Tristan Dean Gerhardt, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] In July 2024, the State charged Tristan Gerhardt (“Gerhardt”) with Level 3 felony domestic battery ¹ and Level 3 felony neglect of a dependent.² Following a bench trial, the trial court convicted Gerhardt of both offenses and entered judgment of conviction on both counts. At the end of Gerhardt's sentencing hearing, the trial court merged the two convictions and sentenced Gerhardt to twelve years for the Level 3 felony domestic battery conviction.

[2] On appeal, Gerhardt argues that: (1) the evidence is insufficient to support his conviction; and (2) his sentence is inappropriate. Concluding that: (1) there is sufficient evidence to support Gerhardt's conviction; and (2) Gerhardt has failed to show that his sentence is inappropriate, we affirm the trial court's judgment.

[3] We further note that the State correctly points out that because the trial court entered judgment of conviction on both counts, merging the offenses was not sufficient to remedy any double jeopardy concerns. Rather, the trial court was required to vacate one of the convictions.³ Accordingly, we remand with instructions for the trial court to vacate Gerhardt's Level 3 felony neglect of a dependent conviction.

[4] We affirm and remand with instructions.

Issues

1. Whether there is sufficient evidence to support Gerhardt's conviction.

2. Whether Gerhardt's sentence is inappropriate.

Facts

[5] The facts most favorable to the judgment reveal that Gerhardt and Carla Clark (“Mother”) (collectively “Parents”) began dating in December 2022. At that time, Gerhardt lived in Illinois. When Mother, who is on the autism spectrum and who has a shunt in her brain because she suffers from hydrocephalus, became pregnant, Gerhardt moved to Indiana to live with Mother in the basement of maternal grandparents’ (“maternal grandparents”) home. Also living in maternal grandparents’ home were: (1) seven-year-old A.C. (“A.C.”), Mother's daughter from a previous relationship; (2) fourteen-year-old I.H. (“I.H.”), a previous foster child who maternal grandparents had adopted; and (3) eleven-year-old A.H., another previous foster child who maternal grandparents had adopted. Maternal grandparents, A.C., I.H., and A.H. lived on the main floor of maternal grandparents’ home.

[6] Parents’ son, M.G., was born in September 2023. In October or November 2023, Mother returned to her job as the day manager at Kentucky Fried Chicken (“KFC”). Gerhardt was the evening manager at KFC, and Parents shared the care for M.G. Specifically, while Mother worked during the day, Gerhardt cared for M.G., and while Gerhardt worked during the evening, Mother cared for M.G. During the evenings, Mother generally cared for M.G. in the kitchen and living room at maternal grandparents’ home. However, while Gerhardt cared for M.G., Gerhardt and M.G. generally remained in the basement.

[7] When Gerhardt cared for M.G., maternal grandmother (“maternal grandmother”), who is a registered nurse, sometimes heard M.G. “screaming cry[,]” and it “sounded like there was no soothing[.]” (Tr. Vol. 2 at 20). A few times, Mother sent A.H. to knock on the basement door to see if Gerhardt needed help with M.G. A.C., I.H., and A.H. were never left unattended with M.G.

[8] In early 2024, maternal grandmother noticed that Gerhardt “pulled [M.G.’s] legs” while Gerhardt was changing M.G.’s diaper. (Tr. Vol. 2 at 19). Maternal grandmother told Gerhardt that he needed “to be more gentle with [M.G.]” (Tr. Vol. 2 at 30).

[9] When Mother left for work on February 28, 2024, she did not notice any injuries on M.G. However, when she returned from work that afternoon, Mother noticed that M.G.’s leg was swollen. Mother and maternal grandmother took M.G. to his pediatrician the following day, and the pediatrician ordered an x-ray of M.G.’s leg. When Mother telephoned Gerhardt to tell him that she was taking M.G. for an x-ray of his leg, Gerhardt seemed angrier about the x-ray than concerned about M.G.

[10] The results of the x-ray revealed that M.G. had two fractures in his leg, one in his upper leg and another in his lower leg. M.G.’s pediatrician, who was concerned that M.G.’s fractures had been caused by “non-accidental trauma[,]” immediately contacted Mother and maternal grandmother and told them to take M.G. to the emergency room at Peyton Manning Children's Hospital (“the hospital”). (Tr. Vol. 2 at 73).

[11] Maternal grandparents and Parents accompanied M.G. to the emergency room. The hospital's child abuse pediatrician (“the child abuse pediatrician”) ordered a skeletal survey of M.G., which “would allow [the child abuse protection team] to look at all the other bones in [M.G.]’s body to look for evidence of other injuries or medical diseases of the bones that could explain what was seen on [M.G.’s] left leg.” (Tr. Vol. 2 at 143). The skeletal survey revealed that five-month-old M.G. had twelve fractures, including five fractures in his right leg, four fractures in his left leg, one fracture in his right arm, and two fractures in his left arm.

[12] Ten of the fractures were CML fractures,⁴ which typically occur near the growth plate of the bone. The child abuse pediatrician explained that “[t]hese types of fractures do not occur with typical handling, like just changing a diaper, but could occur with pulling on the legs if it was done with excessive force.” (Tr. Vol. 2 at 163). Further, according to the child abuse pediatrician, there is nothing that infants do “through the normal course of developing, where it's common for them ․ to sustain CML fractures[.]” (Tr. Vol. 2 at 166). The child abuse pediatrician further explained that an infant would cry at the time the fracture occurred but would then be relatively asymptomatic. The skeletal survey further revealed that the fractures were in different stages of healing, indicating that the fractures had not occurred at the same time. After ruling out other causes for the fractures, including birth injuries, vitamin deficiencies, genetic disease, and bone disease, the child abuse pediatrician diagnosed M.G. with child physical abuse.

[13] A Noblesville Police Department detective (“the detective”) was dispatched to the hospital to speak with Parents and maternal grandparents. Twenty-nine-year-old Gerhardt, who initially told the detective that he did not know how M.G. had been injured, subsequently “c[a]me up with some sort of ․ educated guess[.]” (Tr. Vol. 2 at 122). Specifically, Gerhardt told the detective that one day when M.G. had begun to roll off the bed, Gerhardt had “caught [M.G.] like a football with [Gerhardt's] arms underneath him[.]” (Tr. Vol. 2 at 122). Gerhardt also told the detective that one time, seven-year-old A.C. had been “kind of roughhousing with M.G.” and that Gerhardt had told her to be more gentle with the infant. (Tr. Vol. 2 at 126).

[14] On March 1, 2024, DCS removed M.G. from parents because “there were multiple injuries [to M.G.] that parents were not able to explain how they had happened.” (Tr. Vol. 2 at 91). DCS placed M.G. with maternal grandparents, and Gerhardt and Mother were not allowed to return to living in maternal grandparents’ home.

[15] Four months later, in July 2024, the State charged Gerhardt with Level 3 felony domestic battery and Level 3 felony neglect of a dependent.⁵ At Gerhardt's January 2025 bench trial, the trial court heard the facts as set forth above. During closing argument, defense counsel argued as follows:

This is not a direct evidence case. It's a circumstantial evidence case․ No eyewitness. There were seven or eight people that lived in his house[.] ․ No doctor, no nurse practitioner told you that my client did anything. Now you're left to guess, and if you're left to guess, I submit to you, it's speculation. I submit to you it's not beyond a reasonable doubt.

(Tr. Vol. 2 at 208-09). The trial court convicted Gerhardt of both offenses and entered judgment of conviction on both counts.

[16] During Gerhardt's February 2025 sentencing hearing, the trial court reviewed Gerhardt's presentence investigation report, which revealed that Gerhardt has a criminal history that includes a juvenile delinquency adjudication in Illinois for committing what would be felony arson if committed by an adult. In addition, in Illinois, Gerhardt has six misdemeanor convictions, including four convictions for theft and two convictions for driving while never having been issued a license. The PSI further revealed that Gerhardt had previously failed to appear in court, had defaulted on the payment of fines, costs, and fees, and had had his conditional discharge revoked.

[17] In addition, during the preparation of the PSI, Gerhardt told the probation officer who was completing the PSI that Mother's six- and eight-year-old nieces (“the nieces”) had been too rough with M.G. According to Gerhardt, the nieces “would ‘drag [M.G.] across the floor and manhandled him and treated him like a babydoll.’ ” (App. Vol. 2 at 69). Gerhardt further told the probation officer that he had not told law enforcement officers that the nieces had injured M.G. because he had not wanted to get the nieces in trouble. Gerhardt's written version of the offense, which was attached to the PSI, provided that the nieces had fallen on M.G.

[18] Also, during the sentencing hearing, maternal grandmother explained that there had been more than one fracture in the same area in M.G.’s elbow. According to maternal grandmother, M.G.’s elbow might “have to be surgically repaired, because the bone's grown over the bone and ․ he m[ight] not be able to move [his elbow] appropriately.” (Tr. Vol. 2 at 223).

[19] At the end of the sentencing hearing, the trial court stated as follows:

I think as far as one of the ․ significant pieces of evidence in this case was not just a broken bone, it was the multitude of broken bones and that the broken bones were in a variety of states of healing․ I think that was very damning evidence for [Gerhardt].

I agree with you, [defense counsel], that we don't have an eyewitness that says they saw [Gerhardt] do anything to [M.G.], the infant.

And, [deputy prosecutor] - - and you were both correct. We have circumstantial evidence in this case. I think that based upon all the testimony I heard that the circumstantial evidence was sufficient. That's why I entered the convictions as to both counts.

(Tr. Vol. 2 at 233).

[20] Thereafter, the trial court found the following aggravating factors: (1) Gerhardt's criminal history; (2) the victim was an infant; and (3) Gerhardt was in a position of trust for his son. Further, the trial court found as a mitigating factor that Gerhardt had another child who needed his family. The trial court then merged the two convictions and sentenced Gerhardt for the Level 3 felony domestic battery conviction. Specifically, the trial court sentenced Gerhardt to twelve (12) years, with nine (9) years executed in the Department of Corrections (“the DOC”), two (2) years executed in community corrections, and one (1) year suspended to probation.

[21] Gerhardt now appeals.

Decision

[22] Gerhardt argues that: (1) there is insufficient evidence to support his conviction; and (2) his sentence is inappropriate. We address each of his contentions in turn.

1. Sufficiency of the Evidence

[23] Gerhardt first argues that there is insufficient evidence to support his conviction for Level 3 felony domestic battery. We disagree.

[24] “Our standard for reviewing evidentiary sufficiency challenges is well established, as we have made clear that 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.” Konkle v. State, 253 N.E.3d 1068, 1090 (Ind. 2025) (cleaned up). “A conviction is supported by sufficient evidence if there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Id. (cleaned up). We review only the evidence most favorable to the verdict and the reasonable inferences therefrom and will reverse “only where it is shown that no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Id. at 1090-91 (cleaned up).

[25] To convict Gerhardt of Level 3 felony domestic battery, the State had to prove beyond a reasonable doubt that Gerhardt, a person at least eighteen years old, knowingly or intentionally touched M.G., a family member under fourteen years old, in a rude, insolent, or angry manner, resulting in serious bodily injury to M.G. See I.C. § 35-42-2-1.3; (App. Vol. 2 at 14).

[26] Gerhardt first argues that the State “failed to present any direct or circumstantial evidence that [he] touch[ed] M.G. in a rude, insolent, or angry manner.” (Gerhardt's Br. 14). It is true that the State presented no direct evidence that Gerhardt touched M.G. in a rude, insolent, or angry manner. Rather, the State built its case on circumstantial evidence.

[27] Our Indiana Supreme Court has stated that “circumstantial evidence alone is sufficient to sustain a conviction.” Warren v. State, 725 N.E.2d 828, 834 (Ind. 2000). Specifically, the supreme court has explained as follows:

In a circumstantial case, no single piece of evidence in isolation – no smoking gun – is offered to persuade the [factfinder] to convict. Yet a [factfinder] may be convinced, beyond a reasonable doubt, by looking at a web of facts in which no single strand may be dispositive. Indeed, the evidence in the aggregate may point to guilt where individual elements of the State's case might not. Just as in the probable cause context, when presented with a sufficiency challenge, we look at the whole picture without taking a divide-and-conquer approach to individual pieces of evidence.

Young v. State, 198 N.E.3d 1172, 1176-77 (Ind. 2022) (cleaned up).

[28] Here, our review of the whole picture reveals that during the day while Mother was at work, Gerhardt was M.G.’s sole caretaker in the basement of maternal grandparents’ home. Maternal grandmother sometimes heard M.G. “screaming cry” and sent A.H. to knock on the basement door to see if Gerhardt needed help with M.G. (Tr. Vol. 2 at 20). In early 2024, maternal grandmother noticed that Gerhardt pulled M.G.’s legs while changing M.G.’s diaper. Maternal grandmother told Gerhardt that he needed to be more careful with M.G. One month later, Mother did not notice any injuries on M.G. when she left for work. However, when she returned home that afternoon, M.G.’s leg was swollen. Mother and maternal grandmother took M.G. to his pediatrician the following day, and an x-ray revealed two fractures in M.G.’s leg. A subsequent skeletal survey at the hospital revealed that M.G. had a total of twelve fractures in differing stages of healing. Ten of the fractures were CML fractures, which do not occur with typical handling of an infant or during the normal course of the infant's development. Rather, such fractures can occur when an infant's limbs are pulled with excessive force. After ruling out any other causes for the fractures, the child abuse pediatrician diagnosed M.G. with child physical abuse. By finding Gerhardt guilty as charged, the trial court was convinced, beyond a reasonable doubt, that the evidence in the aggregate pointed to Gerhardt's guilt. We cannot second guess that judgment by reweighing the evidence and assessing witness credibility. See Konkle, 253 N.E.3d at 1090. However, we conclude that there is sufficient evidence from which the trial court could conclude, beyond a reasonable doubt, that Gerhardt touched M.G. in a rude, insolent, or angry manner.

[29] Gerhardt also argues that the State failed to prove beyond a reasonable doubt that his conduct was knowing. Gerhardt specifically contends that “there is no evidence that [he] ․ engaged in touching M.G. in a rude, insolent, or angry manner where he was aware of the high probability that he would cause serious bodily injury to M.G.” (Gerhardt's Br. 12).

[30] Indiana Code § 35-41-2-2(b) provides that a person engages in conduct knowingly “if, when he engages in the conduct, he is aware of the high probability that he is doing so.” A defendant's intent can be proved by circumstantial evidence, and the factfinder can infer intent “from a defendant's conduct and the natural and usual sequence to which such conduct logically and reasonably points.” Myers v. State, 221 N.E.3d 694, 699 (Ind. Ct. App. 2023) (cleaned up), trans. denied.

[31] Here, our review of the evidence reveals that five-month-old M.G. was in twenty-nine-year-old Gerhardt's sole care when M.G. sustained fractures in his leg. The child abuse pediatrician opined that the fractures could be the result of excessive pulling on M.G.’s legs. Maternal grandmother had previously seen Gerhardt pulling on M.G.’s legs when Gerhardt changed M.G.’s diaper, and she had told Gerhardt that he needed to be more careful with M.G. Based on these facts and circumstances, the factfinder could have reasonably inferred that Gerhardt acted knowingly. See id. (holding that the factfinder could have reasonably inferred that the defendant, who had been alone with his girlfriend's three-month-old daughter when the infant sustained traumatic injuries, acted knowingly). As a result, the State presented sufficient evidence to support Gerhardt's conviction.

2. Inappropriate Sentence

[32] Gerhardt also argues that his sentence is inappropriate. He specifically asks this Court to “revise down the trial court's sentence[.]” (Gerhardt's Br. 17).

[33] Indiana Appellate Rule 7(B) provides that we may revise a sentence authorized by statute if, after due consideration of the trial court's decision, we find that the sentence is inappropriate in light of the nature of the offense and the character of the offender. The defendant bears the burden of persuading this Court that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate turns on the “culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Sentence modification under Rule 7(B) is reserved for a “rare and exceptional case.” Skeens v. State, 191 N.E.3d 916, 923 (Ind. Ct. App. 2022) (cleaned up).

[34] When determining whether a sentence is inappropriate, we acknowledge that the advisory sentence is the starting point the Legislature has selected as an appropriate sentence for the crime committed. Childress, 848 N.E.2d at 1081. Here, the trial court convicted Gerhardt of Level 3 felony domestic battery. The sentencing range for a Level 3 felony is between three (3) and sixteen (16) years, with an advisory sentence of nine (9) years. See I.C. § 35-50-2-5(b). The trial court sentenced Gerhardt to twelve (12) years, with nine (9) years executed in the DOC, two (2) years executed in community corrections, and one (1) year suspended to probation. This sentence is less than the sixteen-year maximum sentence that the trial court could have imposed.

[35] With regard to the nature of the offense, we note that while Gerhardt was responsible for the care of his infant son, M.G., Gerhardt engaged in behavior that caused M.G. to suffer twelve fractures. Specifically, Gerhardt caused five fractures in M.G.’s right leg, four fractures in the infant's left leg, one fracture in the infant's right arm, and two fractures in the infant's left arm. Ten of these fractures could have been caused by Gerhardt pulling on M.G.’s limbs with excessive force, and the fractures were inflicted at different times. We further note that the fractures in M.G.’s arm resulted in bone growing over bone, and, at the time of Gerhardt's sentencing hearing, M.G. was facing possible surgery to assure that he would be able to move his elbow appropriately.

[36] With regard to Gerhardt's character, we note that he has a criminal history in Illinois that includes one juvenile delinquency adjudication for committing what would be felony arson if committed by an adult. Gerhardt's criminal history also includes six misdemeanor convictions. We further note that Gerhardt's attempts to blame Mother's seven-year-old daughter and Mother's six- and eight-year-old nieces for M.G.’s injuries reflects poorly on Gerhardt's character.

[37] Based on the nature of the offense and his character, Gerhardt has failed to persuade this Court that his twelve-year sentence, with nine years executed in the DOC, two years executed in community corrections, and one year suspended to probation, is inappropriate. We further note that this is simply not one of those rare and exceptional cases for which a sentence modification under Rule 7(B) is reserved. Therefore, we affirm Gerhardt's sentence.

[38] Affirmed and remanded with instructions.

FOOTNOTES

1.   Ind. Code § 35-42-2-1.3.

2.   I.C. § 35-46-1-4.

3.   See Kovats v. State, 982 N.E.2d 409, 414-15 (Ind. Ct. App. 2013) (explaining that if a trial court enters judgment of conviction on multiple offenses, “then simply merging the offenses” at sentencing “is insufficient and vacation of the offense is required” in order to remedy any double jeopardy concerns).

4.   “A CML is a classic metaphyseal lesion, abbreviated as C-M-L. That type of fracture is the type of fracture whereby the very end of the calcified bone is pulled off of the end, creating a bucket handle or corner fracture, more broadly referred to as a CML.” (Tr. Vol. 2 at 150).

5.   The State did not charge Mother with any offenses.

Pyle, Judge.

Altice, C.J., and DeBoer, J., concur.