MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Sep 19 2018, 10:07 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
Matthew J. Buehler                                       Curtis T. Hill, Jr.
Warsaw, Indiana                                          Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Terry Lee Shaw,                                          September 19, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-741
        v.                                               Appeal from the Kosciusko
                                                         Superior Court
State of Indiana,                                        The Honorable David C. Cates,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         43D01-1608-F4-512



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 18A-CR-741 | September 19, 2018                Page 1 of 9
[1]   Following a bifurcated jury trial, Terry Lee Shaw was convicted of Level 4

      felony child molesting and found to be a habitual offender. The trial court

      sentenced him to six years in prison for child molesting, enhanced by eighteen

      years for being a habitual offender. Additionally, the trial court found Shaw to

      be a credit restricted felon. Shaw presents three issues on appeal:


              1) Did the State present sufficient evidence to support the
                 conviction for child molesting?


              2) Is Shaw’s aggregate sentence of twenty-four years in prison
                 inappropriate?


              3) Did the trial court err in designating Shaw as a credit
                 restricted felon?


[2]   We affirm in part, reverse in part, and remand.


                                       Facts & Procedural History


[3]   In July 2016, Shaw was staying in a three-bedroom trailer with his girlfriend

      Diana at the Jellystone Campground in Kosciusko County. Also living in the

      trailer were Diana’s daughter Brittany and Brittany’s husband and four

      children, including eleven-year-old M.F. In addition to being Diana’s

      boyfriend, Shaw was Brittany’s paternal uncle.


[4]   On the evening of July 16, 2016, Diana, Shaw, M.F., and one of the other

      children were all on a sectional in the trailer watching a movie. Eventually, all

      but Shaw and M.F. fell asleep. Shaw was lying next to M.F., who was covered


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-741 | September 19, 2018   Page 2 of 9
      with a blanket. Shaw placed his hand inside M.F.’s jean shorts and under her

      underwear. Shaw moved his hand all the way down to M.F.’s “hoo”, which is

      the term that M.F. uses for the “area down there on the body” inside her

      underwear. Transcript at 96. Shaw left his hand there for a couple minutes

      without saying anything. M.F. was scared and nervous but managed to get up

      and go into her room.


[5]   The next day, a Friday, Shaw warned M.F. that if she told anyone, he would

      hurt her and her family. He also said that her grandmother, Diana, would be

      mad and would hate her. M.F. stayed quiet that day.


[6]   On Saturday, July 18, Diana and Shaw had an unrelated disagreement, and

      Diana ended the relationship and asked Shaw to leave. Brittany gave Shaw a

      ride to a nearby gas station where another individual was going to pick him up.

      Brittany and Shaw parted on good terms and spoke about staying in touch.


[7]   In the meantime, Diana remained with the children. They drove a golf cart

      around the campground as they often did. At one point, all the children

      jumped off the golf cart to play but M.F. remained with Diana, which was

      unusual for M.F. M.F. started to cry and told Diana what had happened with

      Shaw. Diana then called Brittany in hysterics. M.F.’s parents quickly came to

      console and talk with M.F. and then called the police. That same day, an

      investigating officer called Shaw and scheduled an interview. Shaw did not

      show up for the interview. Shaw, however, called Brittany and warned: “You




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-741 | September 19, 2018   Page 3 of 9
      better watch your f***ing mouth and who you talk to. You can come up

      missing and be a dead girl.” Id. at 170.


[8]   On August 3, 2016, the State charged Shaw with Level 4 felony child

      molesting. Thereafter, the State filed a habitual offender enhancement. Shaw’s

      three-day jury trial commenced on February 6, 2018. The jury found Shaw

      guilty as charged of child molesting and, in the second phase of trial, found him

      to be a habitual offender. On March 1, 2018, the trial court sentenced Shaw to

      six years on the child molesting conviction, enhanced by eighteen years

      pursuant to the habitual offender adjudication. In its sentencing order, the trial

      court found that Shaw was a credit restricted felon. Shaw now appeals.


                                              Discussion & Decision


                                                    1. Sufficiency


[9]   Shaw initially challenges the sufficiency of the evidence. Specifically, Shaw

      contends that the evidence was insufficient to establish that his touching of

      M.F. inside her shorts and underwear was done with the intent to arouse or

      satisfy either his or M.F.’s sexual desires.1




      1
        To convict Shaw of Level 4 felony child molesting, the State was required to prove beyond a reasonable
      doubt that Shaw knowingly or intentionally touched or fondled M.F., when M.F. was under the age of
      fourteen, with the intent to arouse or to satisfy the sexual desires of either M.F. or himself. See Ind. Code §
      35-42-4-3(b); Amphonephong v. State, 32 N.E.3d 825, 832-33 (Ind. Ct. App. 2015). Shaw challenges only the
      intent to arouse element on appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-741 | September 19, 2018                     Page 4 of 9
[10]   When we consider a challenge to the sufficiency of the evidence, we neither

       reweigh the evidence nor assess the credibility of the witnesses. Suggs v. State,

       51 N.E.3d 1190, 1193 (Ind. 2016). Instead, we consider only the evidence and

       reasonable inferences supporting the conviction. Id. We will affirm if there is

       probative evidence from which a reasonable trier of fact could have found the

       defendant guilty beyond a reasonable doubt. Id.


[11]   The act of touching must be accompanied by specific intent to arouse or satisfy

       sexual desires, which “may be established by circumstantial evidence and may

       be inferred from the actor’s conduct and the natural and usual sequence to

       which such conduct usually points.” Bowles v. State, 737 N.E.2d 1150, 1152

       (Ind. 2000). Moreover, there is no requirement that the touching be of the

       child’s breasts or genitals. Bass v. State, 947 N.E.2d 456, 460 (Ind. Ct. App.

       2011) (under the circumstances, sufficient evidence presented that defendant’s

       touching of child’s entire back and sides was done with intent to arouse or

       satisfy defendant’s own sexual desires), trans. denied; see also Altes v. State, 822

       N.E.2d 1116, 1121-22 (Ind. Ct. App. 2005) (intent sufficiently established where

       defendant rubbed victim’s feet with his hands and then moved to her legs and

       then to her bottom inside her underwear), trans. denied. I.C. § 35-42-4-3(b)

       “requires merely touching with intent to arouse or satisfy sexual desires.” Bass,

       947 N.E.2d at 460.


[12]   Here, the evidence establishes that while lying next to M.F. on the couch, Shaw

       put his hand under M.F.’s blanket and then inside the eleven-year old’s shorts

       and underwear, touching her bare skin. M.F. testified that Shaw reached his

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-741 | September 19, 2018   Page 5 of 9
       hand all the way down to her “hoo” and kept it there for a few minutes before

       M.F., scared and nervous, stood up and went into her room. The next day,

       Shaw warned M.F. to keep quiet or he would hurt her and her family.


[13]   It is of no moment whether M.F.’s reference to “hoo” meant her vagina or

       some other part of her body down inside her underwear. We agree with the

       State that the circumstances presented here do not allow for any benign excuse

       or purpose. Shaw’s prolonged placement of his hand inside M.F.’s shorts and

       underwear allowed the jury to reasonably infer that he intended sexual arousal

       by his actions that night. See Altes, 822 N.E.2d at 1121-22 (“a factfinder could

       reasonably infer that this touching is close enough to the female genitals as to

       constitute the source of sexual gratification”).


                                         2. Inappropriate Sentence


[14]   Next, Shaw challenges the aggregate sentence of twenty-four years imposed by

       the trial court. In his rather brief argument on this issue, Shaw contends that

       the sentence is inappropriate in light of the nature of the offense and his

       character.


[15]   Article 7, section 4 of the Indiana Constitution grants our Supreme Court the

       power to review and revise criminal sentences. See Knapp v. State, 9 N.E.3d

       1274, 1292 (Ind. 2014). Pursuant to Ind. Appellate Rule 7, the Supreme Court

       authorized this court to perform the same task. Cardwell v. State, 895 N.E.2d

       1219, 1224 (Ind. 2008). Per App. R. 7(B), we may revise a sentence “if after

       due consideration of the trial court’s decision, the Court finds that the sentence

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-741 | September 19, 2018   Page 6 of 9
       is inappropriate in light of the nature of the offense and the character of the

       offender.” Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7).

       “Sentencing review under Appellate Rule 7(B) is very deferential to the trial

       court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “Such deference

       should prevail unless overcome by compelling evidence portraying in a positive

       light the nature of the offense (such as accompanied by restraint, regard, and

       lack of brutality) and the defendant’s character (such as substantial virtuous

       traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d

       111, 122 (Ind. 2015).


[16]   It is not our goal in this endeavor to achieve the perceived “correct” sentence in

       each case. Knapp, 9 N.E.3d at 1292. 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). Further,

       Shaw bears the burden of persuading us that his sentence is inappropriate.

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[17]   Here, the trial court imposed the advisory sentence of six years for Shaw’s Level

       4 felony conviction. See Ind. Code § 35-50-2-5.5 (sentencing range for a Level 4

       felony is between two and twelve years, with an advisory sentence of six years).

       With regard to the habitual offender enhancement, the trial court had the

       statutory authority to add an additional fixed term of between six and twenty

       years. See I.C. § 35-50-2-8(i)(1). The trial court chose to enhance the sentence

       by eighteen years.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-741 | September 19, 2018   Page 7 of 9
[18]   With respect to his character, Shaw acknowledges his significant criminal

       history that consists of four misdemeanor convictions (invasion of privacy

       (2000), disorderly conduct (2000), contributing to the delinquency of a minor

       (2000), and intimidation (2005)) and four felony convictions (Class B felony

       arson (2007), Class C felony robbery (2010), Class D felony escape (2013), and

       Level 5 felony conspiracy to commit insurance fraud (2017)). 2 Additionally,

       Shaw violated home detention in 2011 and has numerous other arrests and

       charges in Florida and Indiana that resulted in dismissals or have unknown

       dispositions. As the State aptly puts it, Shaw’s character as reflected by his

       criminal history is abysmal. On appeal, Shaw offers no contrary argument

       regarding his character or positive character traits.


[19]   With respect to the nature of the offense, Shaw argues that his molestation of

       M.F. was not particularly egregious. This is reflected in the trial court’s

       imposition of the advisory sentence for this crime. His real complaint seems to

       be with the eighteen years imposed for being a habitual offender, two years shy

       of the maximum enhancement. This enhancement was based on two of his

       prior felony convictions – Class B felony arson and Class C felony robbery.

       These felonies were particularly serious, especially the arson, and beyond that

       necessary to establish him as a habitual offender. See I.C. § 35-50-2-2(b)

       (requiring two prior unrelated felonies, at least one of which is not a Level 6

       felony or Class D felony). In sum, we conclude that Shaw has not established



       2
           The arson and robbery convictions served as the basis of the habitual offender enhancement.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-741 | September 19, 2018                 Page 8 of 9
       that his twenty-four-year sentence is inappropriate in light of his character and

       the nature of his offense.


                                         3. Credit Restricted Felon


[20]   The State acknowledges that the trial court erroneously designated Shaw as a

       credit restricted felon. The trial court found him to be a credit restricted felon

       under Ind. Code § 35-31.5-2-72(1), which so designates a defendant who is

       convicted of child molesting involving sexual intercourse or “other sexual

       conduct” if the offense is committed by a person at least twenty-one years of

       age and the victim is less than twelve years of age. Because Shaw was

       convicted of “fondling or touching” under (b) of the child molesting statute -

       I.C. § 35-42-4-3 – and not “sexual intercourse or other sexual conduct” under

       subsection (a), Shaw cannot be designated as a credit restricted felon. See

       McCoy v. State, 96 N.E.3d 95, 100-02 (Ind. Ct. App. 2018). Therefore, on

       remand, the trial court is directed to remove this designation and notify the

       Department of Correction.


[21]   Judgment affirmed in part, reversed in part, and remanded.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-741 | September 19, 2018   Page 9 of 9
