MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                               May 29 2020, 10:44 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                                  ATTORNEY FOR APPELLEE
Denise L. Turner                                        Tina L. Mann
Indianapolis, Indiana                                   Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Justin Scruggs,                                         May 29, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2409
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable Angela Warner
Appellee-Plaintiff.                                     Sims, Judge
                                                        Trial Court Cause No.
                                                        48C01-1605-FA-1040



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2409 | May 29, 2020                     Page 1 of 13
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Justin Scruggs (Scruggs), appeals the sentence imposed

      by the trial court following his conviction for child molesting, a Class A felony,

      Ind. Code § 35-42-4-3(a)(1) (2007); two Counts of child molesting, Level 1

      felonies, I.C. § 35-42-4-3(a)(1); and child molesting, a Class C felony, I.C. § 35-

      42-4-3(b) (2007).


[2]   We affirm.


                                                  ISSUES
[3]   Scruggs presents the court with two issues, which we restate as the following:


              (1) Whether the trial court abused its discretion when it imposed
                 consecutive sentences; and


              (2) Whether his sentence is inappropriate in light of the nature of
                 his offenses and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   T.S. was born in August 2006, and her older brother, Z.E., was born in

      September 2005. In 2011, T.S. and Z.E.’s father (Father) could not provide

      adequate care for them. Father entered into an agreement with the children’s

      paternal great-aunt, Christine Rinker (Rinker), granting temporary guardianship

      of the children to Rinker. In 2012, Rinker relocated from South Dakota to

      Anderson, Indiana. From March 2012 to March 2016, Rinker, T.S., and Z.E.

      lived in several homes in Anderson. Rinker’s son, Scruggs, also lived with


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2409 | May 29, 2020   Page 2 of 13
      Rinker, T.S., and Z.E. Scruggs has a mild learning disability and has received

      SSI since he was four years old. Scruggs has an IQ of 85, which is slightly less

      than average intelligence. Scruggs does not qualify as mentally retarded, which

      is indicated by an IQ of 70 or less. Scruggs graduated from high school in

      South Dakota.


[5]   Soon after their move to Indiana, Scruggs began molesting T.S. The

      molestation was so frequent that T.S. could not remember how many times it

      had occurred. The first time Scruggs molested her, T.S. had just turned six

      years old, and Scruggs was twenty-two years old. He, T.S., and Z.E. were

      passengers in the backseat of a car on the way home from T.S.’s birthday party.

      T.S. was tired from the party and was falling asleep. Scruggs grabbed and

      squeezed T.S.’s vagina outside of her clothing, which caused her pain. Over the

      next three years, Scruggs touched T.S.’s chest and vagina above and below her

      clothing on at least ten occasions. On at least one occasion, Scruggs inserted

      his fingers inside T.S.’s vagina.


[6]   Scruggs also began having sexual intercourse with T.S. when she was six years

      old. On one occasion, Rinker, Scruggs, T.S., and Z.E. watched a movie

      together. Rinker fell asleep. Scruggs picked up T.S. and carried her to the

      laundry room of the home. T.S. called out to Z.E., who tried to follow them to

      the laundry room. Scruggs told Z.E. to go away. In the laundry room, Scruggs

      subjected T.S. to sexual intercourse until he ejaculated. Rinker walked into the

      laundry room and saw Scruggs on top of T.S. Rinker slapped Scruggs, told him

      to stop what he was doing, and told T.S. to stay away from Scruggs. Rinker did

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2409 | May 29, 2020   Page 3 of 13
      not report what she had seen to the authorities. Scruggs subjected T.S. to

      sexual intercourse on at least ten occasions during the period when she was six

      through eight years old. During these years, T.S. suffered from recurring yeast

      and urinary tract infections. At times she experienced painful urination and

      blood in her urine. T.S. told Rinker several times about what Scruggs was

      doing to her, but Rinker did not believe T.S.


[7]   In March 2016, Father retrieved T.S. and Z.E. from Rinker’s care in order to

      take them back to his home in South Dakota. During the trip to South Dakota,

      T.S. told Father what Scruggs had done. Father reported the offenses to the

      police in South Dakota, who, in turn, alerted the Madison County Sheriff’s

      Department. T.S. and Z.E. were forensically interviewed in South Dakota.

      T.S. reported the offenses during the interview and stated that when Scruggs

      subjected her to sexual intercourse, it felt like “somebody was like just hitting

      me constantly in my private.” (Exh. Vol., p. 43). T.S. and Z.E. also reported

      physical abuse by Rinker. Investigators attempted to speak with Rinker, but she

      declined to meet with them. Rinker also refused to allow investigators to speak

      with Scruggs.


[8]   On May 20, 2016, the State filed an Information, charging Scruggs with Class

      A felony child molesting by sexual intercourse or deviate sexual conduct, Level

      1 felony child molesting by sexual intercourse, Level 1 felony child molesting

      by digital penetration, and Class C felony child molesting by fondling. Scruggs

      was evaluated by two court-appointed physicians charged with rendering their

      opinion regarding Scruggs’s mental fitness to stand trial. Both physicians

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2409 | May 29, 2020   Page 4 of 13
       concluded that Scruggs did not suffer from a mental defect and that, at the time

       of the offenses, he was capable of appreciating the wrongfulness of his conduct.


[9]    On August 14, 2019, the trial court convened Scruggs’s three-day jury trial.

       T.S. testified at trial, and her forensic interview was admitted into evidence.

       During his testimony, Father related that T.S. and Z.E. had been in therapy for

       two years after the offenses and that Z.E. still suffered from night terrors as the

       result of things that he had seen. At the conclusion of the evidence, the jury

       found Scruggs guilty as charged.


[10]   On October 2, 2019, the Madison County Probation Department filed its

       presentence investigation report which provided the following facts. Scruggs

       had no criminal history prior to the instant offenses. Scruggs worked for two

       years as a janitor, and he reported doing sporadic, part-time farm work prior to

       his arrest for the instant offenses. The victim impact statement appended to the

       report indicated that T.S. suffered from anxiety, depression, fear of strangers,

       and a desire to isolate as a result of the offenses. The Probation Department

       recommended that Scruggs receive an aggregate sentence of sixty-two years.


[11]   The trial court held Scruggs’s sentencing hearings on October 1 and October 4,

       2019. The trial court found as aggravating circumstances that Scruggs was in a

       position of trust, care and control over T.S. and that T.S. was of the tender

       years of six through eight years old when Scruggs committed the offenses. The

       trial court recognized Scruggs’s lack of criminal history and his mental health as

       mitigating circumstances. The trial court found that there was


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2409 | May 29, 2020   Page 5 of 13
               significant mitigation that would outweigh that of aggravation to
               warrant a sentence that [is] below the advisory sentence in this
               case. The [c]ourt does though further find with respect to
               concurrent and/or consecutive sentence that this was multiple
               acts that occurred over a period of time to this child. And in—as
               a result of that, the [c]ourt does find that consecutive sentences at
               least to a couple of the counts is warranted and appropriate.


       (Transcript Vol. IV, pp. 23-24). The trial court sentenced Scruggs to twenty-five

       years for each of his Class A and Level 1 felony child molesting convictions and

       to three years for his Class C felony child molesting conviction. The trial court

       ordered Scruggs to serve his Class A felony and one of his Level 1 felony

       sentences consecutively, with all other sentences to be served concurrently, for

       an aggregate sentence of fifty years.


[12]   Scruggs now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Abuse of Discretion

[13]   Scruggs contends that the trial court abused its discretion when it imposed

       consecutive sentences for his Class A felony conviction and one of his Level 1

       felony convictions. So long as a sentence imposed by a trial court is within the

       statutory range for the offense, it is subject to review only 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). An abuse of the trial court’s sentencing discretion

       occurs if its decision is clearly against the logic and effect of the facts and

       circumstances before the court, or the reasonable, probable, and actual


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2409 | May 29, 2020   Page 6 of 13
       deductions to be drawn therefrom. 868 N.E.2d at 490. A trial court abuses its

       discretion when it fails to enter a sentencing statement at all, its stated reasons

       for imposing sentence are not supported by the record, its sentencing statement

       omits reasons that are clearly supported by the record and advanced for

       consideration, or its reasons for imposing sentence are improper as a matter of

       law. Id. at 490-91.


[14]   Scruggs argues that the trial court’s statement of its reason for imposing

       consecutive sentences was not sufficiently specific. We agree with Scruggs’s

       general proposition that a trial court abuses its discretion when it does not enter

       a sufficiently specific sentencing statement. See id. at 491 (“The trial court must

       enter a statement including reasonably detailed reasons or circumstances for

       imposing a particular sentence.”). However, we disagree with Scruggs that

       Lindsey v. State, 485 N.E.2d 102 (Ind. 1985), supports his argument that the trial

       court’s sentencing statement failed the specificity requirement. Lindsey raped

       the same victim twice over the course of a few hours and was later convicted of

       two counts of rape as Class A felonies. Id. at 103. At sentencing, the trial court

       found no aggravating circumstances justifying the imposition of enhanced

       sentences, and it imposed the presumptive sentence of thirty years for each

       Class A felony. Id. at 103, 108. The trial court ordered these sentences to be

       served consecutively, stating as its rationale that there “were two separate and

       distinct incidences of rape.” Id. at 108. Our supreme court found this to be an

       abuse of the trial court’s discretion, concisely explaining that “[t]his offered

       justification does not satisfy the specificity requirement.” Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2409 | May 29, 2020   Page 7 of 13
[15]   Here, the trial court did not simply state that separate offenses had occurred.

       Rather, it reasoned that Scruggs had subjected T.S. to “multiple acts that

       occurred over a period of time[.]” (Tr. Vol. IV, p. 24). This statement entailed

       consideration of the relatively numerous offenses Scruggs perpetrated on T.S.

       and that those offenses were spread out over time, as opposed to being the

       result of one instance of lapsed judgment. We conclude that the trial court’s

       stated reason for imposing consecutive sentences here was sufficiently specific

       to distinguish it from the bare-boned recitation at issue in Lindsey.


[16]   Although the argument is not well-developed, inasmuch as Scruggs contends

       that the trial court abused its discretion by imposing consecutive sentences after

       it found that the mitigators outweighed the aggravators for purposes of

       enhancing his individual sentences, we find that argument to be misplaced.

       After the General Assembly adopted our present advisory sentencing scheme in

       2005, a trial court is no longer obligated to identify and weigh the aggravating

       and mitigating circumstances upon rendering its sentence. Anglemyer, 868

       N.E.2d at 491. Rather, it may impose any sentence authorized by law once it

       has entered its sentencing statement. Id.; see also I.C. § 35-38-1-7.1(d). As a

       result, the relative weight ascribed by the trial court to any aggravating and

       mitigating circumstances is no longer subject to our review. Anglemyer, 868

       N.E.2d at 491. Scruggs’s argument is based on the inaccurate assumption that

       the trial court was obligated to find that the aggravators outweighed the

       mitigators in order to impose consecutive sentences. Even if it were so

       obligated, crediting Scruggs’s argument would entail our consideration of the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2409 | May 29, 2020   Page 8 of 13
       weight the trial court ascribed to its reason for imposing consecutive sentences,

       something we are no longer able to do as part of our review. Id. Accordingly,

       we conclude that the trial court did not abuse its discretion when it imposed

       consecutive sentences here.


                                II. Appropriateness of Consecutive Sentences

[17]   Scruggs also argues that his fifty-year sentence is inappropriately harsh and asks

       that we order his individual, twenty-five-year sentences to be served

       concurrently rather than consecutively. “Even when a trial court imposes a

       sentence within its discretion, the Indiana Constitution authorizes independent

       appellate review and revision of this sentencing decision.” Hoak v. State, 113

       N.E.3d 1209, 1209 (Ind. 2019). Thus, we may revise a sentence if, after due

       consideration of the trial court’s decision, we find that the sentence is

       inappropriate in light of the nature of the offenses and the character of the

       offender. Id. The principal role of such review is to attempt to leaven the

       outliers. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). The defendant

       bears the burden to persuade the reviewing court that the sentence imposed is

       inappropriate. Robinson v. State, 91 N.E.3d 574, 577 (Ind. 2018).


                                             A. Nature of the Offenses

[18]   When assessing the nature of an offense, the advisory sentence is the starting

       point that the legislature selected as an appropriate sentence for the particular

       crime committed. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). Scruggs

       was convicted of one Class A felony and two Level 1 felonies, all of which have

       an advisory sentence of thirty years and a maximum sentence of fifty years.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2409 | May 29, 2020   Page 9 of 13
       I.C. § 35-50-2-5(a),(b). Scruggs was also convicted of Class C felony child

       molesting, which has an advisory sentence of four years and a maximum

       sentence of eight years. I.C. § 35-50-2-5(c). Therefore, Scruggs faced a

       potential sentence of ninety-eight years. The trial court sentenced Scruggs to

       twenty-five years for his Class A and Level 1 felony convictions and to three

       years for his Class C felony conviction. The trial court ordered Scruggs to serve

       his Class A felony sentence and one of his Level 1 felony sentences

       consecutively. Thus, the trial court imposed mitigated sentences and only

       imposed one consecutive sentence.


[19]   When reviewing the nature of the offense, we look to “the details and

       circumstances of the commission of the offense and the defendant’s

       participation.” Perry, 78 N.E.3d at 13. Scruggs was T.S.’s cousin who lived in

       her household and who occupied a position of trust with T.S., something

       Scruggs does not dispute on appeal. Scruggs used this access to T.S. to molest

       T.S. so frequently that she lost count of how many times it occurred. T.S. was

       extremely young, only six years old, when Scruggs began subjecting her to

       fondling and full-scale sexual intercourse. Scruggs’s molestation was ongoing

       over the course of almost three years and only ceased when Father took T.S.

       out of Scruggs’s proximity. Scruggs was not even deterred after being caught by

       Rinker in the act of molesting T.S. Some of the offenses occurred in Z.E.’s

       presence as well. T.S. has suffered anxiety, depression, and a desire to self-

       isolate, and she and Z.E. were in counseling for two years to attempt to heal.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2409 | May 29, 2020   Page 10 of 13
       Given these circumstances, we find nothing inappropriate about the fifty-year

       sentence imposed by the trial court.


[20]   Scruggs argues that his aggregate sentence is inappropriate given the nature of

       his offenses, which he acknowledges were “serious and warrant significant

       punishment[.]” (Appellant’s Br. p. 10). Scruggs likens his case to four cases in

       which consecutive sentences for child molesting offenses were found to be

       inappropriate, Laster v. State, 918 N.E.2d 428 (Ind. Ct. App. 2009); Rivers v.

       State, 915 N.E.2d 141 (Ind. 2009); Harris v. State, 897 N.E.2d 927 (Ind. 2008);

       and Monroe v. State, 886 N.E.2d 578 (Ind. 2008). Scruggs cites these cases

       because each involved some circumstances present in his case, including

       exploitation of a position of trust, one victim, molestation occurring over an

       extended period, and the absence of excessive force.


[21]   However, we find the recent case of Faith v. State, 131 N.E.3d 158 (Ind. 2019),

       to be more instructive. Faith was in a position of trust over his twelve-year-old

       victim as her teacher. Id. at 159. Faith subjected his victim to sexual

       intercourse, digital penetration, and oral sex on countless occasions. Faith was

       ultimately charged with thirty-six counts of child molesting, pleaded guilty to

       three Counts of Class A felony child molesting, and was sentenced to

       consecutive thirty-year terms. This court revised his sentence to concurrent

       thirty-year terms. On petition for transfer, our supreme court held that

       concurrent advisory terms were “wholly inadequate” for Faith’s offenses. The

       court noted that two cases cited by Faith, Harris v. State, 897 N.E.2d 927 (Ind.

       2008), and Monroe v. State, 886 N.E.2d 578 (Ind. 2008), did not support his

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2409 | May 29, 2020   Page 11 of 13
       argument that sentence revision was necessary because he only inflicted his

       multiple offenses on one victim, as those cases involved enhanced, consecutive

       sentences, not the advisory, consecutive sentenced imposed on Faith. Our

       supreme court revised Faith’s sentence to two consecutive, advisory terms, for

       an aggregate sentence of sixty years.


[22]   In light of Faith, we find Scruggs’s proposed twenty-five year aggregate sentence

       for his offenses to be wholly inadequate, given his position of trust over T.S.

       and the countless acts of molestation he inflicted upon her. As did our supreme

       court in Faith, we reject Scruggs’s reliance on Harris and Monroe, as this case

       involves less than advisory, consecutive sentences and not the enhanced,

       consecutive sentences at issue in those cases. We also reject his argument that

       the fact that he did not use excessive force on T.S. militates for a revised

       sentence. T.S. testified that Scruggs picked her up and took her against her will

       to the laundry room to subject her to sexual intercourse on at least one

       occasion, which was a use of force against her. In addition, long-term child

       molesting such as that involved in this case rarely involves use by the

       perpetrator of excessive physical force or infliction of physical injury, as that

       type of conduct leads to discovery of the abuse. Although the absence of

       excessive physical force or physical injury is certainly not an aggravating

       circumstance, neither does it always support sentence revision, as it is

       essentially a circumstance that helps perpetuate the molestation. In short,

       Scruggs has failed his burden to convince us that the nature of his offenses

       renders his sentence inappropriate. See Robinson, 91 N.E.3d at 577.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2409 | May 29, 2020   Page 12 of 13
                                           B. Character of the Offender

[23]   Scruggs also urges us to revise his sentence in light of his character. Upon

       reviewing a sentence for inappropriateness, we look to a defendant’s life and

       conduct as illustrative of his character. Morris v. State, 114 N.E.3d 531, 539

       (Ind. Ct. App. 2018), trans. denied. Scruggs argues that his lack of criminal

       record, his efforts at employment, and his intellectual disabilities and mental

       health merit concurrent sentences.


[24]   As to his lack of criminal record, his intellectual disabilities, and his mental

       health, we note that the trial court already took those factors into account when

       it imposed less-than-advisory individual sentences. We also observe that,

       despite his mental state, two court-appointed physicians concluded that Scruggs

       had the capacity to appreciate the wrongfulness of molesting T.S., yet he did it

       anyway, even after being caught in the act by Rinker. Although Scruggs’s

       efforts at employment reflect positively upon him, we find nothing about his

       part-time, sporadic employment that overrides the long-term nature of the

       molestation at issue here and what that reflects about his character.


                                             CONCLUSION
[25]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion when it imposed consecutive sentences and Scruggs’s sentence is not

       inappropriate in light of the nature of his offenses and his character.


[26]   Affirmed.


       Mathias, J. and Tavitas, J. concur
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2409 | May 29, 2020   Page 13 of 13
