MEMORANDUM DECISION FILED
Jul 20 2016, 9:08 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Patrick Magrath Gregory F. Zoeller
Alcorn Sage Schwartz & Magrath, LLP Attorney General of Indiana
Madison, Indiana Lyubov Gore
Justin F. Roebel
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Larry W. Scroggins, Jr., July 20, 2016
Appellant-Defendant, Court of Appeals Case No.
40A04-1510-CR-1745
v. Appeal from the Jennings Circuit
Court
State of Indiana, The Honorable Jonathan W.
Appellee-Plaintiff Webster, Judge
Trial Court Cause No.
40C01-1504-F4-13
Mathias, Judge.
[1] Larry Scroggins (“Scroggins”) was convicted in Jennings Circuit Court of
burglary as a Level 4 felony and ordered to serve a maximum twelve-year
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sentence. Scroggins appeals and argues that the only evidence supporting his
conviction is incredibly dubious testimony and that his sentence is
inappropriate in light of the nature of the offense and the character of the
offender.
[2] We affirm.
Facts and Procedural History
[3] In April 2015, Scroggins and his girlfriend, Rebecca Goodwin (“Goodwin”),
lived with several other individuals in a mobile home next door to Martha
Bodenheimer (“Martha”). Martha, who was sixty-six years old, lived alone in
her mobile home.
[4] On April 9, 2015, Martha left her home at approximately 10:00 a.m. to go to
work. Later that morning, Scroggins used a screwdriver to pry open Martha’s
back door. He entered the home and took several items including her television,
a laptop, several cameras, an external hard drive, hydrocodone pills, and
jewelry. Scroggins placed the items in the bedroom he shared with Goodwin in
the mobile home next door.
[5] When Martha returned home from work that afternoon, she saw that her home
had been ransacked and noted several items were missing. She called the
sheriff’s department to report the burglary and shared her suspicion that her
neighbors might have burglarized her home.
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[6] On April 10, 2015, Scroggins’s wife reported to his parole officer that he had
not been living at their home, but with his girlfriend, Goodwin. Therefore,
Scroggins’s parole officer took him into custody for violating his parole.
Scroggins’s was detained at the local jail.
[7] On that same day, Goodwin began to sell the items stolen from Martha’s home.
At approximately 7:00 p.m., Martha saw Goodwin carrying what appeared to
be her television out to a car. Martha confronted Goodwin and matched the
serial number of the television Goodwin was carrying to the one stolen from her
home. Martha again called the sheriff’s department to report the information.
Goodwin told the sheriff’s deputy that she had purchased the television online.
The deputy told Goodwin that the prosecutor could file charges against her for
possession of stolen property, but Goodwin was not arrested.
[8] On April 11, 2015, Scroggins called Goodwin from the jail. Scroggins
repeatedly told Goodwin that he needed money to put on his “books.” Tr. pp.
190-91. Scroggins also asked Goodwin if she had gotten “rid of any of that
other stuff.” Tr. p. 198. The following conversation took place:
Scroggins: What all did you get rid of?
Goodwin: Um, I’m not really saying.
Scroggins: Well, I’m not, you can hint around, the biggest thing?
Goodwin: Um, yes.
Scroggins: What did you only get $70 out of that?
Goodwin: No.
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Scroggins: Or did you get $100 out of it.
Goodwin: No, they didn’t want it.
***
Scroggins: Okay, so what about the other small things? . . . The
thing I was hooking up the other day?
Goodwin: No, the one I said I wanted to keep.
Scroggins: Yeah… $70 for that?
Goodwin: Yeah.
Scroggins: All right.
Goodwin: And then that’s it.
Scroggins: Oh, you still got everything else?
Goodwin: Um, that uh, photo device?
Scroggins: Yeah
Tr. pp. 198-200. Scroggins told Goodwin she could give “Nellie” the photo
device he referred to. They also discussed that “Robert” came and got “them
earrings and that ring.” Tr. p. 200.
[9] Later that day, other individuals living in the mobile home with Goodwin
confronted her after they found a large amount of cash and several cameras that
belonged to Martha. They then told Martha what they had found, and Martha
reported the discovery to the sheriff’s department. A sheriff’s deputy searched
Scroggins’s and Goodwin’s bedroom and found Martha’s hydrocodone pills,
her jewelry, and camera bag that contained several cameras and other items.
Goodwin was wearing one of Martha’s rings when she was arrested. She
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admitted to the officer that she and Scroggins had taken the items from
Martha’s home.
[10] On April 15, 2015, Scroggins was charged with burglary, as a Level 4 felony
and Class A misdemeanor theft. A jury trial was held on August 4 and 5, 2015.
Scroggins was found guilty as charged.
[11] A sentencing hearing was held on October 2015. The trial court determined that
Martha’s age and Scroggins’s criminal history, consisting of five felonies, were
aggravating circumstances. The court also considered that Scroggins lied to the
probation officer who prepared the pre-sentence investigation report.
Specifically, when asked whether Scroggins had used the alias “Brent
Herndon,” Scroggins claimed that he had been the victim of identity theft. After
further investigation, the probation officer discovered that Scroggins and
Herndon, were, in fact, the same individual. The trial court found Scroggins’s
completion of an anger management program and obtaining his GED to be
mitigating. However, the court sentenced Scroggins to the maximum twelve-
year sentence after concluding that the aggravating circumstances far
outweighed the mitigating circumstances. Scroggins now appeals.
Incredibly Dubious Testimony
[12] Scroggins argues that his burglary conviction is supported only by Goodwin’s
testimony, which is so incredibly dubious that his conviction must be reversed.
The incredible dubiosity rule allows the court “impinge on the jury’s
responsibility to judge the credibility of the witnesses only when it has
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confronted ‘inherently improbable’ testimony or coerced, equivocal, wholly
uncorroborated testimony of ‘incredible dubiosity.’” Moore v. State, 27 N.E.3d
749, 755 (Ind. 2015) (citation omitted). A court will only impinge upon the
jury’s duty to judge witness credibility “where a sole witness presents inherently
contradictory testimony which is equivocal or the result of coercion and there is
a complete lack of circumstantial evidence of the appellant's guilt.” Id. (emphases in
original).
[13] Goodwin’s testimony that Scroggins burglarized Martha’s home and stole
several items, including her jewelry, television, cameras, laptop and pills, is not
the only evidence supporting Scroggins’s burglary conviction. In the recorded
jail house phone call, Scroggins implicated himself in the burglary. He and
Goodwin discussed the items Scroggins stole from Martha’s residence, whether
Goodwin had sold them, and how much money she received for selling the
stolen items. Tr. pp. 198-204. Some of Martha’s stolen property was also found
in the bedroom Scroggins and Goodwin shared.
[14] Scroggins also admitted to his cellmate that he had burglarized the trailer next
door to his home. He told his cellmate that he “jimmied the door with a
screwdriver to get” in the home. Tr. p. 219; see also Tr. pp. 99-100 (the
responding officer testified that it appeared that someone had used a
screwdriver to price open the back door of Martha’s home). Scroggins also told
his cellmate that he stole “the lad[y’s] TV and some pills,” and the cellmate
recalled that Scroggins also said “something about a computer.” Tr. p. 220.
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[15] Because Goodwin’s testimony was not the only evidence supporting
Scroggins’s Level 4 burglary conviction, the incredible dubiosity rule does not
apply in this case. Moreover, Scroggins argues that Goodwin’s testimony is
incredibly dubious because she was caught with Martha’s stolen property and
implicated Scroggins, who was already in jail for the parole violation. However,
this does not meet the standard of the incredible dubiosity rule which requires
“inherently improbable testimony or coerced, equivocal, wholly uncorroborated
testimony of incredible dubiosity.” See Moore, 27 N.E.3d at 755. Goodwin
consistently testified that Scroggins burglarized Martha’s home. It was within
the province of the jury to weigh the credibility of her testimony, and we will
not reweigh the evidence and the credibility of the witnesses on appeal. See
Duncan v. State, 23 N.E.3d 805, 812 (Ind. Ct. App. 2014), trans. denied.
Inappropriate Sentence
[16] “The authority granted by Article 7, § 4 of the Indiana Constitution permitting
appellate review and revision of criminal sentences is implemented through
Appellate Rule 7(B). Under this rule and as interpreted by case law, appellate
courts may revise sentences—after due consideration of the trial court's
decision—if the sentence is found to be inappropriate in light of the nature of
the offense and the character of the offender.” Chambers v. State, 989 N.E.2d
1257, 1259 (Ind. 2013) (citing Cardwell v. State, 895 N.E.2d 1219, 1222-25 (Ind.
2008)). The principal role of Rule 7(B) review “should be to attempt to leaven
the outliers, and identify some guiding principles for trial courts and those
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charged with improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Cardwell, 895 N.E.2d at 1225.
[17] Scroggins argues that his maximum, twelve-year sentence1 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 myriad other factors
that come to light in a given case. Id. at 1224. Scroggins bears the burden of
persuading our court that his sentence is inappropriate. See Rutherford v. State,
866 N.E.2d, 867, 873 (Ind. Ct. App. 2007).
[18] Scroggins broke into a sixty-six-year old woman’s home. He ransacked the
residence and stole numerous items of monetary and sentimental value.
Scroggins argues that the nature of his crime is not severe because he
burglarized the home while Martha was at work, lessening the risk that his
crime would result in physical harm.
[19] Martha lost years of photos and genealogical documents that were of great
personal and sentimental value to her. Since the burglary, she has trouble
sleeping at night, and her health has suffered. She also fears Scroggins because
he threatened to hurt Martha when he is no longer incarcerated. Tr. p. 221.
1
When sentencing Scroggins for his Level 4 burglary conviction, the trial court was authorized to impose a
sentence in a range from two to twelve years, with six years being the advisory sentence. See Ind. Code § 35-
50-2-5.5.
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[20] Scroggins’s character also supports his twelve-year sentence. He was on parole
when he committed this offense, and he violated his parole by living in the
trailer next to Martha’s home. He has five prior felony convictions, including
attempted burglary, receiving stolen property, nonsupport of a dependent, and
dealing in and possession of methamphetamine. He also has three prior
misdemeanor convictions. He is grossly delinquent in payment of child support
and has never successfully completed probation. Scroggins also lied to the
probation officer who prepared the pre-sentence investigation report concerning
an alias he has used in the past. As the trial court noted, Scroggins is a “lifetime
criminal” who has been unable to change his behavior to become a law abiding
citizen. See tr. p. 334.
[21] For all of these reasons, we conclude that Scroggins’s twelve-year sentence is
not inappropriate in light of the nature of the offense and the character of the
offender.
Conclusion
[22] We conclude that the incredible dubiosity rule is inapplicable to this case and
therefore affirm Scroggins’s Level 4 burglary conviction. We also affirm his
maximum twelve-year sentence, which we conclude is not inappropriate in light
of the nature of the offense and the character of the offender.
Vaidik, C.J., and Barnes, J., concur.
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Larry W. Scroggins, Jr. v. State of Indiana (mem. dec.)
Combined Opinion