IN THECOURT OF APPEALS OF INDIANADAVID LIKENS,))Appellant-Defendant,))vs.)No. 49A02-1003-CR-360)STATE OF INDIANA,))Appellee-Plaintiff.)APPEAL FROM THEMARION SUPERIORCOURT The Honorable Robert R. Altice, Judge Cause No. 49G02-0908-FB-76307October 5, 2010MEMORANDUM DECISION -NOT FOR PUBLICATIONKIRSCH, Judge
2 David Likens(“Likens”) was convicted after a bench trial of battery,1as a Class B felony and sentenced to ten years executed. He appeals raising the following restated issue: whether sufficient evidence was presented to support his conviction.
We affirm.FACTS AND PROCEDURAL HISTORY Likens and Dina Williams (“Williams”) were married on July 30, 2008, and their daughter, S.L., was born on December3, 2008. On the morning of Saturday, August 8, 2009, Likens put S.L. on the floor in the living room of the couple’s townhouse. Jazmine Sanchez, a friend who was temporarily staying with the couple, saw Likens and S.L. from the doorway. S.L. raised her head to look around and then slammed it on the floor and began to cry. Likens yelled at S.L., “Shut up. Be quiet or I’m going to pop you.” Tr. at 17. S.L. did not stop crying. Likens then sat at the edge of the bed, which was located in the living room, leaned forward, and grabbed S.L. by the ankles. Likens jerked or yanked S.L. toward him and dragged her by her ankles across the floor approximately two or three feet. S.L. began to cry even more. Likens grabbed the baby under the arms and put her in the middle of the bed. Williams entered the room and was mad because S.L. was crying. Williams grabbed S.L. under her arm, picked her up, and put her in a bassinet to feed her a bottle. Williams then went upstairs to get ready to leave. That evening, Williams and Likens took S.L. to the emergency room because the baby was running a fever, and Williams thought that she may be having a seizure. A doctor saw S.L. at 6:59 p.m. and observed no evidence of seizure activity. The doctor 1See Ind. Code § 35-42-2-1(a)(4).
3noted that S.L. was “awake, alert, appropriate.” Def’t’s Ex. B. On the emergency room report, the doctor wrote “negative” with regard to extremities. Id. S.L. was discharged with an order to take Tylenol. Id. That night, S.L. cried “on and off every five, ten minutes.” Tr. at 23. On Sunday morning, Williams noticed that S.L.’s left leg was swollen. The swelling went from her foot almost up to her knee. Several days later, on August 13, 2009, Williams took S.L. to Riley Hospital for Children because the leg was still swollen. On that day, Dr. Tara Harris, a child abuse pediatrician, saw S.L. An x-ray of S.L.’s lower left leg showed that she had a metaphyseal or corner fracture of the left ankle. A corner fracture can be caused by accidental injury, bone disease, or inflicted injury. Through questions to the parents, physical examination, and a series of lab studies, Dr. Harris ruled out an accidental injury or bone disease. She therefore determined that S.L.’s injury was caused by inflicted injury, which occurred on Saturday or Sunday morning. On August 28, 2009, Likens was charged with battery as a Class B felony. At Likens’s bench trial, Dr. Harris testified that there was only one mechanism for a fracture like S.L.’s to occur and that was “a jerking on that extremity.” Id. at 60. Dr. Harris ruled out the possibility that the fracture happened as the result of a kicking motion or S.L. hitting her foot on a bathtub. Id. at 61. The doctor also explained that even though the emergency room doctor had noted “negative” regarding S.L.’s extremities, this did not necessarily mean that her leg had not already been broken. Id. at 72-73. She stated this was because doctors in the emergency room often only looked at finger tips and toes to make sure they were “well perfused” nd did not check the motion unless the reason for
4the visit was an injury to the extremities. Id. at 72. Dr. Harris also testified that swelling due to a corner fracture often maximized around twenty-four to forty-eight hours after an injury. Id. at 67. The trial court found Likens guilty as charged and sentenced him to ten years executed. Likens now appeals ....
https://law.justia.com/cases/indiana/court-of-appeals/2010/10051004jsk.html
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