MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                Dec 30 2019, 9:20 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Lisa A. Moody                                           Curtis T. Hill, Jr.
Princeton, Indiana                                      Attorney General of Indiana
                                                        Samantha M. Sumcad
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kwin T. Boes,                                           December 30, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1755
        v.                                              Appeal from the Gibson Superior
                                                        Court
State of Indiana,                                       The Honorable Robert D. Krieg,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        26D01-1805-F1-511



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1755 | December 30, 2019                 Page 1 of 9
[1]   Kwin Boes appeals the sentence imposed by the trial court after he pleaded

      guilty to Level 2 felony domestic battery resulting in death to a minor, arguing

      that the trial court improperly relied on two aggravators and that his sentence is

      inappropriate in light of the nature of the offense and his character. Finding no

      error and the sentence not inappropriate, we affirm.


                                                    Facts
[2]   P.B. was born to Boes and Jamie Hartley on February 14, 2018. Boes and

      Hartley have never married, but they co-parented P.B. together. On May 3,

      2018, Hartley left three-month-old P.B. in Boes’s care while she took her other

      children to school. Later, Hartley received a phone call from a distraught Boes

      telling her that P.B. was unresponsive and that his body had gone limp. The

      Gibson County Central Dispatch received a similar 911 call from Boes.


[3]   First responders arrived and rushed P.B. to St. Vincent Hospital in Evansville.

      After it was determined that there was internal bleeding in P.B.’s brain, P.B.

      was transported to Riley Children’s Hospital (Riley) in Indianapolis. Medical

      personnel at Riley concluded that P.B. “suffered from hemmorhage [sic] to the

      brain, hemorrahage [sic] to both eyes, and bruising to the left side of the penis.”

      Appellant’s App. Vol. II p. 24. Additionally, P.B. had a ligament strain in his

      neck.


[4]   That same evening, police interviewed Boes. Boes told them that he had fed

      P.B. and placed P.B. on a “boppy pillow.” Id. at 23. Then, Boes fell asleep, but

      was later awakened by the sound of P.B. crying. Boes went to check on P.B.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1755 | December 30, 2019   Page 2 of 9
      and discovered P.B. lying on his back on the living room floor. According to

      Boes, when he went to pick P.B. up off the floor, P.B.’s breathing was

      abnormal, he was no longer crying, and his body was limp. Boes believed that

      P.B. had fallen out of his boppy pillow, striking his head on the coffee table and

      “then falling backwards to the ground.” Id. at 24.


[5]   However, according to Riley, P.B.’s fall, as described by Boes, “would not be

      expected to cause the diffuse nature of injures [sic] to the brain like what was

      seen in P.B.” Id. After three days, on May 6, 2018, P.B. was pronounced dead

      at Riley. P.B.’s doctors determined that P.B. had suffered irreparable abusive

      head trauma, and the preliminary findings of the autopsy report concluded that

      P.B.’s death was caused by blunt force traumatic injuries to the head.


[6]   On May 9, 2018, the State charged Boes with one count of Level 1 felony

      aggravated battery resulting in death and one count of Level 1 felony neglect of

      a dependent resulting in death. Then, on June 12, 2019, the State filed one

      additional count of Level 2 felony domestic battery resulting in death to a

      minor. That same day, Boes entered into an open plea agreement, pursuant to

      which Boes agreed to plead guilty to Level 2 felony domestic battery resulting

      in death to a minor in exchange for dismissal of the other charges.


[7]   At Boes’s July 3, 2019, sentencing hearing, the trial court found the following

      mitigators: (1) Boes’s willingness to plead guilty; and (2) the hardship that Boes

      will experience after being released from a long prison sentence. The trial court

      also found the following aggravators: (1) Boes’s prior criminal history; (2)


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1755 | December 30, 2019   Page 3 of 9
      Boes’s moderate to high risk to reoffend based, in part, on Boes’s Indiana Risk

      Assessment System (IRAS) score; (3) the fact that Boes was on probation at the

      time he committed this crime; and (4) the extremely young age of the victim.

      Thereafter, Boes was sentenced to twenty-five years, with nineteen years

      executed in the Department of Correction (DOC) and six years suspended to

      probation. Boes now appeals.


                                   Discussion and Decision
                                            I. Aggravators
[8]   First, Boes argues that the trial court improperly relied on two aggravators

      during sentencing—namely, his IRAS score and the victim’s extremely young

      age. Sentencing decisions are left to the sound discretion of the trial court.

      Smallwood v. State, 773 N.E.2d 259, 263 (Ind. 2002). We will reverse a

      sentencing decision involving the use or non-use of certain aggravating factors

      only if the decision is clearly against the logic and effect of the facts and

      circumstances before the trial court and all reasonable inferences drawn

      therefrom. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g,

      875 N.E.2d 218.


                                                 IRAS Score

[9]   In Malenchik v. State, our Supreme Court explained the role of risk offender

      assessment instruments, like the IRAS, for sentencing:


              The results of [a risk offender assessment instrument] are not in
              the nature of, nor do they provide evidence constituting, an

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1755 | December 30, 2019   Page 4 of 9
               aggravating or mitigating circumstance. In considering and
               weighing aggravating and mitigating circumstances shown by
               other evidence, however, trial courts are encouraged to employ
               evidence-based offender assessment instruments, . . . as
               supplemental considerations in crafting a penal program tailored
               to each individual defendant.


       928 N.E.2d 564, 575 (Ind. 2010). In other words, a trial court may not rely

       solely on IRAS scores as independent aggravators in their sentencing schemes,

       but may consider and incorporate those scores into their overall assessment of a

       criminal defendant’s chances for recidivism. Id. at 569-70.


[10]   Here, the trial court stated, in pertinent part, that:


               So - and this doesn’t seem to be getting any better, which is what
               the assessment is saying. Using the tools of the assessment says
               that it looks like that - for whatever value that is and how we can
               or can’t predict the future, that’s what the Supreme Court of
               Indiana asked us to rely upon, in part, and we look at it and the
               assessment says that you have gone from moderate risk to reoffend
               to high risk to reoffend, so that has to be considered an aggravator.
               I don’t give it a lot of weight because I don’t know how to predict
               the future and how is your behavior going to change when you
               mature just from age and how are you - how’s your behavior going
               to change when you’ve been in prison for however many years, I
               don’t know, but nonetheless, today, the assessment says that you
               have gone from a moderate risk to reoffend to a high risk to
               reoffend.


       Tr. Vol. II p. 21-22.


[11]   So, while the trial court labeled Boes’s risk to reoffend as an aggravator by

       relying on his IRAS score, it did not do so exclusively and did not give it very

       much weight for purposes of sentencing. Rather, in its own words, the trial


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1755 | December 30, 2019   Page 5 of 9
       court relied on the assessment risk instrument only in part. Later on, the trial

       court considered the IRAS score along with Boes’s extensive criminal history,

       his multiple violations of probation, and the fact that his criminal behavior

       became more severe and violent as time progressed. Thus, while the trial court’s

       aggravator language was less than clear, its actual sentencing order was not. If

       anything, the trial court followed the strictures of Malenchik, utilized the IRAS

       test as a supplemental tool, and “employ[ed] such results in formulating the

       manner in which [Boes’s] sentence is to be served.” Malenchik, 928 N.E.2d at

       575. In other words, the trial court did not err.1


                                               Extremely Young Age

[12]   To convict Boes of Level 2 felony domestic battery resulting in death to a

       minor, the State had to prove beyond a reasonable doubt that Boes knowingly

       or intentionally touched P.B.—a family member under fourteen years of age—

       in a rude, insolent, or angry manner and that the touching resulted in death.

       Ind. Code § 35-42-2-1.3(a)(1), -1.3(f)(1). As such, P.B.’s age is an element of the

       crime.


[13]   While it is undisputed that “elements of a crime cannot be used to enhance a

       sentence,” Morgan v. State, 675 N.E.2d 1067, 1073 (Ind. 1996), “a trial court




       1
         Even if the trial court did err, the error was, at most, harmless. Reliance on an improper aggravator is
       harmless unless the defendant can show that the trial court would have imposed a different sentence absent
       the aggravator. See Kayser v. State, 131 N.E.3d 717, 722 (Ind. Ct. App. 2019). And here, there were multiple
       other valid aggravating factors upon which the trial court relied in imposing a longer sentence. Thus, we are
       confident that the trial court would have rendered the same sentence irrespective of this aggravator.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1755 | December 30, 2019                  Page 6 of 9
       may consider age as an aggravator only if the youth of the victim is extreme,”

       Reyes v. State, 909 N.E.2d 1124, 1128 (Ind. Ct. App. 2009). And in this instance,

       we have no issue holding that the trial court was within its discretion to

       consider P.B.’s age during sentencing. At the tender age of barely three months

       old, P.B. suffered severe damage to vital body parts, ultimately leading to his

       death. Given these particular circumstances, we hold that the trial court did not

       err when it relied on P.B.’s extremely young age as an aggravator.


                                         II. Appropriateness
[14]   Next, Boes argues that the sentence imposed by the trial court is inappropriate

       in light of the nature of the offense and his character.


[15]   Indiana Appellate Rule 7(B) states that a “Court may revise a sentence . . . 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.” The question is not whether another sentence is more

       appropriate, but whether the defendant’s specific sentence is inappropriate.

       Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011). In determining

       whether the sentence is inappropriate, we will consider numerous factors such

       as 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.”

       Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The defendant bears the

       burden of persuading us that his sentence is inappropriate. Childress v. State, 848

       N.E.2d 1073, 1080 (Ind. 2006).


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1755 | December 30, 2019   Page 7 of 9
[16]   For a Level 2 felony offense, the maximum sentence is thirty years, and the

       minimum sentence is ten years. Ind. Code § 35-50-2-4.5. The advisory sentence

       is seventeen and one-half years. Id. Here, the trial court sentenced Boes to

       nineteen years executed in the DOC and six years suspended to probation, for

       an aggregate term of twenty-five years.


[17]   First, as to the nature of the offense, Boes has committed a truly heinous act.

       Pursuant to the conclusions of the Riley doctors and the autopsy report, three-

       month-old P.B. suffered blunt force traumatic head injuries that left him limp,

       unconscious, unable to breathe, physically unresponsive, and, ultimately, dead.

       Even more appalling is the fact that Boes lied to the police in an attempt to

       frame the incidents of that evening as an accident. Because of Boes’s conduct,

       his extremely young and vulnerable child died a violent death. Therefore, we

       find that the nature of the offense does not render Boes’s sentence

       inappropriate.


[18]   Next, as to Boes’s character, Boes has a long juvenile and criminal history. As

       an adult, Boes has been previously convicted of operating a motor vehicle

       without a license, theft of a firearm, criminal mischief, and intimidation. See

       Bailey v. State, 763 N.E.2d 998, 1004 (Ind. 2002) (holding that a history of

       criminal activity can reflect poorly on a defendant’s character at sentencing); see

       also Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007) (holding that

       “it is appropriate to consider such a [criminal] record as a poor reflection on the

       defendant’s character, because it may reveal that he . . . has not been deterred

       even after having been subjected to the police authority of the State[]”). He also

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1755 | December 30, 2019   Page 8 of 9
       received numerous juvenile delinquency adjudications dating back to when he

       was just fifteen years old.


[19]   Moreover, for many of his criminal convictions, Boes was placed on probation

       and then subsequently violated the terms of his probation. Even worse, Boes

       was on probation at the time he committed this grotesque crime, thereby

       reinforcing the notion that he has yet to see the error of his ways. Therefore, we

       find that Boes’s character does not render his sentence inappropriate. In sum,

       we will not revise Boes’s sentence pursuant to Indiana Appellate Rule 7(B).


[20]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1755 | December 30, 2019   Page 9 of 9
