Court of Appeals of Indiana | Memorandum Decision 02A03-1410-CR-366 | April 20, 2015 Page 1 of 6

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Kathleen M. Sweeney

Sweeney Hayes, LLC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Angela N. Sanchez

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Paul Bell, Jr.,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

April 20, 2015

Court of Appeals Case No.

02A03-1410-CR-366

Appeal from the Allen Superior 

Court

The Honorable Frances M. Gull, 

Judge

Case No. 02D06-1401-FB-19

Crone, Judge.

Case Summary

[1] Paul Bell, Jr., appeals his conviction and sentence for class D felony sexual 

battery, following a jury trial. The dispositive issue presented for our review is 
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whether the State presented sufficient evidence to support his conviction. 

Finding the evidence insufficient, we reverse and remand.

Facts and Procedural History

[2] On July 19, 2013, twenty-year-old A.J. attended a party at her best friend’s 

house in Fort Wayne. During the party, A.J. consumed “a glass of wine, 

possibly two” and one shot of vodka. Tr. at 64. A.J. testified that she was not 

intoxicated. A.J.’s former high school boyfriend, Landon, was also at the 

party. A.J. spoke with Landon outside for over an hour and the two kissed 

during that time. Around midnight, Bell arrived at the party. A.J. knew Bell 

and saw him arrive, but she did not interact with him. 

[3] Sometime after midnight, A.J. decided to go inside to go to bed. Landon was 

still at the party when A.J. went inside. A.J. had been sleeping for a few hours 

when she awoke with Bell on top of her, kissing and touching her. A.J. did not 

realize it was Bell but assumed it was Landon. A.J. kissed Bell back. A.J. was 

“in and out of sleep” as the kissing and touching continued. Id. at 75. At one 

point, Bell started to have sexual intercourse with A.J. and she still did not 

realize that he was not Landon. When Bell eventually asked A.J., “Do you 

know who I am?” she immediately realized he was not Landon. Id. at 76. A.J. 

tried to push Bell off her, but he continued to have sexual intercourse with her 

until he finally just “fell dead weight on top” of her. Id. A.J. pushed Bell off

her and went downstairs to tell her friends what happened. A.J. was crying and 

upset. 
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[4] The State charged Bell with class B felony rape and class D felony sexual 

battery. Regarding the sexual battery charge, the State alleged that Bell, with 

the intent to arouse or satisfy his own sexual desires or the sexual desires of 

A.J., touched A.J. when she was so mentally disabled or deficient that she 

could not give consent to the touching. Appellant’s App. at 20. A jury trial was 

held on August 12 and 13, 2014. The jury found Bell not guilty of rape, but 

guilty of class D felony sexual battery. The trial court sentenced Bell to three 

years’ imprisonment. This appeal ensued.

Discussion and Decision

[5] When reviewing the sufficiency of the evidence to support a conviction, we 

examine only the probative evidence and reasonable inferences that support the 

verdict. Morgan v. State, 22 N.E.3d 570, 573 (Ind. 2014). We do not assess 

witness credibility or reweigh evidence. Id. Rather, we consider only the 

evidence most favorable to the verdict and will affirm the conviction unless no 

reasonable factfinder could find the elements of the crime proven beyond a 

reasonable doubt. Id. It is not necessary that the evidence overcome every 

reasonable hypothesis of innocence. Drane v. State, 867 N.E.2d 144, 146 (Ind. 

2007). The evidence will be deemed sufficient if an inference may reasonably 

be drawn from it to support the conviction. Id. 

[6] To prove that Bell committed class D felony sexual battery as charged here, the 

State was required to prove that Bell, acting with intent to arouse or satisfy his 

own sexual desires or the sexual desires of A.J., touched A.J. when she was “so 
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mentally disabled or deficient that consent to the touching” could not be given. 

Ind. Code § 35-42-4-8(a)(1)(B).

1

 Bell contends that the State failed to prove that 

A.J. was “so mentally disabled or deficient” that she could not give her consent 

to the touching. Specifically, he argues that A.J.’s state of being asleep during 

the touching does not constitute being mentally disabled or deficient pursuant

to the sexual battery statute. We agree.

[7] The evidence indicates that A.J. had been sleeping for a few hours when she 

awoke to a male on top of her, kissing and touching her. A.J. assumed it was

her ex-boyfriend. Although she was “half asleep,” A.J. kissed the male back. 

Tr. at 97. A.J. testified that she was “in and out of sleep” as the kissing and 

touching continued. Id. at 75. At one point, the male started to have sex with 

A.J. and she still did not realize that he was not her ex-boyfriend. A.J. stated 

that it was not until the male, Bell, asked her, “Do you know who I am?” that 

she realized he was not her ex-boyfriend. Id. at 76. A.J. testified that she was 

not intoxicated or impaired by any medication.

[8] We agree with Ball that this evidence is insufficient, pursuant to Indiana Code 

Section 35-42-4-8(a)(1)(B), to establish that A.J. was so mentally disabled or 

deficient that consent to the touching could not be given. In Ball v. State, 945 

N.E.2d 252, 258 (Ind. Ct. App. 2011), trans. denied, another panel of this Court 

interpreted the phrase “mentally disabled or deficient” pursuant to the sexual 

 

1 This statute was amended effective July 1, 2014. We cite the version in effect at the time Bell committed his 

crime.
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battery statute and determined that “being asleep does not constitute being

mentally disabled or deficient.” In reaching its decision, the Ball court looked 

to the interpretation of similar language in the rape and criminal deviate 

conduct statutes and noted that the phrase “mentally disabled or deficient” had 

been interpreted to include those with lower than normal intelligence, highly 

intoxicated victims, and a victim who had unknowingly ingested eight Xanax. 

Id. at 257. The Ball court found that a victim’s state of being asleep during a 

touching had only been found to satisfy an additional, alternative prong 

included in the rape and criminal deviate conduct statutes, not then present in 

the sexual battery statute, which permits conviction of a defendant if the victim 

is “unaware” the conduct is occurring. Id. (citations omitted). After Ball, 

effective July 1, 2012, to June 30, 2014, our legislature amended the sexual 

battery statute to include a provision, similar to the other sex offense statutes, 

regarding the sexual touching of a victim who is “unaware that the touching is 

occurring.” Ind. Code § 35-42-4-8(a)(2). Curiously, the State did not charge 

Bell pursuant to this subsection of the statute nor argue at trial or ask the jury to 

be instructed as to this subsection. 

[9] We agree with the holding in Ball and conclude that A.J.’s state of being what 

she described as “half-asleep” during Bell’s touching (coupled with the apparent 

mistaken identity that occurred) is not equivalent to a mental disability or 

deficiency for the purposes of the sexual battery statute. See Perry v. State, 962 

N.E.2d 154, 159 (Ind. Ct. App. 2012) (agreeing with Ball and concluding that 

victim’s sleep and intoxication to the point of being “a little buzzed” was 
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insufficient to satisfy mentally disabled or deficient prong of sexual battery 

statute). Bell’s conduct toward his victim, however deplorable, simply does not 

meet the definition of sexual battery as charged and argued by the State. The 

State failed to prove the element of mental disability or deficiency beyond a 

reasonable doubt. Therefore, we reverse Bell’s sexual battery conviction.

[10] When a conviction is reversed because of insufficient evidence, we may remand 

to the trial court to enter a judgment of conviction upon a lesser-included 

offense if the evidence is sufficient to support the lesser offense. Ball, 945 

N.E.2d at 258. Bell concedes on appeal that the evidence is sufficient to 

support a conviction for class B misdemeanor battery. See Ind. Code § 35-42-2-

1(a). Thus, we reverse and remand with instructions for the trial court to enter 

judgment of conviction for class B misdemeanor battery and to resentence Bell

accordingly.2

[11] Reversed and remanded. 

Brown, J., and Pyle, J., concur.

 

2 Because we reverse and remand for resentencing based upon a lesser offense, we need not address Bell’s 

challenge to the three-year sentence imposed by the trial court.