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.




Court of Appeals of Indiana | Memorandum Decision 15A01-1708-CR-1778 | June 18, 2018               Page 1 of 7
                                          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


      Court of Appeals of Indiana | Memorandum Decision 15A01-1708-CR-1778 | June 18, 2018   Page 2 of 7
      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.


      Court of Appeals of Indiana | Memorandum Decision 15A01-1708-CR-1778 | June 18, 2018   Page 4 of 7
      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.




      Court of Appeals of Indiana | Memorandum Decision 15A01-1708-CR-1778 | June 18, 2018   Page 5 of 7
[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

       Court of Appeals of Indiana | Memorandum Decision 15A01-1708-CR-1778 | June 18, 2018   Page 6 of 7
       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.


       Court of Appeals of Indiana | Memorandum Decision 15A01-1708-CR-1778 | June 18, 2018   Page 7 of 7
