Randy Allen Horn v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 31 2020, 9:14 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE John S. Terry Curtis T. Hill, Jr. Daniel J. Pfleging Attorney General of Indiana Cate, Terry & Gookins LLC Sarah J. Shores Carmel, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Randy Allen Horn, January 31, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2185 v. Appeal from the Hamilton Circuit Court State of Indiana, The Honorable Paul A. Felix, Appellee-Plaintiff Judge Trial Court Cause No. 29C01-1810-F5-6967

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-2185 | January 31, 2020 Page 1 of 6 [1] Randy Horn appeals his convictions for Level 5 Felony Sexual Misconduct

With a Minor,1 Level 6 Felony Performing Sexual Conduct in the Presence of a

Minor,2 and Level 6 Felony Child Seduction.3 Horn argues that there is

insufficient evidence proving that he was over the age of eighteen at the time he

committed the offenses. Finding the evidence sufficient, we affirm.

Facts [2] Sometime in 2016, Horn moved into the Sheridan home of his girlfriend, Tina.

At some point thereafter, Tina’s two daughters, S.K. and K.S., and son, C.S.,

moved into the home as well.4 [3] In November 2016, when S.K. was fifteen years old, she woke up to Horn

“trying to get into [her] pants.” Tr. Vol. II p. 127. She had fallen asleep on a

chair in the living room, and when she awoke, her blanket had been moved off

of her and Horn was touching her upper thigh and pulling at her shorts. [4] Over the course of 2017 and until February or March 2018, when S.K. and K.S.

were 15-16 and 11-12 years old, respectively, Horn frequently entered their

bedroom at night and masturbated. K.S. saw this occur at least six or seven

times. He also masturbated in front of all three children on several occasions in

1 Ind. Code § 35-42-4-9(b). 2 I.C. § 35-42-4-5(c). 3 I.C. § 35-42-4-7(m). 4 At the time of trial, S.K. was seventeen, K.S. was thirteen, and C.S. was nine years old. Tr. Vol. II p. 122.

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the common areas of the home. The final incident occurred in February or

March 2018, when S.K. saw Horn masturbating while looking into her

bedroom window and told her mother, who “hit [the] window to scare him.”

Id. at 139. Shortly thereafter, S.K. informed her school guidance counselor

about Horn’s behavior and an investigation ensued. [5] On October 2, 2018, the State charged Horn with Level 5 felony sexual

misconduct with a minor, Level 6 felony performing sexual conduct in the

presence of a minor, and Level 6 felony child seduction. A jury trial took place

on July 8-9, 2019, at the close of which the jury found Horn guilty as charged.

On August 22, 2019, the trial court sentenced Horn to an aggregate term of nine

years, with four years suspended to probation. Horn now appeals.

Discussion and Decision [6] Horn argues that the evidence is insufficient to support his convictions. When

reviewing the sufficiency of the evidence to support a conviction, we must

consider only the probative evidence and reasonable inferences supporting the

conviction and will neither assess witness credibility nor reweigh the

evidence. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm

unless no reasonable factfinder could find the elements of the crime proved

beyond a reasonable doubt. Id. [7] To convict Horn of Level 5 felony sexual misconduct with a minor, the State

was required to prove beyond a reasonable doubt that Horn, who was at least

eighteen years old, knowingly or intentionally performed or submitted to any

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fondling or touching with a child less than sixteen years of age, with the intent

to arouse or satisfy the sexual desires of either the child or himself. I.C. § 35-42-

4-9(b). To convict Horn of Level 6 felony performing sexual conduct in the

presence of a minor, the State was required to prove beyond a reasonable doubt

that Horn, who was at least eighteen years old, knowingly or intentionally

touched or fondled his own body in the presence of a child less than fourteen

years old, with the intent to arouse or satisfy the sexual desires of the child or

himself. I.C. § 35-42-4-5(c). Finally, to convict Horn of Level 6 felony child

seduction, the State was required to prove beyond a reasonable doubt that

Horn, who was at least eighteen years old and was the custodian of a child less

than eighteen years old, engaged in any fondling or touching with the intent to

arouse or satisfy the sexual desires of the child or himself. I.C. § 35-42-4-7(m). [8] Horn’s sole argument on appeal is that the State failed to prove beyond a

reasonable doubt that he was over the age of eighteen at the time he committed

these offenses. He is correct that the State failed to introduce any direct

evidence establishing his age. While we certainly encourage the State to offer

such evidence, in this case, its absence is not fatal to the convictions. [9] Our Supreme Court has held that circumstantial testimonial evidence can be

sufficient to prove age. Staton v. State, 853 N.E.2d 470, 474-75 (Ind. 2006)

(holding that victim’s unrebutted testimony that she understood Staton’s age to

be at least eighteen, that he was four years older than her, and that he had

graduated a year before her eighteen-year-old sister, was enough to allow the

jury to infer Staton’s age); see also Altmeyer v. State, 519 N.E.2d 138, 141 (Ind.

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1988) (holding that evidence of defendant’s marital, employment, and parental

status was sufficient to prove age beyond a reasonable doubt); Marshall v. State,

643 N.E.2d 957, 963 (Ind. Ct. App. 1994) (same). [10] In this case, the following testimonial evidence supports an inference that Horn

was over the age of eighteen:

• • Three witnesses testified that Horn was Tina’s boyfriend. The fact that Tina is the biological mother of two teenage daughters establishes that she was well over the age of twenty-one at the time of trial, supporting a conclusion that Horn was over the age of eighteen at the time he committed the offenses. • S.K. testified that Horn was employed and helped to pay the bills. • S.K. testified that Horn occasionally babysat for her little brother and did the children’s laundry. • K.S. testified that when Horn entered her bedroom to masturbate, she knew that the silhouette in the doorway was him because “there [were] no other men in [the] house.” Tr. Vol. II p. 168. • Horn had a son, and while the son’s age is not revealed by the record, it was established that the son was old enough to be interviewed by the police.

While it could be argued that none of this evidence, by itself, would establish

that Horn was over the age of eighteen at the time of the offenses, when viewed

in the aggregate, we find it sufficient. See Staton, 853 N.E.2d at 475 (observing

that the “jury can apply its common sense to this record”). [11] Moreover, beyond this testimonial evidence, the jury could also consider

Horn’s appearance when inferring his age. In Owen v. State, the defendant was

thirty-one years old at the time of trial, and the crime with which he was

charged required that he be over the age of sixteen. 272 Ind. 122, 396 N.E.2d Court of Appeals of Indiana | Memorandum Decision 19A-CR-2185 | January 31, 2020 Page 5 of 6

376 (1979). Our Supreme Court held that “[t]he fact that defendant was over

the age of sixteen (16) was evident in that he appeared before the jury and they

were able to observe his appearance.” Id. at 131, 396 N.E.2d at 382. Here,

Horn was forty-seven years old at the time of trial, meaning that he would have

been between forty-four and forty-six at the time he committed the offenses.

The disparity in appearance between a twenty-one-year-old and a forty-seven-

year-old is great. Horn’s appearance, when combined with the testimonial

evidence described above, was sufficient to allow a reasonable juror to conclude

that he was at least eighteen years old at the time he committed these offenses. [12] The judgment of the trial court is affirmed.

Riley, J., and Brown, J., concur.

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