Eddie Horton v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
Mar 17 2014, 8:56 am
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
HILARY BOWE RICKS GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
EDDIE HORTON, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1307-CR-323
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Grant Hawkins, Judge
Cause No. 49G05-1204-FB-26822
March 17, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Eddie Horton appeals his conviction for Class C felony child molesting. We
affirm.
Issue
Horton raises one issue, which we restate as whether the evidence is sufficient to
sustain his conviction for Class C felony child molesting.
Facts
Z.A. was born in May 1999, and her sister, E.C., was born in February 1996. Z.A
lived with her mother, A.C., E.C., her brother, her grandmother, and Horton, who was
Z.A.’s stepfather. During the summer of 2011, Horton started coming into Z.A.’s
bedroom at night on a daily basis, and he would touch her vagina and breasts. Horton
would also send Z.A. text messages that said, “can I come see you, you look nice, please
do not wear underwear tonight and stuff like that.” Tr. p. 76. Z.A. told A.C. that Horton
was “messing with [her].” Id. Z.A. showed A.C. a text message from Horton that said,
“can I come see you.” Id. at 77. A.C. wanted Z.A. to film Horton’s behavior with a
camcorder. Z.A. was unable to record him though. Eventually, A.C. confronted Horton
and also learned that Horton had molested E.C. from the time that she was twelve years
old until she was sixteen years old.
The State charged Horton with: Count I, Class B felony attempted sexual
misconduct with a minor; Count II, Class C felony child molesting; Count III, Class C
felony child molesting; Count IV, Class C felony attempted sexual misconduct with a
minor; Count V, Class C felony sexual misconduct with a minor; and Count VI, Class B
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misdemeanor battery, all related to Horton’s conduct with E.C. The State also charged
Horton with Count VII, Class C felony child molesting for touching or fondling twelve-
year-old Z.A. After a trial, the jury found Horton not guilty of Counts I and VI, and
guilty of the remaining charges. The trial court sentenced Horton to an aggregate
sentence of sixteen years in the Department of Correction. Horton now appeals.
Analysis
Horton argues that the evidence is insufficient to sustain his conviction for Count
VII, Class C felony child molesting related to his conduct with Z.A. Horton does not
challenge his remaining convictions, which related to his conduct with E.C.
When reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State,
907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence supporting the
judgment and any reasonable inferences that can be drawn from such evidence.” Id. We
will affirm if there is substantial evidence of probative value such that a reasonable trier
of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.Horton argues that the evidence is insufficient because Z.A.’s testimony was
incredibly dubious. Appellate courts may apply the “incredible dubiosity” rule to
impinge upon a jury’s function to judge the credibility of a witness. Love v. State, 761
N.E.2d 806, 810 (Ind. 2002).
If a sole witness presents inherently improbable testimony
and there is a complete lack of circumstantial evidence, a
defendant’s conviction may be reversed. This is appropriate
only where the court has confronted inherently improbable
testimony or coerced, equivocal, wholly uncorroborated
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testimony of incredible dubiosity. Application of this rule is
rare and the standard to be applied is whether the testimony is
so incredibly dubious or inherently improbable that no
reasonable person could believe it.
Id. (internal citations omitted).
Horton argues that Z.A.’s testimony is incredibly dubious because she gave
contradictory accounts at trial and in her deposition regarding how many times Horton
touched her and how and when she told A.C. Horton also argues that A.C.’s testimony
conflicted with Z.A.’s testimony regarding when Z.A. told her of the molestations. The
incredible dubiosity rule applies to conflicts in trial testimony but not conflicts between
trial testimony and pretrial statements. Buckner v. State, 857 N.E.2d 1011, 1018 (Ind. Ct.
App. 2006). Further, the incredible dubiosity rule does not apply to conflicts between the
testimony of two or more witnesses. Leyva v. State, 971 N.E.2d 699, 702 (Ind. Ct. App.
2012), trans. denied. Even if Z.A.’s testimony was contradictory on these issues, her
testimony was not incredibly dubious. Horton’s argument is a request that we reweigh
the evidence and judge Z.A.’s credibility, which we cannot do.
According to Horton, Z.A. failed to give enough detail about the molestations.
However, lack of detail does not make evidence incredibly dubious; it merely is a factor
for the jury to weigh. Z.A. testified that, beginning in the summer of 2011, Horton would
enter her bedroom every night and touch her breasts and vagina. Although E.C. gave
more detail of Horton’s molestations of her, Z.A.’s testimony was sufficiently detailed to
sustain the conviction.
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Conclusion
The evidence is sufficient to sustain Horton’s conviction for Count VII, Class C
felony child molesting. We affirm.
Affirmed.
ROBB, J., and BROWN, J., concur.
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