Mersch v. State

1

Kevin Dwayne Mersch, Appellant-Petitioner v. State of Indiana, Appellee-Respondent

No. 23A-PC-2152

Court of Appeals of Indiana

February 16, 2024

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Hamilton Superior Court The Honorable Michael A Casati, Judge Trial Court Cause No. 29D01-2211-PC-8018

ATTORNEY FOR APPELLANT

James D. Crum Coots, Henke &Wheeler, P.C. Carmel, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita Indiana Attorney General

Jesse R. Drum Assistant Section Chief, Criminal Appeals Indianapolis, Indiana

MEMORANDUM DECISION

CRONE, JUDGE

Case Summary

[¶1] A jury found Kevin Dwayne Mersch guilty of battering his girlfriend's two-year-old daughter. Mersch filed a petition for post-conviction relief alleging that his trial counsel was ineffective in failing to tender an instruction regarding circumstantial evidence. The post-conviction court denied Mersch's petition. Mersch contends that this ruling is erroneous. We disagree and therefore affirm.

Facts and Procedural History

[¶2] Tayler Jacobs and her husband Nicholas had a daughter, E.J who was born in July 2017. They separated in June 2019, and Tayler was given primary custody of E.J. Tayler met Mersch on a dating app in September 2019, and they moved into an apartment with E.J. in Noblesville in October 2019. Mersch had a job installing playground equipment, and Tayler worked at E.J.'s daycare in Fishers. Initially, their relationship was "good[,]" but "[t]owards the end of October, beginning of November[,]" Mersch "became angry and short tempered and like he resented [Tayler and E.J.] being there." Trial Tr. Vol. 2 at 157. Mersch "played [Tayler] into thinking that he was one way when he was completely another and he just wanted someone there to clean and cook and help pay the bills with him, not a relationship." Id. at 158.

[¶3] Nicholas had parenting time with E.J. on November 6 and 7, 2019. His next scheduled parenting time date was Friday, November 15. On the morning of Friday, November 8, Mersch told Tayler that he needed her and E.J. "to vacate the apartment that night because he had a date with someone else planned." Id. at 160. Tayler called Nicholas and asked him to pick up her and E.J. and take them to a women's shelter in Anderson. Nicholas picked them up in the apartment complex's parking lot. They "went to the complex's office to give [Mersch's] keys to his sister who was the complex manager at the time." Id. at 163. Tayler "told her what was going on and how [she] couldn't do it anymore and that [she] was leaving[.]" Tayler got back in Nicholas's vehicle, and they "drove out of the complex." Id.

[¶4] Mersch's sister told Mersch "what [Tayler's] plans were[.]" Id. at 164. Mersch "started calling and texting" Tayler and "asked [her] not to go and [they] could fix this and get it situated." Id. Tayler asked Nicholas to "take [her] back to the apartment and he kept [E.J.] for the weekend and [Tayler] stayed at the apartment." Id. When Nicholas brought E.J. to his home, he did not notice any injuries on her. Over the weekend, Tayler asked Nicholas to bring E.J. back, which he did not want to do, but his attorney "told [him] that [he] didn't really have a choice because that was the Court's decision." Id. at 58.

[¶5] On the afternoon of Monday, November 11, Nicholas dropped off E.J. at daycare. At that time, E.J. had a bruise on her shin but no other visible injuries. Mersch picked up Tayler and E.J. from daycare at 5:30 p.m. When they got home, Tayler "started cooking dinner and [Mersch] took [E.J.] into [their] bedroom and [watched] TV with her." Id. at 167.

[¶6] On the morning of Tuesday, November 12, Tayler dressed E.J., who did not have any bruises or injuries at that time. Mersch "got a text saying that [his] work was called off that day due to the temperatures[,]" and he drove Tayler and E.J. to daycare in his pickup truck. Id. at 169. When they pulled into the parking lot around 7:30 a.m., Tayler saw a teacher that she disliked in E.J.'s classroom and "vent[ed]" her "frustration to [Mersch] while [she] was getting [her] stuff out to go in." Id. at 170. Mersch "offered to keep [E.J.] with him for the day[,]" and Tayler "agree[d] to this[.]" Id. at 171. Tayler went into the building, and Mersch went home with E.J.

[¶7] Mersch picked up Tayler shortly after 5:30 p.m. E.J. was in the truck, and "[a]s soon as [Tayler] opened the door, [Mersch] said that [E.J.] had fallen and hit the side of her head off the metal stripping in the entryway of the apartment." Id. at 172. Tayler saw that E.J. "did in fact have a bruise on the side of her eye." Id. at 173. They went to Walmart and then to Tayler's friend's apartment to move the friend's belongings to a storage unit. E.J. stayed in her car seat after they left Walmart because Mersch said that "she would probably get in the way and maybe get hurt." Id. at 174. After the move, they picked up some food and arrived home to eat dinner around 9:00 p.m. Tayler then got into the shower with E.J.; "the bruise on her eye [was] still there[,]" but Tayler did not "notice any other bruising on her[.]" Id. at 179. Tayler called Mersch into the bathroom so that he could get E.J. ready for bed. When Mersch pulled back the shower curtain and Tayler handed E.J. to him, E.J. "started crying." Id. at 180. Tayler finished showering and went into E.J.'s room to say goodnight. E.J. "had a clean diaper on and clean pajamas on." Id. at 181.

[¶8] On the morning of Wednesday, November 13, Tayler was supposed to clock in at 7:30 but slept until almost 7:00. She woke Mersch, who was scheduled to work in Fort Wayne later that morning, got dressed, "and went in to get [E.J.] ready." Id. at 182. Tayler saw that E.J. "had three bruises across her forehead." Id. Tayler "called in [Mersch] and asked him what happened." Id. "He said he didn't know." Id. at 183. Tayler did not change E.J.'s diaper because they "were running late" and the daycare staff would "change her diaper immediately because that was protocol." Id. When Tayler "went to put on [E.J.'s] coat and she lifted her arms, she said ow. And then put her arm back down." Id. Mersch drove them to daycare, carried E.J. inside the building in her car seat, and left. Tayler did not report E.J.'s injuries to the daycare staff because she "was rushed." Id. at 184. She took E.J. to E.J.'s classroom and then went to her own assigned classroom.

[¶9] Tayler clocked in at 7:37 a.m. At 7:38 a.m., Mersch texted Tayler, "Did she scream or anything again when you took her coat off[?]" Trial Ex. Vol. 4 at 85. Later that morning, one of E.J.'s teachers came into Tayler's classroom "and said they were getting an ice pack for [E.J.] because her lip was swollen." Trial Tr. Vol. 2 at 185. Tayler went to check on E.J., "and when [she] got into [E.J.'s] classroom [she] did see that [E.J.'s] lip was puffing." Id. Tayler asked if E.J. had fallen or gotten "hit with something," and she was told that "nothing had happened to [E.J.] that morning." Id. at 185, 186.

[¶10] Tayler returned to her classroom. After 12:00 p.m., she went "to clock out for lunch and the lobby was full of people. Turned out it was the fire department, police," and the Department of Child Services (DCS), which had responded to a call from the daycare's assistant director about E.J.'s injuries. Id. at 188. Tayler texted Mersch, "F*****g work called dcs for the bruises from yesterday[.] Like I need you to call me so I can let them know what happened[....] You said she fell on the [metal] thing in the living room or doorway?" Trial Ex. Vol. 4 at 97-98. Mersch replied, "Yeah on the corner." Id. at 98. Tayler asked, "Did she roll her head when she got up[?]" Id. Mersch responded,

I don't think so. She didn't even cry. I didn't see a bruise or cut until I put her in the truck to come get you. That's why I told you when I got there. I [didn't] think it was that serious or I would have said something sooner. Have you heard if she is ok at least? I'm so sorry I didn't think it was that bad [or] I would have made sure to get you so sh[e] could go to the Dr Baby Girl. Is she ok?

Id. at 99. Tayler started typing the following reply, which she did not send: "If that's the only thing that happened to her, then sh[.]" Id.

[¶11] E.J. was taken by ambulance to an Indianapolis emergency room, where she was examined by child abuse pediatrician Dr. Cortney Demetris. E.J. had bruising across "almost the entire forehead" from "multiple points of impact" and on her right cheek and jawline. Trial Tr. Vol. 2 at 235, 238. She had a "fat lip" and a torn frenula, which connects "your lip to your gum[,]" as well as five "goose egg-type bruises" on her scalp. Id. at 236, 240. She also had bruising on her shoulders, legs, genitalia, and the bottom of her right foot. Her right ulna and radius were fractured near the wrist, likely as a result of "fall[ing] on an outstretched arm where she tried to brace herself[.]" Id. at 246. The fractures were at most seven days old, with no "evidence of bone healing." Id. She had also suffered a possible concussion and a pancreatic contusion, likely caused by an impact to her abdomen, which required evaluation by a level 1 trauma center. E.J.'s "emotional distress and pain seemed severe and then became moderate" after Nicholas arrived and comforted her. Id. at 249. DCS ruled out Nicholas "as a perpetrator" and determined that Mersch "had access to [E.J.] during the time period of the injuries." Id. at 138.

[¶12] On the afternoon of November 13, Noblesville Police Department Detective Robert Saxon...