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ATTORNEYS FOR APPELLANT Mark E. Small Ruth A. Johnson Marion County Public Defender, Appellate Division Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Ann L. Goodwin Deputy Attorney General Indianapolis, Indiana

In the

Indiana Supreme Court
No. 49S02-1110-CR-621 OTHA S. HAMILTON,

FILED
Oct 19 2011, 2:27 pm
of the supreme court, court of appeals and tax court

CLERK

Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below).

Appeal from the Marion Superior Court, No. 49G04-1004-FA-029545 The Honorable Lisa F. Borges, Judge On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1009-CR-01021

October 19, 2011 Shepard, Chief Justice.

A jury found appellant Otha S. Hamilton guilty on one count of molesting a child, as a class A felony. The trial court imposed a sentence of fifty years in prison. We affirm Hamiltons conviction and revise his sentence.

Facts and Procedural History

Forty-four-year-old Otha S. Hamilton resided in Indianapolis with his wife, who had twelve grandchildren, none of them by a child of Hamilton. Several of the grandchildren would regularly visit at any given time, usually on the weekends.

Sometime between October and December 2009, one grandchild, nine-year-old T.M., stayed overnight at her grandmothers house so her grandmother could take her to a dentist appointment the next morning. No other grandchildren were present. After arriving, T.M. watched television and had dinner that evening. She later went downstairs to the basement to play pool with Hamilton, her step-grandfather. After T.M.s grandmother had gone to bed, Hamilton and T.M. continued playing pool. Hamilton then told T.M. to smoke a cigarette and to drink some of his beer. He then told T.M. to go with him upstairs and outside to the unattached garage because he had something he wanted to give her.

In the garage, Hamilton told T.M. to perform oral sex on him. At first, T.M. refused, but Hamilton told T.M. that he would hurt her grandmother if she did not. (Tr. at 36.) Hamilton pushed T.M. to her knees and then pushed her head down. (Tr. at 31

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