                                                                           Jun 27 2013, 7:18 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

STANLEY F. WRUBLE III                       GREGORY F. ZOELLER
South Bend, Indiana                         Attorney General of Indiana

                                            RYAN D. JOHANNINGSMEIER
                                            Deputy Attorney General
                                            Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

TERRY L. STURGIS, SR.,                      )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )      No. 71A03-1207-CR-330
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                  APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                      The Honorable Jane Woodward Miller, Judge
                            Cause No. 71D01-1111-MR-11


                                   June 27, 2013

                            OPINION - FOR PUBLICATION

BARTEAU, Senior Judge
                                     STATEMENT OF THE CASE

          Terry L. Sturgis, Sr., appeals his convictions of murder, a felony, Ind. Code § 35-

42-1-1 (2007); two counts of criminal confinement, both as Class B felonies; Ind. Code §

35-42-3-3 (2006); eight counts of battery, four as Class B felonies, three as Class C

felonies, and one as a Class A misdemeanor, Ind. Code § 35-42-2-1 (2009); and two

counts of neglect of a dependent, both as Class D felonies, Ind. Code § 35-46-1-4 (2007).

We affirm.

                                                  ISSUES

          Sturgis raises six issues, which we consolidate and restate as:

          I.      Whether the trial court abused its discretion in limiting Sturgis’s cross-
                  examination of a witness.

          II.     Whether there is sufficient evidence to sustain Sturgis’s conviction for
                  murder.

          III.    Whether some of Sturgis’s convictions for battery violate Indiana’s
                  constitutional protection against double jeopardy.

                              FACTS AND PROCEDURAL HISTORY

          During the period relevant to this case, Sturgis lived with his mother, Dellia

Castile, in the basement of her home in South Bend. Also living in the basement were

Sturgis’s children, TS1 (son, age fourteen), TS2 (son, age ten), TS3 (son, age eight), TS4

(daughter, age six), and TS5 (son, age four).1 Several of Castile’s other grandchildren

lived upstairs.




1
    We use numbers because the children have identical initials.
                                                      2
       In the early morning hours of November 4, 2011, police, firefighters, and

paramedics went to Castile’s house in response to a report of an unconscious child. They

found Sturgis and TS2, the ten-year-old, near the front door of the house. TS2 was

unconscious on the floor. He was not breathing and did not respond to CPR. Paramedics

took TS2 to the hospital, and en route they observed numerous burns, bruising, and scars.

One of the medics in the ambulance had “never seen anything like” it. Tr. p. 583.

       At the hospital, treatment providers discovered that TS2’s left arm was broken.

He did not respond to efforts to revive him and was pronounced dead. A police officer

photographed TS2’s body for evidence and observed “in excess of 60 injuries,” including

severe burns, bruising, and scars. Id. at 621.

       Subsequent investigation revealed that Sturgis frequently beat TS1 and TS2. He

punched them with a closed fist and burned them with heated metal objects, such as a

screwdriver, or with roach spray that he ignited with a lighter. TS1 and TS2’s cousins

heard them screaming in the basement “sometimes every other day.” Id. at 808. On one

occasion, Castile told Sturgis to stop beating his children because “he was going to kill

one of them.” Id. at 809.

       On November 3, 2011, the principal of the school TS1 attended called Sturgis and

Castile to report that TS1 had stolen pencils. Sturgis went home that evening with a

wooden dowel rod that was one inch in diameter and several feet long. He entered the

basement, where TS1, TS2, TS3, and TS5 were waiting. Sturgis wrapped one end of the

rod in duct tape and told TS1 he “and his stick [were] gonna have some fun.” Id. at 736.

Sturgis ordered TS1 to bend over and pull down his pants. Sturgis hit TS1’s buttocks

                                             3
with the rod for ten minutes, and then he wrapped TS1’s wrists with duct tape and threw

him on the floor. Sturgis continued to hit TS1 with the rod, and when TS1 ripped off the

duct tape and tried to stand up, Sturgis hit him on the forehead with the rod, drawing

blood. TS1 fell to the floor, and Sturgis sat on him and began to choke him.

       At that point, trying to divert Sturgis’s attention, TS1 told Sturgis that TS2 had

taken one of Sturgis’s bottles of water. TS2 denied it, but Sturgis hit him “a lot of times”

on the “back and butt and legs” with the rod. Id. at 743. Sturgis ordered TS1 to clean up

the basement as he continued to beat TS2. Sturgis struck TS2 with the rod for ten

minutes, and then he used a heated clothes iron to burn TS2 in multiple locations on his

torso, legs, and buttocks.

       Next, Sturgis turned to TS3 and said, “[Y]ou’re not getting away with anything.

You’re getting some of this, too.” Id. at 746-47. He had one of the children’s older

cousins take TS3 upstairs and hit him on the buttocks with a belt. The cousin stopped

when she drew blood and returned TS3 to the basement.              When TS3 went back

downstairs, Sturgis hit him with the rod, burned him with the iron, and told him to go to

bed.

       After TS3 went into a sleeping area, Sturgis resumed beating and burning TS2 and

TS1, switching from child to child over the course of several hours. Eventually, TS2 sat

down and shivered, and he appeared dizzy to TS1. TS2 threw up, and Sturgis continued

to beat him while ordering TS1 to clean up the vomit. Next, Sturgis told TS2 to sit on a

crate and hold an ice pack to his head, but TS2 was still dizzy and dropped the ice pack

twice. Each time TS2 dropped the ice pack, Sturgis beat him and burned him with the

                                             4
iron.   On the second occasion, Sturgis also choked TS2 and threw him across the

basement.

        TS2 could not get up, so Sturgis ordered TS1 to go upstairs and fill a pot with

water. When TS1 returned, Sturgis poured the water on TS2’s face and told him to get

up. He did not respond, so Sturgis stood on TS2’s chest for a short time and ordered TS1

to refill the pot of water. Sturgis again poured water on TS2’s face and told him to get

up. When he did not, Sturgis hit him in the stomach several times and told TS1, “[T]hat’s

how it feels to get knocked the f**k out.” Id. at 752.

        Sturgis lay down to watch television. TS2 lay on the floor, and Sturgis had TS1

check TS2 several times to ensure that he was still breathing. Later, while TS1 was

upstairs, Sturgis discovered that TS2 had stopped breathing. He tried to administer CPR,

but TS2 was nonresponsive. Sturgis carried him upstairs, and Castile called 911. Sturgis

told TS1 that if anyone asked about TS2’s burns, he should say TS2 burned himself while

cooking.

        A pathologist determined that TS2’s death was caused by blunt force trauma,

primarily to the head. TS2’s brain was swollen to such an extent that it partly extruded

from the bottom of his skull. Furthermore, in addition to a broken left arm, TS2 had a

broken rib and a fractured coccyx.       The pathologist also determined that TS2 had

sustained a broken right arm in the past, but it had healed. In addition, a pediatrician

examined TS1 and TS3 two weeks after TS2’s death, and he discovered multiple scars

from burns and whippings on each of them.



                                             5
       The State charged Sturgis as follows: Count I, murder, involving TS2; Count II,

battery resulting in death as a Class A felony, involving TS2; Count III, battery as a Class

C felony, for striking TS1 with the rod; Count IV, confinement, a Class B felony,

involving TS1; Count V, battery as a Class C felony, for touching TS1 with a hot iron;

Count VI, battery as a Class B felony, for touching TS1 with a heated screwdriver; Count

VII, battery as a Class B felony, for striking TS1 on the head; Count VIII, battery as a

Class A misdemeanor, for forcing TS1’s head into a wall; Count IX, neglect of a

dependent, a Class B felony, involving TS1; Count X, confinement, a Class B felony,

involving TS2; Count XI, battery as a Class B felony, for touching TS2 with a hot iron;

Count XII, neglect of a dependent, a Class A felony, involving TS2; Count XIII, battery

as a Class C felony, for striking TS3 with the rod; and Count XIV, battery as a Class B

felony, for touching TS3 with a hot iron. At trial, TS1 and TS3 testified for the State. A

jury determined that Sturgis was guilty as charged.

       At sentencing, the trial court reduced the convictions for neglect of a dependent

from Class A and Class B felonies to Class D felonies, citing double jeopardy concerns.

The trial court also declined to enter a judgment of conviction on Count II, Class A

felony battery, determining that it merged into Count I, the murder conviction. The court

sentenced Sturgis to an aggregate term of 140 years. This appeal followed.




                                             6
                                DISCUSSION AND DECISION

                             I. CROSS-EXAMINATION OF TS3

       Sturgis argues that the trial court limited his cross-examination of TS3, and that

the limits violated his federal constitutional right to confront witnesses.2

       The Sixth Amendment of the United States Constitution guarantees a criminal

defendant the right to confront witnesses against her or him. McCorker v. State, 797

N.E.2d 257, 266 (Ind. 2003). This right is secured for defendants in state criminal

proceedings through the Fourteenth Amendment.                Id.   However, the right to cross-

examination is not absolute. Oatts v. State, 899 N.E.2d 714, 722 (Ind. Ct. App. 2009).

The Sixth Amendment does not prevent a trial judge from imposing limits on defense

counsel’s inquiry into the potential bias of a prosecution witness. Collins v. State, 835

N.E.2d 1010, 1015 (Ind. Ct. App. 2005), trans. denied. Trial judges retain wide latitude

on the scope of cross-examination, and only an abuse of discretion warrants reversal. Id.

       Here, Sturgis first claims he should have been allowed to ask TS3 whether TS1

molested TS4 and whether TS1 attempted to cover up the molestation. However, during

trial Sturgis clearly told the court he did not want to inquire about any molestation. He

said at one point, “I have not said one word about anything sexual.” Tr. p. 841. Sturgis

later said, “[TS3] admitted that there was something improper going on between [TS1]

and [TS4]. I didn’t ask him what, and I don’t intend to.” Id. at 844. When the trial court

asked if the cross-examination was leading to a discussion of whether TS1 molested TS4,

2
  Sturgis mentions the Indiana Constitution in passing in connection with this claim. To the extent he
raises a state constitutional claim here, it is waived for failure to provide argument and citation to
authority.
                                                  7
Sturgis responded, “I’m not going there.” Id. at 845. Thus, rather than challenge the trial

court’s determination that questions about alleged molestation were off-limits, Sturgis

explicitly declined to cross-examine TS3 on the subject. Therefore, he has waived this

claim on appeal.       See Hale v. State, 976 N.E.2d 119, 123 (Ind. Ct. App. 2012)

(determining that a claim was waived due to Hale’s failure to contemporaneously object

to the trial court’s ruling).

       Next, Sturgis argues that the trial court improperly barred him from cross-

examining TS3 as to whether TS1 had physically abused his siblings and then coerced

TS3 to lie about TS1’s misconduct. However, Sturgis was, in fact, allowed to cross-

examine TS3 on those subjects. Sturgis asked TS3 the following:

       [Sturgis:]      Was there some stuff that [TS1] was doing in the house that
                       he didn’t want you to tell anybody about?

       [TS3:]          Say that, again.

       [Sturgis:]      Was [TS1] doing anything in the house that he didn’t want
                       you to tell anyone about?

       [TS3:]          No.

       [Sturgis:]      Do you remember him doing some things that he shouldn’t
                       have been doing with some of the younger kids in the house?

       [TS3:]          No.

Tr. p. 839. Next, the court and the parties held a lengthy sidebar, during which the court

stated, “If you want to ask [TS3] if he’s afraid of his brother, I’ll let you ask if he’s afraid

of his brother . . . .” Id. at 844. Sturgis responded, “Well, that’s about all my next

question was going to be, or we wouldn’t be up here.” Id. He later stated, “[M]y next


                                               8
question is just simply: Did your brother do anything to make sure you didn’t tell

anybody?” Id. at 846-47. The court concluded, “You can ask [TS3] any question you

want about whether [TS1] injured him, whether he was frightened by [TS1], whether

[TS1] injured [TS2] that night. That’s fine.” Id. at 847.

       When cross-examination resumed, Sturgis asked TS3 the following:

       [Sturgis:]    I’ve got to ask you a question, again, about [TS1]. Did he do
                     anything ever to try to make sure that you wouldn’t tell
                     anybody about anything that was going on in the house? Did
                     he ever do anything to you?

       [TS3:]        No.

       [Sturgis:]    I’m sorry, what was your answer?

       [TS3:]        No.

       [Sturgis:]    Okay. Did he ever hurt you at all?

       [TS3:]        No.

       [Sturgis:]    Did he burn you with an iron, one time?

       [TS3:]        No. But like [sic] he didn’t burn me, but I had ran [sic] into
                     the iron.

Id. at 848-49. Thus, the trial court permitted Sturgis to cross-examine TS3 as to whether

TS1 had abused him or the other children and whether TS1 intimidated TS3 into lying

about any abuse by TS1. Sturgis does not identify any other questions on those topics

that the court prevented him from asking. We therefore conclude the court did not abuse

its discretion in the permitted scope of cross-examination.




                                             9
                        II. SUFFICIENCY OF THE EVIDENCE

       Sturgis claims the State failed to present sufficient evidence to sustain his murder

conviction. When an appellant challenges the sufficiency of the evidence, we do not

reweigh the evidence or judge the credibility of the witnesses. Joslyn v. State, 942

N.E.2d 809, 811 (Ind. 2011). We consider only the probative evidence and reasonable

inferences supporting the verdict, and we will affirm if the evidence and reasonable

inferences could have allowed a reasonable trier of fact to find the defendant guilty

beyond a reasonable doubt. Id.

       To obtain a conviction for murder, the State was required to prove beyond a

reasonable doubt that Sturgis (1) knowingly or intentionally (2) killed (3) TS2. Ind. Code

§ 35-42-1-1. A person engages in conduct “knowingly” if, when the person engages in

the conduct, he or she is aware of a high probability that he or she is doing so. Ind. Code

§ 35-41-2-2 (1977).

       Sturgis first argues that the State failed to prove that his actions caused TS2’s

death. He asserts that TS2 could have suffered the fatal injury by falling down the stairs

to the basement. This assertion is nothing more than a request to reweigh the evidence.

TS2’s siblings testified in detail about the severe, extended beating Sturgis inflicted upon

TS2. TS1 never saw TS2 fall down the stairs that evening. Furthermore, the pathologist

stated that TS2’s severe and widespread injuries were inconsistent with a fall down the

stairs. This is more than sufficient evidence from which a reasonable trier of fact could

have determined that Sturgis’s beating caused TS2’s death.



                                            10
        Next, Sturgis claims that there is insufficient evidence to prove that he knowingly

killed TS2. He acknowledges beating TS1, TS2, and TS3 over a span of several months,

occasionally using improvised clubs, and he claims he was not aware of a high

probability that his beating of TS2 on the specific night in question would result in death

instead of injuries similar to those TS2 had previously sustained. Again, this claim is a

request to reweigh the evidence. Castile had warned Sturgis that his beatings would

result in the death of one of the boys. Furthermore, it is difficult to credit Sturgis’s

assertion that he was unaware that repeatedly striking TS2 on the head and torso with a

one-inch-thick wooden rod over a span of several hours presented a high probability of

death, particularly after TS2 had vomited and exhibited dizziness. Despite these signs,

Sturgis continued to beat TS2 and inflict other physical abuse upon him. There is ample

evidence from which a reasonable trier of fact could have determined that Sturgis

knowingly killed TS2.

                                    III. DOUBLE JEOPARDY

        Sturgis argues that several of his convictions violate his state constitutional

protection against double jeopardy.           He does not present a claim under the federal

constitution.3

        Article 1, section 14 of the Indiana Constitution provides: “No person shall be put

in jeopardy twice for the same offense.” Indiana’s double jeopardy clause was intended

to prevent the State from being able to proceed against a person twice for the same


3
  The State contends that Sturgis has waived his double jeopardy claims by failing to provide a sufficient
factual basis. We disagree and address Sturgis’s claims on the merits.
                                                   11
criminal transgression. Nicoson v. State, 938 N.E.2d 660, 662 (Ind. 2010). Two or more

offenses are the same offense if, with respect to either the statutory elements of the

challenged crimes or the actual evidence used to convict, the essential elements of one

challenged offense also establish the essential elements of another challenged offense.

Sloan v. State, 947 N.E.2d 917, 924 (Ind. 2011). Sturgis presents claims under the

“statutory elements” test.

       The “statutory elements” test is the same as the analysis required by federal double

jeopardy clause jurisprudence. See Brown v. State, 912 N.E.2d 881, 896 (Ind. Ct. App.

2009) (asserting that the statutory elements test is identical to the standard set forth in

Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932)), trans.

denied.   Under that analysis, we consider whether each statutory provision at issue

requires proof of an additional fact which the other statutory provision does not.

McIntire v. State, 717 N.E.2d 96, 98 (Ind. 1999).

                       A. Count III (Battery) and Count V (Battery)

       Under Count III, the State charged Sturgis with battery as a Class C felony for

hitting TS1 with a deadly weapon on November 4, 2011. Under Count V, the State

charged Sturgis with battery as a Class C felony for touching TS1 with a deadly weapon

on November 4, 2011. Although these offenses necessarily have the same statutory

elements, we reject Sturgis’s claim that they violate the statutory elements test. The

offenses do not refer to “the same criminal transgression.” Nicoson, 938 N.E.2d at 662.

To the contrary, the counts refer to distinctly separate attacks using different weapons (a

club for Count III, a heated clothing iron for Count V). If Sturgis is correct, then the

                                            12
State would never be able to charge a defendant with multiple counts of the same offense

arising out of the same incident without violating the statutory elements test, even if the

charges referred to separate acts. Therefore, there is no double jeopardy violation. See

Stokes v. State, 947 N.E.2d 1033, 1038 (Stokes’s convictions for possession of a firearm

by a serious violent felon, robbery, and criminal recklessness did not violate double

jeopardy protections because different weapons supported each charge), trans. denied.

       Sturgis cites McGaughey v. State, 419 N.E.2d 184 (Ind. Ct. App. 1981), but that

case is distinguishable. In that case, a panel of this Court determined that McGaughey’s

convictions for battery violated the federal double jeopardy clause because there were

two counts of battery but only one attack. In the current case, Sturgis attacked TS1

multiple times, using at least two different weapons, and the charging information clearly

identifies two different weapons. Thus, McGaughey does not compel reversal here.

                    B. Count XIII (Battery) and Count XIV (Battery)

       Under Count XIII, the State charged Sturgis with battery as a Class C felony for

hitting TS3 with a deadly weapon (a club) on November 4, 2011. Under Count XIV, the

State charged Sturgis with battery as a Class B felony for touching TS3 with a deadly

weapon (a heated clothing iron) on November 4, 2011. As was the case in the previous

section, these charges do not violate Sturgis’s protection against double jeopardy because

they refer to distinctly separate attacks involving different weapons. See Stokes, 947

N.E.2d at 1038.




                                            13
                      C. Count II (Battery) and Count XI (Battery)

      Under Count II, the State charged Sturgis with battery as a Class A felony for

beating TS2 on November 4, 2011, in a manner that resulted in TS2’s death. Under

Count XI, the State charged Sturgis with battery as a Class B felony for touching TS2 on

November 4, 2011, with a deadly weapon, specifically a heated clothing iron, which

resulted in serious bodily injury. However, although the jury found Sturgis guilty of

Count II, the trial court did not enter a judgment of conviction on that charge. The court

concluded that Count II “just sits there subsumed by Count I.” Tr. p. 1200. Count I was

the murder conviction. In the absence of a judgment of conviction on Count II, there can

be no constitutional conflict with Count XI. In any event, Count II and Count XI refer to

different attacks by Sturgis on TS2 with different weapons. Thus, even if the court had

entered judgment on Count II, there would be no double jeopardy violation.

                                    CONCLUSION

      For the reasons stated above, we affirm the judgment of the trial court.

      Affirmed.

FRIEDLANDER, J., and RILEY, J., concur.




                                           14
