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Hamilton v. State

OTHA HAMILTON, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff.
No. 49A02-1009-CR-1021.

Court of Appeals of Indiana.

May 31, 2011.

MARK SMALL, Marion County Public Defender Agency, Indianapolis, Indiana, ATTORNEY FOR APPELLANT.

GREGORY F. ZOELLER, Attorney General of Indiana, ANN L. GOODWIN, Deputy Attorney General, Indianapolis, Indiana, ATTORNEYS FOR APPELLEE.

NOT FOR PUBLICATION

MEMORANDUM DECISION

FRIEDLANDER, Judge.

Following a jury trial, Otha Hamilton was convicted of Child Molesting[2] by deviate sexual conduct, a class A felony, and the trial court subsequently sentenced him to fifty years imprisonment. Hamilton presents two issues for our review:

1. Is the evidence sufficient to sustain his conviction?
2. Is the fifty-year sentence inappropriate in light of the nature of the offense and the character of the offender?

We affirm.

Nine-year-old T.M. and her two older sisters often spent time together at the home of their paternal grandmother, who was married to forty-four-year-old Hamilton. The girls would normally be at Hamilton's home together, where they enjoyed playing pool in the basement. T.M. thought of Hamilton as her grandfather.

In October 2009, T.M. spent the night at Hamilton's home by herself because her grandmother was going to take her to a dentist appointment the following day. Sometime that evening, after her grandmother went to bed, T.M. played pool in the basement with Hamilton. Hamilton gave T.M. a beer and a cigarette. Hamilton then asked T.M. to come outside to the garage with him so that he could give her something. T.M. followed Hamilton upstairs. Once in the garage, Hamilton sat down in a chair and, using his hands, pushed T.M.'s head down onto his penis and told her to "suck it." Transcript at 36. Hamilton told T.M. that if she did not comply with his orders, he would hurt her grandmother. T.M., while on her knees, performed oral sex on Hamilton for about ten minutes until Hamilton ejaculated in her mouth causing her to vomit and gag. T.M. then went back inside the house and went to bed.

In March 2010, T.M. played the game Your Biggest Secret Ever with one of her sisters and her cousin. T.M. told them that "Otha made me suck his dick." Id. at 61. T.M.'s cousin did not keep the secret to himself and told his brother what T.M. had said, and he in turn told his mother, who was T.M.'s aunt. On April 2, 1010, T.M.'s mother learned of T.M.'s disclosure and asked her about the incident before she called the police. When T.M.'s grandmother was informed of the allegations, she left the home she shared with Hamilton and moved in with T.M.'s family. During his April 12, 2009 interview, Hamilton admitted that T.M. was not someone who would normally tell lies and that he knew of no reason for T.M. to fabricate the allegations against him.

On April 15, 2010, the State charged Hamilton with class A felony child molesting by deviate sexual conduct. A jury trial was held August 2-3, 2010, at the conclusion of which the jury found Hamilton guilty as charged. On August 27, 2010, the trial court sentenced Hamilton to fifty years imprisonment. Hamilton now appeals challenging both his conviction and the sentence imposed thereon.

1.

Hamilton argues that the evidence is insufficient to sustain his conviction. Our standard of review when considering a challenge to the sufficiency of the evidence is well settled.

When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008). "We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence." Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.

Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).

To sustain Hamilton's conviction the State must have proved beyond a reasonable doubt that (1) Hamilton was over the age of twenty-one, (2) T.M.'s mouth made contact with Hamilton's penis, and (3) that T.M. was under fourteen years of age. See I.C. 35-42-4-3. The State's evidence most favorable to the conviction demonstrated that in October 2009, Hamilton was forty-four years of age and T.M. was nine years old. Hamilton took T.M. to the garage where he forced her head down and told her to suck his penis. Hamilton threatened to hurt T.M.'s grandmother if she did not comply with his demands. T.M. performed oral sex on Hamilton until he ejaculated in her mouth causing her to vomit. From this evidence the jury could have reasonably concluded that Hamilton forced T.M. to place his penis in her mouth, an act that constitutes class A felony child molesting. The evidence is sufficient to sustain Hamilton's conviction.

Hamilton challenges the sufficiency of the evidence noting that he suffers from a physical condition that renders him incapable of attaining an erection as described by T.M. Hamilton also directs us to T.M.'s grandmother's testimony in which she stated that she would not have gone to bed on the night the molestation occurred if T.M. was still awake. She admitted, however, that there was nothing preventing T.M. from getting out of bed after she went to bed. Finally, Hamilton argues that there is no evidence corroborating T.M.'s testimony. Hamilton nonetheless acknowledges that a conviction may rest solely on the uncorroborated testimony of the alleged victim. Baber v. State, 870 N.E.2d 486 (Ind. Ct. App. 2007). Hamilton's arguments are simply requests that this court reweigh the evidence or assess the credibility of the witnesses. We will not engage in such tasks on appeal. As noted above, there is sufficient evidence from which the jury could have reasonably concluded that Hamilton was guilty as charged.

2.

Hamilton argues that his sentence is inappropriate. We have the constitutional authority to revise a sentence if, after careful consideration of the trial court's decision, we conclude the sentence is inappropriate in light of the nature of the offense and character of the offender. See Ind. Appellate Rule 7(B); Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. Even if a trial court follows the appropriate procedure in arriving at its sentence, we maintain the constitutional power to revise a sentence we find inappropriate. Hope v. State, 834 N.E.2d 713 (Ind. Ct. App. 2005). Although we are not required under App. R. 7(B) to be "extremely" deferential to a trial court's sentencing decision, we recognize the unique perspective a trial court brings to such determinations. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). On appeal, Hamilton bears the burden of persuading us that his sentence is inappropriate. Rutherford v. State, 866 N.E.2d 867.

We first note that Hamilton offers no argument that his sentence is inappropriate in light of his character. Accordingly, he has waived appellate review of his sentence under Ind. Appellate Rule 7(B). See Williams v. State, 891 N.E.2d 621 (Ind. Ct. App. 2008) (holding defendant waived App. R. 7(B) argument where he did not present cogent argument in light of his character).[3]

Waiver notwithstanding, we will address Hamilton's argument with respect to the nature of the offense. Hamilton notes that the severity of the crime is accounted for in its classification as a class A felony. Hamilton argues that the circumstances were such that the severity was not as great as it could have been. Hamilton points out that in the days and months that followed the incident, T.M. did not act afraid of him or otherwise act as though anything unusual had happened to her. Hamilton also notes that no one else was harmed by the incident. We completely disagree with Hamilton's assessment of the nature of the offense.

T.M. considered Hamilton to be her grandfather and he was often entrusted with her care. Hamilton was clearly in a position of trust, the betrayal of which heightens the severity of the offense. We also note that T.M. was nine years old when the incident occurred, much younger than the age at which a molestation offense is elevated to a class A felony. Along this same vein, prior to the molestation, Hamilton provided the nine-year-old victim with a cigarette and beer. Hamilton also threatened to harm T.M.'s grandmother if she did not submit to his demands. The nature of the offense is not deserving of a lesser sentence. Hamilton has not met his burden of persuading us that his sentence is inappropriate.

Judgment affirmed.

BAILEY, J., concurs.

BROWN, J., concurs in part and dissents in part with separate opinion.

BROWN, Judge, concurring in part and dissenting in part.

I concur with the majority as to the sufficiency of the evidence to support Hamilton's conviction but I respectfully dissent as to its determination that his maximum sentence is not inappropriate. The severity of Hamilton's offense is accounted for in its class A felony classification, for which the legislature has determined the advisory sentence to be thirty years. While all child molesting offenses are serious, many occur repeatedly over the course of weeks, months, and even years against the same or multiple victims. This was a single occurrence involving a single victim. Hamilton does have a criminal history but the presentence report reveals only two known convictions, a 1982 felony robbery and a 2002 misdemeanor DUI. Finally, the sentencing order in this case notes that Hamilton is a credit restricted felon and per IC XX-XX-X-X may not be assigned to credit class I (day for day credit) or II (one day's credit for every two days confined).

I believe maximum sentences should be reserved for the worst of the worst offenders. I would reverse and remand for resentencing to the advisory sentence for a class A felony.

[2] Ind. Code Ann. 35-42-4-3 (West, Westlaw current through 2011 Pub. Laws approved & effective through 4/6/2011).

[3] We note that reflecting negatively on Hamilton's character is that his criminal history consists of a felony robbery conviction (1982) and a misdemeanor DUI conviction (2002). Hamilton also has an extensive arrest record, including arrests for first degree sexual assault, two different instances of domestic battery, and two separate instances of DUI. In 2006, Hamilton was charged with rape and felony battery, but those charges were dismissed because of evidentiary problems.