).
Ind. Code § 35-42-2-1(a)(4) (2004).
FACTS AND PROCEDURAL HISTORY
Rohr has filed a motion for oral argument, which we deny in an order issued simultaneously with this decision.
The Indiana Supreme Court's opinion in Rohr's prior appeal instructs us as to the underlying facts and procedural history of the instant matter:
[S.M.] died April 26, 2005, four days after being taken to a hospital emergency room by [Rohr] and Donna Moore, [S.M.]'s mother, with whom [Rohr] had been living for about two months. The State's evidence indicated that [S.M.] had sustained blunt force head trauma; a severe brain injury; and bruising on the back, front, and inside of his thighs, his left elbow, his groin area, his chin, his waist, both sides of his bottom, his back, and his penis and scrotum, which were also swollen. The evidence presented at trial demonstrated that both [Rohr] and [ ] Moore had engaged in regular corporal punishment of [S.M.]. [Moore] had previously been investigated by the
Department of Job and Family Services in Belmont County, Ohio, for physical harm to [S.M.].
The State's final amended information charged the defendant with five counts: murder, class A felony battery, class B felony battery, aggravated battery, and neglect of a depend[e]nt, and the jury found the defendant guilty on each of the five counts and recommended a sentence of life imprisonment without the possibility of parole. The trial court entered a judgment convicting the defendant for murder and ordering a sentence of life without parole, and it entered convictions on the other counts but vacated them on grounds of double jeopardy.
Rohr v. State, 866 N.E.2d 242, 244 (Ind. 2007). On May 15, 2007, the Indiana Supreme Court held that the trial court's exclusion of certain defense witnesses resulted in trial error sufficient to warrant reversal of Rohr's murder conviction. Id. at 247. The Supreme Court remanded the matter to the trial court for retrial holding that because the evidence was sufficient to support Rohr's conviction, "the erroneous exclusion of witnesses requires a new trial." Id. at 249.
The record indicates that S.M. was taken to the emergency room during the late evening hours on April 23, 2005, or the early morning hours on April 24, 2005.
The record indicates that S.M. was taken to the emergency room during the late evening hours on April 23, 2005, or the early morning hours on April 24, 2005.
On May 24, 2007, Rohr filed several motions, including a motion for a change of judge, alleging bias on behalf of the trial judge. In support of this motion, Rohr relied upon several orders and statements made by the trial court during the first trial. Following a hearing, the trial court denied Rohr's motion for a change of judge.
On retrial, the trial court swore in the jury on October 21, 2010, after which Rohr filed a motion for acquittal and/or to dismiss the charges based on double jeopardy concerns. On November 1, 2010, following deliberations, the jury informed the trial court that it had reached an impasse on the Class A felony battery charge ("Count II") but had reached verdicts on the remaining counts. The jury found Rohr not guilty of murder ("Count I") and guilty of Class B felony battery of a child by an adult causing serious bodily injury ("Count III"), Class B felony aggravated battery ("Count IV"), and Class A felony neglect of a dependent resulting in death ("Count V"). The trial court entered a judgment of conviction reflecting the jury's findings. On February 11, 2011, following a sentencing hearing, the trial court sentenced Rohr to an aggregate term of seventy years. This appeal follows.
DISCUSSION AND DECISION
I. Double Jeopardy Concerns
The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides, "Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Likewise, Article I, Section 14 of the Indiana Constitution provides, "No person shall be put in jeopardy twice for the same offense." Both the Federal and State prohibitions against double jeopardy protect against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense. Jaramillo v. State, 823 N.E.2d 1187, 1188 (Ind. 2005) (citing United States v. Dixon, 509 U.S. 688, 695-96 (1993); North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). The prohibitions against double jeopardy "protect the integrity of jury acquittals and the finality interest of defendants, shield against excessive and oppressive prosecutions, and ensure that defendants will not undergo the anxiety and expense of repeated prosecution and the increased probability of conviction upon reprosecution." Richardson v. State, 717 N.E.2d 32, 37 (Ind. 1999).
The prohibitions against double jeopardy bar retrial in cases where a conviction has been reversed for insufficient evidence. Jaramillo, 823 N.E.2d at 1190 (citing Tibbs v. Florida, 457 U.S. 31, 41 (1982); Burks v. United States, 437 U.S. 1 (1978); Greene v. Massey, 437 U.S. 19 (1978)). However, "[a]lthough double jeopardy bars retrial in cases of reversal for insufficient evidence, it does not bar retrial in cases of reversal for trial error." Williams v. State, 685 N.E.2d 730, 734 (Ind. Ct. App. 1997); see also Lockhart v. Nelson, 488 U.S. 33, 40 (1988). '"This is so because a determination that a defendant was convicted through a judicial process which was defective in some fundamental respect implies nothing regarding the guilt or innocence of the defendant.'" Id. (quoting Brown v. State, 659 N.E.2d 652, 657 (Ind. Ct. App. 1995)); see also Lockhart, 488 U.S. at 40.
A. Whether Retrial on Counts II through V Violated
the Prohibitions Against Double Jeopardy
Rohr contends that his retrial on Counts II through V violated the prohibitions against double jeopardy because the principles of res judicata apply to these counts on retrial. Specifically, Rohr argues that retrial on these counts violates the prohibitions against double jeopardy because the trial court vacated his prior convictions on these counts in light of double jeopardy concerns with regard to his prior murder conviction. Rohr, however, presents no relevant authority in support of this contention. The Indiana Supreme Court long ago considered whether retrial following a reversal by an appellate court barred retrial of charges for which the defendant was acquitted in the previous trial. Ex Parte Bradley, 48 Ind. 548 (1874). In Bradley, the defendant was charged with first degree murder. Id. at 549. Following trial, the defendant was found guilty of second degree murder. Id. The defendant appealed and the Supreme Court reversed the judgment and remanded the matter to the trial court for a new trial. Id. Prior to retrial, the defendant requested that the charges against him be dismissed, claiming that retrial would violate the prohibitions against double jeopardy. Id. at 550. The trial court denied the defendant's request and proceeded to retrial, after which the defendant was convicted of the lesser-included crime of manslaughter. Id. Following this conviction, the defendant requested and was granted a second retrial. Id. Prior to the second retrial, the defendant requested a writ of habeas corpus, claiming that any retrial was barred by the prohibitions against double jeopardy. Id.
In finding that the prohibitions against double jeopardy did not violate defendant's retrial, the Supreme Court held as follows:
[U]pon the reversal of the judgment, the parties stood as though there had been no trial. The trial and verdict were abrogated. The former verdict could not be referred to, either in the evidence or argument. There was nothing to show that there had been a trial and verdict. This was intended as a protection to the accused. The jury were to be kept in ignorance of the fact that a former jury had found the accused guilty of any crime. By this provision, the legal presumption of his innocence could not be overcome or weakened by the knowledge that there had been a verdict against him.Id. at 556. The Supreme Court further held, "So the granting of a new trial upon the conviction for manslaughter expunged both verdicts and judgments, and the appellant stood with all the presumptions of the law in his favor, to the same extent as when the indictment was first presented against him." Id. at 556-57.
Similarly here, the Supreme Court's reversal of Rohr's murder conviction and remand for a new trial expunged "both verdicts and judgments" from the previous trial. Following the first trial, the trial court vacated Rohr's convictions for Counts II through V because of double jeopardy concerns relating to Rohr's murder conviction. On appeal, the Indiana Supreme Court reversed Rohr's murder conviction and remanded the matter to the trial court for retrial. Accordingly, on retrial, Rohr was no longer convicted of murdering S.M., but rather stood with all of the presumptions of the law in his favor, to the same extent as when the charging information was first presented against him. Rohr has not presented any authority contradicting the Supreme Court's holding in Bradley, and we see no reason to disturb the Supreme Court's nearly 137 year old precedent.
Moreover, Rohr has provided no relevant authority providing that the principles of res judicata would bind the trial court on retrial to decisions it issued during the first trial. Following the first trial, the trial court previously found that these charges violated the principles of double jeopardy with respect to Rohr's murder conviction. However, we cannot conclude that the trial court was bound by these previous decisions following the Indiana Supreme Court's reversal of Rohr's prior murder conviction and order remanding the matter for retrial. As such, the trial court's previous decisions regarding Counts III through V as they specifically related to Rohr's prior murder conviction are not binding as the law of the case on retrial. Thus, we conclude that Rohr's retrial on Counts II through V did not violate the prohibitions against double jeopardy.
B. Whether the Trial Court's Failure to Set Aside its Prior Judgment of Conviction Following Reversal by the Indiana Supreme Court Resulted in a Violation of the Prohibitions Against Double Jeopardy
Rohr also contends that his retrial violated the prohibitions against double jeopardy because the trial court refused to comply with the Indiana Supreme Court's instructions by failing to set aside its prior judgment of conviction and reinstate Counts II through V following the Indiana Supreme Court's opinion reversing his prior murder conviction and remanding for retrial. Rohr, however, presents no relevant, binding authority in support of this contention. To the contrary, the Indiana Supreme Court has held that upon the reversal of the judgment by an appellate court, the parties stand in the same position as though there had been no trial, with all the presumptions of the law in his favor, to the same extent as when the charging information was first filed against him. Bradley, 48 Ind. at 556-57. In Bradley, the Supreme Court did not place any obligation upon the trial court to take any additional steps with respect to the overturned conviction prior to retrial.
We note that in making this claim, Rohr cites to Indiana Code section 35-41-4-3 which provides as follows:
(a) A prosecution is barred if there was a former prosecution of the defendant based on the same facts and for commission of the same offense and if:However, Indiana Code section 35-41-4-3 applies to successive prosecutions generally, and does not apply to situations like the instant matter where an appellate court has reversed the prior conviction and remanded to the trial court for retrial.
(1) the former prosecution resulted in an acquittal or a conviction of the defendant (A conviction of an included offense constitutes an acquittal of the greater offense, even if the conviction is subsequently set aside.); or
(2) the former prosecution was terminated after the jury was impaneled and sworn or, in a trial by the court without a jury, after the first witness was sworn, unless (i) the defendant consented to the termination or waived, by motion to dismiss or otherwise, his right to object to the termination, (ii) it was physically impossible to proceed with the trial in conformity with law, (iii) there was a legal defect in the proceedings that would make any judgment entered upon a verdict reversible as a matter of law, (iv) prejudicial conduct, in or outside the courtroom, made it impossible to proceed with the trial without injustice to either the defendant or the state, (v) the jury was unable to agree on a verdict, or (vi) false statements of a juror on voir dire prevented a fair trial.
(b) If the prosecuting authority brought about any of the circumstances in subdivisions (a)(2)(i) through (a)(2)(vi) of this section, with intent to cause termination of the trial, another prosecution is barred.
In the instant matter, the Indiana Supreme Court reversed Rohr's murder conviction in the first trial and remanded for a new trial. Rohr, 866 N.E.2d at 249. The Supreme Court held that the reversal of Rohr's murder conviction was required because of trial error. Id. at 247. The Supreme Court further held that retrial was permissible because the evidence presented at trial, as well as the reasonable inferences drawn therefrom, were sufficient to sustain Rohr's conviction. Id. at 248-49. Pursuant to the Supreme Court's holding in Bradley, following the reversal Rohr was placed in the same position as if the first trial had not occurred. Bradley, 48 Ind. at 556-57. On remand, the trial court conducted hearings setting pretrial hearings and deadlines as if the charging information had just been filed against Rohr. Rohr has failed to show that the trial court acted contrary to the Supreme Court's opinion or was required to take any additional actions relating to the murder conviction that was overturned by the Supreme Court prior to retrial. The Supreme Court's opinion in and of itself vacated Rohr's murder conviction. Accordingly, we conclude that Rohr's retrial did not violate any of the prohibitions against double jeopardy.
Having concluded that the trial court complied with the Indiana Supreme Court's order and that retrial on the instant charges did not violate the prohibitions against double jeopardy, we further conclude that the trial court did not err in denying Rohr's motion to dismiss the charges levied against him during retrial.
II. Admission of Witness Testimony
Rohr also contends that the trial court's decision to allow five of the State's witnesses to testify at retrial was clearly erroneous because the State failed to comply with the deadlines set forth in the trial court's October 9, 2009 order setting forth discovery deadlines, including the deadline for the parties to exchange witness lists.
The proper roles of trial and appellate courts in the resolution of discovery disputes are well established:
A trial judge has the responsibility to direct the trial in a manner that facilitates the ascertainment of truth, ensures fairness, and obtains economy of time and effort commensurate with the rights of society and the criminal defendant. Where there has been a failure to comply with discovery procedures, the trial judge is usually in the best position to determine the dictates of fundamental fairness and whether any resulting harm can be eliminated or satisfactorily alleviated. Where remedial measures are warranted, a continuance is usually the proper remedy, but exclusion of evidence may be appropriate where the discovery non-compliance has been flagrant and deliberate, or so misleading or in such bad faith as to impair the right of fair trial. The trial court must be given wide discretionary latitude in discovery matters since it has the duty to promote the discovery of truth and to guide and control the proceedings, and will be granted deference in assessing what constitutes substantial compliance with discovery orders. Absent clear error and resulting prejudice, the trial court's determinations as to violations and sanctions should not be overturned.Cliver v. State, 666 N.E.2d 59, 64 (Ind. 1996) (quoting Vanway v. State, 541 N.E.2d 523, 526-27 (Ind. 1989)).
In the instant matter, the trial court issued an order on October 9, 2010, setting the matter for trial and setting forth discovery deadlines. With respect to witness lists, the October 9, 2009 order provided as follows:
The parties shall exchange final witness and exhibit lists and file them with this Court by May 3, 2010, including the specific name, address, telephone number, curriculum vitae, and a brief summary of testimony of any expert witness to be called. This date shall also serve as the last day for compliance with Indiana Rule of Evidence 404(b) notices. ANY WITNESSES OR EXHIBITS NOT DISCLOSED BY THIS DATE, WILL ABSOLUTELY BE EXCLUDED AT TRIAL.Appellant's App. p. 732 (emphases in original). On January 28, 2010, the trial court issued an order rescheduling the trial date and amending the discovery deadlines to reflect the new trial date. With respect to witness lists, the January 28, 2010 order provided as follows:
The parties shall exchange final witness and exhibit lists and file them with this Court by September 17, 2010, including the specific name, address, telephone number, curriculum vitae, and a brief summary of testimony of any expert witness to be called. This date shall also serve as the last day for compliance with Indiana Rule of Evidence 404(b) notices. ANY WITNESSES OR EXHIBITS NOT DISCLOSED BY THIS DATE, WILL ABSOLUTELY BE EXCLUDED AT TRIAL.Appellant's App. p. 776 (emphases in original)(footnote omitted). The trial court reiterated that its January 28, 2010 order did not alter the May 3, 2010 deadline, but that the witness lists filed by the September 17, 2010 deadline should reflect those witnesses that would actually be called at trial.
The record reflects that on September 28, 2007, the State filed a witness list with contact information for those included on the list. This list included the names and contact information for the challenged witnesses. The State subsequently filed multiple amended witness lists to reflect updated contact information for some of the disclosed witnesses. On May 26, 2010, Rohr filed a motion to strike the witnesses listed on the State's September 28, 2007 witness list because the list either lacked contact information or the contact information listed was no longer accurate. On June 8, 2010, the State filed a motion seeking permission to file limited updated contact information for witnesses the State intended to call at trial, including the five challenged witnesses. On June 17, 2010, the State submitted a revised witness list including the updated contact information for the five challenged witnesses. The trial court conducted a hearing at which Rohr's counsel acknowledged that some of the witnesses "are very transient." Tr. p. 85. On June 21, 2010, the trial court issued an order denying Rohr's motion to strike the State's witnesses, allowing the State to file the amended witness list reflecting the updated contact information, and ordering the parties to submit final witness and exhibits lists to the court by August 20, 2010.
While it is true that trial courts have the discretion to exclude a belatedly disclosed witness, especially when there is evidence of bad faith on the part of opposing counsel or a showing of substantial prejudice to the opposing party, here, it is important to note that Rohr does not allege that the State failed to disclose any of the five challenged witnesses' names prior to the May 3, 2010 deadline. Instead, Rohr alleges that the State failed to update the contact information for certain previously disclosed witnesses in a timely fashion. On appeal, Rohr does not allege, much less establish, that the State's failure to file the updated contact information prior to May 3, 2010, was flagrant and deliberate, or so misleading or in such bad faith as to impair the right of fair trial. Moreover, Rohr does not demonstrate how, if at all, he was prejudiced by the State's failure to update the contact information prior to May 3, 2010. As such, we cannot conclude that the trial court's decision to allow the five witnesses to testify at trial was clearly erroneous. See Cliver, 666 N.E.2d at 64 (providing that absent clear error and resulting prejudice, the trial court's determinations as to violations of discovery orders and resulting sanctions should not be overturned).
III. Denial of Motion for Change of Judge
Rohr additionally contends that the trial court erred in denying his motion for a change of judge. Either party may move for a change of judge when a conviction is reversed on appeal and a new trial ordered. Garland v. State, 788 N.E.2d 425, 432 (Ind. 2003) (citing Ind. Code Ann. § 34-35-4-2(b)). With respect to motions for a change of judge, Indiana Rule of Criminal Procedure 12(B) provides as follows:
In felony and misdemeanor cases, the state or defendant may request a change of judge for bias or prejudice. The party shall timely file an affidavit that the judge has a personal bias or prejudice against the state or defendant. The affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be accompanied by a certificate from the attorney of record that the attorney in good faith believes that the historical facts recited in the affidavit are true. The request shall be granted if the historical facts recited in the affidavit support a rational inference of bias or prejudice.On appeal, we will reverse a trial judge's decision on a motion for change of judge under Indiana Criminal Rule 12 only if it is clearly erroneous, that is, when we are left with a definite and firm conviction that a mistake has been made. McKinney v. State, 873 N.E.2d 630, 638 (Ind. Ct. App. 2007) (citing Sturgeon v. State, 719 N.E.2d 1173, 1182 (Ind. 1999)), trans. denied.
In the instant matter, Rohr's counsel filed a verified motion for a change of judge. This motion, which included six allegations of demonstrated bias by the trial judge, was signed by Rohr's counsel and included the following statement by Rohr's counsel regarding its accuracy: "I [Rohr's counsel] certify and affirm under the penalties of perjury that the foregoing facts are true and correct under the penalties of perjury." Appellant's App. p. 490. The motion, however, did not include an affidavit signed by Rohr as required by Indiana Criminal Rule 12(B). "The law is settled that a defendant is not entitled to a change of judge where the mandates of Criminal Rule 12 have not been followed." Flowers v. State, 738 N.E.2d 1051, 1059 (Ind. 2000) (citing Smith v. State, 477 N.E.2d 857, 864 (Ind. 1985) (declaring that Criminal Rule 12 "requires a specific factual and explanatory statement for belated motions [for change of judge] to be proper."); Welch v. State, 564 N.E.2d 525, 529 (Ind.Ct.App.1990) (ruling that the trial court was justified in denying defendant's motion for change of venue which was based on trial judge bias and prejudice where the motion did not follow the dictates of Criminal Rule 12)). In failing to comply with the requirements set forth in Indiana Criminal Rule 12, Rohr waived the argument the he was entitled to a change of judge. See Hape v. State, 903 N.E.2d 977, 999 (Ind. Ct. App. 2009) (citing Flowers, 738 N.E.2d at 1059).
Waiver notwithstanding, we cannot say that the trial court's denial of Rohr's motion for a change of judge was clearly erroneous. Because a showing of prejudice that calls for a change of judge must be established from personal, individual attacks on a defendant's character, or otherwise, a defendant cannot merely assert prejudice on the grounds that the judge has ruled against him in a prior proceeding. Garland, 788 N.E.2d at 433. In the instant matter, Rohr claims that his request for a change of judge should have been granted because the trial court demonstrated bias in the following ways: (1) prior to the first trial, the trial judge made a finding of probable cause for the filing of criminal charges; (2) during the first trial, the trial judge told the jurors that the case involved the death of a young child and that the jurors were there to "find out" what happened; (3) during the first trial, the trial judge characterized a belt owned by the defendant as being an instrument used to injure S.M.; (4) during the first trial, the trial judge informed the jurors that all of the attorneys, including Rohr's attorney, involved in the case were "normal, nice people" but did not say the same about Rohr himself; (5) at sentencing following the first trial, the trial judge allegedly referred to Rohr as "Satan reincarnated;" and (6) the trial judge failed to set aside the conviction as ordered by the Indiana Supreme Court. With respect to the first four claims, we observe that Rohr did not provide any citations to these alleged statements in the trial record or demonstrate how he was prejudiced by the alleged actions or comments. Moreover, upon review we observe that the trial judge did not refer to Rohr as "Satan reincarnated" as suggested by Rohr, but rather indicated that it would impose the same sentence following Rohr's murder conviction in the prior trial whether Rohr was a candidate for sainthood or "Satan reincarnated." Moreover still, as we have discussed above, the trial judge was under no obligation to take further action with respect to the prior murder conviction after said conviction was vacated by the Supreme Court. These claims, without more, do not indicate any personal bias or prejudice on behalf of the trial judge against Rohr. As such, the denial of Rohr's motion for a change of judge was not clearly erroneous. See id.
IV. Sufficiency of the Evidence
Rohr also contends that the evidence is insufficient to support his convictions for Counts III, IV, and V.
When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction.... The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and quotations omitted). "[I]t is for the trier of fact to reject a defendant's version of what happened, to determine all inferences arising from the evidence, and to decide which witnesses to believe." Holeton v. State, 853 N.E.2d 539, 541 (Ind. Ct. App. 2006). Upon review, appellate courts do not reweigh the evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002).
A. Counts III and IV
With respect to Counts III and IV, Rohr claims that the evidence is insufficient to support his convictions for Class B felony, battery resulting in serious bodily injury on a person less than fourteen years old and Class B felony, aggravated battery because the State failed to prove that his alleged actions resulted in serious bodily injury or substantial risk of death to S.M. In making this claim, Rohr argues that "[w]hile there may be some evidence of Rohr possibly bruising S.M.'s legs, there is no evidence that would support a finding of serious bodily injury or a substantial risk of death." Appellant's Br. p. 25. We disagree.
In order to convict Rohr of Class B felony battery, the State had to prove that Rohr, a person who was at least eighteen years old, knowingly or intentionally touched S.M., a person less than fourteen years old, in a rude, insolent, or angry manner, resulting in serious bodily injury. Ind. Code § 35-42-2-1(a)(4). '"Serious bodily injury' means bodily injury that creates a substantial risk of death or that causes: (1) serious permanent disfigurement; (2) unconsciousness; (3) extreme pain; [or] (4) permanent or protracted loss or impairment of the function of a bodily member or organ." Ind. Code § 35-41-1-25. Whether bodily injury is "serious" is a question of degree and, therefore, appropriately reserved for the finder of fact. Whitlow v. State, 901 N.E.2d 659, 661 (Ind. Ct. App. 2009) (citing Hand v. State, 863 N.E.2d 386, 391 (Ind. Ct. App. 2007)). Likewise, in order to convict Rohr of Class B felony aggravated battery, the State had to prove that Rohr knowingly or intentionally inflicted injury on S.M. that created a substantial risk of death or caused (1) serious permanent disfigurement; or (2) protracted loss or impairment of the function of a bodily member or organ. Ind. Code § 35-42-2-1.5.
The evidence demonstrates that S.M. and Moore moved into Rohr's home in February of 2005, and Rohr would care for S.M. while Moore was at work. While caring for S.M., Rohr subjected S.M. to daily beatings as a primary form of punishment. Rohr administered these beatings with his hand, a flyswatter, or a belt. These beatings resulted in extreme bruising and swelling to S.M.'s legs, arms, buttocks, and genitals. With respect to these beatings, Moore testified that she believed Rohr administered the daily beatings "with a force that no child should ever have to feel." Tr. p. 710. In addition to these beatings, on April 23, 2005, S.M. suffered a severe head injury while in Rohr's sole care which left S.M. unresponsive and nauseated, and ultimately resulted in his death. Also on April 23, 2005, Rohr shook S.M. and knocked him to the floor at least three times, causing him to hit his head on a bedside dresser. Upon review, we conclude that the jury could determine that the above-described injuries, which apparently were administered with multiple instruments and extreme force and ultimately resulted in his death, can support a finding that Rohr inflicted serious bodily injury or injuries sufficient to create a substantial risk of death to S.M. Rohr's challenge to his convictions for Counts III and IV effectively amounts to an invitation to reweigh the evidence, which we will not do. See Stewart, 768 N.E.2d at 435.
To the extent that Rohr attempts to argue that S.M.'s bruising was the result of a skin condition which caused him to bruise easily, and not the daily beatings, we observe that this argument is contrary to the testimony of S.M.'s pediatrician, who last examined S.M. on March 10, 2005, and testified that he had never noted any abnormal bruising on S.M.'s body and that Moore never reported that S.M. bruised easily. Again, "it is for the trier of fact to reject a defendant's version of what happened, to determine all inferences arising from the evidence, and to decide which witnesses to believe." Holeton, 853 N.E.2d at 541. The factfinder heard Rohr's explanation for the extreme bruising on S.M.'s body and apparently disbelieved it.
B. Count V
With respect to Count V, Rohr contends that the evidence is insufficient to support his conviction for Class A felony neglect of a dependent resulting in death of a person less than fourteen years old because the State failed to prove that S.M. was a dependent of Rohr or that Rohr failed to seek immediate medical treatment for S.M. after S.M. sustained the fatal head injury. Rohr also argues that the evidence was insufficient to support his conviction because Moore's testimony was incredibly dubious.
In order to convict Rohr of Class A felony neglect of a dependent, the State had to prove beyond a reasonable doubt that Rohr, having the care of S.M., a dependent under age fourteen, knowingly or intentionally placed S.M. in a position that endangered S.M.'s life or health. Ind. Code § 35-46-1-4(b)(3). The State was not required to show that Rohr actually "caused" S.M.'s death, but rather, that his actions knowingly or intentionally placed S.M. in a situation which endangered his life. See Reynolds v. State, 783 N.E.2d 357, 359 (Ind. Ct. App. 2003). To make such a showing the State need only prove that the accused was aware of facts which would alert a reasonable caretaker under the circumstances to take affirmative action to protect the child. Hastings v. State, 560 N.E.2d 664, 667 (Ind. Ct. App. 1990) (citing Smith v. State, 408 N.E.2d 614, 621 (Ind. Ct. App. 1980)). Such a determination requires that the factfinder resort to inferential reasoning to ascertain the mental state of the accused. Id. The courts will look to all the surrounding circumstances of the case when making this determination. Id.
Upon review, we conclude that the evidence is sufficient to support the jury's findings that S.M. was a dependent of Rohr and that Rohr knowingly or intentionally placed S.M. in a situation which endangered S.M.'s life by not seeking immediate medical attention for the severe head injury that S.M. suffered while in Rohr's care on April 23, 2005. The record demonstrates that Rohr routinely assumed exclusive care of S.M. while Moore was at work. On April 23, 2005, S.M. was behaving normally and was not sick when Moore left S.M. in Rohr's exclusive care around 11:00 a.m. When Moore returned at approximately 9:45 p.m., Rohr claimed to have put S.M. to bed in his son's bedroom with the door closed rather than on a futon in a common area where S.M. normally slept. Rohr told Moore that he put S.M. in his son's bedroom because S.M. complained of feeling ill and tired, and because S.M. had vomited that day. Neither Moore nor Rohr had any contact with S.M. until approximately two hours later when Rohr told Moore that she needed to check on her "puke boy." Tr. pp. 693-94. Moore checked on S.M. and found him lying in a pool of vomit on the bed, exhibiting signs of lethargy. Moore and Rohr then took S.M. to the hospital where it was determined that S.M. was suffering from serious head injuries. S.M. later died as a result of these injuries.
Experts at trial testified that in light of the seriousness of S.M.'s head injuries, he would not have behaved normally after sustaining the injuries. Thus, one could reasonably conclude that S.M. did not suffer the fatal head injury before Moore left for work around 11:00 a.m. The experts further testified that after sustaining the injuries, S.M. would have either lost consciousness or remained conscious, but would have been in extreme pain and lethargic, and likely would have vomited. In light of the above-stated evidence in conjunction with the experts' testimony relating to head injuries, one could reasonably conclude that Rohr's behavior when Moore returned home and S.M.'s condition when Moore checked on him approximately two hours later were consistent with S.M. having suffered the head injuries while in Rohr's exclusive care before Moore returned to the home at 9:45 p.m., and further that Rohr caused the massive head injuries suffered by S.M. See Pratt v. State, 744 N.E.2d 434, 436-37 (Ind. 2001) (providing that the evidence that defendant was the only person present with the victim during the time that the lethal injuries were sustained was sufficient to sustain defendant's murder conviction).
Rohr also challenges the sufficiency of the evidence to support his conviction for Class A felony neglect of a dependent by claiming that Moore's testimony was incredibly dubious. Generally, the uncorroborated testimony of one witness is sufficient to sustain a conviction on appeal. Gregory v. State, 885 N.E.2d 697, 704-05 (Ind. Ct. App. 2008), trans. denied. However, appellate courts may apply the 'incredible dubiosity' rule to impinge on the jury's function to judge the credibility of a witness. Id. The "incredible dubiosity" test is a difficult standard to meet, one that requires great ambiguity and inconsistency in the evidence. Edwards v. State, 753 N.E.2d 618, 622 (Ind. 2001). "For testimony to be so inherently incredible that it is disregarded based on a finding of 'incredible dubiosity,' the witness must present testimony that is inherently contradictory, wholly equivocal or the result of coercion, and there must also be a complete lack of circumstantial evidence of the defendant's guilt." Clay v. State, 755 N.E.2d 187, 189 (Ind. 2001). Thus, before a court can interfere with the jury's authority to judge witness credibility and evaluate evidence, the court must be presented with testimony which "'runs counter to the human experience,'" and is "so convoluted and/or contrary to human experience that no reasonable person could believe it." Edwards, 753 N.E.2d at 622 (quoting Campbell v. State, 732 N.E.2d 197, 207 (Ind. Ct. App. 2000)). Moore's testimony does not meet this standard.
In requesting that we apply the incredible dubiosity rule, Rohr argues that Moore's testimony was inherently incredible because it was inconsistent with her prior statements. However, discrepancies between a witness's trial testimony and earlier statements made by the witness do not make the witness's testimony incredibly dubious. See Corbett v. State, 764 N.E.2d 622, 626 (Ind. 2002) (providing that inconsistencies between the witness's prior statement to police and his trial testimony do not render his testimony inherently contradictory). Moore's trial testimony was not inherently contradictory, wholly equivocal, or the result of coercion. Moore's testimony about S.M.'s condition and Rohr's actions after she got home from work on April 23, 2005, does not appear to run counter to the human experience or to be so convoluted or contrary to human experience that no reasonable person could believe it.
Furthermore, the State presented circumstantial evidence supporting Rohr's conviction. The State presented the testimony of various doctors who described the symptoms that one would exhibit after suffering a massive head trauma, and these symptoms matched Moore's descriptions of S.M.'s behavior. The State presented evidence that S.M. was left in Rohr's exclusive care after Moore left for work. In addition, Rohr admitted to hitting S.M. The State also presented the testimony of a McDonald's clerk who contradicted Rohr's testimony that he took S.M. to McDonald's for dinner. In light of this circumstantial evidence of Rohr's guilt considered with Moore's seemingly consistent trial testimony, we conclude that the incredible dubiosity rule is not applicable to the instant matter.
In sum, the evidence is sufficient to support Rohr's conviction for Count V, and the "incredible dubiosity" rule is not applicable to the instant matter. Rohr's challenge to the sufficiency of the evidence supporting his conviction for Count V effectively amounts to an invitation to reweigh the evidence or reassess the credibility of witness, which again, we will not do. See Gregory, 885 N.E.2d at 704.
V. Sentencing Issues
Rohr contends that the trial court abused its discretion in finding two aggravating factors which he claims are not supported by the record. In determining whether Rohr was properly sentenced, we initially observe that Indiana's sentencing scheme was amended effective April 25, 2005, to incorporate advisory sentences rather than presumptive sentences and comply with the holdings in Blakely v. Washington, 542 U.S. 296 (2004), and Smylie v. State, 823 N.E.2d 679 (Ind. 2005). The Indiana Supreme Court has subsequently held that upon review of a defendant's sentence, we apply the sentencing scheme in effect at the time of the defendant's offense. Upton v. State, 904 N.E.2d 700, 702 (Ind. Ct. App. 2009); see also Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007) ("Although Robertson was sentenced after the amendments to Indiana's sentencing scheme, his offense occurred before the amendments were effective so the pre-Blakely sentencing scheme applies to Robertson's sentence."). Here, Rohr committed the instant offense before the amendments to Indiana's sentencing scheme took effect but was sentenced after the effective date. Consequently, the pre-April 25, 2005 presumptive sentencing scheme applies to Rohr's conviction.
Under the pre-April 25, 2005 sentencing statutes, sentencing decisions rest within the discretion of the trial court and are reviewed on appeal only for an abuse of discretion. Upton, 904 N.E.2d at 702 (citing Smallwood v. State, 773 N.E.2d 259, 263 (Ind. 2002)). "An abuse of discretion occurs if 'the decision is clearly against the logic and effect of the facts and circumstances.'" Id. (quoting Pierce v. State, 705 N.E.2d 173, 175 (Ind. 1998)).
Here, the trial court issued an oral statement, as well as a written statement, at the conclusion of the sentencing hearing, in which it found the following aggravating factors: (1) S.M. was extremely young and had no way to defend or protect himself; (2) Rohr was in a position of trust as a step-parent and parental figure; and (3) the batteries occurred over a lengthy and protracted period of time and were very severe and involved very extensive and brutal injuries to S.M. Rohr argues that the trial court abused its discretion in finding that he was in a position of trust with S.M. and that the batteries occurred over a lengthy and protracted period of time to be aggravating factors. With regard to the trial court's determination that Rohr was in a position of trust as a step-parent and parental figure, we note that Rohr is correct in arguing that he was not a legally recognized step-parent to S.M. because he and Moore were not married. However, Moore and S.M. lived with Rohr, with Rohr having the position as the head of the household, and Rohr routinely disciplined and cared for S.M. and exerted exclusive care over S.M. during the time in which S.M. suffered the massive head injuries. As such, we conclude that the trial court's determination that Rohr was in a position of trust over S.M. was an aggravating factor at sentencing is clearly supported by the record.
We observe that while the Indiana Supreme Court's opinion in Smylie held that aggravating factors supporting deviation from the presumptive sentence must be found by the jury, 823 N.E.2d at 683-84, here, on November 1, 2010, Rohr signed a "waiver of trial by jury on sentencing factors as to Counts II, III, IV, and V if there is an acquittal on Count I." Appellant's App. p. 60. Therefore, because Rohr was acquitted of the charges alleged in Count I, the trial court was not required to conduct a jury trial on the sentencing factors before sentencing Rohr on Counts III, IV, and V.
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With regard to the trial court's determination that the batteries occurred over a lengthy and protracted period of time and were very severe and involved very extensive and brutal injuries to S.M., the evidence demonstrated that S.M. endured numerous beatings over a period of approximately a month and a half that culminated in an incident where S.M. suffered massive, and subsequently fatal, head injuries. S.M.'s doctor testified that S.M. was not bruised when he last saw him on March 10, 2005, and expert testimony established that the seventy-seven bruises found on S.M.'s body by hospital staff were sustained at different times because the color of the bruising indicated that the bruises were of different ages. In light of the evidence that established that S.M. received seventy-seven bruises between March 10, 2005, and April 23, 2005, and that these bruises were received at different times, we cannot say that the trial court's determination that the batteries occurred over a lengthy and protracted period of time was unsupported by the record. As such, we conclude that the trial court acted within its discretion in sentencing Rohr.
In sum, Rohr's retrial did not violate the prohibitions against double jeopardy, the trial court's decision to allow certain State's witnesses to testify at trial was not clearly erroneous, the trial court did not err in denying Rohr's motion for a change of judge, the evidence was sufficient to support Rohr's convictions, and the trial court acted within its discretion in sentencing Rohr.
The judgment of the trial court is affirmed. ROBB, C.J., and BARNES, J., concur.