MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any
                                                                         Mar 19 2019, 9:04 am
court except for the purpose of establishing
the defense of res judicata, collateral                                       CLERK
                                                                          Indiana Supreme Court
estoppel, or the law of the case.                                            Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bruce W. Graham                                          Curtis T. Hill, Jr.
Graham Law Firm P.C.                                     Attorney General of Indiana
Lafayette, Indiana
                                                         Henry A. Flores, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Todd George,                                             March 19, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1974
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff.                                      Judge

                                                         Trial Court Cause No.
                                                         79D01-1705-F2-9



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-1974 | March 19, 2019                    Page 1 of 14
                                          Case Summary
[1]   In 2017, Todd George and L.G. were married but involved in a pending

      divorce. One evening in early May, George went to L.G.’s residence and

      confronted her about money she had withdrawn from their joint bank account.

      During the ensuing confrontation, George battered L.G. with both a metal bar

      and his fist, bound her with duct tape and zip ties, and abducted her. L.G. was

      injured during the confrontation, requiring eighteen staples to close lacerations

      on her head. George was charged with and found guilty of numerous crimes,

      including elevated charges of Level 2 felony burglary, Level 3 felony

      kidnapping, Level 5 felony domestic battery, and Level 5 felony intimidation.

      He was sentenced to an aggregate term of thirty-one years.


[2]   George contends that: (1) the evidence is insufficient to sustain his elevated

      convictions, (2) the trial court abused its discretion in admitting certain

      evidence, (3) his convictions violate the prohibitions against double jeopardy,

      and (4) the trial court abused its discretion in limiting his cross-examination of

      L.G. We affirm.



                            Facts and Procedural History
[3]   On March 7, 2017, L.G. filed for divorce and moved out of the marital

      residence she had shared with George. After leaving work on May 2, 2017,

      L.G. drove to Frankfort and withdrew $1000 from a joint bank account she had

      with George. L.G. then drove to the Lafayette residence she shared with her


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1974 | March 19, 2019   Page 2 of 14
      friend Dan Marsh. Marsh worked nights and was not home when L.G.

      returned to the residence. L.G. went to bed at approximately 8:30 or 9:00 p.m.


[4]   At some point that evening or early the next morning, L.G. was awakened by

      George standing over her bed. George “had hit [her] on the head with a metal

      bar and [she] was bleeding pretty bad.” Tr. Vol. II p. 54. George and L.G.

      struggled as George continued to strike her with the metal bar, striking her a

      total of three or four times. He then “straddled” and punched her “three or

      four” times. Tr. Vol. II pp. 54. Throughout the attack, George threatened to

      kill L.G. and asked her “where’s my fuc[****] money bi[***]?” Tr. Vol. II p.

      55.


[5]   After the initial attack subsided, George permitted L.G. to use the restroom.

      While L.G. was in the restroom, George “pulled out a roll of duct tape and put

      it on [L.G.’s] mouth and then went around [her] whole head four times.” Tr.

      Vol. II p. 55. He also “zip tied” L.G.’s hands behind her back “as if [she] were

      in handcuffs.” Tr. Vol. II p. 56. George then led L.G. to her vehicle and drove

      away from the residence.


[6]   George drove L.G.’s vehicle to his place of employment where he transferred

      L.G. to his vehicle. L.G. observed that the metal bar with which he had hit her

      was “down on the floorboard by [George’s] feet.” Tr. Vol. II p. 69. While

      driving, George threatened to kill L.G. and her family if she “did not help him

      get out of the trouble” that he was in. Tr. Vol. II p. 69. George also




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1974 | March 19, 2019   Page 3 of 14
      interrogated L.G. about the nature of her relationship with Marsh and hit her in

      the head several times.


[7]   George again threatened L.G. when they arrived at the marital residence,

      telling her “take your last breath of fresh air, bi[***]” before taking her inside.

      Tr. Vol. II p. 70. Once inside, George looked at L.G. and said “What have I

      done? Oh my gosh, I’m so sorry.” Tr. Vol. II p. 70. George removed the zip

      ties from L.G.’s wrists and the duct tape from her face.


[8]   At some point, George became concerned that Marsh would call the police

      upon discovering the condition of his residence and L.G. missing. He

      instructed L.G. to attempt to clean herself up before driving her to a hotel in

      Indianapolis. While en route to the hotel, George sent Marsh a text message

      from L.G.’s phone apologizing for the damage to the residence and indicating

      that L.G. still loved and was moving back in with George.


[9]   Upon arriving at the hotel and reserving a room, George escorted L.G. in

      through a side door. The next morning, L.G. slipped a note with their room

      number and a request for help to a hotel staff member at the front desk when

      she and George went to get breakfast. After breakfast, George and L.G. went

      back to their room. Within a few minutes, the hotel manager knocked on the

      door and asked “is everything okay[?]” Tr. Vol. II p. 78. L.G. was able to

      escape from the room while George spoke to the hotel manager. Police were

      summoned to the hotel and L.G. was transported to the hospital.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1974 | March 19, 2019   Page 4 of 14
[10]   Angela Morris, a certified forensic nurse, examined L.G. and documented

       twenty-six injuries, including two large lacerations on L.G.’s head which

       required a total of eighteen staples. L.G. also suffered “a massive amount of

       swelling and bruising” on her face, bruising on her arms and lips, bilateral wrist

       injuries, and abrasions on both arms. Tr. Vol. II p. 134. Morris opined that

       based upon her training and experience, it appeared that L.G.’s injuries were

       caused by some kind of “blunt force trauma by an object, a larger object than …

       a human fist.” Tr. Vol. II p. 146.


[11]   At some point, Marsh returned home and reported L.G. missing. Investigating

       officers came to his residence and observed a broken front door, disarray in

       L.G.’s bedroom from an apparent struggle, blood, and zip ties. A subsequent

       search of the marital residence also uncovered zip ties, duct tape, hair, and a

       bloody night gown. After testing, it was determined that the blood recovered

       from the residences belonged to L.G.


[12]   On May 10, 2017, the State charged George with Count I – Level 2 felony

       burglary, Count II – Level 3 felony kidnapping, Count III – Level 3 felony

       criminal confinement, Count IV – Level 3 felony robbery, Count V – Level 5

       felony domestic battery, Count VI – Level 5 felony intimidation, Count VII –

       Level 6 felony intimidation, Count VIII – Level 6 felony residential entry,

       Count IX – Class A misdemeanor theft, and Count X – Class A misdemeanor

       invasion of privacy. The jury subsequently found George guilty of Counts I

       through III, Counts V through IX, and the lesser-included Level 5 felony

       robbery charge in Count IV. On August 6, 2018, the trial court sentenced

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1974 | March 19, 2019   Page 5 of 14
       George to an aggregate thirty-one-year term. In sentencing George, the trial

       court also vacated George’s convictions for Counts III, VIII, and IX on double

       jeopardy grounds and merged Count VII into Count VI.



                                 Discussion and Decision
                               I. Sufficiency of the Evidence
[13]   George contends that the evidence is insufficient to sustain his elevated

       convictions for Level 2 felony burglary, Level 3 felony kidnapping, Level 5

       felony domestic battery, and Level 5 felony intimidation.


               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. 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. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (citations, emphasis, and

       quotations omitted). A conviction may be based on the uncorroborated

       testimony of a single witness “if the testimony is sufficient to convince the trier

       of fact beyond a reasonable doubt.” Robinson v. State, 446 N.E.2d 1287, 1291

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1974 | March 19, 2019   Page 6 of 14
       (Ind. 1983) (providing that a victim’s uncorroborated testimony was sufficient

       to sustain the defendant’s conviction for child molesting).


[14]   George does not challenge the sufficiency of the evidence to prove he

       committed burglary, kidnapping, domestic battery, or intimidation. He argues

       only that the evidence is insufficient to prove that he committed the offenses by

       means of or while armed with a deadly weapon. The definition of a “deadly

       weapon” includes any item “that in the manner it: (A) is used; (B) could

       ordinarily be used; or (C) is intended to be used; is readily capable of causing

       serious bodily injury.” Ind. Code § 35-31.5-2-86. “‘Serious bodily injury’

       means bodily injury that creates a substantial risk of death or that causes: (1)

       serious permanent disfigurement; (2) unconsciousness; (3) extreme pain; (4)

       permanent or protracted loss or impairment of the function of a bodily member

       or organ; or (5) loss of a fetus.” Ind. Code § 35-31.5-2-292.


               The question of whether a weapon is “deadly” is determined
               from a description of the weapon, the manner of its use, and the
               circumstances of the case. Whether an object is a deadly weapon
               based on these factors is a question of fact. The original purpose
               of the object is not considered. Rather, the manner in which the
               defendant actually used the object is examined. Also, it does not
               matter if actual injuries were sustained by the crime victim,
               provided the defendant had the apparent ability to injure the
               victim seriously through his use of the object during the crime.


       Gleason v. State, 965 N.E.2d 702, 708 (Ind. Ct. App. 2012) (internal citations

       omitted).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1974 | March 19, 2019   Page 7 of 14
[15]   L.G. unequivocally testified that George hit her on the head three or four times

       with a metal bar, which she later described as a crow bar. Indiana courts have

       previously found a metal bar or crow bar used in this fashion to be a deadly

       weapon. See Hatton v. State, 439 N.E.2d 565, 567 (Ind. 1982) (providing that a

       crow bar carried by the defendant during a robbery was a deadly weapon);

       Clemons v. State, 83 N.E.3d 104, 108 (Ind. Ct. App. 2017) (“[I]t is common

       sense that a metal rod used [to strike someone in the head] is capable of causing

       death, and as such, it is logically inescapable that such a weapon is also capable

       of causing serious bodily injury.”). Given the Indiana Supreme Court’s

       decision in Hatton and our conclusion in Clemons coupled with L.G.’s

       unequivocal testimony, we conclude the evidence is sufficient to prove that

       George committed the challenged acts by means of or while armed with a

       deadly weapon. George’s claim to the contrary effectively amounts to a request

       that we reweigh the evidence, which we will not do. See Stewart v. State, 768

       N.E.2d 433, 435 (Ind. 2002) (“We do not reweigh the evidence or assess the

       credibility of witnesses.”).


                                  II. Admission of Evidence
[16]   George next contends that the trial court abused its discretion in admitting

       certain evidence.


               The admission or exclusion of evidence is entrusted to the
               discretion of the trial court. We will reverse a trial court’s
               decision only for an abuse of discretion. We will consider the
               conflicting evidence most favorable to the trial court’s ruling and
               any uncontested evidence favorable to the defendant. An abuse

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1974 | March 19, 2019   Page 8 of 14
               of discretion occurs when the trial court’s decision is clearly
               against the logic and effect of the facts and circumstances before
               the court or it misinterprets the law.


       Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012) (internal citations

       omitted). The trial court’s ruling will be upheld “if it is sustainable on any legal

       theory supported by the record, even if the trial court did not use that theory.”

       Rush v. State, 881 N.E.2d 46, 50 (Ind. Ct. App. 2008).


[17]   The State sought to introduce testimony from Morris regarding the cause of

       L.G.’s injuries. The trial court admitted some of the proffered testimony over

       George’s objection. In challenging the admission of this testimony, George

       asserts that the State failed to establish that Morris, the forensic nurse who

       treated L.G., qualified as an expert witness.


[18]   With respect to expert witnesses, the Indiana Rules of Evidence Rule provide

       that


               A witness who is qualified as an expert by knowledge, skill,
               experience, training, or education may testify in the form of an
               opinion or otherwise if the expert’s scientific, technical, or other
               specialized knowledge will help the trier of fact to understand the
               evidence or to determine a fact in issue.


       Evid. R. 702(a).


               Under this rule, a witness may be qualified as an expert by virtue
               of knowledge, skill, experience, training, or education. And only
               one characteristic is necessary to qualify an individual as an
               expert. As such, a witness may qualify as an expert on the basis

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1974 | March 19, 2019   Page 9 of 14
               of practical experience alone. It is within the trial court’s sound
               discretion to decide whether a person qualifies as an expert
               witness.


       Kubsch v. State, 784 N.E.2d 905, 921 (Ind. 2003) (internal citations and

       quotations omitted).


[19]   Review of the record reveals that Morris is an experienced certified forensic

       nurse examiner. In addition to her experience, Morris had undergone training

       relating to traumatic injuries and has specialized in providing appropriate “care

       for people who have been impacted by crime and violence.” Tr. Vol. II p. 131.

       Morris testified that while she could not say with certainty what caused L.G.’s

       injuries because she was not present when the injuries were inflicted, based on

       her training and experience, she believed that L.G.’s injuries were consistent

       with “a blunt force trauma by an object, a larger object than … a human fist.”

       Tr. Vol. II p. 146. Given Morris’s training and experience as a certified forensic

       nurse, we cannot say that the trial court abused its discretion by allowing her to

       testify as to her observations within the limits of her experience. See Swoaks v.

       State, 519 N.E.2d 149, 150-51 (Ind. 1988) (providing that the trial court did not

       abuse its discretion by allowing a licensed nurse to testify as to her observations

       within the limits of her experience where the nurse did not testify as to the

       cause of the injuries but rather merely testified that the appellant’s cuts and

       abrasions were consistent with glass-cut wounds that she had previously

       observed).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1974 | March 19, 2019   Page 10 of 14
                                       III. Double Jeopardy
[20]   George also contends that his convictions for Level 2 felony burglary, Level 3

       felony kidnapping, Level 5 felony domestic battery, and Level 5 felony

       intimidation violated the prohibitions against double jeopardy. In support,

       George cites to the Indiana Supreme Court’s opinion in Richardson v. State, 717

       N.E.2d 32 (Ind. 1999), for the proposition that multiple criminal enhancements

       by virtue of possession or use of a single weapon violates the prohibitions

       against double jeopardy. George’s reliance on Richardson is misplaced,

       however, given that the Indiana Supreme Court has held that its decision in

       Richardson does not stand for the proposition argued by George.


[21]   In Sistrunk v. State, the Indiana Supreme Court explicitly stated the following:


               [O]ur jurisprudence teaches that committing two or more
               separate offenses each while armed with a deadly weapon—even
               the same weapon—is not within the category of rules precluding
               the enhancement of each offense based on “the very same
               behavior.” Stated somewhat differently, our recognition in
               Richardson of the common law rule establishing that
               enhancements cannot be imposed for the very same behavior
               could not have included use of a single deadly weapon during the
               commission of separate offenses. And this is so because no such
               common law rule existed. Instead the opposite was true.


       36 N.E.3d 1051, 1054 (Ind. 2015). The Court also stated in Gates v. State, that

       “[i]t is well established in Indiana that the use of a single deadly weapon during

       the commission of separate offenses may enhance the level of each offense.”

       759 N.E.2d 631, 633 n.2 (Ind. 2001).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1974 | March 19, 2019   Page 11 of 14
[22]   The level of each of the challenged offenses was elevated because George

       committed the charged acts either by using or while armed with a deadly

       weapon. The element causing the elevation of these offenses was not the act of

       harming someone, but rather was the threat of harm from a deadly weapon.

       See White v. State, 544 N.E.2d 569, 570 (Ind. Ct. App. 1989) (providing that the

       factor supporting the defendant’s enhanced convictions was not the act of

       harming the victim, but rather the threat of harm from a deadly weapon). That

       threat occurred during each of the offenses for which George was convicted

       and, as such, was properly punishable. As we concluded in White, “[t]he

       threats from the weapon were as distinct as if he had robbed a grocery in the

       morning, raped a victim in the afternoon, and abducted a child in the evening,

       using the same shotgun to threaten each separate victim.” 544 N.E.2d at 570–

       71.


                        IV. Limitation of Cross-Examination
[23]   Finally, George contends that the trial court abused its discretion by limiting his

       cross-examination of L.G. about matters relating to her and George’s divorce.

       “The right to cross-examine witnesses is guaranteed by the Sixth Amendment

       of the United States Constitution and Article I section 13 of the Indiana

       Constitution.” Strunk v. State, 44 N.E.3d 1, 4 (Ind. Ct. App. 2015). The right to

       cross-examination, however, “is subject to reasonable limitations placed at the

       discretion of the trial judge.” McQuay v. State, 566 N.E.2d 542, 543 (Ind. 1991).

       “The conduct of cross-examination is within the discretion of the trial court,

       and only a total denial will result in an error of constitutional proportion.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1974 | March 19, 2019   Page 12 of 14
       Anything less than a total denial is viewed as a regulation of the scope of cross-

       examination by the trial court, and will be reviewed for an abuse of discretion.”

       Strunk, 44 N.E.3d at 4 (internal quotations omitted).


[24]   In arguing that the trial court abused its discretion in limiting his cross-

       examination of L.G., George indicates that he sought to present evidence

       relating to L.G.’s financial interest in the pending divorce to show that she was

       biased against and had a motive to embellish her allegations against George.

       Review of the record, however, indicates that while the trial court did limit

       George’s cross-examination of L.G. with regard to certain matters pertaining to

       the divorce, the trial court allowed George to question L.G. about her

       withdrawal of money from their joint account. The trial court indicated that

       with regard to questioning L.G. about the pending divorce, “there’s going to be

       a little leeway, but we’re not trying the [divorce] case.” Tr. Vol. II p. 13.


[25]   The trial court allowed questions, over the State’s objections, regarding the facts

       that (1) on the day of the incident, L.G. withdrew $1000 from her and George’s

       joint account and (2) she claimed a financial interest in the marital residence.

       George does not point to any other specific questions that he wanted, but was

       not permitted, to ask L.G. Thus, we agree with the State’s contention that

       “[b]ased on the record, the jury was well aware that there was a pending

       divorce, [L.G.] took $1,000 from the joint account, had a financial interest in

       the marital residence, and had taken money out of their account to ‘have fun.’”

       Appellee’s Br. p. 21. George has failed to convince us that the trial court

       abused its discretion in limiting his cross-examination of L.G.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1974 | March 19, 2019   Page 13 of 14
                                               Conclusion
[26]   The evidence is sufficient to sustain George’s elevated convictions for Level 2

       burglary, Level 3 felony kidnapping, Level 5 felony domestic battery, and Level

       5 felony intimidation; the trial court did not abuse its discretion in admitting the

       forensic nurse’s challenged testimony; elevation of George’s burglary,

       kidnapping, domestic battery, and intimidation convictions did not violate the

       prohibitions against double jeopardy; and the trial court did not abuse its

       discretion in limiting George’s cross-examination of L.G.


[27]   The judgment of the trial court is affirmed.


       Bailey, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1974 | March 19, 2019   Page 14 of 14
