      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                     FILED
      regarded as precedent or cited before any                            Jun 12 2020, 8:07 am

      court except for the purpose of establishing                              CLERK
      the defense of res judicata, collateral                               Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Arturo Rodriguez II                                      Ian McLean
      Rodriguez Law, P.C.                                      Supervising Deputy Attorney
      Lafayette, Indiana                                       General
                                                               Indianapolis, Indiana
      Jeffrey W. Elftman
      Erik J. May
      Kokomo, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Corey R. Rhoton,                                         June 12, 2020
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               19A-CR-2851
              v.                                               Appeal from the Clinton Circuit
                                                               Court
      State of Indiana,                                        The Honorable Bradley K. Mohler,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               12C01-1711-F1-1226



      Mathias, Judge.


[1]   Corey R. Rhoton (“Rhoton”) was convicted in Clinton Circuit Court of ten

      counts of child molesting. Rhoton appeals his convictions on counts five and

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020                 Page 1 of 10
      six, challenging the sufficiency of the evidence. Rhoton also argues that the trial

      court abused its discretion when it denied his motion to sever the charges and

      conduct separate trials for each victim.


[2]   We affirm in part, reverse in part, and remand for proceedings consistent with

      this opinion.


                                 Facts and Procedural History
[3]   In August 2012, Rhoton lived with his girlfriend, N.H., her three children, and

      Rhoton’s child. N.H.’s oldest child, H.C., was born in 2003, and her child M.C.

      was born in 2005. In 2013, the family moved to a house on Sullivan Street in

      Frankfort, Indiana. Shortly thereafter, N.H. became pregnant. In March 2014,

      Rhoton and N.H. were married, and their child was born in August 2014. In

      2014, the family moved to a home on South Street where they lived until 2017.

      In 2017, the family moved to a home on Clay Street.


[4]   After the family moved to the Sullivan Street home, Rhoton began molesting

      H.C. and M.C. Rhoton played a “game” with the girls where he sat them in

      chairs and blindfolded them with items of clothing. He told the girls he was

      going to put a toy bowling pin covered in condiments in their mouths and he

      wanted them to guess which condiment he had used. Rhoton covered his penis

      in condiments and put his penis in the blindfolded girls’ mouths. He instructed

      them not to bite down and to use their tongues to guess which condiment he

      had used.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020   Page 2 of 10
[5]   Both girls knew that the object Rhoton placed in their mouths was not the toy

      bowling pin but did not initially know that Rhoton was placing his penis in

      their mouths. Tr. Vol. 2 pp. 142, 185. A “couple of time[s]” after they began

      playing the “game,” H.C.’s blindfold shifted, and she saw that Rhoton was

      putting his penis in her mouth. Id. at 142. On one occasion, M.C. lifted up her

      blindfold while Rhoton was playing the “game” with H.C. and saw his shorts

      pulled down below his knees. Id. at 187.


[6]   Rhoton made the girls play this “game” multiple times while N.H. was at work.

      H.C. testified that they only played the “game” while they lived at the Sullivan

      Street house. Id. at 143. H.C. also testified that on one occasion while they lived

      in the Sullivan Street house, Rhoton sat her on the couch, blindfolded her, and

      put his penis in her mouth. Id. at 146–47.


[7]   H.C. testified that when they lived in the South Street house, Rhoton played a

      different “game” with them. Id. at 144. He forced the girls to stand on the other

      side of a door or curtain and reach around the door or curtain with one hand.

      Rhoton would then place his penis in the child’s hand. Rhoton played this

      “game” with H.C. and M.C. multiple times. Rhoton gave the girls money or

      other items after he molested them. M.C. testified that this “game” happened to

      her at both the Sullivan and South Street homes. Id. at 192. M.C. also stated

      that it occurred one time at the Clay Street house.


[8]   In September 2017, the girls told N.H. that Rhoton was molesting them. On

      November 13, 2017, Rhoton was charged with Class A felony child molesting,


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020   Page 3 of 10
      Class C felony child molesting, Level 1 felony child molesting, and two counts

      of Level 4 felony child molesting against both H.C. and M.C. for a total of ten

      counts. In Counts 5 and 6, the State alleged:


                                                   Count 5


              [B]etween January 1, 2015 and December 31, 2016 in Clinton
              County, State of Indiana, Corey Ryan Rhoton, a person of at
              least twenty-one (21) years of age, did submit to other sexual
              conduct as defined in Indiana Code Section 35-31.5-2-221.5 with
              H.C., a child under the age of fourteen years (14), to-wit: 11-13
              years old[.]


                                                   Count 6


              [B]etween January 1, 2015 and December 31, 2016 in Clinton
              County, State of Indiana, Corey Ryan Rhoton, a person of at
              least twenty-one (21) years of age, did submit to other sexual
              conduct as defined in Indiana Code Section 35-31.5-2-221.5 with
              M.C., a child under the age of fourteen years (14), to-wit: 9-11
              years old[.]


      Appellant’s Confidential App. pp. 19–20.


[9]   Prior to trial, Rhoton filed a motion to sever the charges requesting that he be

      tried separately for the offenses relating to each victim. The trial court denied

      his motion. Rhoton’s jury trial commenced on August 26, 2019. During trial,

      Rhoton renewed his motion to sever, which the trial court denied. Rhoton also

      requested a directed verdict on Counts 5 and 6, which the trial court denied.

      Rhoton was found guilty of all ten counts of child molesting.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020   Page 4 of 10
[10]   Rhoton’s sentencing hearing was held on November 4, 2019. The trial court

       ordered Rhoton to serve an aggregate sixty-four-year sentence with sixty years

       executed and four years suspended to probation. Rhoton now appeals.


                                             Sufficient Evidence
[11]   First, Rhoton argues that the State failed to present sufficient evidence to

       convict him of Counts 5 and 6. Upon review of a challenge to the sufficiency of

       the evidence to support a criminal conviction, we respect the fact-finder’s

       exclusive province to weigh conflicting evidence. Miller v. State, 106 N.E.3d

       1067, 1073 (Ind. Ct. App. 2018) (citing McHenry v. State, 820 N.E.2d 124, 126

       (Ind. 2005)), trans. denied. We therefore neither reweigh the evidence nor judge

       the credibility of the witnesses. Id. Instead, we consider only the probative

       evidence and reasonable inferences supporting the judgment. Id.


[12]   In its closing argument, the State alleged that it proved Counts 5 and 6 by

       establishing that between January 1, 2015, and December 31, 2016, Rhoton

       placed his penis in H.C.’s and M.C.’s mouths.1 Tr. Vol. 3, pp. 39–40. The State

       argued that the family was living at the house on South Street when the

       molestation occurred. Id. at 40. Rhoton contends that the State only proved that




       1
         The allegations in Counts 5 and 6 were identical to those in Counts 1 and 2 except for the ages of the
       victims and dates when the offenses occurred. To prove Counts 1 and 2, the State established that Rhoton
       placed his penis in H.C.’s and M.C.’s mouths between the dates of January 1, 2012 and December 31, 2014,
       when the family lived at the Sullivan Street house. Rhoton does not challenge the sufficiency of the evidence
       for his convictions on Counts 1 and 2.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020                    Page 5 of 10
       he placed his penis in H.C.’s and M.C.’s mouth when the family lived in the

       Sullivan Street house between 2013 and 2014.


[13]   Rhoton acknowledges that generally time is not of the essence to prove the

       crime of child molesting, and the State is not required to prove the offense was

       committed on a precise date. Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014);

       Gaby v. State, 949 N.E.2d 870, 876 (Ind. Ct. App. 2011); see also Ind. Code § 35-

       34-1-2(a)(5) (a charging information must only state “the date of the offense

       with sufficient particularity to show that the offense was committed within the

       period of limitations applicable to that offense.”). Understandably, given

       Rhoton’s repeated acts of molestation and the victims’ young ages when the

       offenses occurred, H.C. and M.C. could not recall the specific dates that

       Rhoton molested them.


[14]   Therefore, as it examined the victims, the State focused on the residence where

       the family lived to establish the dates the offenses were committed. And the

       State established the time frames during which the family lived at each

       residence. Tr. Vol. 2, pp. 91–94. The State argued that it proved the charges that

       Rhoton placed his penis in H.C.’s and M.C.’s mouths at both the Sullivan

       Street house where the family lived in 2013 and 2014 (as alleged in Counts 1

       and 2) and the South Street house where they lived in 2015 and 2016 (as alleged

       in Counts 5 and 6).


[15]   After reviewing the record, we agree with Rhoton that both H.C. and M.C.

       testified that the “guessing game” with condiments occurred only at the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020   Page 6 of 10
       Sullivan Street house.2 H.C. stated that Rhoton only played the “guessing

       game” with them at the first two-story home the family lived in, i.e. the Sullivan

       Street house.3 Tr. Vol. 2 p. 143. M.C. testified that she only remembers Rhoton

       making her play the “guessing game” once and that it occurred at the Sullivan

       Street house. Id. at 190–92, 198. For this reason, we conclude that Rhoton’s

       Level 1 felony child molesting convictions arising from Counts 5 and 6 are not

       supported by the evidence.


                                                Motion to Sever
[16]   Rhoton also argues that the trial court abused its discretion when it denied his

       motion to sever. Indiana Code Section 35-34-1-9(a) provides in relevant part:


                Two (2) or more offenses may be joined in the same indictment
                or information, with each offense stated in a separate count,
                when the offenses:




       2
         With regard to Count 5, the State argues that the jury was instructed that the offense occurred between
       January 1, 2012 and December 31, 2016, the State proved that Rhoton put his penis in H.C.’s mouth
       multiple times between these dates, and Rhoton did not object to the variance between the charging
       information and the instruction. Appellee’s Br. at 10 (citing Tr. Vol. 3, pp. 21, 53). After reviewing the
       record, we conclude that the trial court either misspoke when it tendered the final instruction to the jury or
       the trial court’s instruction was improperly transcribed. The trial court’s preliminary instruction to the jury
       matches the language of the charging information. Tr. Vol. 2, p. 51. And the State never moved to amend the
       charging information to conform to the evidence. Moreover, during its closing argument with regard to
       Count 5, the State argued that Rhoton committed the offense while the family lived at the South Street house
       in 2015 and 2016. Tr. Vol. 3, p. 40.
       3
         H.C. also testified that Rhoton put his penis in her mouth on one occasion while she sat on the couch in the
       living room. Tr. Vol. 2, p. 146. That molestation also occurred at the Sullivan Street house where the family
       lived in 2013 and 2014. Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020                     Page 7 of 10
                (1) are of the same or similar character, even if not part of a
                single scheme or plan; or


                (2) are based on the same conduct or on a series of acts
                connected together or constituting parts of a single scheme or
                plan.


       Subsection 9(a)(1) refers to the nature of the charged offenses, and subsection

       9(a)(2) refers to the operative facts underlying those charges. Pierce v. State, 29

       N.E.3d 1258, 1265 (Ind. 2015). Where offenses have been joined because the

       defendant’s underlying acts are connected together or constitute parts of a single

       scheme or plan, we review the trial court’s decision on severance for an abuse

       of discretion.4 Id. at 1264.


[17]   When a defendant files a motion for severance, the trial court


                shall grant a severance of offenses whenever the court determines
                that severance is appropriate to promote a fair determination of
                the defendant's guilt or innocence of each offense considering:


                    (1) the number of offenses charged;


                    (2) the complexity of the evidence to be offered; and




       4
        Rhoton does not argue that he was entitled to severance as a matter of right. Appellant’s Br. at 13; see also
       Ind. Code § 35-34-1-11 (explaining that the defendant shall have the right to severance of the offenses
       “[w]henever two (2) or more offenses have been joined for trial in the same indictment or information solely
       on the ground that they are of the same or similar character[.]).”

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020                      Page 8 of 10
                   (3) whether the trier of fact will be able to distinguish the
                   evidence and apply the law intelligently as to each offense.


       Ind. Code § 35-34-1-11.


[18]   Rhoton claims that severance was warranted because the “complexity of the

       evidence arises from the span of years, number of residences and separate

       victims.” Appellant’s Br. at 13. And “prejudices arises upon consideration of

       these elements and the Jury’s return of guilty verdicts for Count 5 and 6 . . .

       when no evidence existed as to the commission of an offense during the time

       periods” alleged in those charges. Id.


[19]   The evidence presented in this case was straightforward except with regard to the

       timing of Rhoton’s offenses. The State mostly relied on H.C.’s and M.C.’s

       testimonies to prove the charged offenses. Rhoton was charged with five offenses

       against each victim. Rhoton committed the same or similar offenses against both

       victims. Rhoton molested the girls with his “guessing game” when they were

       together in the kitchen. And he often used H.C. or M.C. to summon the other

       child when he molested them with the “behind-the-door” game. H.C.’s and

       M.C.’s testimonies were not complex and were inextricably intertwined.


[20]   The State’s evidence with regard to the timing of Rhoton’s offenses was

       marginally confusing because H.C. and M.C. were unable to testify to the

       precise dates that Rhoton molested them. The State relied on N.H.’s testimony

       to establish where the family lived during the time periods when the

       molestations occurred. The State then asked H.C. and M.C. to describe the


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020   Page 9 of 10
       home where they lived when Rhoton committed the molestation to establish

       the approximate dates of the offenses.


[21]   We cannot conclude that the evidence in this case was so complex that the jury

       was unable to distinguish the evidence and apply the law intelligently as to each

       offense. Moreover, because we vacate his convictions on Counts 5 and 6, we

       need not address Rhoton’s claim that he was prejudiced because the jury was

       “unable to distinguish the evidence and incorrectly enter[ed] guilty verdicts for”

       Counts 5 and 6. See Reply Br. at 7. For all these reasons, we conclude the trial

       court did not abuse its discretion when it denied Rhoton’s motion for severance.

       Cf. Pierce, 29 N.E.3d at 1267 (concluding that the defendant was not entitled to

       severance because his criminal acts were sufficiently connected together).


                                                 Conclusion
[22]   The trial court acted within its discretion when it denied Rhoton’s motion for

       severance. However, the State failed to present sufficient evidence to prove that

       Rhoton committed Level 1 felony child molesting as charged in Counts 5 and 6.

       We reverse his Level 1 felony child molesting convictions, and remand this case

       to the trial court to vacate its entry of judgment on Counts 5 and 6 and

       resentence Rhoton accordingly.


[23]   Affirmed in part, reversed in part, and remanded for proceedings consistent

       with this opinion.


       Riley, J., and Tavitas, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2851 | June 12, 2020   Page 10 of 10
