Curtis Boggs v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 18 2018, 9:59 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Leanna Weissmann Curtis T. Hill, Jr.
Lawrenceburg, Indiana Attorney General
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Curtis Boggs, June 18, 2018
Appellant-Defendant, Court of Appeals Case No.
15A01-1708-CR-1778
v. Appeal from the Dearborn Circuit
Court
State of Indiana, The Honorable James D.
Appellee-Plaintiff Humphrey, Judge
Trial Court Cause No.
15C01-1603-F1-007
Vaidik, Chief Judge.
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Case Summary
[1] Curtis Boggs was convicted of eight counts of sexual misconduct with a minor
and four counts of child molesting and was sentenced to sixty-three years in
prison. He appeals two of his child-molesting convictions and his sentence.
We reverse one of the convictions and remand for a slight adjustment of the
sentence but affirm in all other respects.
Facts and Procedural History
[2] Between July 2014 and June 2015, during most of which Boggs was fifty years
old, he sexually abused a group of seven teenage girls—a niece who was living
with him, and six of her friends. Boggs gave the girls alcohol, cigarettes, and
marijuana in exchange for “payments” in the form of sexual favors, often
“paid” while the girls were gathered together in each other’s presence.
[3] In June 2017, a jury found Boggs guilty on eight counts of sexual misconduct
with a minor (the crime when the victim is fourteen or fifteen, see Ind. Code §
35-42-4-9) and four counts of child molesting (the crime when the victim is
younger than fourteen, see Ind. Code § 35-42-4-3). The trial court imposed
seven consecutive sentences totaling sixty-three years for the most serious crime
against each of the seven victims: thirty years for Level 1 felony child molesting
of S.H.; six years for Level 4 felony sexual misconduct with T.M. (the niece
who was living with Boggs); six years for Level 4 felony sexual misconduct with
O.S.; six years for Level 4 felony sexual misconduct with K.E.; six years for
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Level 4 felony child molesting of K.R.; six years for Level 4 felony child
molesting of M.W.; and three years for Level 5 felony sexual misconduct with
G.B. The court ordered the sentences for the less serious crimes against five of
the victims—six years for Level 4 felony child molesting of S.H. and three years
each for Level 5 felony sexual misconduct with T.M., O.S., K.E., and K.R.—to
run concurrently with the sixty-three-year sentence.
[4] Boggs now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
[5] We begin with Boggs’s contention that the State did not present sufficient
evidence to support two of his four child-molesting convictions. In reviewing
the sufficiency of the evidence supporting a conviction, we consider only the
probative evidence and reasonable inferences supporting the verdict. Wilson v.
State, 39 N.E.3d 705, 716 (Ind. Ct. App. 2015), trans. denied. We do not
reweigh the evidence or assess witness credibility. Id. We consider conflicting
evidence most favorably to the verdict. Id. We will affirm the conviction unless
no reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Id. It is not necessary that the evidence overcome every
reasonable hypothesis of innocence. Id. The evidence is sufficient if an
inference may reasonably be drawn from it to support the verdict. Id.Court of Appeals of Indiana | Memorandum Decision 15A01-1708-CR-1778 | June 18, 2018 Page 3 of 7
[6] Boggs first challenges his conviction for Level 1 felony child molesting of S.H.,
which arose from the State’s allegation that Boggs engaged in “other sexual
conduct” with S.H. when she was thirteen. Indiana Code section 35-31.5-2-
221.5 defines “other sexual conduct” as “an act involving: (1) a sex organ of
one (1) person and the mouth or anus of another person; or (2) the penetration
of the sex organ or anus of a person by an object.” The first clause is
inapplicable in this case, and Boggs argues that the State failed to prove under
the second clause that he penetrated S.H.’s sex organ or anus with an object.
He acknowledges that S.H. testified that Boggs placed his finger “in the folds”
of her vagina “deep enough” that he touched her clitoris, Tr. Vol. II p. 221, but
he asserts that this did not amount to “penetration” for purposes of the “other
sexual conduct” statute. As the State notes, however, we held in Stetler v. State,
972 N.E.2d 404, 406-08 (Ind. Ct. App. 2012), trans. denied, that touching even
just the clitoral hood is sufficient to satisfy the “penetration” requirement of the
statute. In his reply brief, Boggs did not mention Stetler, let alone argue that it is
distinguishable or that it was wrongly decided, and we will not devise such an
argument for him. We affirm the conviction for Level 1 felony child molesting.
[7] Boggs also appeals his conviction for Level 4 felony child molesting of K.R. In
that count, the State charged Boggs with fondling K.R. when she was thirteen.
Boggs acknowledges that there is evidence that he fondled K.R. (one of his
sexual-misconduct convictions was for fondling K.R., and he doesn’t challenge
it), but he contends that the evidence is insufficient to support the jury’s
conclusion that he did so before K.R.’s fourteenth birthday in December 2014.
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He is right. While K.R. testified that Boggs did “inappropriate things” to her
both before and after her fourteenth birthday, Tr. Vol. II p. 148, the State
doesn’t direct us to any evidence specifying whether the “things” Boggs was
doing before K.R.’s birthday included fondling. The State emphasizes evidence
that Boggs was inappropriately touching some of the other girls before K.R.’s
fourteenth birthday, but that does not amount to proof beyond a reasonable
doubt that he was also fondling K.R. during the same time.
[8] Therefore, we remand this matter to the trial court with instructions to vacate
Boggs’s conviction for Level 4 felony child molesting of K.R. and the six-year
sentence that went along with it. However, because the trial court made clear
its intent to impose a consecutive sentence for each of the seven victims, we also
instruct the court to order Boggs’s three-year sentence for Level 5 felony sexual
misconduct with K.R. to take the place of the six-year sentence for Level 4
felony child molesting of K.R. in the lineup of consecutive sentences, which
will result in a total sentence of sixty years.
II. Sentence
[9] That brings us to Boggs’s claim that his sentence is inappropriate. While
Boggs’s argument in this regard is based on the sixty-three-year sentence
originally imposed by the trial court, we assume that he would have the same
objection to the sixty-year sentence we just ordered, and we proceed
accordingly.
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[10] Indiana Appellate Rule 7(B) provides that an appellate court “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.” “Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity
of the crime, the damage done to others, and a myriad of other factors that
come to light in a given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct.
App. 2014) (citing Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008)).
Because we generally defer to the judgment of trial courts in sentencing matters,
defendants have the burden of persuading us that their sentences are
inappropriate. Schaaf v. State, 54 N.E.3d 1041, 1044-45 (Ind. Ct. App. 2016).
[11] Boggs has not satisfied that burden in this case. Boggs first asserts that he
shouldn’t have “received maximum terms of incarceration with consecutive
sentencing.” Appellant’s Br. p. 33. But he didn’t receive “maximum terms.”
The trial court imposed the advisory sentence for each of Boggs’s convictions.
And the court ordered only seven of the sentences to run consecutively—in
proper recognition of the fact that Boggs abused seven different girls. See
Pittman v. State, 885 N.E.2d 1246, 1259 (Ind. 2008) (“Consecutive sentences
reflect the significance of multiple victims.”). If the court had imposed
maximum, consecutive sentences for all eleven convictions that remain, Boggs
would be serving 130 years in prison, rather than sixty.
[12] As for whether a sentence of sixty years is inappropriate in this case, we need
look no further than the trial court’s superb written sentencing order, which
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details the truly disturbing nature of Boggs’s crimes. T.M., Boggs’s niece who
was living with him and through whom Boggs was able to access the other girls,
was a “particularly vulnerable target” because both of her parents had recently
died. Appellant’s App. Vol. VII p. 87. Furthermore, Boggs “provided alcohol
and marijuana to the children, not only as a reward for sexual acts, but also in
order to make them more susceptible and willing to satisfy his sexual requests.”
Id. at 88. And Boggs’s abuse was “particularly demeaning” because the girls
“were not only subjected to the touching, flashing and other sexual behavior”
but “also had to watch others and have others watch them engage in these
acts.” Id. Finally, there is no indication that Boggs had any intention of
stopping his abuse—“the only thing which caused these events to cease was the
initial report and defendant’s arrest.” Id. at 86.
[13] Notwithstanding all of that, Boggs maintains that he is man of good character,
making much of the fact that he is a “first-time offender.” Appellant’s Br. pp.
32, 39. But as the trial court recognized, this was a horrendous “first offense.”
It was not an isolated crime against a single victim. Rather, Boggs spent nearly
a year abusing seven different girls, some of them multiple times.
[14] Nothing about Boggs’s offenses or his character leaves us convinced that a
sixty-year sentence is inappropriate.
[15] Affirmed in part and reversed and remanded in part.
Pyle, J., and Barnes, Sr. J., concur.
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