Curtis Boggs v. State of Indiana , 104 N.E.3d 1287 ( 2018 )

FILED
Aug 23 2018, 1:45 pm
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 18S-CR-430
Curtis Boggs,
Appellant (Defendant below),
–v–
State of Indiana,
Appellee (Plaintiff below).
Decided: August 23, 2018
Appeal from the Dearborn Circuit Court, No. 15C01-1603-F1-007
The Honorable James D. Humphrey
On Petition to Transfer from the Indiana Court of Appeals
No. 15A01-1708-CR-1778
Per Curiam Opinion
All Justices concur.
Per Curiam
Curtis Boggs was convicted of eight counts of sexual misconduct with a
minor and four counts of child molestation. On appeal he raised multiple
issues, including whether the State presented sufficient evidence to
support his conviction for Level 1 felony child molestation.
A person commits child molestation by knowingly or intentionally
performing sexual intercourse or other sexual misconduct with a child
under fourteen years of age. Ind. Code § 35-42-4-3. The offense is a Level 1
felony if committed by a person at least twenty-one years of age. Id.
“’Sexual intercourse’ means an act that includes any penetration of the
female sex organ by the male sex organ.” I.C. § 35-31.5-2-302. “’Other
sexual misconduct’ includes “an act involving … the penetration of the
sex organ or anus of a person by an object.” I.C. § 35-31.5-2-221.5.
Boggs was found guilty of child molestation for engaging in other
sexual misconduct. S.H. testified that Boggs put his finger “in the folds of
her vagina” and touched her clitoris. (Tr. Vol. II p. 221.) Boggs appealed
on grounds the evidence was insufficient to prove “penetration” for
purposes of the statute defining other sexual misconduct. The Court of
Appeals affirmed, concluding the evidence supports the Level 1 felony
conviction. We agree with the Court of Appeals and grant transfer to
provide guidance on the meaning of “penetration” for purposes of “other
sexual misconduct.”
Precedent makes clear that proof of the “slightest penetration” of the
female sex organ, including penetration of the external genitalia, is
sufficient to sustain a conviction for child molestation based on sexual
intercourse. Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996), on reh’g
(1997); Dinger v. State, 540 N.E.2d 39, 40 (Ind. 1989). But Boggs argues that
other sexual misconduct requires proof of “more intrusive acts,”
comparing the statute defining sexual intercourse as “any” penetration of
the female sex organ to the statute defining other sexual misconduct as
“the” penetration of the sex organ. See I.C. §§ 35-31.5-2-302; 35-31.5-2-
221.5. Boggs contends this differing language indicates the legislature
intended “penetration” to have different meanings for purposes of the
two statutes.
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We hold that proof of the slightest penetration of the sex organ,
including penetration of the external genitalia, is sufficient to demonstrate
a person performed other sexual misconduct with a child. The evidence
here demonstrates that Boggs committed other sexual misconduct with
S.H. Accordingly, we affirm his conviction for Level 1 felony child
molestation. We summarily affirm the Court of Appeals decision in all
other respects. See Ind. Appellate Rule 58(A)(2).
All Justices concur.
ATTORNEY FOR APPELLANT
Leanna Weissmann
Lawrenceburg, Indiana
ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
Indiana Supreme Court |No. 18S-CR-430 | August 23, 2018 Page 3 of 3