Horton v. State
| Decision Date | 04 May 2023 |
| Docket Number | 22A-CR-2181 |
| Parties | Troy Horton, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Angela Dow Davis, Judge Trial Court Cause No. 49D27-2011-F1-33709
ATTORNEY FOR APPELLANT Andrew Bernlohr Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Catherine E. Brizzi Deputy Attorney General Indianapolis, Indiana
[¶1] Troy Horton appeals his conviction for level 1 felony child molesting. He asserts that the trial court committed fundamental error in admitting certain evidence at trial. Concluding that Horton has not met his burden to establish fundamental error, we affirm.
[¶2] In April 2020, five-year-old A.D. was placed in Horton's home as a foster child under the care of Horton and his wife. During the short time A.D. lived in Horton's home, Horton touched her bottom with his penis on at least three occasions, and he penetrated her anally with his penis on one occasion. Horton told A.D. not to tell anyone because "he didn't want to get in trouble." Tr. Vol. 3 at 110. Nevertheless, A.D. told her foster mother Horton's wife. However, Horton's wife did not take any action after hearing the disclosure.
[¶3] In July 2020, the Indiana Department of Child Services received a report from A.D.'s foster mother that A.D. was displaying inappropriate "sexually reactive behavior" in the home, and the young child was referred to Charlotte Cox, a trauma and attachment therapist at the Children's Bureau. Id. at 141. During her second therapeutic session with Cox in August 2020, A.D. revealed to Cox that Horton had "kissed her private parts and that his private parts touched her private parts." Id. at 136. Cox contacted the Indianapolis Metropolitan Police Department, and A.D. was removed from Horton's home.
[¶4] The State subsequently charged Horton with two counts of level 1 felony child molesting. Count 1 alleged molestation by sexual intercourse, and Count 2 alleged molestation by performing or submitting to other sexual conduct. A jury trial was held in July 2022. A.D. testified and identified Horton as the "grownup" "boy" who touched her bottom with his "penis." Id. at 106, 107, 108, 114. Cox also testified for the State. After questioning Cox generally about child sexual abuse and trauma behavior, the deputy prosecutor asked her, "And based on your expertise, knowledge, and you know, working with A.D. in this case, what is your opinion." Id. at 143. Cox responded, "My opinion is that A.D. has witnessed or experienced sexual abuse." Id. Horton did not object to this testimony. At the conclusion of the State's evidence, the trial court granted the State's motion to dismiss Count 1. The defense presented its evidence, after which the jury found Horton guilty of the remaining charge. The trial court sentenced Horton to thirty years in the Department of Correction. This appeal ensued.
[¶5] Horton challenges the trial court's admission of evidence. We note that as a general matter, a trial court has broad discretion in ruling on the admissibility of evidence and we will disturb its rulings only where it is shown that the court abused that discretion. Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind. 2012). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. Id. [¶6] Specifically, Horton claims, and the State concedes, that Cox's testimony was impermissible vouching testimony in violation of Indiana Evidence Rule 704(b), which provides that "[w]itnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions." When a witness's testimony even indirectly suggests that a child witness was telling the truth, the testimony violates the prohibition against vouching set forth in Evidence Rule 704(b). Hoglund, 962 N.E.2d at 1236. Such vouching testimony is considered an invasion of the province of the jurors in determining what weight they should place upon a witness's testimony. Carter v. State, 31 N.E.3d 17, 29 (Ind.Ct.App. 2015), trans. denied.
[¶7] However, as already noted, Horton failed to make a contemporaneous objection, which would generally result in waiver of any error on appeal. Sparks v. State, 100 N.E.3d 715, 720 (Ind.Ct.App. 2018). Thus, he argues that the fundamental error exception to the waiver rule applies. An error is fundamental, and thus reviewable on appeal, if it "made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm." Durden v. State, 99 N.E.3d 645, 652 ...
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