The Indiana Supreme Court found the “slightest penetration of the sex organ” was sufficient to affirm the conviction of a man of four counts of child molestation and eight counts of sexual misconduct with a minor.
Curtis Boggs was found guilty of child molestation after S.H. testified that Boggs put his finger “in the folds of her vagina” and touched her clitoris. Boggs appealed on grounds the evidence was insufficient to prove “penetration” for purposes of the statute defining other sexual misconduct.
On appeal, Boggs argued there was insufficient evidence to support the conviction. He contested that other sexual misconduct requires proof of “more intrusive acts,” comparing the statute defining sexual intercourse as “any” penetration of the female sex organ to the statute defining other sexual misconduct as “the” penetration of the sex organ.
However, justices affirmed his conviction Thursday in Curtis Boggs v. State of Indiana, 18S-CR-430, concluding the evidence supported his Level 1 felony conviction.
“We agree with the Court of Appeals and grant transfer to provide guidance on the meaning of ‘penetration’ for purposes of ‘other sexual misconduct’,” the appellate court wrote in the 3-page per curium opinion. “Precedent makes clear that proof of the ‘slightest penetration’ of the female sex organ, including penetration of the external genitalia, is sufficient to sustain a conviction for child molestation based on sexual intercourse.”
“Boggs contends this differing language indicates the legislature intended ‘penetration’ to have different meanings for purposes of the two statutes,” the court continued. “We hold that proof of the slightest penetration of the sex organ, including penetration of the external genitalia, is sufficient to demonstrate a person performed other sexual misconduct with a child.”
Accordinginly, justices found the evidence demonstrated that Boggs committed other sexual misconduct with S.H. The court affirmed his conviction for Level 1 felony child molestation and affirmed the Indiana Court of Appeals opinion in all other respects.