Boling v. State

• Decision Date: 24 January 2013
• Docket Number: No. 20A04–1205–CR–237.,20A04–1205–CR–237.
• Citation: 982 N.E.2d 1055
• Parties: Danny BOLING, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

982 N.E.2d 1055

Danny BOLING, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 20A04–1205–CR–237.

Court of Appeals of Indiana.

Jan. 24, 2013.

Elizabeth A. Bellin, Cohen Law Office, Elkhart, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Chief Judge.

Case Summary and Issues

Following a jury trial, Danny Boling was convicted of attempted child molesting, a Class A felony, and child molesting, a Class C felony. The trial court ordered an aggregate sentence of forty-five years and found him to be a credit restricted felon. Boling appeals, raising three issues for our review: 1) whether the State presented sufficient evidence to support his conviction of attempted child molesting; 2) whether the trial court properly determined him to be a credit restricted felon; and 3) whether his sentence is inappropriate in light of the nature of his offense and his character. Concluding the evidence is sufficient to support Boling's conviction for attempted child molesting and his sentence is not inappropriate, but that the trial court erred in determining him to be a credit restricted felon, we affirm in part and reverse and remand in part.

Facts and Procedural History

Boling lived with his wife, Linda, and their two children, son D.B. and daughter K.B., in Elkhart County, Indiana. Boling worked the night shift at Meijer, arriving home in the morning and sleeping during the day. Typically, Linda would take the children to school in the morning, and after school, Marlin and Amanda Fast, neighbors of the Bolings, would pick the children up and keep them at their house until Linda picked them up in the evening at the end of her work day. On January 25, 2010, however, five-year-old K.B. became ill while at school. The school contacted the Boling home, and Boling called Marlin Fast and asked him to pick K.B. up and bring her home. When K.B. arrived home, Boling removed her clothing, except for her underwear, and put her in his bed. He also removed his clothing but for his long underwear, and laid down in the bed with her. K.B. testified that Boling touched her “front private” with his hand, both over her underwear and beneath her underwear directly on her skin. State's Exhibit 2.¹ K.B. testified that Boling also pulled down his underwear, took her hand, and made her touch his “private,” which felt “sticky.” Id.

K.B. told her mother what had happened and a report was ultimately made to Children's Protective Services. K.B. was interviewed by an employee of the Child Advocacy Center, and gave a videotaped statement describing the above events. The State charged Boling with attempted child molesting, a Class A felony, and child molesting, a Class C felony. A jury found Boling guilty as charged. The trial court sentenced Boling to forty-five years for the Class A felony attempted child molesting conviction, to be served concurrently with a six-year sentence for the Class C child molesting conviction. The trial court also found that Boling was a credit restricted felon pursuant to Indiana Code section 35–31.5–2–72(1). Boling now appeals.

Discussion and Decision

I. Sufficiency of the Evidence

A. Standard of Review

When reviewing the sufficiency of the evidence supporting a conviction, we do not reweigh the evidence or assess witness credibility for ourselves. Boggs v. State, 928 N.E.2d 855, 864 (Ind.Ct.App.2010), trans. denied. We consider only the probative evidence and reasonable inferences supporting the verdict. Id. It is not necessary that the evidence overcome every reasonably hypothesis of innocence; the evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Id. We will affirm the conviction unless no reasonable finder of fact could find the elements of a crime proven beyond a reasonable doubt. Id.

B. Attempted Child Molesting

Boling contends that the State presented insufficient evidence to support his conviction of attempted child molesting.² The State charged Boling with the following:

... on or about January, 2010, at the County of Elkhart, State of Indiana, one DANNY BOLING, a person at least twenty-one (21) years of age, did knowingly engage in conduct that constituted a substantial step toward the crime of child molesting in that the said DANNY BOLING attempted to cause one K.B., a child under fourteen (14) years of age, to submit to an act involving deviate sexual conduct; all of which is contrary to the form of I.C. § 35–42–4–3(a)(1) & § 35–41–5–1....

Appellant's Appendix at 148. The statute under which Boling was charged provides that a “person who, with a child under fourteen (14) years of age, performs or submits to sexual intercourse or deviate sexual conduct commits child molesting [which is] a Class A felony if ... it is committed by a person at least twenty-one (21) years of age....” Ind.Code § 35–42–4–3(a)(1). “Deviate sexual conduct” means “an act involving ... the penetration of the sex organ ... of a person by an object.” Ind.Code § 35–31.5–2–94(2). A finger is an object within the meaning of this definition. Gasper v. State, 833 N.E.2d 1036, 1044 (Ind.Ct.App.2005), trans. denied. An “attempt” is made when a person, “acting with the culpability required for commission of the crime, ... engages in conduct that constitutes a substantial step toward commission of the crime.” Ind.Code § 35–41–5–1(a). The culpability requirement of the child molesting statute is knowingly or intentionally, see Louallen v. State, 778 N.E.2d 794, 798 (Ind.2002), although the State charged Boling only with “knowing” conduct. A person engages in conduct “knowingly” if, when he engages in the conduct, he is aware of a high probability that he is doing so. Ind.Code § 35–41–2–2(b). Thus, the State must have proved that Boling knowingly attempted to commit child molesting and engaged in an overt act constituting a substantial step toward the commission of the crime. Noble v. State, 725 N.E.2d 842, 845 (Ind.2000).

Boling contends the State failed to present evidence from which the jury could conclude that he knowingly took a substantial step toward penetrating K.B.'s sex organ with his finger. Mens rea can be established by circumstantial evidence and inferred from the defendant's conduct and the natural and usual sequence to which such conduct reasonably points. C.L.Y. v. State, 816 N.E.2d 894, 905 (Ind.Ct.App.2004), trans. denied. K.B. testified that Boling touched her “front private” first over her underwear and then under her underwear, directly on her skin. The natural and usual sequence to which such conduct reasonably points is that Boling had taken a substantial step toward inserting his finger or fingers into K.B.'s vagina. A reasonable jury could find based upon this testimony that Boling had attempted to commit deviate sexual conduct. See Watkins v. State, 571 N.E.2d 1262, 1265 (Ind.Ct.App.1991) (holding evidence was sufficient to support conviction of attempted child molesting based upon victim's testimony that defendant laid on top of the victim while the child was nude and face down and placed his penis around and against the child's anal area), aff'd in relevant part by 575 N.E.2d 624, 625 (Ind.1991). We hold the evidence is sufficient to support Boling's conviction of attempted child molesting.

II. Credit–Restricted Felon Determination

A. Standard of Review

The interpretation of a statute is a legal question that we review de novo. Cline v. State, 971 N.E.2d 1240, 1242 (Ind.Ct.App.2012).

The goal of statutory construction is to determine and implement legislative intent. We read all sections of an act and strive to give effect to all provisions. We will not read into a statute that which is not the manifest intent of the legislature. For this reason, it is as important to recognize what a statute says, but also what a statute does not say.

Id. (quotations and citations omitted). “We assume the legislature intended for the statutory language to be applied in a logical manner consistent with the statute's underlying policy and goals.” Bei Bei Shuai v. State, 966 N.E.2d 619, 628 (Ind.Ct.App.2012), trans. denied. Penal statutes are strictly construed against the State and any ambiguities therein are resolved in favor of the accused, and they may not be enlarged by construction or implication beyond the fair meaning of the language. Id. However, penal statutes should not be read so narrowly as to exclude instances fairly covered. Id.

B. Credit Restricted Felon for Attempt

Indiana Code section 35–31.5–2–72³ states:

“Credit restricted felon” means a person who has been convicted of at least one (1) of the following offenses:

(1) Child molesting involving sexual intercourse or deviate sexual conduct (IC 35–42–4–3(a)), if:

(A) the offense is committed by a person at least twenty-one (21) years of age; and

(B) the victim is less than twelve (12) years of age.

(2) Child molesting (IC 35–42–4–3) resulting in serious bodily injury or death.

(3) Murder (IC 35–42–1–1) if:

(A) the person killed the victim while committing or attempting to commit child molesting (Ind.Code 35–42–4–3);

(B) the victim was the victim of a sex crime under IC 35–42–4 for which the person was convicted; or

(C) the victim of the murder was listed by the state or known by the person to be a witness against the person in a prosecution for a sex crime under IC 35–42–4 and the person committed the murder with the intent to prevent the victim from testifying.

A credit restricted felon is initially assigned to credit time Class IV, Ind.Code § 35–50–6–4, earning one day of credit time for every six days the person is imprisoned for a crime or confined awaiting trial or sentencing, Ind.Code § 35–50–6–3(d). A credit restricted felon may not be assigned to credit time Class I or Class II. Ind.Code § 35–50–6–4.

When sentencing Boling, the trial court found that he was a credit...