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: ATTORNEYS FOR APPELLEE:

LEANNA WEISSMANN GREGORY F. ZOELLER

Lawrenceburg, Indiana Attorney General of Indiana 

IAN MCCLEAN

Deputy Attorney General 

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

ZEBULAN HILDEBRAND,

)

Appellant-Defendant, )

)

vs. ) No. 69A01-1210-CR-459

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE RIPLEY CIRCUIT COURT

The Honorable Jonathan Cleary, Special Judge

Cause No. 69C01-1109-FB-12

May 22, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge
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Case Summary and Issues

Zebulan Hildebrand appeals his conviction for aggravated battery as a Class B 

felony. Hildebrand presents three restated issues on appeal: 1) whether it was 

fundamental error for the trial court to allow certain expert testimony; 2) whether 

Hildebrand’s sentence is inappropriate in light of his character and the nature of the 

offense; and 3) whether the judgment of conviction should be corrected to clarify his 

conviction. Concluding that there was no fundamental error in admission of the 

testimony, that Hildebrand’s sentence is not inappropriate, and that the judgment of 

conviction should be amended for clarification, we affirm in part and remand for 

correction of the judgment of conviction.

Facts and Procedural History

On August 12, 2011, Hildebrand brought his two-month-old son, S.H., into the 

emergency room. Hildebrand indicated that he had been watching S.H. along with his 

two older children, a one-year-old and a two-year-old, when the older children ran 

through the room, knocked Hildebrand off balance, and Hildebrand dropped S.H. 

Hildebrand stated that after being dropped, S.H. became limp and stopped breathing. 

Upon arrival at the emergency room, S.H. was having difficulty breathing, and was 

displaying abnormal limb movement. S.H. was rated as being a five on the Glasgow 

coma scale; anything under an eight is considered to be a coma. S.H. was then 

transported to a larger children’s hospital in Cincinnati, which was better equipped to 

deal with his condition.

Upon arrival in Cincinnati, it was discovered that S.H. had subdural hematomas 

(bleeding on the brain) on both sides of the brain, and a lacerated (torn) liver. It appears 
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that at one point, Hildebrand told a hospital staff member that he had fallen on S.H. after 

being tripped by the older children, but later he was not able to tell physicians whether or 

not he had fallen on S.H. Hildebrand also could not recall whether he had given S.H.

chest compressions. One of the physicians with whom Hildebrand spoke was Dr. 

Makoroff. Dr. Makoroff was concerned by the vagueness with which Hildebrand 

described the incident, and the inconsistencies between his story and S.H.’s injuries, and 

eventually she alerted police that she suspected child abuse. When Indiana State Police 

Detective Rohlfing spoke to Hildebrand, Hildebrand stated that he had shaken S.H. In 

his discussion with Detective Rohlfing, Hildebrand implied that the shaking had occurred 

when he tried to catch S.H. mid-fall and had jerked him back up, but then lost his grip 

again and S.H. fell to the floor.1 That same day, tests revealed that S.H. exhibited retinal 

hemorrhages, and the pediatric ophthalmologist, Dr. West, diagnosed S.H. with abusive 

head trauma. In talking to Detective Rohlfing, Hildebrand admitted that he had not 

initially told doctors the whole story surrounding S.H.’s injuries, and admitted that his 

failure to tell the doctors the truth was an attempt to help himself.

On September 19, 2011, Hildebrand was charged with battery resulting in serious 

bodily injury, a Class B felony, and aggravated battery, a Class B felony. In August 

2012, Hildebrand was tried before a jury. At trial, Dr. Makoroff testified that she 

diagnosed S.H. with child abuse or abusive head trauma; Dr. West testified that the 

trauma to S.H. was non-accidental. The jury found Hildebrand guilty of both counts.

 

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 At some point, either at trial or before, Hildebrand indicated that he shook S.H. after he had fallen, in an 

attempt to revive him. 
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The court held a sentencing hearing in September 2012, and noted the following 

considerations as impacting sentencing:

The victim, [S.H.], was two (2) months old.

The Defendant does not have a criminal history.

The Defendant told Indiana State Police Detective Tracy Rohlfing that you 

do not admit to doing this, wanted to hide the fact that he almost killed 

[S.H.], he jerked the shit out of [S.H.] two to three times, and he thought he 

broke [S.H.]’s neck.

The Defendant was in a position of trust, as he is the father of [S.H.], and 

was the sole caretaker in the home at the time the two month old was 

injured.

Brief of Appellant at 32. The court also noted other considerations, including the 

multiple injuries that S.H. was found to have sustained. The court sentenced Hildebrand 

to sixteen years at the Department of Correction with two years suspended to probation. 

This appeal followed. Additional facts will be supplied as necessary.

Discussion and Decision

I. Fundamental Error

A. Standard of Review

We will review errors not preserved at trial only if they rise to the level of 

fundamental error. Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994). The burden of 

proving that an alleged error occurred and that it constitutes fundamental error rests with 

the defendant. Id. The fundamental error rule is extremely narrow, and applies only 

when the error constitutes a blatant violation of basic principles, the harm or potential for 

harm is substantial, and the resulting error denies the defendant fundamental due process. 

Wilson v. State, 931 N.E.2d 914, 919 (Ind. Ct. App. 2010), trans. denied. Fundamental 

error is defined as error so prejudicial to the rights of a defendant that a fair trial is 

rendered impossible. Id. The mere fact that error occurred and that it was prejudicial 
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will not satisfy the fundamental error rule. Id. In determining whether an alleged error 

denied the defendant a fair trial, we must consider whether the resulting harm or potential 

for harm is substantial. Townsend, 632 N.E.2d at 730. We look to the totality of the 

circumstances and decide whether the error had substantial influence upon the verdict to 

determine if the trial was unfair. Id. 

B. Admission of Physician Testimony

Hildebrand first challenges the testimony of Drs. Makoroff and West, claiming 

that the testimony was too speculative because the doctors did not have all of the facts—

namely Hildebrand’s later admission that he shook S.H.—when they made their 

diagnoses. Further, Hildebrand argues that the testimonies regarding S.H.’s injuries 

being the result of child abuse or non-accidental trauma were in violation of Indiana 

Evidence Rule 704 in that they went to the issue of intent. Because Hildebrand moved in 

limine to prevent the testimony but did not object at the time of the testimony, any error 

was not preserved for appeal. Raess v. Doescher, 883 N.E.2d 790, 796-97 (Ind. 2008). 

We thus analyze the challenged testimonies under the fundamental error doctrine. 

Regarding the nature of the doctors’ conclusions, we disagree that the testimony 

was too speculative. While Dr. Makoroff formed an initial opinion about the nature of 

S.H.’s injuries, her diagnosis of child abuse did not solidify until Dr. West examined S.H. 

and discovered retinal hemorrhaging. That was the same day that Detective Rohlfing 

first spoke with Hildebrand and Hildebrand admitted to shaking S.H. It appears that that 

additional background information did not change either doctor’s opinion as to the nature 

of the injuries, either that day or at any time up to and including when they gave their 

testimony at trial. 
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Moreover, a review of the record shows that Dr. Makoroff is a child abuse 

specialist, and her transcript testimony was over one hundred and fifty pages. At trial, 

she discussed her extensive background and experience, as well as her exam of S.H.’s 

medical records and CT scans, examination of S.H. himself, and conversation with S.H.’s 

parents. She specifically noted that she felt her job was not only to make sure that no 

incidents of child abuse were missed, but also that child abuse was not mistakenly 

diagnosed. She testified as to other possible causes for each of S.H.’s injuries, and then 

explained how those possible causes had been ruled out or were not consistent with 

Hildebrand’s account of the accident or with the totality of the combination of S.H.’s 

particular injuries. She went through each test and finding and explained how it 

contributed to her analysis and how she reached her ultimate diagnosis. In sum, we are 

convinced that her diagnosis was far from speculative. 

Dr. West’s testimony was shorter and more specific because she was the 

ophthalmologist who examined S.H.’s eyes and discovered the retinal hemorrhages, and 

her testimony focused on her findings. Nonetheless, she also discussed other possible 

causes for the type and severity of S.H.’s hemorrhages, and then explained how those 

other causes—for example, diabetes, CPR, or a fall as Hildebrand described it—had been 

ruled out or were inconsistent, and she was left with abusive head trauma as the only 

possibility within a medical certainty. She was specifically asked whether the 

hemorrhages could have been caused by a shaking to revive S.H., and she testified that 

they could not. Her testimony was also not too speculative.

Hildebrand also contends that the doctors’ testimony violated Indiana Evidence 

Rule 704, arguing that the opinion that S.H.’s injuries were caused by child abuse rather 
7

than accidental injury went to intent and/or the ultimate issue. Indiana Evidence Rule 

704 states:

(a) Testimony in the form of an opinion or inference otherwise admissible 

is not objectionable merely because it embraces an ultimate issue to be 

decided by the trier of fact.

(b) Witnesses may not testify to opinions concerning intent, guilt, or 

innocence in a criminal case; the truth or falsity of allegations; whether a 

witness has testified truthfully; or legal conclusions.

Hildebrand cites no Indiana authority to support his argument, but cites to two 

cases from other jurisdictions, Wyatt v. State, 405 So.2d 154 (Ala. Crim. App. 1981), and 

State v. Sanchez-Alfonso, 293 P.3d 1011 (Or. 2012). However, in Wyatt, the court 

disapproved of a doctor testifying that the child was a victim of child abuse because the 

facts and medical findings were simple enough to be understood by a jury, and therefore 

the ultimate determination of abuse was their conclusion to draw. 405 So.2d at 158. And 

in Sanchez-Alfonso, the problem with the doctor’s testimony was not that it went to 

whether the child had been abused, but that the doctor testified that the defendant was the 

abuser. 293 P.3d at 1017.

The State notes that Rule 704 specifically allows that testimony is not 

objectionable merely because it goes to an ultimate issue. The State also cites to a case 

more generally on point, Julian v. State, 811 N.E.2d 392 (Ind. Ct. App. 2004), trans. 

denied, in which we determined that expert testimony was not in violation of Rule 704. 

In that case, an arson case, an expert testified that the fire in question had been 

intentionally set. We determined that because the expert did not testify that the defendant

had intentionally set the fire, the testimony was not in violation of Rule 704. Julian, 811 

N.E.2d at 400. Likewise, here the doctors testified as to their diagnosis of child abuse, 
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but neither doctor testified that Hildebrand had intentionally injured S.H. It is true that 

Hildebrand admitted to being the only caretaker for S.H. that day. However, we agree 

with the State that the fact that the doctors’ testimonies, if believed, and when combined 

with other evidence, might have led the jury to conclude that Hildebrand intentionally 

injured S.H., does not mean that the testimony was in violation of Rule 704. We 

conclude that the doctors’ testimonies did not violate Rule 704.

Because the doctors’ testimony as a whole was broad and thorough and took into 

account S.H.’s multiple injuries and the backstory provided by Hildebrand, we conclude 

that the testimony was not too speculative. Further, the testimony was not in violation of 

Indiana Evidence Rule 704. We conclude that there was no fundamental error in 

allowing Drs. Makoroff and West to testify to their diagnoses of child abuse and nonaccidental trauma.

II. Appropriateness of Sentence

A. Standard of Review

We are empowered by Indiana Appellate Rule 7(B) to revise a sentence “if, after 

due consideration of the trial court’s decision, the Court finds that the sentence is 

inappropriate in light of the nature of the offense and the character of the offender.” The 

burden is on the defendant to persuade us that his sentence has met this inappropriateness 

standard of review. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). When 

conducting this inquiry, we may look to any factors appearing in the record. Roney v. 

State, 872 N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. 
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B. Hildebrand’s Aggravated Battery Sentence

Next, Hildebrand challenges his sentence, arguing that it is inappropriate in light 

of his character and the nature of the offense. We disagree. Hildebrand was convicted of 

aggravated battery as a Class B felony, and the statutory sentencing range was thus 

between six and twenty years, with an advisory sentence of ten years. Ind. Code § 35-50-

2-5. Hildebrand was sentenced to sixteen years, with two years suspended to probation.

Hildebrand argues that the nature of the offense was not egregious enough to 

warrant his sentence, because S.H.’s injuries were “typical” of what one would expect of 

a Class B felony. Br. of Appellant at 23. Under this reasoning, rarely would any offense 

warrant an enhanced sentence. Moreover, Hildebrand downplays the continuing and 

potential life-long repercussions of S.H.’s injuries, as it appears that while S.H. has 

improved since being released from this hospital, he continues to be delayed in reaching 

developmental milestones.

Hildebrand also argues that his character suggests that a reduced sentence would 

be more appropriate. Hildebrand notes his remorse for S.H.’s injuries, his supportive 

family, and his lack of criminal history. He fails, however, to address his admission to 

Detective Rohlfing that he initially lied to doctors about the accident in an effort to 

protect himself. He also fails to address what we believe to be an important factor—that 

the victim was his own two-month-old son. Abuse of that position of trust speaks to his 

character, and perhaps says more than any later regret can. In light of the totality of the 

nature of the offense and Hildebrand’s character, we conclude that the sentence imposed 

by the trial court was not inappropriate. 
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III. Abstract of Judgment 

Finally, Hildebrand claims that the trial court orders are not clear as to whether he 

was convicted of both charged counts, and that if both convictions stand, double jeopardy 

is implicated. The trial court’s judgment of conviction and sentencing order notes that 

Hildebrand was “convicted by a jury . . . of Count I . . . and Count II . . .” but that the 

court 

now enters judgment of conviction for Count II: Aggravated Battery, a 

Class B felony and does not enter a conviction or sentence on Count I: 

Battery Resulting in Serious Bodily Injury, a Class B felony, because said 

convictions are based upon the same essential material facts and 

convictions and sentencing on both would violate double jeopardy.

Br. of Appellant at 31. The abstract of judgment notes Hildebrand’s sentence for Count 

II but does not address Count I. The State does not object to remanding this case with 

instructions to clarify that judgment of conviction was entered only for Count II of the 

information. We agree with Hildebrand that a conviction can have ramifications even if a 

defendant is not sentenced for it, and we remand to the trial court to correct the abstract 

of judgment to indicate that judgment of conviction was not entered for Count I, battery 

resulting in serious bodily injury. 

Conclusion

Concluding that the expert testimony was not overly speculative and did not 

violate Indiana Evidence Rule 704, that Hildebrand’s sentence is not inappropriate in 

light of his character and the nature of the offense, and that the abstract of judgment 

should be clarified, we affirm in part and remand to amend the abstract of judgment 

consistent with this opinion.

Affirmed in part and remanded.
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FRIEDLANDER, J., and CRONE, J., concur.