Court of Appeals of Indiana | Memorandum Decision 49A02

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### 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.

A TTORNEY FOR A PPELLANT Matthew D. Anglemeyer Marion County Public Defender Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Michael Johnson , Appellant

- Defendant,

v.


### State of Indiana , Appellee

- Plaintiff

. July 27, 2017 Court of Appeals Ca se No. 49A02

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- 1507

- F6

- 25672

Robb , Judge
.Court of Appeals of Indiana | Memorandum Decision 49A02

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# Case Summary and Issue

[1] Following a jury trial, Michael Johnson was convicted of intimidation, a Level 6 felony; sexual battery, a Level 6 felony; battery, a Class B misdemeanor; public intoxication, a Class B misdemeanor; and disorderly conduct, a Class B misdemeanor. On appeal , Johnson challenges his convictions for sexual battery and intimidation, raising one issue for our review: whether the evidence is sufficient to support his convictions. Concluding the evidence is sufficient , we affirm. 

# Facts and Procedural History

[2] Tonya Anderson is a certified nursing assistant working in home healthcare. On July 18, 2015, Anderson went to David Britton’s home where she assists him with food preparation, taking medicine, and putting on clothes. When Anderson arrived, Britton and his fr iend, Steven Orman, were sitting on Britton’s front porch.

[3] Shortly thereafter, Michael Johnson, a neighbor from across the street, approached them. Johnson carried a half

- empty bottle of liquor and smelled strongly of alcohol. Britton did not want Johnso n on his porch and Anderson told Johnson that “David doesn’t want you up here . . . .” Transcript, Volume
2 at 10. Johnson told Anderson “F you B . . . don’t worry about this stuff . . . it’s not none of your business

. . . . ” Id. Johnson was “totally drunk” and when Anderson threatened to call the police, Johnson responded he would “burnCourt of Appeals of Indiana | Memorandum Decision 49A02

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down the house” and “kill [ her ] and David if the police showed up

. . . . ” Id. at 11

- 12. Eventually, Anderson called the police , who escorted Johnson back to his home with orders to remain there.

[4] Immediately after the police departed, Johnson returned to Britton’s home. Anderson told Johnson to leave and that she was going to call the police. Johnson again threatened to “burn the house down . . . .” Id. at 16. Johnson then climbed up on the porch, pushed Anderson against the wall , and put one hand around her neck. Johnson then placed his other hand up her dress and on her vagina, saying, “B you know you like this.” Id. at 17. Anderson then pushed Johnson away

. The police returned and arrested Johnson

.

[5] The State charged Johnson with intimidation, a Level 6 felony ; sexual battery, a Level 6 felony; battery, a Class B misdemeanor; public intoxication, a Class B misdemeanor; and disorderly conduct, a Class B misdemeanor. A jury found Johnson guilty as charged and the trial court sentenced Johnson to an aggregate sentence of 910 days. Johnson now appeals.



# Discussion and Decision
I. Standard of Review

[6] Johnson’s arguments challenge the sufficiency of the evide nce to support his convict ions. Our standard of review for sufficiency of the evidence claim s is well

- settled:Court of Appeals of Indiana | Memorandum Decision 49A02

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First, we neither reweigh the evidence nor judge the credibility of witnesses. Second, we consider only the evidence supporting the judgment an d any reasonable inferences that can be drawn from such evidence. A conviction will be affirmed if there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant g

uilty beyond a reasonable doubt. . . . [W]e consider conflicting evidence most favorably to the [verdict].

Willis v. State , 27 N.E.3d 1065, 1066

- 67 (Ind. 2015) (citations and quotations omitted).


## II. Sexual Battery

[7] Johnson argues the evidence is insufficient to support his conviction for sexual battery. Indiana’s sexual battery statute provides, in pertinent part,
A person who, with intent to arouse or satisfy the person’ s own sexual desires or the sexual desires of another person : (1) touches another person when that person is: (A) compelled to submit to the touching by force or the imminent thre at of force;
* * * commits sexual battery, a Level 6 felony.
Ind. Code § 35

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- 8(a)(1)(A). The element of force may be implied from the circumstances and need not be physical or violent. Scott

- Gordon v. State , 579 N.E.2d 602, 604 (Ind. 1991). Moreover, “it is the victim’ s perspective, not the assailant’ s, from which the presence or absence of forceful compulsion is t o beCourt of Appeals of Indiana | Memorandum Decision 49A02

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determined.” Tobias v. State , 666 N.E.2d 68, 72 (Ind. 1996). The test is a

“ subjective test that looks to the victim’ s perception of the circumstances surrounding the incident in question.” Id. Therefore, the issue is “ whether the victim pe rceived the aggressor’ s force or imminent threat of force as compelling her compliance.” Id.

[8] Johnson contends the State failed to prove he compelled Anderson to submit to the touching by force or imminent threat of force. Johnson argues he did not compel Anderson with force , but that “[h]e just did it.” Brief of Appellant at
15. However, Johnson’s argument completely ignores crucial portions of Anderson’s testimony. Anderson testified Johnson returned to Britton’s porc h and she told him he needed to leav e. Johnson then approached her and moved

“ close in [her] face,” pushed her against the wall , and put one hand around her neck

. Tr., Vol. 2 at 17

. Johnson then placed his other hand up her dress and on her vagina , saying, “ “B yo u know you like this.” Id

. Anderson responded by angrily shoving him in the chest . Johnson’s act of pushing Anderson against the wall and holding her by her neck is sufficient evidence to prove Johnson used force to compel her to submit to his unwanted touching. 1

1 Johnson also alleges because “[h]e just did it[,] ” and Anderson did not have the “opportunity to grant or deny” consent to the touching, there is insufficient evidence to support his conviction. Br. of Appellant at 15. There is no statutory requirement that Anderson have the opportunity to “grant or den y consent[,]” id

. , nor can this be reasonably inferred from our opinion in Chatham v. State , 845 N.E.2d 203, 208 (Ind. Ct. App. 2006) , to which Johnson cites. The sexual battery statute only requires that Johnson touched Anderson with the intent to satisf

y his own or her sexual desires and that Anderson was compelled to submit to the touching by force or imminent threat of force. Ind. Code § 35

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## III. Intimidation

[9] Johnson also alleges there is insufficient evidence to sustain his conviction for intimidation. In order to convict Johnson of intimidation, the State was required to prove that he communicated a threat to ano ther person, with the intent that the other person be placed in fear of retaliation for a prior law ful act. Ind. Code § 35

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- 1(a)(2) (2014 ).

[10] Here, Johnson approached Britton’s home while unwelcome and was asked to leave. When Anderson threatened to cal l the police, Johnson responded he would burn the house down “if [she] call[ed] the police . . . and he [would] kill [her] and David if the police showed up.” Tr., Vol. 2 at 12. Anderson then called the police and they escorted Johnson back to his home. Johnson again returned to Britton’s porch and Anderson told him to leave. Once again, Johnson responded he would “burn the house down . . . [and] kill ya’ll” if the police returned. Id. at 16.

[11] Johnson urges that we reverse his intimidation conviction an d alleges his threat was conditional and therefore insufficient to support his conviction. In support of his argument, Johnson cites to Causey v. State , 45 N.E.3d 1239 (Ind. Ct. App. 2015). In Causey , police officers responded to a report of a disturbance at the defendant’ s residence. After law enforcement arrived and tried to talk with the defendant, he told the officers to get off his property and stated, “ [ i ] f you come any closer I’ ll shoot.” Id. at 1240. A panel of th is court reversed the defendant’ s intimidation conviction and held the defendant’ s threat wasCourt of Appeals of Indiana | Memorandum Decision 49A02

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“conditional” and intended to dissuade the officers from coming any closer, and was not a threat related to any past conduct of the officers. Id. at 1241

.

[12] However, i n Roar v. Stat e , 52 N.E.3d 940 (Ind. Ct. A pp. 2016) , adopted and incorporated by Roar v. State , 54 N.E.3d 1001 (Ind. 2016) , another panel of this court disagreed with Causey

. In Roar , the defendant saw the victim serve an

e viction notice on the defendant’ s sister. The defendant began yelling at the victim, verbally abusing her and accus ing her of being unprofessional. The defendant threatened to kill her “if [she] came back on the property.” Id. at 943. In disagreeing with Causey , t he Roar majority opinion noted,
Mere use of conditional language in the course of communicating a threat does not vitiate the statute’s application when the factual predicate for the threat was a prior lawful act of the victim. Stated another way, the language a defendant uses in
commun icating a threat may be relevant to the fact

- finder’s assessment of the defendant’s intent, but the language used is not the only relevant consideration.

Id. at 944. Moreover, our supreme court granted transfer in Roar and adopted the majority’s analysis. Roar , 54 N.E.3d at 1001; see also Chastain v. State , 58 N.E.3d 235, 240 (Ind. Ct. App. 2016) (noting by granting transfer and adopting the majority opinion in Roar , our supreme court disapproved of the analysis and holding in Causey ), trans. denied

.

[13] In t his case, Johnson twice threatened Anderson. The first threat occurred after Anderson lawfully asked him to leave the premises , threatened to call the police, and then did so. The second threat occurred when Johnson returnedCourt of Appeals of Indiana | Memorandum Decision 49A02

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and Anderson again stated she would call the police if he did not leave. The police again were called

. Therefore, despite Johnson’s conditional language, each threat was based on a prior lawful act by Anderson and is sufficient evidence to support Johnson’s conviction for intimidati on.



# Conclusion

[14] We conclude there is sufficient evidence to sustain Johnson’s convictions for sexual battery and intimidation. Accordingly, we affirm.

[15] Affirmed.

V a idik, C.J., and Bailey, J., concur

.