OPINION
Case Summary and Issues
Randy Horton appeals, after a jury trial, his convictions of six counts of child molesting as Class A felonies, three counts of child molesting as Class C felonies, and consecutive sentences for an aggregate of 324 years. He raises two issues for our review that we expand and restate as three: whether the trial court erred by allowing a videotaped interview of a child-witness under the recorded recollection exception to the hearsay rule; whether the trial court erred by sentencing him to consecutive maximum sentences for each offense for a total of 324 years in prison; and whether his sentence is inappropriate. Concluding the trial court did not abuse its discretion in admitting evidence or sentencing Horton, and the 324-year sentence is not inappropriate considering the nature of the offenses and Horton's character, we affirm.
Facts and Procedural History
Horton moved in with R.M.'s mother, who was his girlfriend, R.M., and R.M.'s toddler-aged brother. R.M. referred to Horton as "Dad." Transeript at 298. Beginning on the morning of R.M.'s seventh birthday in August 2008, also her first day of first grade, Horton sexually molested R.M. every morning-"[eJxeept onee when [R.M.'s mother] was awake." Id. at 304. Each morning, in the privacy of R.M.'s bedroom, Horton woke her and told her to engage in sexual acts with him and to keep their acts secret. The molestation disgusted her, often caused her pain, and she tried to stop. Horton daily exposed his penis to R.M. by not wearing clothing below his waist or by wearing his pants *1280 around his knees. On the first day and on many days thereafter, Horton entered R.M.'s bedroom and told R.M. to "[blite, suck, and lick" his nipples, until he ejaculated and wiped his semen on her blanket. Id. at 309. Horton also bit, sucked, and licked R.M.'s nipples "really, really often." Id. at 348.
"Every morning except when [R.M.'s mother] was awake," Horton directed R.M. to perform oral sex on him-in her own words, to use her mouth to "go up and down" on his penis. Id. at 315. He told her "suck my dick," and if she pulled away, he would tell her "get back down there," kick her leg, and grab her hair to pull her head down. Id. at 398-99; see also id. at 447 (R.M. stating "he usually grabs my hair really hard"); id. ("he ... grabs it really, really hard and it yanks me down"). With her mouth on his penis, Horton often chided her to "go faster," and would not allow her to stop until he ejaculated in her mouth. He ejaculated in her mouth "all the time." Id. at 318. Horton repeatedly told RM. to "swallow it"; she said his semen tasted "really, really nasty." Id. at 326. Sometimes, despite Horton's orders, R.M. accidentally spit his semen out; Horton then wiped it on her bed and blanket or left it on her bedroom floor. Horton also told R.M. to "rub [his testicles] with [her] hand and lick it." Id. at 331.
On numerous occasions Horton inserted his pinky finger into R.M.'s anus and upon removal, wiped fecal matter from his finger onto her blanket and bed. Horton also penetrated R.M.'s anus with his penis "[vlery often." Id. at 337. This caused R.M. severe pain and bowel problems, leading her to testify, "When I have to go poop, ... it feels like I'm going to ery cause it hurts." Id. at 338.
"[Fjor a few weeks," Horton told R.M. to stand above his face and lower her vagina onto his face while he lay on her bed and licked it. Id. at 335. Sometimes he also penetrated her vagina with at least one of his fingers, which R.M. said felt "way worse" than his anally penetrating her with his penis.
On several occasions, Horton also directed R.M. to insert her entire hand and fingers into his anus. While Horton lay on R.M.'s bed, he directed her to make a tight fist and insert it in his anus and to "keep on going up." Id. at 489. She inserted her fist up to her wrist, "[uJntil it touche{[d] his poop." Id. at 440.
Nearly every day before R.M. departed for school, Horton told R.M. to kiss him, as R.M. described it, "(llike a mother and father kiss." Id. at 341. He told her to close her eyes, open her mouth, and "wiggle" her tongue with his. Id. at 342.
R.M. allegedly told her mother about Horton's molestation, 1 which angered Horton and led him to repeatedly smack her bare bottom with his hands and belt.
In late February 2009, after another morning sexual molestation by Horton, R.M. told a friend that Horton was sexually molesting her. R.M.'s friend then told her own mother, who called authorities. The Madison County Department of Child Services ("DCS") videotaped an interview with R.M., in which she provided a detailed explanation of the type, extent, and duration of sexual molestation by Horton.
A sexual assault nurse examined R.M. several times within a few weeks, noting that R.M.'s body was at merely the first level of sexual maturation. The nurse identified numerous sears in and around R.M.'s vagina and a tear and "significant injury" to her anus, which led to blood in her stool. Id. at 662. R.M. soon devel *1281 oped a "significant, extensive outbreak of lesions" in and around her genitals. Id. at 667. "[R.M.] was erying. It was hard for her to walk" and urinate. Id. at 667-68. "[O]n the outside [of R.M.'s] genital areas, there were small blisters with redness around it, with some seepage, whitish clear discharge." Id. at 718. Lab reports revealed R.M. contracted herpes simplex virus type I (generally considered oral herpes) and herpes simplex virus type II (generally considered genital herpes). Horton also tested positive for both types of herpes. Recalling what Horton's penis felt like in her mouth, R.M. testified it was "[rleally bumpy." Id. at 325.
Following R.M.'s removal from her household, she has stayed at a friend's family home and in a foster home. She also attends weekly counseling regarding the sexual molestation. One night, while at her friend's family home, R.M. began spitting on the floor because she began to think about Horton's semen. Id. at 409.
Horton was charged and convicted by a jury of six Class A felonies: involving R.M.'s mouth and Horton's penis; involving Horton's mouth and R.M.'s vagina; involving Horton's penis and R.M.'s anus; involving R.M.'s finger and Horton's anus; involving RM's fist and Horton's anus; and involving Horton's finger and R.M.'s anus. He was also charged and convicted of three Class C felonies: involving Horton "tongue kissing" R.M.; involving Horton fondling, touching, rubbing, biting, sucking, or licking R.M.'s nipples; and involving R.M. rubbing, biting, sucking, or licking Horton's nipples.
At a break in R.M.'s trial testimony the trial court permitted her to watch her videotaped interview with DCS to refresh her memory. Upon resuming her testimony, she still did not remember numerous details, especially regarding inserting her hand into Horton's anus. Over Horton's objection, the trial court allowed the State to show the videotaped interview to the jury under the recorded recollection exception to the hearsay evidence rule.
The jury convicted Horton as charged. The trial court articulated the following as aggravating circumstances for sentencing: Horton's violation of a trusting relationship; R.M.'s contraction of sexually transmitted diseases; the particularly heinous nature of the offenses; and commission of the offenses within close proximity to R.M.'s toddler-aged brother. The trial court considered Horton's lack of criminal history to be a de minimus mitigating circumstance. The trial court sentenced him to fifty years for each of the six Class A felonies, eight years for each of the three Class C felonies, and ordered all sentences to be consecutive and executed, for a total of 324 years. Horton now appeals.
Discussion and Decision
I. Admission of Videotaped Interview
A. Standard of Review
We review a trial court's decision to admit evidence for an abuse of discretion. Collins v. State,
B. Recorded Recollection
Horton argues the trial court's admission of the videotaped interview was *1282 reversible error because it does not satisfy the recorded recollection exception to the hearsay rule. Hearsay, defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," Evid. R. 801(c), is generally inadmissible, Eivid. R. 802. However, our evidence rules provide the following exception for admission of hearsay as a recorded recollection:
A memorandum or record concerning a matter about which a witness onee had knowledge but now has insufficient ree-ollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
Evid. R. 803(5). This exception allows admission of a recorded statement if;
(a) the memorandum or record relates to a matter about which a witness onee had knowledge, (b) the witness has insufficient recollection at trial to enable the witness to testify fully and accurately, (c) the witness is shown to have made or adopted the memorandum or record, (d) the memorandum or record was adopted when the matter was fresh in the witness's memory, and (e) the memorandum or record is shown to reflect the witness's knowledge correctly.
Impson v. State,
As to (b) above, Horton argues R.M. "had a complete and accurate recollection of the events," but "[she was unable to remember and testify concerning allegations" that Horton told R.M. to insert her fist into his anus. Id. at 10. Upon our review of the transcript, we agree with the trial judge that R.M. had insufficient recollection to testify fully and accurately. In Smith v. State,
To the extent Horton argues the State did not meet a "foundational requirement" of "including some acknowledgment that the statement was accurate when it was made," Ballard v. State,
Horton does not dispute the obvious, that R.M. was shown to have made or adopted the video, and therefore (c) above is satisfied. Nor does Horton challenge the obvious fact that R.M. adopted the video when the matter was fresh in her memory, and therefore (d) above is satisfied.
Horton does challenge that the video was shown to reflect R.M.'s knowledge correctly. We disagree because where R.M.'s statements in the video covered the same issues as her testimony prior to admission of the video, they were largely consistent with her live testimony. The video filled in many of her live testimony's gaps as to details R.M. did not remember, adding specific details one might expect a child to more vividly remember days after the incidents but perhaps not remember as vividly months later at a trial. Therefore, (e) above is satisfied.
Indeed, in Impson, we held admission of a recorded recollection was not erroneous when a victim could not recollect specific details of the incident during her trial testimony, but she timely adopted an affidavit after the incident and the affidavit was deemed to accurately reflect her knowledge because it was consistent with her statements to police and an acquaintance.
We therefore conclude the trial court did not err by admitting the videotaped interview under the recorded recollection exception to the hearsay rule, and affirm Horton's convictions.
II. Abuse of Discretion in Sentencing
Sentencing decisions "rest within the sound discretion of the trial court and
*1284
are reviewed on appeal only for an abuse of discretion." Anglemyer v. State,
The trial court sentenced Horton to the maximum fifty years for each of the six Class A felonies and the maximum eight years for each of the Class C felonies, all to run consecutively, for a total of 324 years executed. See Ind.Code §§ 35-50-2-4 (providing a range of twenty to fifty years imprisonment for each Class A felony conviction) & 35-50-2-6 (providing a range of two to eight years imprisonment for each Class C felony conviction). Horton argues the trial court relied on improper aggravating cireumstances, failed to give substantial weight to his lack of criminal history as a mitigating cireumstance, and the record's support for the aggravating cireumstances is insufficient.
As to aggravating and mitigating cireumstances, Horton first argues the trial court erred by considering Horton's exposure of R.M. to two types of herpes as an aggravating circumstance. Horton relies on Ridenour v. State,
The State refers us to McCann v. State,
The reasoning of McCann is supplemented by other cases more recent and more similar to the case before us than Ridenour and White. In Brown v. State,
Second, Horton contends the trial court erred by considering that he committed the offenses within earshot of R.M.'s toddler-aged brother as an aggravating cireumstance. We agree this was improper because it lacks support in the record, however, we need not remand because "(elven when a trial court improperly applies an aggravator, a sentence enhancement may be upheld if other valid aggravators exist." Pickens v. State,
Third, Horton contends the trial court improperly considered his maintaining his innocence as an aggravating circumstance, referring us to a statement by the trial court during his sentencing hearing. Upon reading this statement in context, however, we conclude the trial court was referring to both the egregious nature of the offenses and Horton's character, and did not ultimately consider Horton's maintaining his innocence an aggravating circumstance. The trial court's statement in context follows, with our added emphasis of the sentence Horton refers to:
The Court also finds that the egregious nature of the activities conducted herein by the defendant, with the victim, and I don't want to go into the details of it, but the record speaks very graphically of some of the horrific and unusual physical things that the victim was required to do to assist the defendant in perpetuating this crime on the victim. Those heinous activities continued over a lengthy period of time, which have resulted in consequences, of course we'll never know what psychological, if any, consequences will be inflicted upon the child in this case, but one physical consequence was that she now has congenital [sic] herpes. How the defendant can smugly sit there, profess his innocence, after the evidence in the case, and after the physical malady which she is going to be inflicted for the rest of her life, I think is another aggravating circumstance in this case. When people like the defendant in this case take advantage of children of this age, it's almost like, and it seems after thirty-four (84) years of being on the bench that a lot of times the children think this is what life is supposed to be....
Tr. at 841-42. Despite Horton's assertion, we are not persuaded the trial court considered Horton maintaining his innocence an aggravating cireumstance. The sentence Horton highlights transitions the trial court's discussion of the egregious nature of the offenses to a discussion of Horton's character, leading to a reference to "people like the defendant." Id. Further, the trial court does not refer to Horton maintaining his innocence in the sentencing order, which itself is a more complete and emotionally detached statement of reasons for imposing the particular sentence. See McElroy v. State,
Fourth, Horton concedes that his position as a father figure to R.M. and in a trusting relationship is a valid aggravating cireumstance. See McCoy,
Horton also argues the trial court failed to give substantial weight to his lack
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of criminal history as a mitigating circumstance. We disagree because "(iIt is within a trial court's discretion to determine whether a mitigating circumstance is significant, and what weight should be given that particular mitigating cireumstance." Jones v. State,
Horton next argues the record's support for the aggravating circumstances is insufficient. Horton quotes our supreme court as stating the following:
[The trial court's sentencing statement] must include a reasonably detailed recitation of the trial court's reasons for imposing a particular sentence. If the recitation includes a finding of aggravating or mitigating cireumstances, then the statement must identify all significant mitigating and aggravating circumstances and explain why each circumstance has been determined to be mitigating or aggravating.
Brief of Appellant at 14-15 (quoting Anglemyer,
III. Inappropriate Sentence
Article 7, sections 4 and 6 of the Indiana Constitution authorizes independent appellate review of the appropriateness of a sentence. Childress v. State,
Horton argues for our revision of his sentence, which he contends is inappropriate in light of the nature of the offenses and his character. We acknowledge the total sentence is near the upper end among reported Indiana cases and the maximum he could have received for the charges. Yet we find more compelling the deplorable nature of the crimes as shown by our review of the record.
As for the nature of the offenses, the harm R.M. suffered (and has continued to suffer) from her seventh birthday until Horton's molestation ceased is significant and far greater than required to prove Horton's convictions. For over six months, Horton subjected R.M. to physical pain of the most intimate and sensitive nature. While R.M.'s body was in only the first stage of sexual maturation, Horton daily sexually violated R.M.'s mouth, breasts, hands, vagina, and anus, and violently kicked her and pulled her hair. Her severe bodily pain and discomfort throughout the incidents is well-documented in the record. For example, she suffered pain in and around her vagina and anus, which led to internal problems with her bowels, and *1287 she contracted oral herpes and genital herpes.
In addition to physical harm, R.M. suffered psychological and emotional harm. The record reveals R.M. was grossly disgusted by her and Horton's actions and now requires weekly counseling regarding her ordeal. At least once, R.M.'s vivid memory of Horton's semen eaused her to spit up, even when finally in the safety of her friend's family's home.
Further, RM.'s tender age of seven makes these offenses even more appalling and approximates another aggravating circumstance. In Brown v. State,
We next turn to Horton's argument that his character-including relative lack of eriminal history, temporary employment, and enrollment in a technical school-does not warrant a 324-year sentence. We disagree. These traits do not negate all questions as to character. See Sanchez v. State,
Finally, Horton argues he warrants a lesser sentence by comparing his case to other reported cases. We disagree, but entertain his call to contrast his case with others. In Serino v. State,
Our supreme court also noted that Seri-no's sentence was outside the typical range of sentences imposed for child molesting of one victim and an offender's lack of criminal history, and cited several cases that revised sentences. Serino first cited Kien v. State,
Serino also cited Haycraft v. State,
Serino also cited Walker v. State,
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Horton's case is far more similar to a case Serino cited in which a sentence for child molestation was affirmed. In Cruz Angeles v. State,
As our discussion above thoroughly details, our review of the record, which includes intimate details of Horton's sexual molestation and R.M.'s significant harm, and our review of other Indiana cases, leads us to conclude the sentence for each of the nine felony convictions and the trial court's decision for Horton to serve them consecutively, is not inappropriate in light of the offenses and his character. Accordingly, we find no error in Horton's sentence.
Conclusion
The trial court did not abuse its discretion by admitting R.M.'s videotaped interview, or by imposing a 324-year sentence for nine counts of child molestation. We therefore affirm Horton's convictions and sentence.
Affirmed.
Notes
. RM.'s mother was a co-defendant in the same jury trial and acquitted of all charges.
