Corey R. Rhoton v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 12, 2020
• Docket: 19A-CR-2851
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 12 2020, 8:07 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE Arturo Rodriguez II Ian McLean Rodriguez Law, P.C. Supervising Deputy Attorney Lafayette, Indiana General Indianapolis, Indiana Jeffrey W. Elftman Erik J. May Kokomo, Indiana

IN THE COURT OF APPEALS OF INDIANA

Corey R. Rhoton, June 12, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2851 v. Appeal from the Clinton Circuit Court State of Indiana, The Honorable Bradley K. Mohler, Appellee-Plaintiff. Judge Trial Court Cause No. 12C01-1711-F1-1226

Mathias, Judge.

[1] Corey R. Rhoton (“Rhoton”) was convicted in Clinton Circuit Court of ten

counts of child molesting. Rhoton appeals his convictions on counts five and

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020 Page 1 of 10 six, challenging the sufficiency of the evidence. Rhoton also argues that the trial

court abused its discretion when it denied his motion to sever the charges and

conduct separate trials for each victim.

[2] We affirm in part, reverse in part, and remand for proceedings consistent with

this opinion.

Facts and Procedural History [3] In August 2012, Rhoton lived with his girlfriend, N.H., her three children, and

Rhoton’s child. N.H.’s oldest child, H.C., was born in 2003, and her child M.C.

was born in 2005. In 2013, the family moved to a house on Sullivan Street in

Frankfort, Indiana. Shortly thereafter, N.H. became pregnant. In March 2014,

Rhoton and N.H. were married, and their child was born in August 2014. In

2014, the family moved to a home on South Street where they lived until 2017.

In 2017, the family moved to a home on Clay Street.

[4] After the family moved to the Sullivan Street home, Rhoton began molesting

H.C. and M.C. Rhoton played a “game” with the girls where he sat them in

chairs and blindfolded them with items of clothing. He told the girls he was

going to put a toy bowling pin covered in condiments in their mouths and he

wanted them to guess which condiment he had used. Rhoton covered his penis

in condiments and put his penis in the blindfolded girls’ mouths. He instructed

them not to bite down and to use their tongues to guess which condiment he

had used.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020 Page 2 of 10 [5] Both girls knew that the object Rhoton placed in their mouths was not the toy

bowling pin but did not initially know that Rhoton was placing his penis in

their mouths. Tr. Vol. 2 pp. 142, 185. A “couple of time[s]” after they began

playing the “game,” H.C.’s blindfold shifted, and she saw that Rhoton was

putting his penis in her mouth. Id. at 142. On one occasion, M.C. lifted up her

blindfold while Rhoton was playing the “game” with H.C. and saw his shorts

pulled down below his knees. Id. at 187.

[6] Rhoton made the girls play this “game” multiple times while N.H. was at work.

H.C. testified that they only played the “game” while they lived at the Sullivan

Street house. Id. at 143. H.C. also testified that on one occasion while they lived

in the Sullivan Street house, Rhoton sat her on the couch, blindfolded her, and

put his penis in her mouth. Id. at 146–47.

[7] H.C. testified that when they lived in the South Street house, Rhoton played a

different “game” with them. Id. at 144. He forced the girls to stand on the other

side of a door or curtain and reach around the door or curtain with one hand.

Rhoton would then place his penis in the child’s hand. Rhoton played this

“game” with H.C. and M.C. multiple times. Rhoton gave the girls money or

other items after he molested them. M.C. testified that this “game” happened to

her at both the Sullivan and South Street homes. Id. at 192. M.C. also stated

that it occurred one time at the Clay Street house.

[8] In September 2017, the girls told N.H. that Rhoton was molesting them. On

November 13, 2017, Rhoton was charged with Class A felony child molesting,

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020 Page 3 of 10 Class C felony child molesting, Level 1 felony child molesting, and two counts

of Level 4 felony child molesting against both H.C. and M.C. for a total of ten

counts. In Counts 5 and 6, the State alleged:

Count 5

[B]etween January 1, 2015 and December 31, 2016 in Clinton County, State of Indiana, Corey Ryan Rhoton, a person of at least twenty-one (21) years of age, did submit to other sexual conduct as defined in Indiana Code Section 35-31.5-2-221.5 with H.C., a child under the age of fourteen years (14), to-wit: 11-13 years old[.]

Count 6

[B]etween January 1, 2015 and December 31, 2016 in Clinton County, State of Indiana, Corey Ryan Rhoton, a person of at least twenty-one (21) years of age, did submit to other sexual conduct as defined in Indiana Code Section 35-31.5-2-221.5 with M.C., a child under the age of fourteen years (14), to-wit: 9-11 years old[.]

Appellant’s Confidential App. pp. 19–20.

[9] Prior to trial, Rhoton filed a motion to sever the charges requesting that he be

tried separately for the offenses relating to each victim. The trial court denied

his motion. Rhoton’s jury trial commenced on August 26, 2019. During trial,

Rhoton renewed his motion to sever, which the trial court denied. Rhoton also

requested a directed verdict on Counts 5 and 6, which the trial court denied.

Rhoton was found guilty of all ten counts of child molesting.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020 Page 4 of 10 [10] Rhoton’s sentencing hearing was held on November 4, 2019. The trial court

ordered Rhoton to serve an aggregate sixty-four-year sentence with sixty years

executed and four years suspended to probation. Rhoton now appeals.

Sufficient Evidence [11] First, Rhoton argues that the State failed to present sufficient evidence to

convict him of Counts 5 and 6. Upon review of a challenge to the sufficiency of

the evidence to support a criminal conviction, we respect the fact-finder’s

exclusive province to weigh conflicting evidence. Miller v. State, 106 N.E.3d

1067, 1073 (Ind. Ct. App. 2018) (citing McHenry v. State, 820 N.E.2d 124, 126

(Ind. 2005)), trans. denied. We therefore neither reweigh the evidence nor judge

the credibility of the witnesses. Id. Instead, we consider only the probative

evidence and reasonable inferences supporting the judgment. Id.

[12] In its closing argument, the State alleged that it proved Counts 5 and 6 by

establishing that between January 1, 2015, and December 31, 2016, Rhoton

placed his penis in H.C.’s and M.C.’s mouths.1 Tr. Vol. 3, pp. 39–40. The State

argued that the family was living at the house on South Street when the

molestation occurred. Id. at 40. Rhoton contends that the State only proved that

1 The allegations in Counts 5 and 6 were identical to those in Counts 1 and 2 except for the ages of the victims and dates when the offenses occurred. To prove Counts 1 and 2, the State established that Rhoton placed his penis in H.C.’s and M.C.’s mouths between the dates of January 1, 2012 and December 31, 2014, when the family lived at the Sullivan Street house. Rhoton does not challenge the sufficiency of the evidence for his convictions on Counts 1 and 2.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020 Page 5 of 10 he placed his penis in H.C.’s and M.C.’s mouth when the family lived in the

Sullivan Street house between 2013 and 2014.

[13] Rhoton acknowledges that generally time is not of the essence to prove the

crime of child molesting, and the State is not required to prove the offense was

committed on a precise date. Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014);

Gaby v. State, 949 N.E.2d 870, 876 (Ind. Ct. App. 2011); see also Ind. Code § 35-

34-1-2(a)(5) (a charging information must only state “the date of the offense

with sufficient particularity to show that the offense was committed within the

period of limitations applicable to that offense.”). Understandably, given

Rhoton’s repeated acts of molestation and the victims’ young ages when the

offenses occurred, H.C. and M.C. could not recall the specific dates that

Rhoton molested them.

[14] Therefore, as it examined the victims, the State focused on the residence where

the family lived to establish the dates the offenses were committed. And the

State established the time frames during which the family lived at each

residence. Tr. Vol. 2, pp. 91–94. The State argued that it proved the charges that

Rhoton placed his penis in H.C.’s and M.C.’s mouths at both the Sullivan

Street house where the family lived in 2013 and 2014 (as alleged in Counts 1

and 2) and the South Street house where they lived in 2015 and 2016 (as alleged

in Counts 5 and 6).

[15] After reviewing the record, we agree with Rhoton that both H.C. and M.C.

testified that the “guessing game” with condiments occurred only at the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020 Page 6 of 10 Sullivan Street house.2 H.C. stated that Rhoton only played the “guessing

game” with them at the first two-story home the family lived in, i.e. the Sullivan

Street house.3 Tr. Vol. 2 p. 143. M.C. testified that she only remembers Rhoton

making her play the “guessing game” once and that it occurred at the Sullivan

Street house. Id. at 190–92, 198. For this reason, we conclude that Rhoton’s

Level 1 felony child molesting convictions arising from Counts 5 and 6 are not

supported by the evidence.

Motion to Sever [16] Rhoton also argues that the trial court abused its discretion when it denied his

motion to sever. Indiana Code Section 35-34-1-9(a) provides in relevant part:

Two (2) or more offenses may be joined in the same indictment or information, with each offense stated in a separate count, when the offenses:

2 With regard to Count 5, the State argues that the jury was instructed that the offense occurred between January 1, 2012 and December 31, 2016, the State proved that Rhoton put his penis in H.C.’s mouth multiple times between these dates, and Rhoton did not object to the variance between the charging information and the instruction. Appellee’s Br. at 10 (citing Tr. Vol. 3, pp. 21, 53). After reviewing the record, we conclude that the trial court either misspoke when it tendered the final instruction to the jury or the trial court’s instruction was improperly transcribed. The trial court’s preliminary instruction to the jury matches the language of the charging information. Tr. Vol. 2, p. 51. And the State never moved to amend the charging information to conform to the evidence. Moreover, during its closing argument with regard to Count 5, the State argued that Rhoton committed the offense while the family lived at the South Street house in 2015 and 2016. Tr. Vol. 3, p. 40. 3 H.C. also testified that Rhoton put his penis in her mouth on one occasion while she sat on the couch in the living room. Tr. Vol. 2, p. 146. That molestation also occurred at the Sullivan Street house where the family lived in 2013 and 2014. Id.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020 Page 7 of 10 (1) are of the same or similar character, even if not part of a single scheme or plan; or

(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

Subsection 9(a)(1) refers to the nature of the charged offenses, and subsection

9(a)(2) refers to the operative facts underlying those charges. Pierce v. State, 29

N.E.3d 1258, 1265 (Ind. 2015). Where offenses have been joined because the

defendant’s underlying acts are connected together or constitute parts of a single

scheme or plan, we review the trial court’s decision on severance for an abuse

of discretion.4 Id. at 1264.

[17] When a defendant files a motion for severance, the trial court

shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense considering:

(1) the number of offenses charged;

(2) the complexity of the evidence to be offered; and

4 Rhoton does not argue that he was entitled to severance as a matter of right. Appellant’s Br. at 13; see also Ind. Code § 35-34-1-11 (explaining that the defendant shall have the right to severance of the offenses “[w]henever two (2) or more offenses have been joined for trial in the same indictment or information solely on the ground that they are of the same or similar character[.]).”

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020 Page 8 of 10 (3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.

Ind. Code § 35-34-1-11.

[18] Rhoton claims that severance was warranted because the “complexity of the

evidence arises from the span of years, number of residences and separate

victims.” Appellant’s Br. at 13. And “prejudices arises upon consideration of

these elements and the Jury’s return of guilty verdicts for Count 5 and 6 . . .

when no evidence existed as to the commission of an offense during the time

periods” alleged in those charges. Id.

[19] The evidence presented in this case was straightforward except with regard to the

timing of Rhoton’s offenses. The State mostly relied on H.C.’s and M.C.’s

testimonies to prove the charged offenses. Rhoton was charged with five offenses

against each victim. Rhoton committed the same or similar offenses against both

victims. Rhoton molested the girls with his “guessing game” when they were

together in the kitchen. And he often used H.C. or M.C. to summon the other

child when he molested them with the “behind-the-door” game. H.C.’s and

M.C.’s testimonies were not complex and were inextricably intertwined.

[20] The State’s evidence with regard to the timing of Rhoton’s offenses was

marginally confusing because H.C. and M.C. were unable to testify to the

precise dates that Rhoton molested them. The State relied on N.H.’s testimony

to establish where the family lived during the time periods when the

molestations occurred. The State then asked H.C. and M.C. to describe the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020 Page 9 of 10 home where they lived when Rhoton committed the molestation to establish

the approximate dates of the offenses.

[21] We cannot conclude that the evidence in this case was so complex that the jury

was unable to distinguish the evidence and apply the law intelligently as to each

offense. Moreover, because we vacate his convictions on Counts 5 and 6, we

need not address Rhoton’s claim that he was prejudiced because the jury was

“unable to distinguish the evidence and incorrectly enter[ed] guilty verdicts for”

Counts 5 and 6. See Reply Br. at 7. For all these reasons, we conclude the trial

court did not abuse its discretion when it denied Rhoton’s motion for severance.

Cf. Pierce, 29 N.E.3d at 1267 (concluding that the defendant was not entitled to

severance because his criminal acts were sufficiently connected together).

Conclusion [22] The trial court acted within its discretion when it denied Rhoton’s motion for

severance. However, the State failed to present sufficient evidence to prove that

Rhoton committed Level 1 felony child molesting as charged in Counts 5 and 6.

We reverse his Level 1 felony child molesting convictions, and remand this case

to the trial court to vacate its entry of judgment on Counts 5 and 6 and

resentence Rhoton accordingly.

[23] Affirmed in part, reversed in part, and remanded for proceedings consistent

with this opinion.

Riley, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020 Page 10 of 10