Horton v. State

936 N.E.2d 1277, 2010 Ind. App. LEXIS 2114, 2010 WL 4634609
Indiana Court of Appeals·Decided November 17, 2010·No. 48A04-1001-CR-89·Published·Cited by 8 cases

Opinion

OPINION

ROBB, Judge.

Case Summary and Issues

Randy Horton appeals, after a jury trial, his convictions of six counts of child molesting as Class A felonies, three counts of child molesting as Class C felonies, and consecutive sentences for an aggregate of 324 years. He raises two issues for our review that we expand and restate as three: whether the trial court erred by allowing a videotaped interview of a child-witness under the recorded recollection exception to the hearsay rule; whether the trial court erred by sentencing him to consecutive maximum sentences for each offense for a total of 324 years in prison; and whether his sentence is inappropriate. Concluding the trial court did not abuse its discretion in admitting evidence or sentencing Horton, and the 324-year sentence is not inappropriate considering the nature of the offenses and Horton's character, we affirm.

Facts and Procedural History

Horton moved in with R.M.'s mother, who was his girlfriend, R.M., and R.M.'s toddler-aged brother. R.M. referred to Horton as "Dad." Transeript at 298. Beginning on the morning of R.M.'s seventh birthday in August 2008, also her first day of first grade, Horton sexually molested R.M. every morning-"[eJxeept onee when [R.M.'s mother] was awake." Id. at 304. Each morning, in the privacy of R.M.'s bedroom, Horton woke her and told her to engage in sexual acts with him and to keep their acts secret. The molestation disgusted her, often caused her pain, and she tried to stop. Horton daily exposed his penis to R.M. by not wearing clothing below his waist or by wearing his pants *1280 around his knees. On the first day and on many days thereafter, Horton entered R.M.'s bedroom and told R.M. to "[blite, suck, and lick" his nipples, until he ejaculated and wiped his semen on her blanket. Id. at 309. Horton also bit, sucked, and licked R.M.'s nipples "really, really often." Id. at 348.

"Every morning except when [R.M.'s mother] was awake," Horton directed R.M. to perform oral sex on him-in her own words, to use her mouth to "go up and down" on his penis. Id. at 315. He told her "suck my dick," and if she pulled away, he would tell her "get back down there," kick her leg, and grab her hair to pull her head down. Id. at 398-99; see also id. at 447 (R.M. stating "he usually grabs my hair really hard"); id. ("he ... grabs it really, really hard and it yanks me down"). With her mouth on his penis, Horton often chided her to "go faster," and would not allow her to stop until he ejaculated in her mouth. He ejaculated in her mouth "all the time." Id. at 318. Horton repeatedly told RM. to "swallow it"; she said his semen tasted "really, really nasty." Id. at 326. Sometimes, despite Horton's orders, R.M. accidentally spit his semen out; Horton then wiped it on her bed and blanket or left it on her bedroom floor. Horton also told R.M. to "rub [his testicles] with [her] hand and lick it." Id. at 331.

On numerous occasions Horton inserted his pinky finger into R.M.'s anus and upon removal, wiped fecal matter from his finger onto her blanket and bed. Horton also penetrated R.M.'s anus with his penis "[vlery often." Id. at 337. This caused R.M. severe pain and bowel problems, leading her to testify, "When I have to go poop, ... it feels like I'm going to ery cause it hurts." Id. at 338.

"[Fjor a few weeks," Horton told R.M. to stand above his face and lower her vagina onto his face while he lay on her bed and licked it. Id. at 335. Sometimes he also penetrated her vagina with at least one of his fingers, which R.M. said felt "way worse" than his anally penetrating her with his penis.

On several occasions, Horton also directed R.M. to insert her entire hand and fingers into his anus. While Horton lay on R.M.'s bed, he directed her to make a tight fist and insert it in his anus and to "keep on going up." Id. at 489. She inserted her fist up to her wrist, "[uJntil it touche{[d] his poop." Id. at 440.

Nearly every day before R.M. departed for school, Horton told R.M. to kiss him, as R.M. described it, "(llike a mother and father kiss." Id. at 341. He told her to close her eyes, open her mouth, and "wiggle" her tongue with his. Id. at 342.

R.M. allegedly told her mother about Horton's molestation, 1 which angered Horton and led him to repeatedly smack her bare bottom with his hands and belt.

In late February 2009, after another morning sexual molestation by Horton, R.M. told a friend that Horton was sexually molesting her. R.M.'s friend then told her own mother, who called authorities. The Madison County Department of Child Services ("DCS") videotaped an interview with R.M., in which she provided a detailed explanation of the type, extent, and duration of sexual molestation by Horton.

A sexual assault nurse examined R.M. several times within a few weeks, noting that R.M.'s body was at merely the first level of sexual maturation. The nurse identified numerous sears in and around R.M.'s vagina and a tear and "significant injury" to her anus, which led to blood in her stool. Id. at 662. R.M. soon devel *1281 oped a "significant, extensive outbreak of lesions" in and around her genitals. Id. at 667. "[R.M.] was erying. It was hard for her to walk" and urinate. Id. at 667-68. "[O]n the outside [of R.M.'s] genital areas, there were small blisters with redness around it, with some seepage, whitish clear discharge." Id. at 718. Lab reports revealed R.M. contracted herpes simplex virus type I (generally considered oral herpes) and herpes simplex virus type II (generally considered genital herpes). Horton also tested positive for both types of herpes. Recalling what Horton's penis felt like in her mouth, R.M. testified it was "[rleally bumpy." Id. at 325.

Following R.M.'s removal from her household, she has stayed at a friend's family home and in a foster home. She also attends weekly counseling regarding the sexual molestation. One night, while at her friend's family home, R.M. began spitting on the floor because she began to think about Horton's semen. Id. at 409.

Horton was charged and convicted by a jury of six Class A felonies: involving R.M.'s mouth and Horton's penis; involving Horton's mouth and R.M.'s vagina; involving Horton's penis and R.M.'s anus; involving R.M.'s finger and Horton's anus; involving RM's fist and Horton's anus; and involving Horton's finger and R.M.'s anus. He was also charged and convicted of three Class C felonies: involving Horton "tongue kissing" R.M.; involving Horton fondling, touching, rubbing, biting, sucking, or licking R.M.'s nipples; and involving R.M. rubbing, biting, sucking, or licking Horton's nipples.

At a break in R.M.'s trial testimony the trial court permitted her to watch her videotaped interview with DCS to refresh her memory. Upon resuming her testimony, she still did not remember numerous details, especially regarding inserting her hand into Horton's anus. Over Horton's objection, the trial court allowed the State to show the videotaped interview to the jury under the recorded recollection exception to the hearsay evidence rule.

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Horton v. State, 936 N.E.2d 1277, 2010 Ind. App. LEXIS 2114, 2010 WL 4634609 (Ind. Ct. App. 2010).

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