Bruce Giggy v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 21 2020, 9:39 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
James A. Shoaf Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bruce Giggy, January 21, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1108
v. Appeal from the
Bartholomew Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff James D. Worton, Judge
Trial Court Cause No.
03D01-1707-FC-3809
Vaidik, Judge.
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Case Summary
[1] Bruce Giggy pled guilty to three counts of Class C felony child molesting for
fondling his nieces when they were younger, and the trial court imposed
consecutive sentences totaling fourteen years and eight months, all to be served
in the Indiana Department of Correction. Giggy now appeals, arguing that the
trial court abused its discretion in sentencing him and that his sentence is
inappropriate. We affirm.
Facts and Procedural History
[2] In March 2017, C.P., who was twenty-six years old, and her sister S.P., who
was eighteen years old, went to the Columbus Police Department to report that
Giggy, their uncle, had fondled them when they were around nine or ten years
old. They also reported that Giggy had fondled their cousin S.S., who was
twenty-six years old.
[3] The police interviewed several people, including Giggy. During his interview,
Giggy admitted inappropriately touching his nieces’ exposed breasts and butts
and exposing his erect penis (sometimes touching them with it) on multiple
occasions when they spent the night at his house. Giggy explained that he
didn’t think his nieces were awake when it happened and that he did it because
he was “intrigued” by their “growth and development” and “aroused by the
sneaking around . . . late at night.” Tr. p. 96. Giggy also talked about his
granddaughter L.K., who at the time was fifteen years old. Giggy admitted
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fondling L.K. and putting his penis on her hand while she slept when she was
around six years old. Id. at 117-18; Appellant’s App. Vol. II p. 26. Giggy said
that several years after that, when L.K. was “thirteen maybe or fourteen” years
old (2015-16), she had just taken a bath and was naked in a bedroom. Tr. p.
104. Unknown to L.K., Giggy watched her, thinking to himself that she was
“really growing up” and “very pretty.” Id. at 105.
[4] In July 2017, the State charged Giggy, who by then was sixty-one years old,
with five counts of Class C felony child molesting based on fondling: two
counts for C.P. (1999), one count for S.P. (2008-09), one count for S.S. (2000),
and one count for L.K. (2008).
[5] In April 2018, the State and Giggy entered into a plea agreement under which
Giggy pled guilty to three counts of Class C felony child molesting—one count
for each niece (Counts 1, 2, and 4)—and the State dismissed the second count
for C.P. (Count 3) and the count for L.K. (Count 5).1 Id. at 5. Sentencing was
left to the discretion of the trial court.
[6] At the sentencing hearing, several close friends and family members testified on
Giggy’s behalf. According to their testimonies, Giggy—who had coached girls
volleyball at the middle-school and high-school levels and mentored youth
through his church—had been involved in the lives of “thousands of young
people,” and what he did to his nieces was “far outside of his normal
1
The State agreed not to pursue Count 5 at L.K. and her mother’s request. Tr. pp. 68-69.
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character.” Id. at 27, 62. The victims then read their victim-impact statements.
S.S. explained that she did not come forward earlier because she was “willing to
put [her] own safety and needs below” the needs of Giggy’s family “for a very
long time.” Id. at 80-81. Also, she said that she didn’t think anyone would
believe her, since Giggy was “known as this devoted Christian in the
community.” Id. at 81. S.S. said that she felt “immense” guilt for not coming
forward sooner, because then she could have stopped it from happening to her
cousins. Id. Next, C.P. testified that Giggy and his wife “were almost like
second parents” to her and that it was “hard to look back on [her] childhood
and think of anything other than . . . these crimes.” Id. at 83. C.P. said that she
felt guilt for not coming forward earlier, because then she “could have saved”
her younger sister S.P. Id. at 84. However, C.P. said that the “most damaging”
part of the abuse was that it occurred at the hands of someone she “loved and
trusted.” Id. C.P. talked about the battles they will have to face for “the rest of
[their] lives” due to Giggy molesting them in their sleep when they didn’t have
“a chance to fight back.” Id. at 85. Finally, S.P. testified that Giggy put forth a
“carefully constructed mirage” that he was “trustworthy,” “kind,” and a “great
Christian man, with a very happy family” to cover up the molestations. Id. at
86. S.P. explained that for years she believed she was the only victim and that
she did not come forward earlier because she thought that nobody would
believe her. She concluded that “the hardest part [was] looking back on
childhood memories that relate to [Giggy]. Things that as a child, I didn’t see
anything unusual about, but now I see them clearly as sickening, predatory
tactics.” Id. at 87.
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[7] Defense counsel conceded that there were two aggravators: the victims were
less than twelve years old at the time of the molestations and Giggy violated a
position of trust. Id. at 131 (“There’s absolutely no way that any sane
individual could say that those aggravators aren’t proper.”). Defense counsel
then argued that there were several mitigators, including that Giggy had no
criminal history until this case and that the crimes were the result of
circumstances unlikely to recur. Defense counsel asked the trial court to
sentence Giggy to the advisory term of four years on each count, to be served
consecutively, and to “divide that twelve years” between incarceration, home
detention, and probation. Id. at 137.
[8] The trial court identified three aggravators: (1) the victims were less than twelve
years old at the time of the molestations; (2) Giggy was in a position of trust
with the victims and betrayed that trust, which was “a very significant
aggravator”; and (3) the harm, injury, loss, or damage suffered by the victims
“was significant and greater than the elements necessary to prove the
commission of the offense[s],” as the “emotional scars” relayed by the victims
in their victim-impact statements are “very significant.” Id. at 144. The court
identified one mitigator: Giggy did not have any criminal convictions until this
case.2 The court sentenced Giggy to six years and eight months on Count 1,
2
Giggy argues that the trial court “failed to make a statement in support of its findings.” Appellant’s Br. p.
17. While the trial court’s sentencing order just lists the aggravators and mitigator it found, it explained these
findings at the sentencing hearing. This is enough. See Anderson v. State, 989 N.E.2d 823, 826 (Ind. Ct. App.
2013) (“A trial court’s consideration of factors may be evidenced in either the written order or in an oral
sentencing statement.”), trans. denied.
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four years on Count 2, and four years on Count 4. The court ordered the
sentences to be served consecutively, for a total sentence of fourteen years and
eight months, all to be served in the DOC.
[9] Giggy now appeals his sentence.
Discussion and Decision
I. Abuse of Discretion
[10] Giggy contends that the trial court abused its discretion by finding an improper
aggravator and failing to find two mitigators. Sentencing decisions rest within
the sound discretion of the trial court and are reviewed on appeal for an abuse
of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218 (Ind. 2007).
[11] Giggy first argues that the trial court erred by finding as an aggravator that the
harm, injury, loss, or damage suffered by the victims was significant and greater
than the elements necessary to prove the molestations because the record “is
void of any facts supporting its finding that the victims in this case suffered
harm, injury, loss, or damage more significant or greater than anticipated by the
statute.” Appellant’s Br. p. 20. At sentencing, the victims read victim-impact
statements in which they detailed the effects the molestations have had on
them. They spoke at length about how their uncle gained their trust and then
abused it. They spoke about the guilt they carried around for not coming
forward sooner, because it might have prevented the others from being
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molested. And they spoke about keeping the abuse secret for so long because
they didn’t want to break apart the family and because they didn’t think anyone
would believe them due to Giggy being a Christian. Furthermore, as the State
points out, Giggy admitted to more molestations than the victims remembered,
as he only molested them when he thought they were asleep. The trial court
did not abuse its discretion in finding this aggravator.
[12] Giggy next argues that the trial court erred by not finding as mitigators that the
crimes were the result of circumstances unlikely to recur and that he would
respond affirmatively to probation and short-term imprisonment. Giggy asserts
that the circumstances are unlikely to recur because it is doubtful that young
family members will be left in his care again and because it has been “over ten
(10) years since the last crime occurred.” Appellant’s Br. p. 17. He asserts that
he would respond well to probation and short-term imprisonment based on “his
character.” Id. at 18. According to the record, Giggy spent years molesting his
family members and creating the image that he was a good and trustworthy
person so that he could continue the molestations. While Giggy admitted to
the molestations, it was only years later when the victims went to the police.
Although Giggy did not admit to any recent molestations, he did admit to
watching L.K. when she was naked as recently as 2016. Moreover, at the time
of sentencing, L.K.’s mother (Giggy’s daughter) was pregnant with her fifth
child. Thus, it is possible that Giggy could have access to more children. Giggy
has failed to show that these mitigators are both significant and clearly
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supported by the record. See Anglemyer, 868 N.E.2d at 493. The trial court did
not abuse its discretion in sentencing Giggy.
II. Inappropriate Sentence
[13] Giggy also contends that his sentence of fourteen years and eight months, all to
be served in the DOC, is inappropriate and asks us to “modify [it] to include a
suspended portion as a community correction placement.” Appellant’s Br. p.
27. 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).
[14] The sentencing range for a Class C felony is two to eight years, with an
advisory sentence of four years. Ind. Code § 35-50-2-6(a). As such, Giggy was
facing as many as twenty-four years in prison. The trial court sentenced him to
six years and eight months on Count 1 and the advisory sentence of four years
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on Counts 2 and 4. The court ordered the sentences to be served consecutively,
for a total sentence of fourteen years and eight months to be served in the DOC.
[15] There is nothing about Giggy’s offenses that requires a revision of his sentence.
Giggy admitted molesting his nieces on several occasions between 1999 and
2008. Giggy gained the trust of his nieces, becoming their favorite uncle and
like a second parent to them. He then molested his nieces when he thought
they were asleep, rubbing their exposed breasts and butts and placing his erect
penis on them. His nieces were awake on some of these occasions but kept the
abuse secret for many years.
[16] There are indeed redeeming aspects to Giggy’s character. He did not have any
convictions until this case, he was a college graduate who was gainfully
employed, he admitted to the molestations during his first interview with the
police, and he pled guilty, sparing his nieces (and his family) the trauma of
going through a trial. In addition, his close friends and children spoke very
fondly of him, claiming that his actions were totally out of character for him.
The reason this appeared out of character for Giggy is because he created the
impression that he was a good person who could be trusted. Meanwhile,
behind closed doors at night, he subjected his nieces to a series of molestations
because he liked the thrill of sneaking around and was “intrigued” by their
“growth and development.” Even though the molestations Giggy admitted to
occurred between 1999 and 2008, he also admitted watching his naked
granddaughter as recently as 2016. Giggy has failed to persuade us that his
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sentence of fourteen years and eight months, all served in the DOC, is
inappropriate.
[17] Affirmed.
Najam, J., and Tavitas, J., concur.
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