Terry Lee Shaw v. State of Indiana (mem. dec.) ( 2018 )

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
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[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
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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
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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.
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[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
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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
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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.
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[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.
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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.
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