      MEMORANDUM DECISION                                                FILED
                                                                    Jul 20 2016, 9:08 am
      Pursuant to Ind. Appellate Rule 65(D),
                                                                         CLERK
      this Memorandum Decision shall not be                          Indiana Supreme Court
                                                                        Court of Appeals
      regarded as precedent or cited before any                           and Tax Court

      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      R. Patrick Magrath                                       Gregory F. Zoeller
      Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
      Madison, Indiana                                         Lyubov Gore
                                                               Justin F. Roebel
                                                               Deputy Attorneys General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Larry W. Scroggins, Jr.,                                 July 20, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               40A04-1510-CR-1745
              v.                                               Appeal from the Jennings Circuit
                                                               Court
      State of Indiana,                                        The Honorable Jonathan W.
      Appellee-Plaintiff                                       Webster, Judge
                                                               Trial Court Cause No.
                                                               40C01-1504-F4-13



      Mathias, Judge.


[1]   Larry Scroggins (“Scroggins”) was convicted in Jennings Circuit Court of

      burglary as a Level 4 felony and ordered to serve a maximum twelve-year

      Court of Appeals of Indiana | Memorandum Decision 40A04-1510-CR-1745 | July 20, 2016   Page 1 of 9
      sentence. Scroggins appeals and argues that the only evidence supporting his

      conviction is incredibly dubious testimony and that his sentence is

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

      offender.

[2]   We affirm.


                                     Facts and Procedural History

[3]   In April 2015, Scroggins and his girlfriend, Rebecca Goodwin (“Goodwin”),

      lived with several other individuals in a mobile home next door to Martha

      Bodenheimer (“Martha”). Martha, who was sixty-six years old, lived alone in

      her mobile home.

[4]   On April 9, 2015, Martha left her home at approximately 10:00 a.m. to go to

      work. Later that morning, Scroggins used a screwdriver to pry open Martha’s

      back door. He entered the home and took several items including her television,

      a laptop, several cameras, an external hard drive, hydrocodone pills, and

      jewelry. Scroggins placed the items in the bedroom he shared with Goodwin in

      the mobile home next door.

[5]   When Martha returned home from work that afternoon, she saw that her home

      had been ransacked and noted several items were missing. She called the

      sheriff’s department to report the burglary and shared her suspicion that her

      neighbors might have burglarized her home.




      Court of Appeals of Indiana | Memorandum Decision 40A04-1510-CR-1745 | July 20, 2016   Page 2 of 9
[6]   On April 10, 2015, Scroggins’s wife reported to his parole officer that he had

      not been living at their home, but with his girlfriend, Goodwin. Therefore,

      Scroggins’s parole officer took him into custody for violating his parole.

      Scroggins’s was detained at the local jail.

[7]   On that same day, Goodwin began to sell the items stolen from Martha’s home.

      At approximately 7:00 p.m., Martha saw Goodwin carrying what appeared to

      be her television out to a car. Martha confronted Goodwin and matched the

      serial number of the television Goodwin was carrying to the one stolen from her

      home. Martha again called the sheriff’s department to report the information.

      Goodwin told the sheriff’s deputy that she had purchased the television online.

      The deputy told Goodwin that the prosecutor could file charges against her for

      possession of stolen property, but Goodwin was not arrested.


[8]   On April 11, 2015, Scroggins called Goodwin from the jail. Scroggins

      repeatedly told Goodwin that he needed money to put on his “books.” Tr. pp.

      190-91. Scroggins also asked Goodwin if she had gotten “rid of any of that

      other stuff.” Tr. p. 198. The following conversation took place:


              Scroggins: What all did you get rid of?

              Goodwin: Um, I’m not really saying.

              Scroggins: Well, I’m not, you can hint around, the biggest thing?

              Goodwin: Um, yes.

              Scroggins: What did you only get $70 out of that?

              Goodwin: No.


      Court of Appeals of Indiana | Memorandum Decision 40A04-1510-CR-1745 | July 20, 2016   Page 3 of 9
              Scroggins: Or did you get $100 out of it.

              Goodwin: No, they didn’t want it.

                                                       ***

              Scroggins: Okay, so what about the other small things? . . . The
              thing I was hooking up the other day?

              Goodwin: No, the one I said I wanted to keep.

              Scroggins: Yeah… $70 for that?

              Goodwin: Yeah.

              Scroggins: All right.

              Goodwin: And then that’s it.

              Scroggins: Oh, you still got everything else?

              Goodwin: Um, that uh, photo device?

              Scroggins: Yeah


      Tr. pp. 198-200. Scroggins told Goodwin she could give “Nellie” the photo

      device he referred to. They also discussed that “Robert” came and got “them

      earrings and that ring.” Tr. p. 200.


[9]   Later that day, other individuals living in the mobile home with Goodwin

      confronted her after they found a large amount of cash and several cameras that

      belonged to Martha. They then told Martha what they had found, and Martha

      reported the discovery to the sheriff’s department. A sheriff’s deputy searched

      Scroggins’s and Goodwin’s bedroom and found Martha’s hydrocodone pills,

      her jewelry, and camera bag that contained several cameras and other items.

      Goodwin was wearing one of Martha’s rings when she was arrested. She

      Court of Appeals of Indiana | Memorandum Decision 40A04-1510-CR-1745 | July 20, 2016   Page 4 of 9
       admitted to the officer that she and Scroggins had taken the items from

       Martha’s home.

[10]   On April 15, 2015, Scroggins was charged with burglary, as a Level 4 felony

       and Class A misdemeanor theft. A jury trial was held on August 4 and 5, 2015.

       Scroggins was found guilty as charged.


[11]   A sentencing hearing was held on October 2015. The trial court determined that

       Martha’s age and Scroggins’s criminal history, consisting of five felonies, were

       aggravating circumstances. The court also considered that Scroggins lied to the

       probation officer who prepared the pre-sentence investigation report.

       Specifically, when asked whether Scroggins had used the alias “Brent

       Herndon,” Scroggins claimed that he had been the victim of identity theft. After

       further investigation, the probation officer discovered that Scroggins and

       Herndon, were, in fact, the same individual. The trial court found Scroggins’s

       completion of an anger management program and obtaining his GED to be

       mitigating. However, the court sentenced Scroggins to the maximum twelve-

       year sentence after concluding that the aggravating circumstances far

       outweighed the mitigating circumstances. Scroggins now appeals.

                                     Incredibly Dubious Testimony

[12]   Scroggins argues that his burglary conviction is supported only by Goodwin’s

       testimony, which is so incredibly dubious that his conviction must be reversed.

       The incredible dubiosity rule allows the court “impinge on the jury’s

       responsibility to judge the credibility of the witnesses only when it has


       Court of Appeals of Indiana | Memorandum Decision 40A04-1510-CR-1745 | July 20, 2016   Page 5 of 9
       confronted ‘inherently improbable’ testimony or coerced, equivocal, wholly

       uncorroborated testimony of ‘incredible dubiosity.’” Moore v. State, 27 N.E.3d

       749, 755 (Ind. 2015) (citation omitted). A court will only impinge upon the

       jury’s duty to judge witness credibility “where a sole witness presents inherently

       contradictory testimony which is equivocal or the result of coercion and there is

       a complete lack of circumstantial evidence of the appellant's guilt.” Id. (emphases in

       original).


[13]   Goodwin’s testimony that Scroggins burglarized Martha’s home and stole

       several items, including her jewelry, television, cameras, laptop and pills, is not

       the only evidence supporting Scroggins’s burglary conviction. In the recorded

       jail house phone call, Scroggins implicated himself in the burglary. He and

       Goodwin discussed the items Scroggins stole from Martha’s residence, whether

       Goodwin had sold them, and how much money she received for selling the

       stolen items. Tr. pp. 198-204. Some of Martha’s stolen property was also found

       in the bedroom Scroggins and Goodwin shared.

[14]   Scroggins also admitted to his cellmate that he had burglarized the trailer next

       door to his home. He told his cellmate that he “jimmied the door with a

       screwdriver to get” in the home. Tr. p. 219; see also Tr. pp. 99-100 (the

       responding officer testified that it appeared that someone had used a

       screwdriver to price open the back door of Martha’s home). Scroggins also told

       his cellmate that he stole “the lad[y’s] TV and some pills,” and the cellmate

       recalled that Scroggins also said “something about a computer.” Tr. p. 220.



       Court of Appeals of Indiana | Memorandum Decision 40A04-1510-CR-1745 | July 20, 2016   Page 6 of 9
[15]   Because Goodwin’s testimony was not the only evidence supporting

       Scroggins’s Level 4 burglary conviction, the incredible dubiosity rule does not

       apply in this case. Moreover, Scroggins argues that Goodwin’s testimony is

       incredibly dubious because she was caught with Martha’s stolen property and

       implicated Scroggins, who was already in jail for the parole violation. However,

       this does not meet the standard of the incredible dubiosity rule which requires

       “inherently improbable testimony or coerced, equivocal, wholly uncorroborated

       testimony of incredible dubiosity.” See Moore, 27 N.E.3d at 755. Goodwin

       consistently testified that Scroggins burglarized Martha’s home. It was within

       the province of the jury to weigh the credibility of her testimony, and we will

       not reweigh the evidence and the credibility of the witnesses on appeal. See

       Duncan v. State, 23 N.E.3d 805, 812 (Ind. Ct. App. 2014), trans. denied.


                                          Inappropriate Sentence

[16]   “The authority granted by Article 7, § 4 of the Indiana Constitution permitting

       appellate review and revision of criminal sentences is implemented through

       Appellate Rule 7(B). Under this rule and as interpreted by case law, appellate

       courts may revise sentences—after due consideration of the trial court's

       decision—if the sentence is found to be inappropriate in light of the nature of

       the offense and the character of the offender.” Chambers v. State, 989 N.E.2d

       1257, 1259 (Ind. 2013) (citing Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind.

       2008)). The principal role of Rule 7(B) review “should be to attempt to leaven

       the outliers, and identify some guiding principles for trial courts and those



       Court of Appeals of Indiana | Memorandum Decision 40A04-1510-CR-1745 | July 20, 2016   Page 7 of 9
       charged with improvement of the sentencing statutes, but not to achieve a

       perceived ‘correct’ result in each case.” Cardwell, 895 N.E.2d at 1225.


[17]   Scroggins argues that his maximum, twelve-year sentence1 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 myriad other factors

       that come to light in a given case. Id. at 1224. Scroggins bears the burden of

       persuading our court that his sentence is inappropriate. See Rutherford v. State,

       866 N.E.2d, 867, 873 (Ind. Ct. App. 2007).

[18]   Scroggins broke into a sixty-six-year old woman’s home. He ransacked the

       residence and stole numerous items of monetary and sentimental value.

       Scroggins argues that the nature of his crime is not severe because he

       burglarized the home while Martha was at work, lessening the risk that his

       crime would result in physical harm.


[19]   Martha lost years of photos and genealogical documents that were of great

       personal and sentimental value to her. Since the burglary, she has trouble

       sleeping at night, and her health has suffered. She also fears Scroggins because

       he threatened to hurt Martha when he is no longer incarcerated. Tr. p. 221.




       1
         When sentencing Scroggins for his Level 4 burglary conviction, the trial court was authorized to impose a
       sentence in a range from two to twelve years, with six years being the advisory sentence. See Ind. Code § 35-
       50-2-5.5.

       Court of Appeals of Indiana | Memorandum Decision 40A04-1510-CR-1745 | July 20, 2016               Page 8 of 9
[20]   Scroggins’s character also supports his twelve-year sentence. He was on parole

       when he committed this offense, and he violated his parole by living in the

       trailer next to Martha’s home. He has five prior felony convictions, including

       attempted burglary, receiving stolen property, nonsupport of a dependent, and

       dealing in and possession of methamphetamine. He also has three prior

       misdemeanor convictions. He is grossly delinquent in payment of child support

       and has never successfully completed probation. Scroggins also lied to the

       probation officer who prepared the pre-sentence investigation report concerning

       an alias he has used in the past. As the trial court noted, Scroggins is a “lifetime

       criminal” who has been unable to change his behavior to become a law abiding

       citizen. See tr. p. 334.


[21]   For all of these reasons, we conclude that Scroggins’s twelve-year sentence is

       not inappropriate in light of the nature of the offense and the character of the

       offender.


                                                  Conclusion

[22]   We conclude that the incredible dubiosity rule is inapplicable to this case and

       therefore affirm Scroggins’s Level 4 burglary conviction. We also affirm his

       maximum twelve-year sentence, which we conclude is not inappropriate in light

       of the nature of the offense and the character of the offender.


       Vaidik, C.J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 40A04-1510-CR-1745 | July 20, 2016   Page 9 of 9
