Randy Lee Higgins v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 08 2018, 9:26 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bruce W. Graham Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Randy Lee Higgins, January 8, 2018
Appellant-Defendant, Court of Appeals Case No.
79A02-1706-CR-1299
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D02-1603-F5-46
Altice, Judge.
Case Summary
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[1] Randy Lee Higgins appeals his convictions for two counts of Level 6 felony
possession of child pornography and one count each of Class A misdemeanor
possession of a controlled substance and Level 5 felony possession of
methamphetamine. Higgins presents the following restated issues for review:
1) Did the trial court abuse its discretion by denying Higgins’s
motion for a continuance – made on the first day of trial – to
allow him time to retain private counsel?
2) Did the trial court abuse its discretion by allowing the State to
introduce a limited history of Google searches performed by
Higgins?
3) Is Higgins’s sentence inappropriate?
4) Did the trial court err in ordering the balance of Higgins’s
cash bond paid to the public defender’s office where no
evidence was presented regarding the cost of representation?
[2] We affirm.
Facts & Procedural History
[3] S.B. (Mother) was in a relationship with Higgins for several years, and the two
have a child together, who was born in March 2012. Higgins spent most nights
at Mother’s apartment, where she lived with their child and her two older
minor children. Higgins acted as a care giver to all of the children in the home.
[4] Late at night on March 20, 2016, Mother searched Higgins’s iPhone while he
was asleep because she suspected that he was being unfaithful. She observed
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video clips in his Google account that depicted her thirteen-year-old daughter
M.H. in the upstairs bathroom using the toilet. Mother unsuccessfully
attempted to send the videos to herself. The next day, she spoke with a
neighbor about retrieving the videos from the phone for proof. The neighbor
suggested that Mother speak to the police and then contacted the police on
Mother’s behalf. Around 11:30 p.m., Officer Adam Ransom was dispatched to
the apartment complex. The neighbor spoke with Officer Ransom, who then
met with a “very paranoid, frightened, … shaking” Mother at a nearby Taco
Bell. Transcript Vol. 2 at 210.
[5] On March 22, 2016, Officers obtained a search warrant for the residence,
Higgins’s person and car, and his iPhone. The warrant was executed that
afternoon with Mother, Higgins, and M.H. present. A small metal canister was
recovered from Higgins’s person. Later testing revealed that it contained
methamphetamine and M.D.A., a controlled substance. Police also seized,
among other things, his iPhone, a key fob camera with Velcro attached to the
back, additional unused Velcro pads, a wireless camera with remote access and
tape over the light on the face of the camera that turns on when in use, and drug
paraphernalia.
[6] A subsequent investigation of Higgins’s iPhone and Google drive revealed four
edited videos (one a duplicate) of M.H. in the bathroom, using the toilet or
showering. The videos showed M.H.’s uncovered breasts and/or genitalia.
These videos appeared to have been placed on Higgins’s Google drive in
February and March 2016. The investigation also yielded Higgins’s search
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history on Google. Between January 1 and March 19, 2016, this history
included a number of searches for information on “hidden bathroom cam”,
“key fob spy camera instructions”, “hotel room naked”, “sexy nude girls hidden
bathroom camra [sic]”, and “spying sexy 19-year-old girl”, as well as “teens”
and “nude girls” on a pornographic site. Exhibits at State’s Exhibit 63BR.
[7] When interviewed by police on March 22, 2016, Higgins vehemently denied
knowledge of the videos of M.H. He suggested that Mother placed the edited
videos on his phone and in his Google drive to set him up. With respect to the
drugs recovered from his pocket, Higgins indicated that he had just picked up
the metal container off the ground in the parking lot minutes before the search.
He claimed that the drugs were not his, though he knew there were probably
drugs inside the container. Higgins was arrested at the conclusion of the
interview.
[8] The State charged Higgins with two counts of Level 5 felony child exploitation
(Counts I and II), two counts of Level 6 felony possession of child pornography
(Counts III and IV), and one count each of Level 6 felony voyeurism (Count
V), Level 5 felony possession of methamphetamine (Count VI), Level 6 felony
possession of methamphetamine (Count VIII), and Class A misdemeanor
possession of a controlled substance (Count IX). The State also filed a habitual
offender sentencing enhancement (Count VII).
[9] Private attorney Andrew Achey filed an appearance on Higgins’s behalf on
April 15, 2016. On December 27, 2016, Achey petitioned the trial court to
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withdraw his appearance due to nonpayment of fees. The trial court denied the
motion because the jury trial, which had a priority setting, was less than a
month away. Achey renewed his motion to withdraw on January 12, 2017,
noting a breakdown in the attorney-client relationship. That same day, Higgins
filed a request for appointment of a public defender. Following a hearing, the
trial court granted Achey’s motion, vacated the scheduled jury trial, and
appointed counsel for Higgins on January 23, 2017. Matthew Harris entered an
appearance as Higgins’s public defender, and the jury trial was rescheduled for
April 25, 2017.
[10] On the morning of trial, Higgins requested a continuance to hire private
counsel. The trial court denied this request, and the case proceeded to trial.
The jury found Higgins guilty of Counts III, IV, VI, VII, and VIII. The jury
could not reach a verdict on the child exploitation and voyeurism counts,
Counts I, II, and V, so these counts were dismissed on the State’s motion. The
State also dismissed the habitual offender enhancement.
[11] At the conclusion of the sentencing hearing on May 19, 2017, the trial court
vacated Count VI and sentenced Higgins to two years on both Counts III and
IV, one year on Count VII, and five years on Count VIII. The court ordered
Counts III and IV to be served concurrently with each other and Counts VII
and VIII to be served concurrently with each other and consecutive to Count
III. Thus, Higgins received an aggregate sentence of seven years in prison. The
trial court ordered five years of the sentence executed and two years suspended
to probation.
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[12] Additionally, upon hearing evidence and determining that Higgins had the
ability to pay, the trial court ordered the release of the balance of Higgins’s cash
bond to “the Tippecanoe County Public Defender to defray from the costs of
representation…in this matter”. Appellant’s Appendix Vol. II at 15. Higgins now
appeals. Additional facts will be provided below as needed.
Discussion & Decision
Denial of Continuance
[13] Higgins initially challenges the denial of his motion for a continuance. He
made this motion on the morning of his scheduled jury trial, indicating that he
could now retain private counsel because he was no longer incarcerated and
was working, making $34 per hour. Higgins claimed that Harris, his appointed
counsel, had been ineffective for not filing a motion regarding the search
warrant, failing to timely provide documents to Higgins, and misleading him.
Harris clarified that he refused to file the requested motion based on his
professional judgment and Higgins’s best interests. Harris also affirmed that
Higgins had been present during the depositions taken in this case. Finally,
Harris indicated that he was prepared and ready to go to trial.
[14] In denying the continuance, the trial court noted that the case had been pending
for more than a year and that Higgins had private counsel before the
appointment of Harris. The court then stated, “you’ve had plenty of
opportunity to consider and get private counsel if that was your choice. To
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come in here on the day of trial and ask for a continuance is a little late”.
Transcript Vol. 2 at 62.
[15] The right to counsel of one’s choice is not absolute, and it is well settled that
this right “must be exercised ‘at the appropriate stage of the proceeding.’” Lewis
v. State, 730 N.E.2d 686, 689 (Ind. 2000) (quoting Parr v. State, 504 N.E.2d
1014, 1016 (Ind. 1987)). See also Perry v. State, 638 N.E.2d 1236, 1241 (Ind.
1994) (“[c]ontinuances sought shortly before trial to hire a new attorney are
disfavored because they cause substantial loss of time for jurors, lawyers, and
the court”). It is within a trial court’s sound discretion to deny a last-minute
continuance to hire new counsel. See Lewis, 730 N.E.2d at 689.
[16] Higgins moved for a continuance on the first day of trial, with no indication
that he had already retained new counsel. The case had been pending for over
a year, and Higgins’s previous change of counsel in January had already
resulted in several months of delay. The trial court clearly acted within its
discretion in denying Higgins’s eleventh-hour motion.
Admissibility of Evidence
[17] Higgins contends that the trial court abused its discretion by admitting State’s
Exhibit 63BR, which contained his Google search history from January
through March 2016. He claims this evidence should have been excluded
under Indiana Evidence Rule 403 because the evidence “bore little relevance to
the case, but was highly prejudicial.” Appellant’s Brief at 17.
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[18] We review evidentiary rulings for an abuse of discretion, which will be found
where the ruling is clearly against the logic and effect of the facts and
circumstances. Zanders v. State, 73 N.E.3d 178, 181 (Ind. 2017), cert. pending.
On issues of relevance and unfair prejudice, a trial court’s discretion is
wide. Snow v. State, 77 N.E.3d 173, 176 (Ind. 2017). As our Supreme Court
emphasized in Snow, this discretion often allows the trial court to resolve
determinations under Indiana Evidence Rules 401 and 403 either way:
Trial judges are called judges for a reason. The reason is that
they conduct trials. Admitting or excluding evidence is what
they do. That’s why trial judges have discretion in making
evidentiary decisions. This discretion means that, in many cases,
trial judges have options. They can admit or exclude evidence,
and we won’t meddle with that decision on appeal. There are
good reasons for this. Our instincts are less practiced than those
of the trial bench and our sense for the rhythms of a trial less
sure. And trial courts are far better at weighing evidence and
assessing witness credibility. In sum, our vantage point—in a far
corner of the upper deck—does not provide as clear a view.
Id. at 177 (internal quotations and citations omitted; emphasis in original).
[19] The trial court thoroughly considered Higgins’s objection to the evidence in
question. The court found that the search history from January 1 to March 19,
2016, was relevant to establish Higgins’s intent/motive/plan given that Higgins
had denied knowledge of the videos and stressed that someone else must have
put them there. On appeal, Higgins does not dispute that the evidence was
relevant in this regard. He simply argues that the relevance was low. We
cannot agree. Comingled with mundane searches, Higgins’s Google history
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included searches for “hidden bathroom cam”, “key fob spy camera
instructions”, “hotel room naked”, “sexy nude girls hidden bathroom camra
[sic]”, and “spying sexy 19-year-old girl”. Exhibits at State’s Exhibit 63BR.
These searches occurred during the time that M.H. was being surreptitiously
filmed in the bathroom. The probative value of this evidence was significant
and not substantially outweighed by the danger of unfair prejudice.
Accordingly, the trial court did not abuse its discretion.
Sentence
[20] Next, Higgins contends that his aggregate sentence of seven years is
inappropriate in light of the nature of his offenses and his character. Although
a trial court may have acted within its lawful discretion in imposing a sentence,
Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent
appellate review and revision of a sentence imposed by the trial court. Alvies v.
State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009) (citing Anglemyer v. State, 868
N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218). This appellate
authority is implemented through Ind. Appellate Rule 7(B), which provides that
a 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.” Anglemyer,
868 N.E.2d at 491. Nevertheless, “we must and should exercise deference to a
trial court’s sentencing decision, both because Rule 7(B) requires us to give ‘due
consideration’ to that decision and because we understand and recognize the
unique perspective a trial court brings to its sentencing decisions.” Stewart v.
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State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the
burden of persuading us that his sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[21] The determination of whether we regard a sentence as inappropriate “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.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). “The principal role of such review is
to attempt to leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259
(Ind. 2013). It is not our goal in this endeavor to achieve the perceived
“correct” sentence in each case. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind.
2014). Accordingly, “the question under Appellate Rule 7(B) is not whether
another sentence is more appropriate; rather, the question is whether the
sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct.
App. 2008) (emphasis in original).
[22] Before focusing on the nature of the offenses and Higgins’s character, we
address his rather bald claim that the trial court imposed the “absolute
maximum sentence” in this case. Appellant’s Brief at 21. The sentencing range
for the Level 6 felony possession of child pornography offenses was six months
to two and one-half years. Ind. Code § 35-50-2-7(b). The trial court imposed
concurrent two-year terms. The range for the Level 5 felony possession of
methamphetamine was one to six years. The trial court imposed five years and
ran that concurrent with the one-year sentence for the Class A misdemeanor
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possession offense. I.C. § 35-50-2-6(b). The court then ordered the five-year
sentence to be served consecutive to the two-year sentence.
[23] Higgins asserts that pursuant to I.C. § 35-50-1-2(d)(2), the total consecutive
terms of imprisonment imposed by the trial court could not exceed seven years.
This is true only if the offenses all arose out a single episode of criminal conduct
(i.e., they were closely related in time, place, and circumstance). I.C. § 35-50-1-
2(b). Higgins has not made such a showing, nor could he. Moreover, even if
this seven-year limitation applied, we observe that the trial court ordered only
five years of the sentence executed and two years suspended to probation.
Thus, Higgins did not receive the maximum sentence for his crimes.
[24] Turning to the nature of the offenses, we note that the victim of the child
pornography offenses was in Higgins’s care, custody, or control. Indeed,
Higgins was a father figure to her. The trial court also noted the particularly
serious impact these crimes had on M.H. and her family. In addition to the
ongoing anxiety, fear, and shame felt by M.H., the family became homeless for
a period of time as a result of Higgins’s actions. Further, when confronted with
clear evidence of his crimes, Higgins concocted stories and accused others,
including M.H.’s own mother. Instead of expressing remorse at the sentencing
hearing, Higgins focused his testimony on unrelated allegations against Mother.
[25] With respect to his character, we acknowledge that Higgins has an impressive
work history when not incarcerated. Overshadowing this, however, is his
significant criminal history and the fact that he was on probation when he
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committed the present offenses. Between 2003 and 2016, Higgins has accrued
one Class B felony conviction, three Class D felony convictions, and one Class
A misdemeanor conviction, with several other charges filed and dismissed as a
result of plea agreements. Higgins has spent many years incarcerated and
despite being granted leniency in his earlier cases, he has repeatedly violated
probation, resulting in additional incarceration. His probation has been
unsuccessfully terminated in four separate cases.
[26] In sum, Higgins’s character and the nature of the offenses do not warrant a
downward revision in his seven-year, partially-suspended sentence.
Public Defender Fees
[27] During the sentencing hearing, the trial court heard evidence regarding
Higgins’s income and work history. The court determined that Higgins had the
ability to pay part of the costs of his representation by the public defender.
Accordingly, the court ordered the balance of the $2005 cash bond – after
deducting court costs and probation fees totaling $413 – to be paid to the public
defender’s office to defray its costs in representing Higgins.
[28] Ind. Code § 33-37-2-3(e) provides that if the trial court determines, following an
indigency hearing, that “a convicted person is able to pay part of the costs of
representation, the court shall order the person to pay an amount of not more
than the cost of the defense services rendered on behalf of the person.” Higgins
does not dispute the trial court’s finding regarding his ability to pay or that costs
and fees may be deducted from his cash bond. He argues only that no evidence
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was presented at the hearing regarding the actual costs of defense services
rendered on his behalf.
[29] The State concedes that the record is silent regarding the cost of defense
services. Thus, the State asks that we remand to the trial court for a
determination of said costs.
[30] Under the circumstances, we do not believe remand is necessary. The trial
court ordered the remaining balance – $1592 – of Higgins’s cash bond to be
paid to the public defender’s office toward the costs of representation. It cannot
reasonably be disputed that the actual cost of representing Higgins far exceeded
this amount. Cf. Smith v. Foegley Landscape, Inc., 30 N.E.3d 1231, 1240 (Ind. Ct.
App. 2015) (“Judicial notice of the reasonableness of attorney fees is permitted
in certain routine actions…in which modest fees are sought.”). The record
reveals that the public defender took depositions in the months leading up to
trial, met with Higgins and provided him with lengthy documents, and
represented Higgins in a three-day jury trial. While the better practice is for the
public defender to present some testimony or evidence regarding the costs of
representation, it is clear here that Higgins was not ordered to pay more than
the cost of the defense services rendered to him.
[31] Judgment affirmed.
May, J. and Vaidik, C.J., concur.
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