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.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2185 | January 31, 2020                       Page 2 of 6
      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

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2185 | January 31, 2020   Page 3 of 6
      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.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2185 | January 31, 2020   Page 4 of 6
       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.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2185 | January 31, 2020   Page 6 of 6
