Bruce Giggy v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 21, 2020
• Docket: 19A-CR-1108
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 21 2020, 9:39 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 James A. Shoaf Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana Tiffany A. McCoy Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bruce Giggy, January 21, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1108 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable Appellee-Plaintiff James D. Worton, Judge Trial Court Cause No. 03D01-1707-FC-3809

Vaidik, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1108 | January 21, 2020 Page 1 of 10 Case Summary [1] Bruce Giggy pled guilty to three counts of Class C felony child molesting for

fondling his nieces when they were younger, and the trial court imposed

consecutive sentences totaling fourteen years and eight months, all to be served

in the Indiana Department of Correction. Giggy now appeals, arguing that the

trial court abused its discretion in sentencing him and that his sentence is

inappropriate. We affirm.

Facts and Procedural History [2] In March 2017, C.P., who was twenty-six years old, and her sister S.P., who

was eighteen years old, went to the Columbus Police Department to report that

Giggy, their uncle, had fondled them when they were around nine or ten years

old. They also reported that Giggy had fondled their cousin S.S., who was

twenty-six years old.

[3] The police interviewed several people, including Giggy. During his interview,

Giggy admitted inappropriately touching his nieces’ exposed breasts and butts

and exposing his erect penis (sometimes touching them with it) on multiple

occasions when they spent the night at his house. Giggy explained that he

didn’t think his nieces were awake when it happened and that he did it because

he was “intrigued” by their “growth and development” and “aroused by the

sneaking around . . . late at night.” Tr. p. 96. Giggy also talked about his

granddaughter L.K., who at the time was fifteen years old. Giggy admitted

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1108 | January 21, 2020 Page 2 of 10 fondling L.K. and putting his penis on her hand while she slept when she was

around six years old. Id. at 117-18; Appellant’s App. Vol. II p. 26. Giggy said

that several years after that, when L.K. was “thirteen maybe or fourteen” years

old (2015-16), she had just taken a bath and was naked in a bedroom. Tr. p.

104. Unknown to L.K., Giggy watched her, thinking to himself that she was

“really growing up” and “very pretty.” Id. at 105.

[4] In July 2017, the State charged Giggy, who by then was sixty-one years old,

with five counts of Class C felony child molesting based on fondling: two

counts for C.P. (1999), one count for S.P. (2008-09), one count for S.S. (2000),

and one count for L.K. (2008).

[5] In April 2018, the State and Giggy entered into a plea agreement under which

Giggy pled guilty to three counts of Class C felony child molesting—one count

for each niece (Counts 1, 2, and 4)—and the State dismissed the second count

for C.P. (Count 3) and the count for L.K. (Count 5).1 Id. at 5. Sentencing was

left to the discretion of the trial court.

[6] At the sentencing hearing, several close friends and family members testified on

Giggy’s behalf. According to their testimonies, Giggy—who had coached girls

volleyball at the middle-school and high-school levels and mentored youth

through his church—had been involved in the lives of “thousands of young

people,” and what he did to his nieces was “far outside of his normal

1 The State agreed not to pursue Count 5 at L.K. and her mother’s request. Tr. pp. 68-69.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1108 | January 21, 2020 Page 3 of 10 character.” Id. at 27, 62. The victims then read their victim-impact statements.

S.S. explained that she did not come forward earlier because she was “willing to

put [her] own safety and needs below” the needs of Giggy’s family “for a very

long time.” Id. at 80-81. Also, she said that she didn’t think anyone would

believe her, since Giggy was “known as this devoted Christian in the

community.” Id. at 81. S.S. said that she felt “immense” guilt for not coming

forward sooner, because then she could have stopped it from happening to her

cousins. Id. Next, C.P. testified that Giggy and his wife “were almost like

second parents” to her and that it was “hard to look back on [her] childhood

and think of anything other than . . . these crimes.” Id. at 83. C.P. said that she

felt guilt for not coming forward earlier, because then she “could have saved”

her younger sister S.P. Id. at 84. However, C.P. said that the “most damaging”

part of the abuse was that it occurred at the hands of someone she “loved and

trusted.” Id. C.P. talked about the battles they will have to face for “the rest of

[their] lives” due to Giggy molesting them in their sleep when they didn’t have

“a chance to fight back.” Id. at 85. Finally, S.P. testified that Giggy put forth a

“carefully constructed mirage” that he was “trustworthy,” “kind,” and a “great

Christian man, with a very happy family” to cover up the molestations. Id. at

86. S.P. explained that for years she believed she was the only victim and that

she did not come forward earlier because she thought that nobody would

believe her. She concluded that “the hardest part [was] looking back on

childhood memories that relate to [Giggy]. Things that as a child, I didn’t see

anything unusual about, but now I see them clearly as sickening, predatory

tactics.” Id. at 87. Court of Appeals of Indiana | Memorandum Decision 19A-CR-1108 | January 21, 2020 Page 4 of 10 [7] Defense counsel conceded that there were two aggravators: the victims were

less than twelve years old at the time of the molestations and Giggy violated a

position of trust. Id. at 131 (“There’s absolutely no way that any sane

individual could say that those aggravators aren’t proper.”). Defense counsel

then argued that there were several mitigators, including that Giggy had no

criminal history until this case and that the crimes were the result of

circumstances unlikely to recur. Defense counsel asked the trial court to

sentence Giggy to the advisory term of four years on each count, to be served

consecutively, and to “divide that twelve years” between incarceration, home

detention, and probation. Id. at 137.

[8] The trial court identified three aggravators: (1) the victims were less than twelve

years old at the time of the molestations; (2) Giggy was in a position of trust

with the victims and betrayed that trust, which was “a very significant

aggravator”; and (3) the harm, injury, loss, or damage suffered by the victims

“was significant and greater than the elements necessary to prove the

commission of the offense[s],” as the “emotional scars” relayed by the victims

in their victim-impact statements are “very significant.” Id. at 144. The court

identified one mitigator: Giggy did not have any criminal convictions until this

case.2 The court sentenced Giggy to six years and eight months on Count 1,

2 Giggy argues that the trial court “failed to make a statement in support of its findings.” Appellant’s Br. p. 17. While the trial court’s sentencing order just lists the aggravators and mitigator it found, it explained these findings at the sentencing hearing. This is enough. See Anderson v. State, 989 N.E.2d 823, 826 (Ind. Ct. App. 2013) (“A trial court’s consideration of factors may be evidenced in either the written order or in an oral sentencing statement.”), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1108 | January 21, 2020 Page 5 of 10 four years on Count 2, and four years on Count 4. The court ordered the

sentences to be served consecutively, for a total sentence of fourteen years and

eight months, all to be served in the DOC.

[9] Giggy now appeals his sentence.

Discussion and Decision I. Abuse of Discretion [10] Giggy contends that the trial court abused its discretion by finding an improper

aggravator and failing to find two mitigators. Sentencing decisions rest within

the sound discretion of the trial court and are reviewed on appeal for an abuse

of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on

reh’g, 875 N.E.2d 218 (Ind. 2007).

[11] Giggy first argues that the trial court erred by finding as an aggravator that the

harm, injury, loss, or damage suffered by the victims was significant and greater

than the elements necessary to prove the molestations because the record “is

void of any facts supporting its finding that the victims in this case suffered

harm, injury, loss, or damage more significant or greater than anticipated by the

statute.” Appellant’s Br. p. 20. At sentencing, the victims read victim-impact

statements in which they detailed the effects the molestations have had on

them. They spoke at length about how their uncle gained their trust and then

abused it. They spoke about the guilt they carried around for not coming

forward sooner, because it might have prevented the others from being

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1108 | January 21, 2020 Page 6 of 10 molested. And they spoke about keeping the abuse secret for so long because

they didn’t want to break apart the family and because they didn’t think anyone

would believe them due to Giggy being a Christian. Furthermore, as the State

points out, Giggy admitted to more molestations than the victims remembered,

as he only molested them when he thought they were asleep. The trial court

did not abuse its discretion in finding this aggravator.

[12] Giggy next argues that the trial court erred by not finding as mitigators that the

crimes were the result of circumstances unlikely to recur and that he would

respond affirmatively to probation and short-term imprisonment. Giggy asserts

that the circumstances are unlikely to recur because it is doubtful that young

family members will be left in his care again and because it has been “over ten

(10) years since the last crime occurred.” Appellant’s Br. p. 17. He asserts that

he would respond well to probation and short-term imprisonment based on “his

character.” Id. at 18. According to the record, Giggy spent years molesting his

family members and creating the image that he was a good and trustworthy

person so that he could continue the molestations. While Giggy admitted to

the molestations, it was only years later when the victims went to the police.

Although Giggy did not admit to any recent molestations, he did admit to

watching L.K. when she was naked as recently as 2016. Moreover, at the time

of sentencing, L.K.’s mother (Giggy’s daughter) was pregnant with her fifth

child. Thus, it is possible that Giggy could have access to more children. Giggy

has failed to show that these mitigators are both significant and clearly

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1108 | January 21, 2020 Page 7 of 10 supported by the record. See Anglemyer, 868 N.E.2d at 493. The trial court did

not abuse its discretion in sentencing Giggy.

II. Inappropriate Sentence [13] Giggy also contends that his sentence of fourteen years and eight months, all to

be served in the DOC, is inappropriate and asks us to “modify [it] to include a

suspended portion as a community correction placement.” Appellant’s Br. p.

27. 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).

[14] The sentencing range for a Class C felony is two to eight years, with an

advisory sentence of four years. Ind. Code § 35-50-2-6(a). As such, Giggy was

facing as many as twenty-four years in prison. The trial court sentenced him to

six years and eight months on Count 1 and the advisory sentence of four years

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1108 | January 21, 2020 Page 8 of 10 on Counts 2 and 4. The court ordered the sentences to be served consecutively,

for a total sentence of fourteen years and eight months to be served in the DOC.

[15] There is nothing about Giggy’s offenses that requires a revision of his sentence.

Giggy admitted molesting his nieces on several occasions between 1999 and

2008. Giggy gained the trust of his nieces, becoming their favorite uncle and

like a second parent to them. He then molested his nieces when he thought

they were asleep, rubbing their exposed breasts and butts and placing his erect

penis on them. His nieces were awake on some of these occasions but kept the

abuse secret for many years.

[16] There are indeed redeeming aspects to Giggy’s character. He did not have any

convictions until this case, he was a college graduate who was gainfully

employed, he admitted to the molestations during his first interview with the

police, and he pled guilty, sparing his nieces (and his family) the trauma of

going through a trial. In addition, his close friends and children spoke very

fondly of him, claiming that his actions were totally out of character for him.

The reason this appeared out of character for Giggy is because he created the

impression that he was a good person who could be trusted. Meanwhile,

behind closed doors at night, he subjected his nieces to a series of molestations

because he liked the thrill of sneaking around and was “intrigued” by their

“growth and development.” Even though the molestations Giggy admitted to

occurred between 1999 and 2008, he also admitted watching his naked

granddaughter as recently as 2016. Giggy has failed to persuade us that his

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1108 | January 21, 2020 Page 9 of 10 sentence of fourteen years and eight months, all served in the DOC, is

inappropriate.

[17] Affirmed.

Najam, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1108 | January 21, 2020 Page 10 of 10