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

• Court: Indiana Court of Appeals
• Decided: September 19, 2018
• Docket: 18A-CR-741
• 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 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