Anthony Muir, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Scheele, Judge.

Case Summary

[1] Anthony Muir appeals two of his three convictions for Level 1 felony child molesting, alleging the evidence is insufficient to support the convictions. He also challenges his 159-year executed sentence alleging it is inappropriate under Appellate Rule 7(B). We affirm.

Facts and Procedural History

[2] At the time he committed the offenses, Muir was the step-grandfather of T.G., A.G., and A.H. The first victim, T.G., was born in 2011. A.G., born in 2014, is T.G.’s sister. The second victim, A.H., born in 2013, is T.G.’s cousin.

[3] On December 20, 2023, the State charged Muir with three counts of Level 1 felony child molesting, four counts of Level 4 felony child molesting, and one count of Level 6 felony dissemination of matter harmful to minors, all of which alleged T.G. as the victim. On February 7, 2024, the trial court granted the State's motion to add a fifth count of Level 4 felony child molesting, alleging A.H. as the victim. The trial court conducted a bench trial on October 28, 2024.

[4] Then twelve-year-old T.G. testified at the trial. She first explained that she calls the “part of the body that you use to pee” the “girl downstairs” for girls and the “boy downstairs” for boys. Tr. Vol. II p. 68. T.G. also calls the “part of the body that you use to poop” the “downstairs[,]” but she differentiated between the two when asked. Id.

[5] T.G. testified that when she was four or five years old, she went to Muir's old house, where her grandparents lived until early 2017. While her grandmother Brenda was at work, Muir sent T.G. to his bedroom to take a nap. T.G. awoke to Muir touching her “downstairs” “all over” with “[h]is hands.” Id. at 71. When asked if Muir was touching “the downstairs that you use to pee[,]” T.G. said, “[y]es.” Id. Muir first touched T.G. over the clothes, then he removed T.G.’s pants and underwear and his own clothes. While on his knees in front of T.G., he lifted her legs and tried to put “his downstairs” “[i]n the center of” T.G.’s genitals. Id. at 73. T.G. said it felt “[n]ot good” and Muir did not stop when she asked. Id. When Muir heard Brenda return home, he stopped and went downstairs. Later, T.G. put her clothes on and went downstairs, where Muir did not “act like anything had happened at all[.]” Id. at 74.

[6] In 2021, T.G. spent about a week at Muir's new house, where her grandparents have resided since 2017, while her mother was on vacation. When asked if Muir “ever touch[ed her] in the same way as ․ when [she was] four (4) or five (5)[,]” T.G. said that Muir did so “almost every night” that week. Id. at 76. While T.G. was on the couch at night, Muir showed her videos of nude people who were “[h]av[ing], basically how you make a baby.” Id. at 75. After that week, Muir regularly showed T.G. pornographic videos.

[7] T.G. then testified about another incident that occurred on February 7, 2022. T.G. remembered that date specifically because she got her ears pierced that day. That night, Muir suggested that T.G. sleep in a pink, fuzzy pajama set with loose, “really short” shorts that he and Brenda had given T.G. for Christmas. Id. at 79. Muir slept on the couch with T.G., while Brenda and T.G.’s sister, A.G., slept in Brenda and Muir's room. In the night, Muir removed his pants, pulled T.G.’s shorts to the side, touched her genitals with his genitals, and was trying to “put it in the center of [her] downstairs[.]” Id. at 80. T.G. did not know what made Muir “stop with his downstairs in [her] downstairs[;]” he “just went until he stopped[.]” Id. at 81. The next day, T.G. could not urinate. Her mother took her to the doctor, and she was treated for a urinary tract infection—her third between 2020 and 2022. T.G. also testified that Muir put his genitals in her mouth at least once when she spent the night at the new house. See id. at 82. And she described that Muir would put something on his genitals that came from what looked like “a lotion bottle.” Id. at 83.

[8] Next, A.G. testified about an incident that occurred when she was six or seven years old. A.G. and T.G. were taking a nap in Muir's bed while Brenda was at work. A.G. woke up because the bed was shaking and hitting the wall. She saw videos of a naked man and woman doing “inappropriate things” on the television. Id. at 99. Then, she looked under the covers and saw Muir's bare back side “moving back and forth.” Id. at 100. A.G. said T.G. was on her side facing the wall and Muir was on his side also facing the wall. A.G. also remembered seeing T.G.’s shorts get thrown off. Eventually, T.G. and Muir went into the bathroom, and A.G. heard someone get pushed against the wall. A.G. banged on the door and “asked if everything was okay[,]” ran into the living room to hide in her fort, then started crying because she was scared. Id. at 105.

[9] Over the years, Muir molested T.G. “[m]any” times and showed her pornography “a lot.” Id. at 83. Indeed, T.G. said “[y]es” when asked if the molestations happened “most” of the times she stayed at Muir's house. Id. According to T.G.’s mother, T.G. went to Muir's house for “weekend visits a few times a month[.]” Id. at 55. After February 2022, T.G. told Muir not to touch her again; Muir told her that he would not and asked T.G. not to tell anyone. However, in March 2022, T.G. “broke down in tears” and finally told her mother what had been happening. Id. at 57.

[10] After her disclosure, T.G. was examined by Nurse Practitioner (NP) Anna Gordon with the Child Protection Team at Riley Hospital for Children. NP Gordon testified that T.G. had a “deep notch” on her hymen, which was “greater than halfway through the hymenal tissue[.]” Id. at 117. Although it was not conclusive, T.G.’s exam was “consistent with a history of sexual abuse.” Id. at 116.

[11] Finally, T.G.’s ten-year-old cousin, A.H., testified. When A.H. was in first or second grade, Brenda picked up A.H. from school because she had a stomachache; Brenda then left A.H. at her home with Muir. At some point, Muir grabbed A.H.’s wrist and pulled her into his bedroom. He held A.H. down while “[c]overing [her] mouth” with one hand and touching her buttocks under the clothes with his other hand. Id. at 143. Muir stopped, “started going crazy[,] and r[an] into the bathroom” when he heard Brenda's car pull into the driveway.¹ Id. at 145.

[12] After finding testimony of T.G., A.G., A.H., and NP Gordon all “very credible[,]” the court found Muir guilty as charged. Id. at 171. At sentencing in November 2024, T.G. and A.G. both gave statements. About her experience, T.G. told the court, “[i]t's very traumatizing and it's going to stay with me for the rest of my life.” Id. at 178. In a statement directed at Muir, A.G. said, “[n]ot only did you hurt [T.G. and A.H.], but you traumatized me. I will always have a memory of what happened that day in that room with me, [T.G. and Muir].” Id. at 180. She also said what happened that day was “disturbing and uncomfortable” and noted that she, T.G. and A.H. “trusted [Muir] a lot, too much to where he felt comfortable to hurt” them. Id. at 181.

[13] A.H.’s mother also gave a victim impact statement. She explained that A.H. was on a waitlist to begin therapy and that A.H. showers with the curtain half-open to make sure no one comes in to watch her, as A.H. later alleged Muir had done. She also told the court that A.H. wanted to change her name because “that's what [Muir] called [her] when he did those things to [her] at [her] Grandma Brenda's house.” Id. at 185. Finally, A.H.’s mother stated that several other girls and women in their family had been molested by Muir over the years.

[14] In considering Muir's sentence, the trial court found several aggravators including that Muir was in a position of care, custody and control of the victim children; the harm was greater than that required to prove the offenses in that there were multiple offenses against the same victim, some of which were uncharged; T.G. and A.H. were under the age of twelve, specifically that they were four and six when the abuse started; and the defendant went uncharged for multiple victims throughout his lifetime. As mitigators, the court found Muir waived a jury trial, had long-term employment, and had a limited criminal history. However, the court explicitly did not find that Muir led a law-abiding life, stating he had gotten away with molesting girls throughout his life. The court also found Muir was a predator to his family.

[15] The trial court sentenced Muir to an aggregate term of 159 years in the Indiana Department of Correction (DOC). Specifically, Muir was sentenced to forty-five years for each of his three Level 1 felony child molesting convictions, all served consecutively; twelve years for each of his five Level 4 felony child molesting conviction, two served consecutively to his Level 1 felony sentences and three served concurrently with his Level 1 felony sentences; and one year for his Level 6 felony dissemination of matter harmful to minors conviction served concurrently with his other sentences. Muir now appeals.

Discussion and Decision

I. Sufficiency of Evidence

[16] Muir first challenges two of his three Level 1 felony child molestation convictions, arguing the evidence is insufficient to prove sexual intercourse.² He alleges the evidence most favorable to the verdict does not prove there was any penetration, only that there was contact between Muir's and T.G.’s genitals.³ Our standard for reviewing a claim of insufficient evidence is well-settled:

For sufficiency of the evidence challenges, we consider only probative evidence and reasonable inferences that support the judgment of the trier of fact. On sufficiency challenges, we will neither reweigh evidence nor judge witness credibility. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.

Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021) (citations omitted).

[17] To convict Muir of Level 1 felony child molesting, the State was required to prove beyond a reasonable doubt that Muir was at least twenty-one years old, and he “with a child under fourteen (14) years of age, [T.G.,] knowingly or intentionally perform[ed] or submit[ted] to sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5).” Ind. Code § 35-42-4-3(a) (2022). Indiana Code section 35-31.5-2-302 defines sexual intercourse as “an act that includes any penetration of the female sex organ by the male sex organ.” Indiana case law has established that the female sex organ includes external genitalia and that even the “slightest penetration” of the female sex organ constitutes child molesting based on sexual intercourse. Boggs v. State, 104 N.E.3d 1287, 1288 (Ind. 2018) (citing Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996), on reh'g (1997)).

[18] Muir argues that T.G.’s testimony about “contact in the center of a body part used to urinate” was insufficient to constitute penetration. Appellant's Br. p. 11. Specifically, he contends T.G.’s testimony that Muir “tr[ied] to put his downstairs ․ in the center of [hers]” was not enough for a “reasonable factfinder to conclude that anything more than contact between the sex organs occurred.” Id. at 9 (citations to the record omitted). Muir relies on three cases to craft his argument: Downey v. State, 726 N.E.2d 794 (Ind. Ct. App. 2000), trans. denied; Adcock v. State, 22 N.E.3d 720 (Ind. Ct. App. 2014); and Spurlock, 675 N.E.2d 312. All are easily distinguished from the facts in the instant case.

[19] In Downey, the defendant rubbed his penis between the victim's buttocks, which was insufficient to show penetration of the anus. 726 N.E.2d at 798. In Adcock, the then twenty-year-old victim testified regarding earlier molestations and indicated the defendant rubbed his penis against her vagina; that was insufficient to prove penetration because she was capable of describing the difference between touch and penetration at twenty-years old, and she did not do so. 22 N.E.3d at 729. In Spurlock, the then twelve-year-old victim described that the defendant tried to put his penis inside of her but directly stated she did not know whether penetration occurred. 675 N.E.2d at 315. In the instant case, penetration of the anus is not alleged, the victim is not twenty-years old, and the evidence is not limited to a single equivocal statement that Muir tried to put his penis inside T.G.

[20] Here, T.G. was twelve years old when she testified. Given her young age, it is understandable that T.G. would still describe male and female genitals with colloquialisms like the “downstairs” one uses to “pee” and the “downstairs” one uses to “poop[.]” Tr. Vol. II p. 68. In the first incident, T.G. was asked “where did [Muir] try to put his downstairs?”, and she answered “[i]n the center of mine.” Id. at 73. T.G. explained that Muir had removed her and his underwear, Muir was on his knees in front of her, he put her legs up and she could not put them down until later. She also described that he only stopped when Brenda came home, not when she asked him to.

[21] T.G. never characterizes Muir's actions as trying to put his genitals on, against, around, or otherwise adjacent to her genitals: she said and consistently affirms he tried to put his genitals “in” the center of hers. See id. at 73, 77, 80. And the total circumstances T.G. describes, including Muir's positioning of her body and that what he was doing was ongoing until he stopped, must be considered. A reasonable trier of fact—the trial court in this case—could infer from this testimony that T.G. described an ongoing act of sexual intercourse involving some penetration of T.G.’s sex organ. See Short v. State, 564 N.E.2d 553, 558 (Ind. Ct. App. 1991) (A “conviction for child molesting/sexual intercourse will be sustained when it is apparent from the circumstances and the victim's limited sexual vocabulary that the victim described an act of sexual intercourse.”).

[22] T.G. then explained that Muir touched her the same way as on that occasion almost every night for a week during 2021. Next, T.G. described another specific incident from February 2022. In this instance, she was asked “what made [Muir] stop with his downstairs in your downstairs?” Id. at 81. T.G. affirmed that Muir just “went until he stopped[.]” Id. Finally, she testified that Muir molested her “[m]any” times over the years. Id. at 83. In addition, T.G. described that Muir would put lubrication on his genitals from “a lotion bottle.” Id. And A.G. saw Muir's bare back side “moving back and forth” while T.G. was in the bed with Muir. Id. at 100.Moreover, T.G. was treated for three urinary tract infections between 2020 and 2022, and there was a “deep notch” on her hymen that was “consistent with a history of sexual abuse.” Id. at 116. Based on all of these circumstances, the trial court could reasonably infer that Muir at least slightly penetrated T.G.’s external genitalia with his sex organ. See Short, 564 N.E.2d at 558-59 (holding that the totality of the evidence, including victim's testimony using limited vocabulary about sex organs and evidence that victim's hymen suffered trauma, was sufficient to prove defendant penetrated victim's external genitalia); see also Page v. State, 410 N.E.2d 1304, 1307 (Ind. 1980) (circumstantial evidence can suffice to prove penetration).

[23] The total evidence is sufficient to prove Muir at least slightly penetrated T.G.’s sex organ, which includes her external genitalia, on multiple occasions. Thus, we affirm Muir's two challenged convictions for Level 1 felony child molestation.

II. Inappropriateness of Sentence

[24] Muir also contends his total aggregate sentence of 159 years is inappropriate in light of the nature of the offenses and his character, arguing his sentence is a “de facto life sentence” and an outlier needing revision. Appellant's Br. p. 13. Muir asserts in his brief that “an abuse of trust alone” does not support enhanced, consecutive sentences for his convictions and other factors “including that there was no physical injury and that the girls were spared the trauma of relating their stories to a jury” should be considered. Id. at 13-14. He also argues “a single 45-year sentence ․ is enough to account for the abuse of [T.G.]” and requests that we revise his aggregate sentence to fifty-seven years. Id. at 14.

[25] Indiana Appellate Rule 7(B) permits an appellate court to 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.” We give “considerable deference” to the trial court's sentencing decision and attempt only to “leaven the outliers” rather than achieve the “perceived ‘correct’ result” in every case. Lane v. State, 232 N.E.3d 119, 122 (Ind. 2024) (quoting Cardwell v. State, 895 N.E.2d 1219, 1222, 1225 (Ind. 2008)).

Indiana Appellate Rule 7(B) is a rare avenue for appellate relief that is reserved for exceptional cases. Even with Rule 7(B), sentencing is principally a discretionary function in which the trial court's judgment should receive considerable deference. 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). Absent such a sufficiently compelling evidentiary basis, we will not override the decision of ․ the trial court.

Sorenson v. State, 133 N.E.3d 717, 728 (Ind. Ct. App. 2019) (citations, quotations, and brackets omitted), trans. denied.

[26] Muir has failed to point us to such compelling evidence in this case to show that his sentence is inappropriate. First, we emphasize the difference between the sentence Muir did receive and the maximum sentence that he could have received. Muir was convicted of nine felonies. For each of his Level 1 felony convictions, Muir faced between twenty and fifty years, with an advisory sentence of thirty years. Ind. Code § 35-50-2-4(c) (2023). For each of his Level 4 felony convictions, Muir faced between two and twelve years, with an advisory sentence of six years. Ind. Code § 35-50-2-5.5 (2014). Finally, for his Level 6 felony conviction, Muir faced between six months and two-and-a-half years, with an advisory sentence of one year. Thus, Muir faced a possible aggregate sentence of 212.5 years. However, the trial court imposed a sentence of 159 years: consecutive sentences of forty-five years for each Level 1 felony, two consecutive twelve-year sentences for two Level 4 felonies and three concurrent twelve-year sentences for three Level 4 felonies, and a concurrent one-year sentence for the Level 6 felony. Although the court imposed an enhanced sentence for each Level 1 felony, the court did not impose the maximum. And, although the Level 1 felony convictions were for molestations of one victim, one was for an act of oral sex and the other two were for acts of sexual intercourse separated by years. While the court did impose the maximum sentence for each of Muir's five Level 4 felony convictions, only two of those convictions run consecutively to his other sentences—one consecutive term for each victim, T.G. and A.H. Turning next to the nature of Muir's offenses and his character, his less-than-maximum aggregate sentence is not inappropriate.

[27] As to the nature of the offenses, we look at “the extent and depravity of the offense and focus less on comparing the facts at hand to other cases.” Crabtree v. State, 152 N.E.3d 687, 704 (Ind. Ct. App. 2020), trans. denied. The extent and depravity of Muir's conduct is more than deplorable. For at least five years, Muir repeatedly molested his step-granddaughter, T.G., from when she was at the extremely tender age of four or five until she was ten years old. He forced her to watch pornography with him, fondled her, made her engage in oral sex with him, and forced her to submit to sexual intercourse. T.G., who was only twelve years old when she testified, described Muir applying lubrication from a lotion bottle to his genitals before he engaged in these acts with her. And she sustained several urinary tract infections and trauma to her hymen during these years. On one occasion, he even molested T.G. while her then six- or seven-year-old sister, A.G., was in the same bed, subjecting A.G. to witness his unfathomable acts—all while pornography played on the television. Another day when his step-granddaughter, A.H., came home sick from school, Muir pulled her into his bedroom, held her down on his bed with his hand over her mouth, and molested her by fondling. He would not stop his molestations when the girls asked him to; rather, his actions were either thwarted when Brenda returned home, or he just kept going until he stopped. See Tr. Vol. II p. 81. Muir has not produced any evidence, let alone “compelling evidence[,]” that portrays the abhorrent nature of his offenses in a positive light. Sorenson, 133 N.E.3d at 728.

[28] Muir's repeated and consistent molestations alone expose his repulsive character. The fact that he was in a position of care and trust over his step-granddaughters when he abused them degrades his character even further. In fact, T.G.’s mother testified that—prior to these revelations—she trusted Muir and Brenda so much that she planned for them to take care of the girls “should anything ever happen” to her. Tr. Vol. II p. 52. As the State aptly noted at sentencing, Muir was entrusted with the girls’ care “over and over again and he exploited that opportunity to fulfill his own sexual desires.” Id. at 191. Additionally, Muir's presentence investigation report reveals that he was previously convicted of patronizing a prostitute. While his criminal history is limited, it still reflects poorly on his character.

[29] Thus, contrary to Muir's assertion, an abuse of trust was not the only reprehensible character evidence considered. And, although not required to determine whether his sentence was inappropriate, the court did consider Muir's waiver of a jury trial as a mitigating factor. All in all, the record demonstrates that Muir routinely molested T.G. for years during her regular visits to his home. He failed to show restraint in committing his perverse actions whether another child was innocently sleeping in the same bed or another victim had come home from school because she was sick. Muir was charged with eight offenses committed against T.G. and one offense committed against A.H. The trial court found Muir guilty as charged and sentenced him to an aggregate 159 years, which was fifty-three-and-a-half years fewer than the maximum sentence he could have received. Muir has not produced compelling evidence that portrays the nature of his offenses or his character in a positive light: thus, he has not met his burden to show that his sentence is inappropriate.⁴

[30] Affirmed.

FOOTNOTES

1.   A.H. testified that she told Brenda what happened with Muir, but Brenda did not listen to her. A detective testified that Brenda was charged with failure to report based on A.H.’s allegation. See Tr. Vol. II p. 155-56.

2.   Muir concedes that the evidence was sufficient to support one count of Level 1 felony child molestation based on a single act of oral sex that he made T.G. participate in.

3.   It is unclear from Muir's briefing which specific counts of Level 1 felony child molesting Muir is challenging, either Counts 1, 3, or 6. App. Vol. II pp. 15-22. Consequently, we will review whether the substantive testimony discussed in Muir's arguments and any other probative evidence is sufficient to sustain two convictions of Level 1 felony child molesting based on intercourse.

4.   The trial court found as an aggravating circumstance that “there were multiple uncharged victims throughout [Muir's] lifetime.” Tr. Vol. II p. 198. In his reply brief, Muir alleges that the “thrust” of the State's argument is that Muir is of poor character because it “accepts as fact the uncharged allegations of sexual abuse levied at him through the sentencing hearing[.]” Appellant's Reply Br. p. 6. If Muir intends to challenge whether the trial court erred in its consideration of this aggravating circumstance, his argument is improper for two reasons: 1) inappropriate sentence and abuse of discretion in sentencing claims are to be argued separately; Chastain v. State, 144 N.E.3d 732, 734 (Ind. Ct. App. 2020); and 2) an issue may not be raised for the first time in a reply brief; Ind. Appellate Rule 46(C). To the extent, however, that Muir is arguing uncharged allegations should not be considered in analyzing his character, Muir correctly notes that we have cautioned trial courts in making such considerations, particularly where a defendant has not made an admission to uncharged crimes against other victims. See Chastain, 144 N.E.3d at 734-35. However, although the trial court considered this alleged conduct as an aggravator, the transcript does not reveal that the trial court explicitly and separately considered it as to defendant's character. And we reach our conclusion as to Muir's character without considering the alleged, uncharged conduct.

Judges Foley and Kenworthy concur. Foley, J., and Kenworthy, J., concur.