author: BRADFORD, Judge.

text:
    Jeffrey EMBREY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 82A01-1211-CR-494.
    Court of Appeals of Indiana.
    May 30, 2013.

      Jesse R. Poag, Newburgh, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Appellant-Defendant Jeffrey Embrey was arrested at a home in Evansville on the afternoon of March 22, 2012, after officers with the U.S. Marshall’s Fugitive Task Force executed a warrant on an individual believed to be residing in the home. During a protective sweep and subsequent search of the home, officers found evidence of methamphetamine manufacture. Officers also found evidence that Embrey and a child resided in the home. Embrey was subsequently charged with and convicted of Class B felony dealing in methamphetamine, Class C felony neglect of a dependent, and Class D felony maintaining a common nuisance.

On appeal, Embrey contends that the trial court abused its discretion in admitting certain evidence under the business records exception to the hearsay rule. Embrey also contends that the evidence is insufficient to sustain his conviction for Class C felony neglect of a dependent. Concluding that the trial court acted within its discretion in admitting the challenged evidence and that the evidence is sufficient to sustain Embrey’s conviction for Class C felony neglect of a dependent, we affirm.

FACTS AND PROCEDURAL HISTORY

On the afternoon of March 22, 2012, officers with the U.S. Marshall’s Fugitive Task Force executed a felony arrest warrant on Kenneth Cavanaugh at a home located in Evansville. Prior to approaching the home, the officers performed surveillance and saw Embrey cleaning or working on a car in the driveway and going in and out of the home. Officers also saw Mary Cavanaugh arrive at the home. Officers soon thereafter approached the home and knocked on the front door.

After a short period of time, Mary answered the door and confirmed that Kenneth was inside. Mary also indicated that her “son, his wife or girlfriend, and their child” were inside the home. Tr. p. 15 (Emphasis added). Eventually, Kenneth came out of the home and was taken into custody. As officers conducted a protective sweep of the home, they found Em-brey and Sadie Stewart coming out of a room holding a child. The child was identified as Jayden Embrey. Embrey’s grandfather subsequently confirmed that Embrey has a child named Jayden Em-brey.

During the protective sweep of the home, officers saw a coffee filter with white powder in it sitting in plain view on a desk in the bedroom. Kenneth refused to give the officers permission to search the home without a warrant. The officers then sought and received a search warrant before completing a more extensive search of the home.

While executing the search warrant, officers found items used during the manufacturing of methamphetamine throughout the home. Officers found a plastic baggy and tubing on a table in the living room. They found salt, numerous coffee filters, a coffee grinder with powder inside, a blender with white powder inside, and a container of ammonium nitrate pellets in open kitchen cabinets. Officers found a cooler containing two bottles of Coleman camp fuel and a water jug, a black box containing a one-liter reaction vessel bottle with white residue, clear plastic tubing, and a glass jar containing a clear liquid solvent in a small utility closet. Officers also found a coffee filter box, empty boxes of Claritin-D, and coffee filters smelling of organic solvent sealed inside a zip lock bag in the trash. Outside the home, officers found three surveillance cameras attached to different locations on the home.

While searching the bedroom, Officers found numerous paraphernalia pipes and a corner bag with white powder in an open drawer; a digital scale with white residue on a table; a coffee filter with white residue; a safe containing Claritin-D blister packs, other loose pseudoephedrine pills, and lithium batteries; a razor blade, credit cards, and a straw on a plate with white residue; a propane torch; a marijuana bong; and a jar of numerous used coffee filters with residue. The jar of used coffee filters was sitting on a shelf in the closet next to a child’s toy. In addition, officers found a computer on a desk in the bedroom that had an article up on the screen entitled “Secrets of Methamphetamine Manufacture.” Tr. p. 56. In total, all of the items necessary for the manufacture of methamphetamine except for sulfuric acid were found in the home.

Subsequent testing revealed that the corner plastic baggy found in the bedroom contained 0.45 grams of methamphetamine. The used coffee filters in the zip lock bags in the trash contained methamphetamine residue. The powder on the coffee grinder was identified as ephedrine and/or pseudoephedrine. The fourteen whole pills and the two partial pills found in the safe contained ephedrine and/or pseudoephedrine.

In addition to the evidence relating to the manufacturing of methamphetamine, officers found both adult and children’s clothing, a child’s pillow, toys, and a diaper bag in the home. In the bedroom, officers found a prescription bottle with Embre/s name, a CVS pharmacy receipt for a prescription belonging to Embrey, and a couple pieces of mail addressed to Embrey at the address of the home. Officers also found paperwork from a dentist listing the address of the home as Embrey’s address.

On March 27, 2012, the State charged Embrey with Class B felony dealing in methamphetamine, Class C felony neglect of a dependent, and Class D felony maintaining a common nuisance. A jury trial was held on August 13 and 14, 2012, after which the jury found Embrey guilty as charged. On October 11, 2012, the trial court sentenced Embrey to an aggregate ten-year term of incarceration. This appeal follows.

DISCUSSION AND DECISION

I. Admission of Evidence

Embrey contends that the trial court erred in admitting the National Precursor Log Exchange (“NPLEx”) report documenting the purchases and attempted pin-chases of ephedrine and pseudoephedrine by Embrey in the month preceding his arrest. Specifically, Embrey claims that the trial court erred in admitting the NPLEx report because it was inadmissible hearsay. For its part, the State argues that the trial court properly admitted the NPLEx report because it was a business record that fell under the business record exception to the hearsay rule.

We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Iqbal v. State, 805 N.E.2d 401, 406 (Ind.Ct.App.2004). An abuse of discretion occurs if a trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Id. However, the improper admission of evidence is harmless error when the conviction is supported by substantial independent evidence of guilt sufficient to satisfy the reviewing court that there is no substantial likelihood that the questioned evidence contributed to the conviction. Hernandez v. State, 785 N.E.2d 294, 300 (Ind.Ct.App.2003), trans. denied.

Ware v. State, 816 N.E.2d 1167, 1175 (Ind.Ct.App.2004).

A. Historical Background

In In re Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639 (Ind. 2004), the Indiana Supreme Court provided a historical background of the hearsay rule and the business record exception to the hearsay rule, stating the following: ■

Every second-year law student and perhaps first-year law student as well, depending on the law school curriculum, can recite the general definition of hearsay: “an out of court assertion offered in court to prove the truth of the matter asserted.” Also well known is the corollary that absent an exception to the rule, hearsay is inadmissible as evidence. Not so universally recited or well known are the numerous exceptions to the rule. Indeed precisely because of its numerous exceptions, some scholars have argued in favor of abolishing the rule altogether. See, e.g., Paul S. Mi-lich, Hearsay Antinomies: The Case for Abolishing the Rule and Starting Over, 71 Or. L.Rev. 723 (1992); Eleanor Swift, Abolishing the Hearsay Rule, 75 Cal. L.Rev. 495 (1987). In any event, the exceptions to the rule have been generally based upon some combination of the unavailability of the declarant, the reliability of the declaration, or the presumed inefficiency of any possible cross-examination. See generally 5 John Henry Wigmore, Evidence §§ 1420-27 (Chadbourn rev. 1974); 2 John W. Strong, McCormick on Evidence § 253 (5th ed. 1999).
An outgrowth of the English common law “shop book” rule, the business records exception is one of the oldest exceptions to the rule against the admissibility of hearsay. In England, the custom emerged of courts receiving the shop books of businessmen as evidence of goods sold or services rendered. The purpose was to circumvent the prohibition against a party appearing as its own witness. By 1832, the “shop book” rule was firmly grounded in English common law, and its scope included all entries made in the ordinary course of business. McCormick on Evidence 285.
Today, either by statute, court rule, or both, every American jurisdiction has adopted rules governing the admission of business records. See 5 Wigmore, Evidence § 1561a, at n. 6 (Supp. 1991).

808 N.E.2d 639, 641-42 (Ind.2004).

B. The Business Record Exception to the Hearsay Rule

The business record exception to the hearsay rule is codified at Indiana Rule of Evidence 803(6), and provides as follows:

Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony or affidavit of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term “business” as used in this Rule includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

“Business records are an exception to the hearsay rule because they are imbued with independent indicia of trustworthiness.” Williams v. Hittle, 629 N.E.2d 944, 947 (Ind.Ct.App.1994), trans. denied. “These indicia are that the business establishes a routine of record-making, that the record is made by one with a duty to report accurately, and that the business relies upon that record in carrying out its activities.” Id. “The fact that the business record is prepared by a party independent of the business does not negate these factors.” Id. So long as the “initial informant has personal knowledge of a fact, that fact may be repeated by an infinite number of people as long as each person in the chain is acting in the regular course of business.” Id. at 948. “The recorders themselves need not have firsthand knowledge.” Id. Moreover, “[t]he sponsor of an exhibit need not have personally made it, filed it, or have firsthand knowledge of the transaction represented by it.” Boarman v. State, 509 N.E.2d 177, 181 (Ind.1987). “The sponsor need only show that the exhibit was part of certain records kept in the routine course of-business and placed in the records by one who was authorized to do so, and who had personal knowledge of the transaction represented at the time of entry.” Id.

C. Statutory Requirement to Document the Purchase of Ephedrine and Pseudoephedrine

Indiana Code section 35 — 48^i—14.7(c) sets forth certain requirements that a retailer must meet if the retailer sells ephedrine or pseudoephedrine. One of these requirements is that the retailer maintains records of all sales of a nonprescription product containing ephedrine or pseu-doephedrine. These records should include: (1) the name and address of each purchaser; (2) the type of identification presented; (3) the governmental entity that issued the identification; (4) the identification number; and (5) the ephedrine or pseudoephedrine product purchased, including the number of grams the product contains and the date and time of the transaction. In addition to maintaining these records, Indiana Code section 35-48-4 — 14.7(c)(5) requires that before a retailer may complete the sale of an over-the-counter product containing pseudoephedrine or ephedrine, the retailer shall

electronically submit the required information to the National Precursor Log Exchange (NPLEx) administered by the National Association of Drug Diversion Investigators (NADDI), if the NPLEx system is available to retailers in the state without a charge for accessing the system. The retailer may not complete the sale if the system generates a stop sale alert.

If, for some reason, the retailer experiences mechanical or electronic failure of the electronic sales tracking system and is unable to comply with the requirements of Indiana Code section 35-48-4-14.7(c)(5), the retailer shall maintain a written log or an alternative electronic recordkeeping mechanism until the retailer is able to comply with requirements of Indiana Code section 35-48-4-14.7(c)(5). Ind.Code § 35-48-4-14.7(c)(6). Indiana Code section 35-48-4-14.7© imposes criminal liability for a knowing or intentional failure to comply with the requirements of Indiana Code section 35^8-4-14.7(c).

Indiana Code section 35-48-4-14.7(k) sets forth requirements that apply to the NPLEx reports. This section provides that (1) the information contained in the NPLEx report may be shared only with law enforcement officials; (2) a law enforcement official must be permitted to access Indiana transaction information maintained in the NPLEx for investigative purposes; (3) NADDI may not modify sales transaction data that is shared with law enforcement officials; and (4) at least one time per week, NADDI shall forward Indiana data contained in the NPLEx, including data concerning a transaction that could not be completed due to the issuance of a stop sale alert, to the state police department.

D. Analysis

In arguing that the trial court erred in admitting the NPLEx report documenting his purchases and attempted purchases of ephedrine and pseudoephed-rine in the month preceding his arrest, Embrey acknowledges that James Acquis-to, the custodian of records for Appriss, Inc., which maintained the NPLEx log, had knowledge of the fact that the information was recorded according to Ap-priss’s data collection and business practices. Embrey claims, however, that the NPLEx report should not have been admitted because Acquisto did not have firsthand knowledge of the recorded transactions themselves. We disagree.

Again, Indiana law requires that retailers selling non-prescription ephedrine and pseudoephedrine electronically submit a record of all sales of products containing ephedrine and pseudoephedrine to the NPLEx as part of the retailer’s regularly conducted business activity. See Ind.Code § 35-48-4-14.7(c). The retailer submits the record by electronically scanning both the identification card of the individual making the purchase and the bar code of the product being purchased. This submission must be made before the sale of the items can be completed and the retailer is not permitted to complete the sale if the system generates a “stop sale” alert. See id. Any knowing or intentional failure to make the required submission may subject one to criminal penalties. See Ind. Code § 35-48-4-14.7®.

The computerized NPLEx database is maintained by Appriss, Inc. The records are generated at the time the purchaser’s information is scanned into the system. Once a purchase has been recorded, the information contained within the NPLEx database may only be shared with law enforcement officials. See Ind.Code § 35-48-4-14.7(k).

In the instant matter, Acquisto, the custodian of the NPLEx database, submitted a “Business Records Affidavit” together with a printout of the NPLEx record of the purchases and attempted purchases of ephedrine and pseudoephedrine made by Embrey in the month preceding Embrey’s arrest. In his affidavit, Acquisto averred the following:

4. The computerized database of pseu-doephedrine/ephedrine sales logs by retailers are kept by the Business Records Holder in the regular course of business, and it was the regular course of that business for its employee or representative, with knowledge of the act, event, condition, or opinion recorded to make the record or to transmit information thereof to be included in such record.
5. Appriss, Inc. provides a secured log-in website available to law enforcement called JusticeXchange. JusticeXchange enables law enforcement to have the capability of searching for and printing out pseudoephedrine/ephedrine sales logs and information maintained by the Business Records, as a function of the National Precursor Log Exchange (NPLEx).
6. This affidavit certifies that all pseu-doephedrine/ephedrine records printed by law enforcement from the JusticeX-change website are exact representations of the pseudoephedrine/ephedrine sales logs.

State’s Ex. 51. In addition to a log of purchases and attempted purchases of ephedrine and pseudoephedrine, the NPLEx report contained Embrey’s name, date of birth, driver’s license number, and address. The NPLEx report shows that in the month preceding Embrey’s arrest, Embrey made numerous purchases of ephedrine or pseudoephedrine. The NPLEx report also shows that Embrey was blocked from purchasing ephedrine or pseudoephedrine on multiple other occasions.

Upon review, we conclude that the NPLEx report is imbued with an independent indicia of trustworthiness, and, as such, qualifies as a business record. The information contained in the NPLEx report was submitted to the NPLEx database in the course of the retailers’ regular business activity at the time of the purchase or attempted purchase by employees of the retailers who had firsthand knowledge of the transactions. These submissions were made by individuals who, in the routine course of their employment, had a duty to accurately report the information and could be held criminally liable for a knowing or intentional failure to make an accurate report. In addition, these individuals relied on the information contained in the database as part of the regular course of their employment as it was unlawful for them to complete the transaction if the database generated a “stop sale” alert.

Because the individuals submitting the information had both firsthand knowledge of the purchases or attempted purchases as well as a duty to accurately report the purchases or attempted purchases, we conclude that Acquisto, as custodian of the records, was not required to have firsthand knowledge of the purchases or attempted purchases. See Boarman, 509 N.E.2d at 181 (providing that a sponsor of an exhibit need not have firsthand knowledge of the transaction represented by it, but rather only need to be able to show that the records were kept in the routine course of business and the information was submitted by one with personal knowledge of the transaction at the time of entry); Williams, 629 N.E.2d at 947 (providing that so long as the initial informant has personal knowledge of a fact, the recorders themselves need not have firsthand knowledge). Acquisto averred that the information contained in the NPLEx report was submitted by individuals with firsthand knowledge of the transactions in the regular course of their business, and that the report was an exact representation of the sales logs maintained by Appriss. The trial court acted within its discretion in determining that a proper foundation was laid, and the NPLEx report was admissible under the business records exception to the hearsay rule.

II. Sufficiency of the Evidence

Embrey also contends that the evidence presented by the State is insufficient to sustain his conviction for Class C felony neglect of a dependent.

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). “In essence, we assess only whether the verdict could be reached based on reasonable inferences that may be drawn from the evidence presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind.2012). Upon review, appellate courts do not reweigh the evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.2002). Inconsistencies in witness testimony go to the weight and credibility of the testimony, “the resolution of which is within the province of the trier of fact.” Jordan v. State, 656 N.E.2d 816, 818 (Ind.1995).

Indiana Code section 35-46-l^(a) provides, in relevant part, that a “person having the care of a dependent, whether assumed voluntarily or because of a legal obligation, who knowingly or intentionally: (1) places the dependent in a situation that endangers the dependent’s life or health ... commits neglect of a dependent, a Class D felony.” “However, the offense is: (1) a Class C felony if it is committed ... in a location where a person is violating IC 35-48-4-1 (delivery, financing, or manufacture of cocaine, methamphetamine, or a narcotic drug).” Ind.Code § 35^46-l-4(b). “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he is doing so.” Ind.Code § 35-41-2-2(b). “A person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.” Ind.Code § 35-41-2-2(a).

In arguing that the evidence is insufficient to sustain his conviction for Class C felony neglect of a dependent, Embrey does not challenge the sufficiency of the evidence demonstrating that he knowingly or intentionally placed a child in a situation that endangered the child’s life or health, i.e., a place where one was engaging in the manufacturing of methamphetamine. Em-brey merely challenges the sufficiency of the evidence to prove that the child in question was his dependent. However, the evidence most favorable to the jury’s verdict demonstrates that Embrey was the child’s father, and, as a result, had a legal duty to care for the child.

When asked by the members of the U.S. Marshall’s Fugitive Task Force who was present in the home, Embrey’s mother said that her son, her son’s wife or girlfriend, and “their ” child were in the home. Tr. p. 15 (Emphasis added). The child in the home was subsequently identified as Jayden Embrey, and Embrey’s grandfather testified that Embrey has a child named Jayden Embrey. In addition, when officers entered the home, Embrey and Stewart were both holding the child as they came out of a room together. This evidence is sufficient to prove that the child found in the home was a dependent of Embrey’s. Embrey’s claim to the contrary amounts to an invitation to reweigh the evidence, which we will not do. See Stewart, 768 N.E.2d at 435.

The judgment of the trial court is affirmed.

RILEY, J., and BROWN, J., concur.

      . Ind.Code§ 35-48-4-1.1(a)(1).

      . Ind.Code §§ 35-46-l-4(a)(l) and (b)(1)(B).

      .Ind.Code § 35-48-4-13(b)(2).

      . The Indiana General Assembly recently amended Indiana Code section 35-48-4-14.7. These amendments will take effect on July 1, 2013. It is worth noting, however, that none of the amendments adopted by the General Assembly effect the substance of the portions of the statute relevant to the instant appeal.


source: Caselaw Access Project

license: Public Domain

text:
    Elnesto Ray VALLE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 27A02-1209-CR-772.
    Court of Appeals of Indiana.
    June 25, 2013.

      Craig Persinger, Marion, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

As a result of two misbegotten schemes to bail himself out of jail, Appellant-Defendant Elnesto Ray Valle was charged with and convicted of two counts of Class C felony forgery and one count each of Class D felony attempted theft, Class C felony inmate fraud, and Class A misdemeanor resisting law enforcement. The trial court sentenced Valle to an aggregate term of sixteen years of incarceration. On appeal, Valle argues that Appellee-Plaintiff the State of Indiana presented insufficient evidence to support his conviction for Class C felony inmate fraud, claiming he did not obtain money or property by misrepresenting his ability to re-pay his alleged victim. The evidence shows that Valle obtained a future interest in the bail money as well as his release from prison, both of which, we conclude, constitute property under Indiana Code section 35-31.5-2-253(a). Valle also argues that his sixteen-year aggregate sentence is inappropriate in light of his character and the nature of his crimes. We affirm.

FACTS AND PROCEDURAL HISTORY

In March of 2012, Valle was incarcerated in the Grant County Jail on a charge of Class D felony possession of marijuana. He shared a jail cell with Edward Jay Brummett, whom Valle considered a friend. On March 22, 2012, Valle placed a jail house telephone call to his acquaintance Damishia Cox and urgently requested that she come to the jail and pick up a $650 check to be released from Brum-mett’s inmate commissary account. Valle instructed Cox to arrive at 9:30 a.m. on March 23, and, after cashing the check, to place $505 into Valle’s commissary account so that he could bail himself out of jail. Cox could keep the remaining $145. Valle added that, if asked, Cox should lie and tell jail officials that she was Brummett’s cousin. During a second telephone call to Cox on March 22, Valle advised that he would give Cox a wake-up call the following morning.

On March 23, 2012, Valle called Cox at 8:00 a.m. and urged her to come to the jail. Around this time, Valle also presented Jail Officer James Stone with an Inmate Personal Items Release Form, which Valle purported had been completed by Brum-mett. The form was signed, “Edword [sic] Brummet [sic],” and directed the release of $650 from Brummett’s commissary account to Cox. Ex. 1. Cox arrived at the jail before this Release Form was processed, prompting Corporal William Kirkpatrick to contact Officer Stone to see if a form had been completed. Although Officer Stone had received the Release Form from Valle earlier that morning, he had not received an Inmate Grievance Form. In order to release money from an inmate’s commissary account, jail policy requires that a Release Form be accompanied by a Grievance Form, explaining the reason for the money’s release.

Officer Stone approached Brummett in his jail cell, showed Brummett the Release Form Valle had given him, and asked Brummett why he was releasing the money. Brummett informed Officer Stone that he did not know Cox, had not completed a Release Form, and in no way had authorized Valle to withdraw funds from his commissary account. Later that day, Corporal Kirkpatrick found a second, identical Release Form in his inbox along with a Grievance Form, signed, “Edword [sic] Brummet [sic].” Ex. 3. The form stated:

I currently have $739.69 on my account. My Grandma’s car payment is tomorrow[.] The date of March 23, 2012[,] my cousin Damishia Cox will be here at around 9:30 AM to pick up $650.00 (six hundred and fifty dollars) exact amount[.] Please do not release anymore than the amount given! I am sending a release of property slip with this grievance so that there are no confusions tomorrow morning.

Ex. 3. No money was ever released to Cox.

On March 26, 2012, undeterred by his failed attempt to make bail using Brum-mett’s commissary funds, Valle attempted to contact his friend Heather Barrett in hope that she might provide the requisite bail money. Valle found a telephone number for an individual with the surname “Barrette” in the phone book and, believing this to be Heather’s number, placed a call to it on the jail house telephone at 7:36 p.m. Instead of Heather, however, Valle’s call reached Peter Barrett, an individual with no relation to Heather and whom Valle did not know. Despite having reached the wrong Barrett, Valle engaged Peter in conversation. Valle confided in Peter that he was in jail and enlisted Peter to call Valle’s mother, Nancy, and his fian-cée, Kristen, to see if they could bail Valle out of jail.

At 7:56 p.m., Valle called Peter a second time. Peter reported to Valle that he had spoken with Nancy and that she did not have the money for Valle’s bail. Peter had not attempted to contact Kristen, but he informed Valle that Nancy was going to call her. During this conversation, Valle told Peter that he was incarcerated for possession of marijuana, and Peter replied that he “got in trouble with that when [he] was in the Navy.” Ex. 13. This prompted Valle to share that he had been in the National Guard. Valle and Peter proceeded to discuss veteran’s benefits, and, eventually, the conversation veered into Peter volunteering to bail Valle out of jail. Specifically, Peter asked Valle, “[H]ow would you be able to pay this back if somebody got the money up for ya?” Ex. 13. Valle replied that he could “go straight to [his] cousin’s house” to get the money, and that “[he would] be able to pay it right back ... like within 15 minutes of being released.” Ex. 13. Valle went on to say he could “probably” give Peter $800 in return. Ex. 13. Ultimately, Peter decided that he would call Kristin to see if she had the bail money, and if not, he would consider bailing Valle out himself when the bank opened on Monday morning.

Although the two agreed that Valle would call Peter back the following morning, at 8:11 p.m. that night, Valle called Peter a third time. Peter reported that he had been unable to reach Kristin, and Valle advised Peter that he could use a credit card to post Valle’s bail. Peter proposed that they wait to see if Nancy would be able to raise the money, but Valle was insistent on being bailed out immediately. Valle again told Peter that he would pay Peter back promptly upon his release. Further, Valle lied and told Peter that his Godfather manages a roofing company, where Valle had worked prior to his arrest. Valle added that he would “have no problem” getting his job back once released. Ex. 14. The conversation ended with Valle giving Peter the phone number to call with his credit card number and Peter giving Valle his address so the two could settle up after Valle’s release. Again, Valle told Peter he would pay him $800 in return.

At 8:51 p.m., Valle called Peter a fourth time to cheek on the status of his bail. Peter informed Valle that he had successfully paid the bail using his credit card and that he had been charged a $75 service fee. Valle emphasized that he would pay Peter $800 and stated that he would call Peter as soon as he was released. Shortly after Valle’s release, Valle called Peter, but at trial, Peter could not recall what was said. Peter never received any money back directly from Valle. The bail money was posted with the Clerk of the Court, where it remained until the Judge ordered it released to Peter as restitution. The $75 service fee was not returned.

On May 9, 2012, the State charged Valle as follows: Counts 1 and 2, Class C felony forgery; Count 3, Class D felony attempted theft; and Count 4, Class C felony inmate fraud. On May 20, 2012, Marion Police Officer Gregg Melton was executing arrest warrants on these charges, when Valle fled into an apartment and locked the door. Officer Melton kicked open the door and pursued Valle to the rear of the apartment, where Valle was apprehended in a room containing five other individuals. On May 21, 2012, the State added Count 5, Class A misdemeanor resisting law enforcement. Valle was tried by a jury and found guilty as charged. The trial court sentenced Valle as follows: eight years executed on Counts 1 and 2, to be served concurrently with three years executed on Count 3; and eight years executed on Count 4, to be served concurrently with one year executed on Count 5. The court went on to And the following aggravating circumstances:

1. At the age of 25, [Valle] has accumulated a lengthy juvenile and adult history, including numerous probation violations, spanning several jurisdictions, and demonstrating that [he] has been in virtually continuous trouble with the law since age 11.
2. These offenses were committed while [Valle] was incarcerated awaiting trial or on bond on another offense, to which he recently pled guilty.
3. [Peter Barrett] was mentally incapacitated, and [Valle] took advantage of such incapacitation in committing [inmate fraud].

Appellant’s App. p. 77. The court found no mitigating circumstances. Based upon the “significant aggravating circumstances,” the court ordered that the concurrent sentences for Counts 1, 2, and 3 be served consecutively with those for Counts 4 and 5, for an aggregate sentence of sixteen years executed. Appellant’s App. p. 69.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence

[1] Valle argues that the State failed to present sufficient evidence to support his Class C felony inmate fraud conviction.

“In reviewing the sufficiency of the evidence, we neither re-weigh the evidence nor judge the credibility of the witnesses.” Vance v. State, 640 N.E.2d 51, 57 (Ind.1994). “[W]e look only to the probative evidence supporting the verdict and the reasonable inferences therefrom to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt.” Frias v. State, 547 N.E.2d 809, 813-14 (Ind.1989). “If there is substantial evidence of probative value to support the conviction it will not be set aside.” Brown v. State, 677 N.E.2d 517, 519 (Ind.1997).

Fields v. State, 679 N.E.2d 898, 900 (Ind.1997) (brackets in original).

Indiana Code section 35-43-5-20 provides:

(b) An inmate who, with the intent of obtaining money or other property from a person who is not an inmate, knowingly or intentionally:
(1) makes a misrepresentation to a person who is not an inmate and obtains or attempts to obtain money or other property from the person who is not an inmate;
commits inmate fraud, a Class C felony.

Valle concedes that the evidence sufficiently supports the conclusion that he made misrepresentations to Peter about his prospective employment and ability to repay Peter. Valle claims, however, that he did not obtain money or property from these misrepresentations.

At trial, the State argued that Valle obtained the bail money posted by Peter because, in order to complete the bail transaction, Peter agreed to the following provision:

The cardholder acknowledges that he/ she relinquishes any claim to these funds and understands and agrees that these funds will become the property of the defendant. Furthermore, the cardholder understands that upon disposition of the charges/cases against the defendant, any funds ordered returned by the court will be returned to the defendant and not the cardholder.

Ex. 7 (emphasis added). Valle contends that this evidence is insufficient to prove that he obtained money or property because he never possessed the bail money; it remained with the County Clerk throughout trial and was returned to Peter at sentencing. We rephrase this issue as whether Valle’s future interest in the bail money constitutes property for the purposes of inmate fraud. We conclude that it does.

The Indiana Criminal Code defines “property” as “anything of value,” including: “(1) a gain or advantage or anything that might reasonably be regarded as such by the beneficiary” and “(10) contract rights, choses-in-action, and other interests in or claims to wealth[.]” Ind.Code § 35-31.5-2-253(a). That the bail money, less the $75 service fee, was ultimately ordered returned to Peter is of no matter. Had Valle’s plan not been thwarted, he would have been entitled to the bail money if returned by the court.

The State also argued at trial that Valle obtained property in the form of his release from jail. We agree. In addition to any “gain or advantage,” Indiana Code section 35-31.5-2-253(a) includes “(3) intangibles” in its definition of “property.” Valle’s claim that his release was somehow incidental to the cash bail is untenable. The relevant code provisions above do not differentiate between direct and indirect benefits, and, by definition, an inmate’s release is the intended and direct result of bail. Black’s Law DictionaRy 150 (8th ed. 2004) (defining “bail” as “[a] security such as cash or a bond ... required by a court for the release of a prisoner who must appear in court at a future time.”); id. (defining “cash bail” as “[a] sum of money (rather than a surety bond) posted to secure a prisoner’s release from jail.”). The evidence was sufficient to support Valle’s conviction for inmate fraud.

II. Appropriateness of the Sentence

Valle also argues that his sixteen-year aggregate sentence is inappropriate in light of his character and the nature of the offense. We “may revise a sentence authorized by statute 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.” Ind. Appellate Rule 7(B). “Although appellate review of sentences must give due consideration to the trial court’s sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind.Ct.App.2006), trans. denied (citations and quotation marks omitted). “[W]hether we regard a sentence as appropriate at the end of the day turns on our sense of 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). In addition to the “due consideration” we are required to give to the trial court’s sentencing decision, “we understand and recognize the unique perspective a trial court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App.2007).

With regard to the character of the offender, Valle concedes that he has an “extensive and serious” criminal record, “especially for a 25 year old man.” Appellant’s Br. p. 10. Notwithstanding his significant juvenile history, Valle has been convicted of six prior felonies and eight misdemeanors and has committed eight probation violations. “This history reflects an individual who has been given numerous opportunities to reform his criminal behavior” and “shown no inclination or willingness to change.” Appellant’s Br. 10. In fact, as the trial court found, Valle committed the present offenses while he was either incarcerated awaiting trial or on bail for an additional felony offense, to which he has since pled guilty.

With regard to the nature of the offenses, Valle claims that his sixteen-year aggregate sentence is inappropriate because no threats were made and no one was injured in their commission. His crimes, however, were aggravating in other ways. In committing forgery, Valle victimized his cellmate Brummett, whom Valle considered a friend. In committing attempted theft, Valle involved his acquaintance Cox, an individual with no criminal history and whom Valle asked to lie to jail officials. In committing inmate fraud, Valle took advantage of Peter, an individual the trial court determined to be “mentally incapacitated.” Appellant’s App. p. 77. And in resisting law enforcement by fleeing into an apartment, Valle endangered the five other individuals in the apartment. Valle further claims that his sentence is inappropriate because the pecuniary loss resulting from his crimes was only $75. But, had Valle’s plans not been thwarted, an additional $505 would have been lost. Moreover, Peter, a recipient of disability benefits, was without $505 for five months during the pendency of Valle’s trial.

The judgment of the trial court is affirmed.

BROWN, J., concurs.

RILEY, J., concurs in part and dissents in part.

      . Appellant, Appellee, and the trial court all use the term "bond” to describe the security at issue in this case. We use the term "bail.” See Ex. 7 (Cash Bail Confirmation Fax).

      . Ind.Code § 35-43-5-2(b)(2) (2011).

      . Ind.Code §§ 35-43-4-2(a), 35-31-2-4 (2011).

      . Ind.Code § 35-43-5-20(b)(l) (2011).

      . Ind.Code § 35-44-3-3(a)(3) (2011).


author: BRADFORD, Judge. RILEY, Judge,

text:
    HAMILTON HEIGHTS SCHOOL CORP., Appellant-Respondent, v. REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT and Sherri K. Stepp, Appellees-Petitioners, and The Indiana Department of Workforce Development, Appellee-Intervener.
    No. 93A02-1210-EX-795.
    Court of Appeals of Indiana.
    June 26, 2013.

      Steven M. Lutz, Church Church Hittle & Antrim, Fishers, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Stephanie Rothenberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Appellant-Respondent Hamilton Heights School Corporation (“Employer”) appeals the determination of the Review Board of the Indiana Department of Workforce Development (the “Review Board”) in which the Review Board found Employer liable for unemployment benefits relating to its dismissal of a former employee. Concluding that the notice of the in-person hearing that was given to Employer was inadequate in light of the procedural history of the instant matter together with the confusing and seemingly inconsistent information contained in the documentation issued by the Department of Workforce Development (the “Department”), we reverse and remand to the Review Board with instructions.

FACTS AND PROCEDURAL HISTORY

Sherri Stepp worked as a custodian for Employer from 1995 to 2012. Employer terminated Stepp’s employment in March of 2012, following an on-the-job argument between Stepp and a co-worker. Stepp subsequently applied for unemployment benefits. Employer opposed Stepp’s application, claiming that Stepp was not entitled to receive unemployment benefits because her employment was terminated for just cause.

After an initial review of Stepp’s claim, a claims deputy for the Department of Workforce Development determined that Stepp had been fired for just cause and was therefore ineligible for unemployment benefits. Stepp appealed, and an Administrative Law Judge (“ALJ”) conducted a hearing, by telephone, on July 17, 2012, after which it affirmed the decision of the claims deputy. Stepp subsequently appealed this decision to the Review Board.

On August 7, 2012, the Review Board issued an order vacating the ALJ’s decision and ordering a new hearing because the recording of the July 17, 2012 hearing was -“inadvertently destroyed” before the Review Board could review the ALJ’s decision. Appellant’s App. p. 35. In notifying the parties that the ALJ’s decision in favor of the Employer had been vacated, the Review Board informed the parties that a new hearing would be scheduled and would be conducted “de novo.” Appellant’s App. p. 35.

On August 9, 2012, a different ALJ sent a notice to the parties which indicated that the new hearing would be conducted, in-person, on August 21, 2012, at 10:15 a.m. However, the notice and attached acknowledgment sheet and instructions also included conflicting information which suggested that the hearing would be conducted by telephone. Stepp appeared before the ALJ in person on August 21, 2012. Relying on its experience with the prior proceedings and the documents issued by the Department in their entirety, Employer unsuccessfully attempted to participate in the hearing by telephone. Following the hearing, the ALJ found that Stepp was entitled to recover because Employer had failed to participate and, as such, had failed to meet its burden to prove that Stepp’s employment was terminated for just cause.

On August 27, 2012, Employer appealed the ALJ’s determination to the Review Board. In this appeal, Employer claimed that all necessary individuals were present at the telephone for the number provided to the ALJ and were ready to participate at the time the hearing was scheduled to begin. Employer further claimed that when the ALJ did not call, a representative of Employer called the ALJ’s office but was told that the hearing had already commenced, and that Employer would have to wait for the ALJ’s determination to appeal. On September 24, 2012, the Review Board issued an order affirming the decision of the ALJ. This appeal follows.

DISCUSSION AND DECISION

On judicial review of an unemployment compensation proceeding, we determine whether the decision of the Review Board is reasonable in light of its findings. Value World Inc. of Ind. v. Review Bd. of Ind. Unemp’t Dept. of Workforce Dev., 927 N.E.2d 945, 947 (Ind.Ct.App.2010). We are bound by the Review Board’s resolution of all factual matters; thus, we neither reweigh evidence nor reassess witness credibility. Id. at 948. Rather, we consider only the evidence most favorable to the Review Board’s decision and the reasonable inferences to be drawn therefrom, and if there is substantial evidence of probative value to support the Review Board’s conclusion, it will not be set aside. Id. When, however, an appeal involves a question of law, we are not bound by the agency’s interpretation of law, and we will reverse a decision if the Review Board incorrectly interprets a statute. Id.

In the instant matter, Employer contends that the Review Board erred in affirming the decision of the ALJ because its right to due process was violated by the deficient nature of the notice of the hearing provided in the documentation issued by the Department. Specifically, Employer argues that in light of the procedural history of this matter and the seemingly inconsistent language used in the documentation provided by the Department, it was unclear as to whether the hearing would be conducted in-person or telephoni-cally. As we know, Employer was ready and willing to participate in the hearing by telephone and even called the ALJ’s office when it did not receive a call from the ALJ at the time the hearing was scheduled to begin.

Again, the relevant procedural history demonstrates that Stepp filed for unemployment benefits after her employment with Employer was terminated in March of 2012. After an initial review of Stepp’s claim, a claims deputy determined that Stepp had been fired for just cause and was therefore ineligible for unemployment benefits. Stepp appealed, and an ALJ conducted a hearing, by telephone, after which it affirmed the decision of the claims deputy. However, the ALJ’s decision was subsequently vacated by the Review Board because the recording of the ALJ’s hearing was “inadvertently destroyed” before the Review Board could review the ALJ’s decision. Appellant’s App. p. 35. In notifying the parties that the ALJ’s decision in favor of the Employer had been vacated, the Review Board informed the parties that a new hearing would be scheduled and would be conducted “de novo.” Appellant’s App. p. 35.

A different ALJ subsequently notified the parties of the date and time of the new hearing. This notice read as follows:

STATE OF INDIANA
DEPARTMENT OF WORKFORCE DEVELOPMENT
UNEMPLOYMENT INSURANCE APPEALS
NOTICE OF IN PERSON HEARING
This is your notification that an unemployment insurance appeal hearing before an Administrative Law Judge will be held as follows:
Administrative Law Judge: ******* *■]
Hearing Day, Date, and Time: Tuesday, August 21, 2012 at 10:15 AM Eastern
Place of Hearing: Indiana Department of Work Force Development 100 North Senate Avenue, N800 Indianapolis, IN 46204

Appellant’s App. p. 41 (emphases in original). The notice further read as follows:

IMPORTANT INFORMATION ABOUT THIS PROCESS
• To participate in this hearing, you MUST deliver the enclosed Acknowledgment Sheet to the Appeals office by mail, fax, or in person.
• List only ONE telephone number on the Acknowledgment Sheet.
• If you have documents you want the judge to consider you MUST deliver them by mail, fax, or in person to the Appeals office AND the other party. The documents must be received at least 24 hours BEFORE the date of the scheduled hearing.
• The Administrative Law Judge may take up to sixty (60) minutes to contact the parties for the hearing. If the parties are not contacted within 60 (sixty) minutes the parties may request a continuance.
• Other IMPORTANT INFORMATION is provided in the enclosed U.I. APPEALS HEARING INSTRUCTIONS sheet
• If you have any questions, contact the Appeals office by telephone at (317)234-
|-⅜ * * ⅜¶ j

Appellant’s App. p. 41 (emphases in original). The U.I. APPEALS HEARING INSTRUCTIONS sheet provides, in relevant part, as follows:

BEFORE THE DATE OF THE HEARING
Contact Number: Provide the judge ONE contact telephone number to reach you for the hearing on the enclosed Acknowledgement Sheet. Deliver this sheet by mail, fax, or in person AT LEAST 24 hours prior to the hearing. You must write legibly. ... It is your responsibility to ensure that the judge has your contact telephone number.... If the judge is not able to reach you, regardless of the cause, it may be considered as a lack of response and participation in the hearing. A decision or dismissal may be issued by the judge even if you do not participate.
• Rescheduling/ContinuancelRequests for In-Person Hearing: Any requests for the hearing to be rescheduled or for the hearing to take place in-person MUST be delivered to the judge in writing and a copy must be provided to the other party at least three (3) days before the hearing ... You must specify in your written request the reason for the request and that you have notified the other party. No requests over the phone will be accepted. The judge will only approve these requests for good cause....
* * *
• Representatives and Witnesses: If you will have a representative and/or witness(es), they must either be with you at the telephone number you provided or you must be able to conference them into the hearing call....
DURING THE HEARING
Telephone Considerations: If your telephone disconnects during the hearing, the judge will attempt to call you back. Please speak clearly during the hearing. Try to be in a quiet area where you will not be interrupted.... The judge may dismiss your case if the party who filed the appeal cannot be reached within fifteen (15) minutes of the scheduled start time of your hearing. The judge may be behind in their hearing schedule, so please be patient.... You cannot call in and be connected to a hearing that is already in progress.

Appellant’s App. pp. 42-43 (emphases in original). The Acknowledgment Sheet that was returned by the Employer indicating that Employer would participate in the hearing reads, in relevant part, as follows:

Case Number: 12-11721
* * *
Appellant: Claimant
Date of Hearing: Tuesday, August 21, 2012 at 10:15 AM Eastern
• |"⅜ ⅜ ⅜ ⅜ ‡ ⅜ ⅜ ⅜ ⅛”|
Print Name (If you will participate): [Employer]
Telephone Number for In-Person Hearing: [Number provided by Employer]

Appellant’s App. p. 45 (emphases in original).

Upon review, these documents are, at the very least, confusing as they include conflicting information. While on one hand, the documents state that the hearing will be conducted in-person in the ALJ’s office, they also suggest that the hearing will be conducted telephonically. The documents contain repeated requests for telephonic contact information and indicate that the ALJ will contact the parties at the numbers provided at the scheduled time of the hearing. The instructions for the hearing, which again are provided by the Department, specifically indicate that any representatives or witnesses must be with the parties at the telephone number provided or must be able to be conferenced in to the “hearing call.” Appellant’s App. p. 42. Where, as is the case here, a prior hearing was held telephonically and no party has requested an in-person hearing, the conflicting nature of the information contained in these documents and instructions could lead a reasonable person to believe that the hearing would be conducted telephonically.

We have previously held that “ ‘while the Review Board is allowed wide latitude in conducting its hearings, due process must be accorded a party whose rights will be affected.’ ” Art Hill, Inc. v. Review Bd. of Ind. Dep’t of Workforce Dev., 898 N.E.2d 363, 367 (Ind.Ct.App. 2008) (quoting Fruehauf Corp. v. Review Bd. of Ind. Emp’t Sec. Div., 448 N.E.2d 1193, 1195 (Ind.Ct.App.1983) (citations omitted)).

“The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” [NOW Courier, Inc. v. Review Bd. of Ind. Dept. of Workforce Dev., 871 N.E.2d 384, 387 (Ind.Ct.App.2007) ]; see also Carter v. Review Bd. of Ind. Dep’t of Employment and Training Servs., 526 N.E.2d 717, 718 (Ind.Ct.App.1988) (“Due process requires notice, an opportunity to be heard, and an opportunity to confront witnesses.”).- Whether the requirements of due process have been satisfied is a question of law; therefore, we review the issue de novo. Id.

AH Hill, 898 N.E.2d at 367.

Again, in the instant matter, the parties were originally scheduled for and participated in a telephonic hearing. After this hearing, the ALJ issued an order in which he found in favor of the Employer. The Review Board subsequently vacated the ALJ’s order because the record had “inadvertently” been destroyed. Nothing in the record suggests that the destruction of the record was the fault of either party. After being notified that there would be a new hearing, the Employer sent back the forms indicating that it would participate in the new hearing, provided the ALJ with a telephone number, was present and waiting at that telephone number at the scheduled time of the hearing, and called into the ALJ’s office when the ALJ did not call as anticipated.

It is especially troublesome that a party could participate in and be successful following a hearing, have that hearing vacated through no fault of its own, be prepared for and willing to participate in a subsequent hearing, and attempt to contact the ALJ when not contacted for the hearing, only to have a ruling issued against it for failure to participate. Thus, in light of this procedural history together with the conflicting and confusing nature of the documents and instructions provided to the parties by the Review Board, we conclude that Employer’s due process rights were violated because Employer was not given the opportunity to be heard at a meaningful time and in a meaningful manner. See Art Hill, 898 N.E.2d at 367. As such, we reverse the Review Board’s order affirming the ALJ’s finding in favor of Stepp and remand the matter for a hearing on the merits.

The judgment of the Review Board is reversed and the matter is remanded with instructions.

BROWN, J., concurs.

RILEY, J., dissents with opinion.

RILEY, Judge,

dissenting.

I respectfully dissent from the majority’s decision to reverse the determination of the Review Board of the Indiana Department of Workforce Development (Review Board) which found the Hamilton Heights School Corp. (Hamilton Heights) liable for unemployment benefits. Two hearings occurred in this case, a telephone hearing on July 17, 2012 (July Hearing), which was preceded by notice on July 6, 2012 (July Notice); and an in person hearing on August 21, 2012 (August Hearing), which was preceded by notice on August 9, 2012 (August Notice). Based upon the inattentiveness of the person charged with calendaring the hearing, Hamilton Heights assumed that the August Hearing was to be held by phone and thus failed to appear in person. Sherri Stepp (Stepp), a custodian who worked for Hamilton Heights for more than 16 years, was awarded unemployment insurance benefits because no present evidence was presented in opposition to her claim.

In deeming the foregoing a due process violation, the majority excuses Hamilton Heights’ failure to participate based on language contained in the notices and ancillary documentation as well as the school’s assumption that the July Hearing would be conducted in the same manner as the August Hearing. We are therefore left with the following legal precedent: an employer is denied due process by failing to participate at an unemployment compensation hearing when such failure is caused by a) the employer’s reliance on procedures followed at a prior hearing and b) its confusion resulting from the language contained in the notice of a subsequent hearing. However, I am constrained to find a simple failure to read tantamount to a due process violation for the following reasons.

First, the August Notice was sufficiently obvious to dispel any notion that the August Hearing was to be held by telephone. Hamilton Heights concedes that it received the August Notice but argues that its failure to participate is excused by the language in the August Notice, which it found confusing. However, as the majority recognizes, the words “IN PERSON HEARING” appear in all capital letters in the caption to the August Notice. (Appellant’s App. p. 36). This is in clear contrast to the July Notice, with its caption providing only the words “NOTICE OF HEARING” in plain type. (Appellant’s App. p. 3).

Further, the details of the August Hearing appear below the caption , and list the administrative law judge’s (ALJ) name, along with the time and place of the hearing in bold, underlined typeface:

Administrative Law Judge: [S: * * ⅜ * * * *
Hearing Day, Date, and Time: Tuesday, August 21, 2012 at 10:15 AM Eastern
Place of Hearing: Indiana Department of Work Force Development 100 North Senate Avenue, N800 Indianapolis, IN 46204

(Appellant’s App. p. 41) (emphases in original). This differs from the July Notice, which provided in part:

Administrative Law Judge: [* * ****** *]
Hearing Day, Date, and Time: Tuesday, July 17, 2012 at 10:00 AM Eastern
Place of Hearing: BY TELEPHONE (you will receive a call from the Judge at the number you provide on the Acknowledgement Sheet)

(Appellant’s App. p. 8) (emphases in original).

Confronted with these inescapable distinctions, the majority cites explanatory language contained 1) at the bottom of each notice, 2) in the acknowledgement form; and 8) the accompanying instruction sheet. However, the language at the bottom of each notice simply provides general information pertaining to both telephone and in person hearings. The instruction sheet provides general information for both types of hearings but also advises that it “cannot be used as law or rule or for any other purpose.” (Appellant’s App. pp. 5, 43). The acknowledgment forms distinguish between in person and telephonic hearings, with the form accompanying the August Notice specifically stating, “Telephone Number for In-Person Hearing.” (Appellant’s App. p. 45). Even if these instructions of general applicability were somehow confusing to Hamilton Heights, I do not conclude that it overcomes the otherwise explicit language appearing in the caption and body of both notices.

Second, when matters coming within the control of a party prevent its participation in a hearing, this court has consistently found no denial of due process. “A party who receives notice of an unemployment hearing may voluntarily waive the opportunity for a fair hearing where the party received actual notice of the hearing and failed to appear at or participate in the hearing.” Art Hill, Inc. v. Review Bd. of Indiana Dept. of Workforce Development, 898 N.E.2d 363, 368 (Ind.Ct.App.2008). In Art Hill, we concluded that an employer that gave an incorrect telephone extension number to the ALJ was not denied a fair hearing, despite calling the ALJ “until fifteen minutes after the scheduled beginning of the hearing.” Id. In Wolf Lake Pub, Inc. v. Review Bd. of Indiana Dept. of Workforce Development, 930 N.E.2d 1138, 1142 (Ind.Ct.App.2010), an employer who went “on vacation in a mountainous region without [... ] reliable cell phone reception” and who stayed in “a hotel without telephones in the rooms” was not denied a reasonable opportunity to participate. In S.S. v. Review Bd. of Indiana Dept. of Workforce Development, 941 N.E.2d 550, 555 (Ind.Ct.App.2011), reh’g denied, parties who confused time zones and thus failed to participate in a hearing were not denied an opportunity to be heard. However, in A.Y. v. Review Bd. of Indiana Dept. of Workforce Development, 948 N.E.2d 373, 379 (Ind.Ct.App.2011), tram, denied, we reversed and remanded for a determination of whether a claimant, who alleged that she provided her correct telephone number yet did not receive a call from the ALJ and thereafter called within the time allotted for her hearing, had shown good cause for reinstatement of her appeal. The foregoing cases illustrate that matters within the control of the party that prevent them from participation in a hearing do not deprive that party of a fair hearing. Hamilton Heights’ arguments to the contrary are unavailing as it is clear that its inability to attend the August Hearing stems from its inattentiveness to the August Notice.

Third, equity weighs in favor of a claimant who, as opposed to the team of school personnel allied against her, was capable of determining the obvious-that she must attend an in person hearing on her unemployment claim. Although Hamilton Heights argues the unfairness of having Stepp awarded unemployment insurance, it would be inequitable to Stepp to conclude otherwise. Stepp read the August Notice and attended the in person August Hearing. Hamilton Heights’ inattentiveness to the August Notice was something under its control and as a result it waived its right to a fair hearing. I would therefore affirm the Review Board’s decision.

      . It is noteworthy that the Department could easily avoid this confusion by creating two separate sets of documents and instructions, one for hearings scheduled in-person and one for hearings scheduled telephonically.


author: BARNES, Judge.

text:
    Sterlen Shane KELLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 59A01-1206-CR-271.
    Court of Appeals of Indiana.
    June 26, 2013.

      Steven E. Ripstra, Ripstra Law Office, Jasper, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION ON REHEARING

BARNES, Judge.

The State petitions for rehearing following our opinion in Keller v. State, 987 N.E.2d 1099 (Ind.Ct.App.2013). Although we grant the State’s petition, we affirm our opinion in all regards.

Keller admitted to police that he had taken mail from Collier’s mailbox on two occasions, and the State charged Keller with the theft of a Social Security check and the theft of Edward Jones checks. In our original opinion, we concluded that the conviction for the theft of the Social Security check must be vacated based on the application of the single larceny rule, which provides, “when several articles of property are taken at the same time, from the same place, belonging to the same person or to several persons there is but a single ‘larceny, i.e. a single offense.” Raines v. State, 514 N.E.2d 298, 300 (Ind.1987). We explained:

Simply put, nothing in the record clearly shows that Keller did in fact take the Social Security check and the Edward Jones checks on two different occasions as opposed to during a single transaction. Without more the State has not established that Keller had a distinct intent to take the Social Security check and the Edward Jones checks. Accordingly, the separate convictions for Counts 4 and 5 cannot stand.

Keller, 987 N.E.2d at 1116.

In its petition for rehearing, the State does not challenge our conclusion that the evidence does not clearly establish that Keller took the Social Security check and the Edward Jones checks from the mailbox on separate occasions. Instead, the State argues, “[r]egardless of whether the social security check might have been taken from the mailbox at the same time of the Edward Jones checks, the Defendant made an independent decision to exert control over three Edward Jones checks by cashing them.” Rehearing Pet. p. 3. According to the State, Keller’s cashing of the three Edward Jones checks was an act of unauthorized control separate from his taking of the Social Security checks from the mailbox.

Contrary to the State’s assertion, we cannot disregard Keller’s act of taking the checks from the mailbox because that is the point at which Keller began knowingly or intentionally exerting unauthorized control over them with the intent to deprive Collier of their value or use. See Ind.Code § 35-43-4-2(a) (defining theft). Regardless of what Keller did with the checks after he took them — whether he put them in his garage or cashed them— he committed the offense when he took the checks from Collier’s mailbox and from that point on he committed a single continuing act of theft. See Study v. State, 602 N.E.2d 1062, 1068 (Ind.Ct.App.1992) (explaining that “only one crime occurs when a thief exercises unauthorized control over the property of the owner with the intent to deprive the owner of the use and benefit of the property on day 1, and continues to deprive the owner of property of its use and benefit for many days thereafter”); Allread v. State, 582 N.E.2d 899, 901 (Ind.Ct.App.1991) (“[0]ne who has already deprived the rightful owner of property may not be held to have subsequently stolen the same property from the same owner unless it had been restored to the rightful owner during the interim.”).

The State relies on Study in which we affirmed two theft convictions where the defendant exerted unauthorized control over two checks by depositing one and cashing the other. Study, 602 N.E.2d at 1068. Study, however, is factually distinguishable because the victims gave Study checks to invest and, therefore, Study did not exert unauthorized control over the checks with an intent to deprive the owners of their value until he deposited one and cashed the other. Id. Here, there is no contention that Collier gave Keller the Edward Jones checks so as to make the cashing of them the operative exertion of unauthorized control over them.

Further, we are not persuaded by the State’s argument that our holding dis-serves the purpose of the single larceny rule — to punish a single criminal design only once. See Taylor v. State, 879 N.E.2d 1198, 1204 (Ind.Ct.App.2008). Keller was punished for taking the mail, a single criminal design, when he was convicted of and sentenced for theft. To the extent that Keller’s subsequent decision to cash some of the checks he had taken evidenced an additional criminal design, the State could have charged him with the theft of those funds (as opposed to theft of the checks), forgery, or any other applicable offense. See Taylor, 879 N.E.2d at 1204 (upholding auto theft and theft convictions where, upon deciding to abandon the car he stole, Taylor made an independent decision to steal a purse that was in the car). The State’s decision not to charge Keller for the act of cashing the checks further underscores the importance of the charging documents and its contents. See Keller, 987 N.E.2d at 1120.

In this regard, the State’s reliance on Wiseman v. State, 521 N.E.2d 942, 946 (Ind.1988), is misplaced. In that case, Wiseman was charged with seven counts of theft of cash belonging to a bank when, after depositing stolen checks into an account in his name, he cashed seven personal checks drawn from that account. Our supreme court affirmed the separate theft convictions because they were clearly separate crimes involving separate checks and occurring at different times, on various days, and at multiple bank branches. Wiseman, 521 N.E.2d at 946. Here, however, the State charged Keller with theft of the Edward Jones checks, not theft of the funds from the Edward Jones account.

Similarly distinguishable is Benberry v. State, 742 N.E.2d 532, 538 (Ind.Ct.App.2001), which the State relies on* for the proposition that convictions for theft and forgery were not the same offense under the actual evidence test. Unlike in Ben-berry, the application of the Double Jeopardy Clause of the Indiana Constitution is not at issue here. Moreover, Keller was not charged with the separate offenses of forgery and theft; he only was charged with theft of the checks.

Finally, we are not persuaded by the State’s argument that affirming the separate convictions for the theft of the Social Security check and the Edward Jones checks would be consistent with our reasoning in affirming Keller’s conviction for the theft of the personal checks that were in the glove compartment of the truck Keller stole. We explained that had Keller simply taken the truck with the checks in the glove compartment, the single larceny rule would have prohibited the separate conviction for the theft of the personal checks and auto theft. Keller, 987 N.E.2d at 1116. We reasoned that when Keller put the checks in his garage, used one to pay a bill, and deposited two other checks he made an independent decision to exert control over the checks so that merging the theft and auto theft convictions did not serve the purpose of the rule. Id. Had Keller stolen the mailbox with the various checks in it and later cashed the checks, this reasoning would apply. This is not what happened. Keller exerted unauthorized control over the various checks when he took them from the mailbox, and his cashing of the Edward Jones checks was merely a continuation of his exertion of unauthorized control.

Because the evidence does not clearly establish that the Social Security check and the Edward Jones checks were taken from the mailbox on separate occasions, separate convictions are not warranted. We affirm our original opinion in all regards.

BAKER, J., concurs.

RILEY, J., would deny petition for rehearing.

      . Keller filed a petition for transfer on May 14, 2013. Pursuant to Indiana Appellate Rule 55, we issue this opinion.

      . Notably, the Wiseman court reduced seven forgery convictions to a single count of forgery because "[t]he seven stolen checks were all presented to the bank at the same time, on the same date, to the same person, and were all listed on one deposit slip.” Wiseman, 521 N.E.2d at 946.

      . The State does not acknowledge that the Benberry court did apply the single larceny rule to reduce Benberry’s multiple theft convictions. Specifically, Benberry was charged with three counts of theft for purchasing four stolen credit cards belonging to three different people. Benberry challenged the multiple theft convictions under the single larceny rule, and we held that, because the uncontro-verted evidence showed that Benberry purchased the credit cards at the same time and from the same place and that she did not look at the cards prior to deciding to purchase them, the theft of the four credit cards could constitute only one offense. Benberry, 742 N.E.2d at 536.


author: BARTEAU, Senior Judge.

text:
    Terry L. STURGIS, Sr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 71A03-1207-CR-330.
    Court of Appeals of Indiana.
    June 27, 2013.

      Stanley F. Wruble III, South Bend, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

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). Several of Castile’s other grandchildren lived upstairs.

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 TSl’s buttocks with the rod for ten minutes, and then he wrapped TSl’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, “[Yjou’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, Stur-gis beat him and burned him with the 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, “[Tjhat’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 TS8 two weeks after TS2’s death, and he discovered multiple scars from burns and whippings on each of them.

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 TSl’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.

DISCUSSION AND DECISION

I. CROSS-EXAMINATION OF TSB

Sturgis argues that the trial court limited his cross-examination of TS3, and that the limits violated his federal constitutional right to confront witnesses.

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, 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 TSl’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 question is just simply: Did your brother do anything to make sure you didn’t tell anybody?” Id. at 846^7. 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, Stur-gis 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.

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.

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.

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 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. MeIntire 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 Stur-gis’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 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 (Ind.Ct.App.2011) (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.

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

Under Count II, the State charged Stur-gis 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 XL 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.

      . We use numbers because the children have identical initials.

      . 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.

      . 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.