Bostick v. State

• Decision Date: 04 March 2004
• Docket Number: No. 33A01-0308-CR-281.,33A01-0308-CR-281.
• Citation: 804 N.E.2d 218
• Parties: Amy BOSTICK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

804 N.E.2d 218

Amy BOSTICK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 33A01-0308-CR-281.

Court of Appeals of Indiana.

March 4, 2004.

Susan K. Carpenter, Public Defender of Indiana, David P. Freund, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

In March 1998, Amy Bostick locked her three children, all under the age of five, in their bedroom, poured flammable liquid in and around their room, and ignited the liquid. All three children died from smoke inhalation and thermal burns. At the time, Bostick was involved in an extramarital affair with a teenage boy, who was fifteen when their sexual relationship began. Bostick presents a single issue for review: Is her 210 year sentence appropriate?

We affirm.

The facts most favorable to the judgment demonstrate that on the evening of March 15, 1998, Bostick, formerly Amy Robinson, was at home with her three children, Jason Michael Robinson, age one year and eight months, Ashley Joy Robinson, age two years and ten months, and Jessica Nicole Robinson, age four years and six months. Bostick's teenage lover, Jacob Gulley, was also in the home asleep in Bostick's bedroom. Gulley and Bostick had begun a sexual relationship in December 1997 when Gulley was fifteen and Bostick was twenty-four. At the time, Bostick was still married to her children's father, but had recently filed for divorce. As her romantic relationship with Gulley developed, Bostick began to lose interest in her children. Bostick had told Gulley that she did not want to work but had to in order to provide for the children. She had also spoken of marrying Gulley and moving to a new town.

During the early morning hours of March 16, Bostick locked the front and back door of her house and poured a flammable liquid on the closet floor of the bedroom where her three children were sleeping. Bostick then locked the children in their bedroom by securing a belt to the door handle and attaching the belt to a hook on the wall outside the room.¹ She proceeded to pour flammable liquid along a common wall of the children's bedroom and an adjacent room before igniting the fire.² After the blaze had begun, Bostick awoke Gulley, informed him the house was on fire, and then ran out the backdoor. Gulley, along with the police and firefighters who eventually arrived at the scene, unsuccessfully attempted to rescue the children. A fireman later located the charred remains of the three children in their bedroom.

On July 28, 1998, Bostick was charged with three counts of Murder,³ a felony, Arson,⁴ a class A felony, and Sexual Misconduct With a Minor,⁵ a class B felony. The State requested Bostick receive a life sentence without the possibility of parole for each of the three murders, based on the aggravating circumstance that each victim was under twelve years of age. After a three-week jury trial, Bostick was convicted on all counts. During the sentencing phase, however, the jury could not reach a decision regarding the life without parole sentences and was discharged. On October 18, 1999, the trial court entered its written sentencing statement wherein it vacated Bostick's arson conviction on double jeopardy grounds, imposed life imprisonment without parole on each of the three murder convictions, and sentenced Bostick to a concurrent fifteen-year term for her sexual-misconduct-with-a-minor conviction.

On direct appeal to our supreme court, Bostick's convictions were affirmed but the court vacated the life without parole sentences and remanded for new sentencing proceedings on the three murder convictions. See Bostick v. State, 773 N.E.2d 266 (Ind.2002)

.⁶ Thereafter, the trial court granted the State's motion to dismiss its request for life sentences without parole, and held a resentencing hearing on July 3, 2003.

At the resentencing hearing, the trial court heard victim impact testimony from several relatives of the children including their father, Jason Robinson. The trial court also heard testimony from Joann King, Bostick's probation officer, regarding, inter alia, Bostick's completion of college coursework, receipt of counseling, and participation in Alcoholics Anonymous.

After argument from counsel, the trial court issued its ruling, which included a detailed review of the sentencing considerations contained in Ind.Code Ann. § 35-38-1-7.1 (West, PREMISE through 2003 1st Regular Sess.). The trial court first considered the mandatory statutory factors of I.C. § 35-38-1-7.1(a) and then the permissive aggravating factors in I.C. § 35-38-1-7.1(b):

The first of the mandatory considerations for the Court is what is the risk that the defendant would commit another crime. This Court finds that based on the sheer nature of the crime here, that being a crime of Murder, involving three children, her own children, that it leads me to conclude that there is a high risk she would commit another crime. Nature and circumstances of the crime committed is number two that I'm supposed to consider. There have been a variety of comments made both today and in October of 1999 about the nature and circumstance of that. The mother and child relationship is without a doubt one of the most special relationships that there is. I think those of us who did sit through the trial can recall that we are talking about children who were still wearing diapers in some instances. Children who could not adequately fend for themselves. Children who depended upon their custodial parent for food, their clothing, their shelter, their everyday needs and their protection from the rest of the world. That special relationship I considered to be a part of the nature and circumstance of the offense committed here. I rest in large part upon the Court's previous findings as to several of the things that I announced in October of 1999. One of those was that the Court found that there was almost no prior criminal record and the Court now finds that that's the case here as well. As far as character, the Court assesses that as questionable and bases that assessment upon two factors in addition to the offense itself. And that is your involvement with a fifteen year old in a sexual relationship, as well as persistent substance abuse that was shown in the Pre Sentence Report that was considered by the Court in 1999, on a daily basis. As far as condition, I'm not sure whether I'm supposed to assess between 1999, 98, at the time of the offense or now. As far as the record is concerned, I find your record to be pretty good as of now. Number four that the Court is supposed to consider is the age of the victims. The evidence that established or was presented to the Court at trial, the Court previously found to have established beyond a reasonable doubt, include the following dates of birth for the children. Jessica's date of birth was August 22, 1993. Ashley's date of birth was April 27, 1995 and Michael's date of birth was June 26, 1996. So clearly those dates of births support the Court's finding that each of the children were [sic] under the age of twelve. There is no evidence in the case with respect to violation of any Protective Order. And item number six is that the Court shall consider any oral or written statement made by a victim in the, of the crime. And the Court has considered the statements made by the extended family members, both in writing in 1999, testimony which the Court had reviewed from the 1999 hearing, as well as the testimony that has been presented to the Court here today. The Court finds that a number of matters have been presented and argued with respect to aggravating and mitigating circumstances. The Court finds that the aggravating circumstances listed under (b)(3), that the person is in need of correctional or rehabilitative treatment that can best be provided by commitment to the person, of the person to a penal facility to be appropriate in this case. The Court cannot conceive that correctional or rehabilitative treatment in an offense as serious as this can be provided in any other setting other than a penal facility. The Court finds that the aggravating factor listed under number five, as I have already found above exists and that is that all three, Jessica, Ashley and Michael, were under the age of twelve at the time that the offense was committed in this case.

Transcript at 68-72. Next, the trial court considered the mitigating factors enumerated in I.C. § 35-38-1-7.1(c):

With respect to mitigating circumstances, I've considered under the statute as I have already commented under the mandatory section, that the person has little history of delinquency or criminal activity and had led what would be considered to be a law-abiding life for a substantial period of time before the commission of the crime. Under sub-paragraph (d) of this statute, it states that the criteria listed in subsections (b) and (c) do not limit the matter that the Court may consider in determining the sentences. Therefore, the Court has considered those matters which have been presented by the defendant as mitigating matters. The Court adopts its previously announced finding with respect to age. That it is mildly mitigating. That the defendant's expression of grief is mildly mitigating.

Transcript at 72-73. The trial court also extensively addressed the alleged mitigators of extreme mental disturbance and inability to conform conduct to the law. After summarizing testimony from various doctors and witnesses on the issues, the trial court concluded that any mental disturbance could not be characterized as extreme "and thus not more than mildly mitigating." Transcript at 76. The trial court also rejected the claimed mitigator that Bostick was unable to conform her conduct to the law, then addressed the remaining mitigators:

With respect to the claimed

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