Corey R. Rhoton 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 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
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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.
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[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,
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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.
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[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.
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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
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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[.]).”
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(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
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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.
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