Court of Appeals of Indiana | Memorandum Decision 19A-CR-2958 | July 2, 2020 Page 1 of 7

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

Thomas M. Leatherman

Leatherman & Miller Law Office

Goshen, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Myriam Serrano

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

David Sharp,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

July 2, 2020

Court of Appeals Case No.

19A-CR-2958

Appeal from the Elkhart Superior 

Court

The Honorable Kristine Osterday, 

Judge

Trial Court Cause No.

20D00-1803-F6-503

May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2958 | July 2, 2020 Page 2 of 7

[1] David Sharp appeals following his conviction of Level 6 felony sexual battery.1 

He argues the State failed to present sufficient evidence to sustain his 

conviction. We affirm.

Facts and Procedural History

[2] In January 2018, Sharp, a fifty-one-year-old man, started dating Rita Kitchen. 

Kitchen lived in a house in Elkhart with her son and eighteen-year-old 

daughter, A.G. On February 13, 2018, Kitchen went to work at the post office, 

and A.G. went to her job. A.G. finished work at approximately 2:30 p.m., and 

she drove directly home after work. No one else was home when A.G. arrived,

and she sat down on a barstool in the kitchen to work on her fingernails. 

[3] Shortly thereafter, Sharp arrived at the house and parked his car in the driveway 

directly behind A.G.’s car. Neither A.G. nor Kitchen expected Sharp to come 

to the house before Kitchen returned from work. Sharp entered the house 

through the door that led from the garage into the interior of the house near the 

kitchen. After some small talk in the kitchen, A.G. asked Sharp to let the dogs 

out into the backyard. Sharp replied, “I will for a kiss.” (Tr. Vol. III at 31.) 

Sharp’s response left A.G. “completely befuddled” and she started to get off her 

stool to let the dogs out. Id. Sharp got up before A.G. left her stool and opened 

the backdoor for the dogs to go outside. 

1 Ind. Code § 35-42-4-8.
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[4] Sharp then went to where A.G. was sitting. He put a hand on either side of 

A.G., “thus pinning [A.G.] into the chair.” (Id. at 33.) Sharp leaned over and 

kissed A.G. twice on the lips. Sharp returned to his barstool and said, “Now 

that wasn’t so bad, was it?” (Id. at 37.) A.G. gathered her things and retreated 

to the bathroom.

[5] A few minutes later, A.G. realized she left her cellphone in the kitchen, and she 

decided to retrieve it. A.G. picked her phone up off the kitchen counter and 

started to text her ex-girlfriend and friend, Tayler Norris, when Sharp 

approached her from behind and grabbed her left buttock. Before Sharp 

grabbed her, A.G. thought “no, please don’t do it. Don’t do anything.” (Id. at 

41.) A.G.’s jaw dropped, and she froze until Sharp released his grip. A.G. then 

left the kitchen and went into her bedroom. She texted Norris:

Dave got back to the house before mom and started flirting with 

me and then he tried to make out with me and wouldn’t let me 

move away and then he asked for another kiss and grabbed my 

butt even though I told him no. I hate today. I want it all to go 

away[.]

(State’s Ex. 2.) A.G. also stated in her texts to Norris that she was scared and 

physically shaking. 

[6] A.G. started moving items from her bedroom down to the basement, and Sharp 

helped her even though A.G. told Sharp she did not need any help. After 

taking the items down to the basement, A.G. picked up a magazine lying on her 

bedroom floor and sat down on a desk chair to read it. Sharp walked up to the 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2958 | July 2, 2020 Page 4 of 7

door of A.G.’s bedroom and made “suggestive comments about him, [Kitchen], 

and [A.G.]” (Tr. Vol. III at 61.) Sharp also pulled on his jeans around his 

genital area. He then approached A.G. He leaned over A.G.’s left side and 

grabbed her left breast. Sharp then said, “Wow. I think these are a little bigger 

than your mom’s.” (Id. at 63.) A.G. hunched over, and Sharp started to pull 

the collar of her sweatshirt away from her neck. A.G. pushed his hand away. 

Sharp attempted to pull up the bottom of A.G.’s sweatshirt, and A.G. pushed 

his hand away again. 

[7] Kitchen left work at approximately 5:45 p.m. She stopped at Meijer to buy beer 

for Sharp, and then she went home. Kitchen talked with Sharp for a little while 

and started cooking dinner. She then saw A.G. “standing in the hallway ghost 

white[.]” (Tr. Vol. II at 102.) Kitchen asked Sharp to retrieve the beer from her 

vehicle, and while he was out of the house, A.G. told Kitchen what Sharp had 

done. When Sharp returned inside, Kitchen told him to leave her house. 

[8] The State charged Sharp with Level 6 felony sexual battery and Class B

misdemeanor battery.2

 The trial court held a jury trial on October 1-2, 2019. 

The jury returned a verdict of guilty on the sexual battery count. The battery 

count was dismissed. The trial court sentenced Sharp to a term of two years, 

with one year suspended to probation.

2 Ind. Code § 35-42-2-1.
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Discussion and Decision

[9] When we review a sufficiency of the evidence claim, we do not reweigh the 

evidence or judge the credibility of the witnesses. Purvis v. State, 87 N.E.3d 

1119, 1124 (Ind. Ct. App. 2017), aff’d on reh’g. We consider only the probative 

evidence and reasonable inferences supporting the verdict. Parks v. State, 113 

N.E.3d 269, 272 (Ind. Ct. App. 2018). We will reverse only if no reasonable 

factfinder could determine the State proved all elements of the offense beyond a 

reasonable doubt. Id.

[10] Indiana Code section 35-42-4-8 provides:

A person who, with intent to arouse or satisfy the person’s own 

sexual desires or the sexual desires of another person . . . touches 

another person when that person is compelled to submit to the 

touching by force or the imminent threat of force . . . commits 

sexual battery, a Level 6 felony.

We evaluate the presence or absence of forceful compulsion from the victim’s 

perspective. Tobias v. State, 666 N.E.2d 68, 72 (Ind. 1996). “This is a subjective 

test that looks to the victim’s perception of the circumstances surrounding the 

incident in question. The issue is thus whether the victim perceived the 

aggressor’s force or imminent threat of force as compelling her compliance.” 

Id. The force element of sexual battery “need not be physical or violent, but 

may be implied from the circumstances.” Perry v. State, 962 N.E.2d 154, 158

(Ind. Ct. App. 2012). Fear is not a prerequisite to proving force or the threat of 
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force, but it may be evidence of force or the threat of force. McCarter v. State, 

961 N.E.2d 43, 46 (Ind. Ct. App. 2012), trans. denied.

[11] Sharp argues the State did not prove that he compelled A.G. to submit to the 

touching by force or the imminent threat of force. He contends his case is an 

example of the State prosecuting an individual for sexual battery when “the 

victim’s emotions are kept inward (or privately displayed) while the outwardly 

displayed responses and actions appear totally contrary.” (Appellant Br. at 15.)

However, A.G.’s testimony indicates she made it perfectly clear by her actions 

that Sharp’s advances were unwelcome. Nonetheless, Sharp continued to 

touch her against her will and restrict her movement. 

[12] Sharp pinned A.G. in a barstool and kissed her even after she tried to ignore 

Sharp’s offer to let the dogs outside for a kiss. After the kissing encounter, 

Sharp grabbed A.G.’s left buttock causing her to freeze until Sharp released her. 

He then entered A.G.’s bedroom, made suggestive comments, and grabbed her 

breast. When A.G. pushed Sharp’s hand away after he pulled on the collar of 

her sweatshirt, he tried to lift up the bottom of her sweatshirt. All these 

incidents occurred over an approximately forty-five-minute period, and A.G. 

texted her friend that she was scared during the episode. Sharp’s argument that 

he did not use force or the threat of force to compel A.G. to submit to the 

touching is simply an invitation for us to reweigh the evidence, which we will 

not do. See Filice v. State, 886 N.E.2d 24, 36 (Ind. Ct. App. 2008) (rejecting 

defendant’s argument that victim was aware and able to consent at time of 

sexual encounter as a request to reweigh the evidence), trans. denied. We 
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therefore hold the State presented sufficient evidence to sustain Sharp’s 

conviction of Level 6 felony sexual battery. See Bailey v. State, 764 N.E.2d 728, 

732 (Ind. Ct. App. 2002) (holding evidence was sufficient to sustain conviction 

for sexual battery when defendant approached victim from behind and grabbed 

her buttocks after she told him on a previous occasion to leave her alone), trans. 

denied.

Conclusion

[13] The State presented sufficient evidence to demonstrate Sharp compelled A.G. 

to submit to his touching by force. Therefore, we affirm his Level 6 felony 

sexual battery conviction.

[14] Affirmed.

Robb, J., and Vaidik, J., concur.