Court of Appeals of Indiana | Memorandum Decision 10A04

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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 Bart M. Betteau Betteau Law Office, LLC New Albany, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA
Christopher Underwood , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff April 23, 2 015 Court of Appeals Ca se No. 10A04

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- 234 Appeal from the Clark Circuit Court The Honorable Joseph P. Weber , Judge Case No. 10C03

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- FD

- 248



### Crone , Judge . 

### Case Summary
[1] Christopher Underwood appeals his conviction for class D felony sexual battery, following a jury trial. We restate and address three issues on appeal:Court of Appeals of Indiana | Memorandum Decision 10A04

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(1) whether the trial court abused its discretion when it refused Underwood’s prof fer ed jury instruction regarding the presumption of innocence ; (2) whether the trial court abused its discretion in limiting the scope of cross

- examination; and, (3) whether the State presented sufficient evidence of forceful compulsion to supp ort a sexual batte ry conviction. Finding no abuse of discretion but that the evidence was insufficient, we reverse and remand.



### Facts and Procedural History
[2] The facts favorable to the verdi ct indicate that on January 30, 2014, Underwood and L.S. , a female, were both inmates of the Clark County Jail. Underwood, another male inmate , and L.S. were being transported from the courtroom back to the jail by on e guard. All three inmates’ wrists an d feet

were shackled. L.S. alleged that first, when the inmates were on the elevator, Underwood was standing behind her an d touched her buttocks. L.S. alleged that subsequently , when the inmates were walking down the hallway, Underwood again touched he r buttocks. L.S. alleged that then, when the inmates were in the courthouse garage area and the guard had his back turned, Underwood touch ed her buttocks a third time. She alleged that he grabbed underneath her buttocks quite hard. L.S. complained to the transport officer that Underwood had touched her. Video surveillance of the garage area shows Underwood approaching L.S. from behind with his hands down by her buttocks and then L.S. quickly jerking away from him after ap parently be ing touched.Court of Appeals of Indiana | Memorandum Decision 10A04

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[3] The State charged Underwood with three counts of class D felony sexual ba ttery based upon the three separate incidents alleged by L.S . E ach count alleged that Underwood, with the intent to arouse or satisfy his own sexual desires, touched L .S. when she was compelled to submit to the touching by force or the imminent threat of force. A jury trial was held on April 24, 2014. At the conclusion of the State’s evidence, Underwood moved for a directed verdict arguing that the State had presented no evidence that L. S

. had been compelled to submit to any of the alleged touchings by force or the imminent threat of force as required by Indiana Code Section 35

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- 8(a)(1)(A). The trial court denied the motion and Underwood proceeded to present evide nce. At the close of the evidence, the trial court instructed the jury regarding the elements of sexual battery as well as the elements of the lesser

- included offense of battery. The jury found Underwood not guilty of sexual battery or battery regarding the first two counts , but guilty of one count of class D felony sexual battery reg arding the incident in the garage area . This appeal ensued.



### Discussion and Decision Section 1

– The jury was adequately instructed regarding the

presumption of innocence.
[4] We first address Underwood’s assertion that the trial court abused its discretion when it refused his pro ffer ed jury instruction regarding the presumption of innocence. The trial court has broad discretion in instructing the jury , and we review that discret ion only for abuse. Kane v. State , 976 N.E.2d 1228, 1231 (Ind. 2012). To determine whether the court properly refused a pro fferedCourt of Appeals of Indiana | Memorandum Decision 10A04

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instruction, we consider : (1) whether the proffered instruction correctly states the law; (2) whether there was evidence pre sented at trial to support giving the instruction; and (3) whether the substance of the instruction was covered by other instructions that were given. Id . (citing Mayes v. State , 744 N.E.2d 390, 394 (Ind. 2001) )

. “ We consider the instructions ‘ as a whole and in reference to each other’ and do not reverse the trial court ‘ for an abuse of discretion unless the instructions as a whole mislead the jury as to the law in the case. ’” Helsley v. State , 809 N.E.2d 292, 303 (Ind. 2004) (quoting Carter v. State , 76 6 N.E.2d 377, 382 (Ind. 2002)).

[5] Underwood relied on Robey v. State , 454 N.E.2d 1221 (Ind. 1983) , and Lee v. State , 964 N.E.2 d 859, 864 (Ind. Ct. App. 2014) , trans. denied (2012) as authority for his proposed instruction that included language stating tha t the presumption of innocence “continues in favor of the accused throughout the trial” and that the jury “should attempt to fit the evidence to the presumption that the [a]ccused is innocent

. ” Appellant’ s App. at 111. In McCowan v. State , No. 64S03

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- 516 (Ind. Mar. 25, 2015), o ur supreme court recently noted that Robey (and the precedent that followed) enunciated a seemingly bright line rule requiring, upon request, a jury instruction with the above ment ioned language, but then applied a flexible st andard merely requiring the jury instructions as a whole to discus s the same principles. S lip op. at 7

- 8, 11. The Mc C owan court unequivocally and prospectively res olved this conflicting ruling in Robey and held that “it is the absolute right of every criminal defendant to receive the following jury instruction upon request: ‘ The presumption of innocenceCourt of Appeals of Indiana | Memorandum Decision 10A04

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continues in favor of the defendant throughout the trial. You should fit the evidence to the presump tion that the defendant is inno cent if you can

rea sonably do so. ’ ” Id

. at 1

- 2. 1

[6] Because t his unequivocal rule is to be applied prospectively, and given the ambiguity in the law at the time of Underwood’s trial, we review the trial court’ s refusal of his requested instruction pursuant to the more general

s tandard enunciated in Robey and consider whether , taken as a whole, “ [the jury instructions] ‘ adequately directed the jury to receive and evaluate the trial evidence while in the posture of presuming the defendant innocent and demanding of the State that i t produce strong and persuasive evidence of guilt wholly at odds with innocence. ’ ” Id

. at 11 (quoting Robey , 454 N.E.2d at 1222). Our review of the jury ins tructions here reveals that the jury was adequately instructed regarding these principles. Accordi ngly, we cannot say that the trial court abused its discretion when it refused Underwood’s proffered instruction. 

### Section 2

– The trial court did not abuse its discretion in limiting the scope of cross - examination.
[7] Next, we briefly address Underwood’s contention that the trial court abused its discretion in limiting his cross

- examination of L.S. Specifically, Underwood asserts that he was prevented from sufficiently cross

- examining L.S. regarding

1 The McCowan court stated, “I f the defendant adds to or varies this language in his request, inclusion of that variation remains within the discretion of the trial court, under the traditional three

- prong analysis establishe d by our jurisprudence.” Id . at 9 (footnote and citation omitte d).Court of Appeals of Indiana | Memorandum Decision 10A04

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her pending crimina l charges or her alleged bias caused by her financial status. The scope and extent of cross

- examination is within the discretion of the trial court, and we will reverse only upon a finding of an abuse of discretion. Manuel v. State , 971 N.E.2d 1262, 1266 (Ind. Ct. App. 2012). “Trial judges retain wide latitude to impose reasonable limits on the right to cross

- examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Washington v. State , 840 N.E.2d 873, 886 (Ind. Ct. App. 2006), trans. denied

.
[8] Despite his assertions to the contrary, our review of the record indicates that Underwood was sufficiently permitted to attack L.S.’s credibility with evidence of her pending charges as well as explore relevant aspects of L.S.’s alleged bias such that his opportunity for effective cross

- examination was not infringed upon. See id

. (we will reverse trial court’s decision to limit scope of cross

examination only when court’s restriction substantial ly affects defendant’s rights). Thus, we cannot say that the trial court abused its discretion. Moreover, w e conclude that if error did occur, any such error was harmless. See Koenig v. State , 933 N.E.2d 1271, 1273 (Ind. 2010) (violation of right to

cross - examination does not require reversal if State can show bey ond a reasonable doubt that error did not contribute to verdict). In light of the video evidence viewed by the jury (and by this Court) which corroborates L.S.’s testimony that Underwood touched her, and the extent of cross

- examinationCourt of Appeals of Indiana | Memorandum Decision 10A04

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that was permitted, we can say with confidence that the trial court’s limitation

on cross - examination did not contribute to the verdict. 

### Section 3

– The State did not prove forceful compulsion

beyond a reasonable doubt.
[9] Underwood challenges the sufficiency of the evidence to support his conviction. Specifically, he contends that the State did not prove that L.S. was compelled to submit to his touching by force or the imminent threat of force as required for sexual battery. 2 When reviewing the sufficiency of the evidence to support a conviction, we examine only the probative evidence and reasonable infere nces 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 th e evidence most favorable t o 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 fr om it to support the conviction. Id

.

2 Underwood also contends that the trial court erred in denying his motion for a directed verdict. However, Underwood called witnesses and presented evidence after the denial of his motion, and “‘one who elects to present evidence after a denial of h is motion for directed verdict made at the end of the State’s case waives appellate review of the denial of that motion.”’ Cox v. State , 19 N.E.3d 287, 290

- 91 (Ind. Ct. App. 2014) (quoting Snow v. State , 560 N.E.2d 69, 74 (Ind. Ct. App. 1990)).Court of Appeals of Indiana | Memorandum Decision 10A04

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[10] To prove that Underwood committed class D felon y sexual battery , the S tate was required to prove that Underwood, acting with intent to arouse or satisfy his own sexual desires, touched L.S. when she was compelled to submit to the touching by force or the imminent threat of force. Ind. Code § 35

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- 8(a)(1)(A). Evidence th at a victim did not voluntarily consent to a touching does not, in itself, support the conclusion that the defendant compelled the victim to submit to the touching by force or threat of force. Frazier v. State , 988 N.E.2d 1257, 1261 (Ind. Ct. App. 2013). “In fact, not all touchings intended to arouse or satisfy sexual desires constitute sexual battery; rather, only those in which the person touched is compelled to submit by force or the imminent threat of force violate Indiana Code § 35

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- 8.” Bailey v. State , 764 N.E.2d 728 (Ind. Ct. App. 2 002), trans. denied

. The force need not be physical or violent, but “may be implied from the circumstances.” Chatham v. State , 845 N.E.2d 203, 206 (Ind. Ct. App. 2006). The presence or absence of forceful compuls ion is to be viewed from the victim’s perspective, not the assailant’s. Frazier , 988 N.E.2d at 1261

. Our supreme court has explained that t his is a subjective test and t he issue is “whether the victim perceived the aggressor’s force or imminent threat of force as compelling her compliance.” Tobias v. State , 666 N.E.2d 68, 72 (Ind. 1996).

[11] Underwood contends that the State did not prove forceful compulsion beyond a reasonable doubt . W e agree. The evidence most favorable to the veridict indicates that , wh ile L.S. and Underwood were in the garage area of the courthouse, Underwood approached L.S. from be hind and touched herCourt of Appeals of Indiana | Memorandum Decision 10A04

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buttocks. T here is insufficient evidence , however, that in doing so, Underwood committed any act of force or th reat of force to compel L.S. to submit to the touching. Although L.S. testified that she was scared of Underwood because he had already touched her twice earlier , 3 t here is no evidence that L.S. was even aware that Underwood was approaching her from behind before this touch ing

o ccurred , let alone that she was somehow compelled by force or the imminent threat of force by him to subm it to the touching. Indeed, L.S. admitted on

cross - examination that Underwood did not use any force to compel her to submit to the touching and that the touch was a “surprise” to her. Tr. at 330. The evidence establishes that the touch was rude and unwanted, yes, but compelled by force, no.

[12] W e are un persuaded by the State’s argument that the jury could reasonably infer that L.S. was compelled to sub mit to the touching, not based upon any act of force or threat of force by Underwood, but due to the force imposed by the “broader circumstances” of her incarceration and the fact that she was restrained by shackles and unable to avoid the touch

. Appellee ’ s Br. at 11

. As our supreme court has specifically stated , it is the “aggressor’s force or imminent threat of force ” that must compel the victim to submit to a touching , not some extraneous force that is wholly outside the control of the aggressor as

3 The only evidence t hat Underwood had earlier touched L.S. came from L.S.’s testimony. Two defense witnesses who wa tched surveillance video of L.S. and Underwood in the elevator and the hallway testified that Underwood did not touch L.S. on either of those occ asions. The jury found Underwood not guilty of sexual battery or the lesser

- included of fense of battery relating to tho se two alleged incidents.Court of Appeals of Indiana | Memorandum Decision 10A04

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arg ued by the State here. Tobias , 666 N.E.2d at 72. Based upon the evidence presented, we conclude that no reasonable factfinder could find the elements of sexual battery proven beyond a reasonable doubt. Therefore, we reverse Underwood’s sexual battery co nviction.

[13] “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.” Chatham , 845 N.E.2d at 208 . A lesser

- included offense is factually included in the charged crime if the charging instrument alleged that the means used to commit the crime included all the elements of the alleged lesser

- included offense. Id

.
[14] A person commits class B misdem eanor battery if he knowingly or intentionally touches another person in a rude, insolent, or angry manner. Ind. Code § 35

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- 1(b)(1). The amended charging information provided that on January 30, 2014, Underwood “did, with intent to arouse or satisfy his own sexual desires, touch L.S. when she was compelled to submit to the touching by force or the imminent threat of force, to wit: in the garage at the jail book

- in door of the Clark County Courthouse while being transported to the jail after a court he aring.” Appellant’s App. at 29. The means used to commit sexual battery as alleged in the charging instrument included all the elements of class B misdemeanor battery. The re was sufficient evidence to establis h that Underwood knowingly or intentionally touched L.S.’s buttocks in a rude, insolen t, or angry manner. Thus, we reverse and remand with instructions forCourt of Appeals of Indiana | Memorandum Decision 10A04

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the trial court to enter judgment of conviction for class B misdemeanor battery and to resentence Underwood accordingly.

[15] Reversed and remanded

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