Randy Allen Horn v. State of Indiana (mem. dec.) ( 2020 )

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.
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[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
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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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