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
                                                                           FILED
estoppel, or the law of the case.                                     Oct 11 2017, 5:51 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Fisher                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Letcher,                                          October 11, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1705-CR-909
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Barbara Cook-
Appellee-Plaintiff.                                      Crawford, Judge
                                                         Trial Court Cause No.
                                                         49G09-1510-F6-34878



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1705-CR-909 | October 11, 2017         Page 1 of 11
                                          Case Summary
[1]   Appellant-Defendant Robert Letcher was charged with and convicted of Level

      6 felony sexual battery, two counts of Level 6 felony criminal confinement, and

      Class B misdemeanor battery following two separate incidents with a female co-

      worker. Letcher contends on appeal that his convictions for Count II–Level 6

      felony criminal confinement and Count IV–Class B misdemeanor battery

      violate constitutional prohibitions against double jeopardy. Letcher also

      contends on appeal that the evidence is insufficient to sustain his convictions for

      Count I–Level 6 felony sexual battery and Count III–Level 6 felony criminal

      confinement. Appellee-Plaintiff the State of Indiana (“the State”) concedes that

      Letcher’s convictions for Count II–Level 6 felony criminal confinement and his

      conviction for Count IV–Class B misdemeanor battery violate the prohibitions

      against double jeopardy and must be vacated. The State argues, however, the

      evidence is sufficient to sustain Letcher’s remaining convictions. Because we

      agree, we affirm in part, reverse in part, and remand to the trial court with

      instructions to vacate Letcher’s convictions under Count II and Count IV.



                            Facts and Procedural History
[2]   On the date in question, both Letcher and his victim, Ba.M., worked at the

      Veteran’s Affairs (“VA”) Hospital in Indianapolis. During the morning hours

      of September 10, 2015, Letcher came into her basement office and indicated

      that she and he were “wanted upstairs.” Tr. Vol. II, p. 9. Ba.M., who had been

      giving instructions to her assistant when Letcher entered the office, indicated

      Court of Appeals of Indiana | Memorandum Decision 49A04-1705-CR-909 | October 11, 2017   Page 2 of 11
      that Letcher should “[g]o on up there” and that she would be upstairs shortly.

      Tr. Vol. II, p. 10. Letcher “cocked his head to the side” before rushing over to

      Ba.M. Tr. Vol. II, p. 10. He then “pinned [Ba.M.] back up against [her

      assistant’s] desk and the other desk with [her] arms behind [her]. Pressing his

      body on [her] body where [she] couldn’t move. He had both of [her] arms

      pinned behind [her].” Tr. Vol. II, p. 10. Letcher “put all his weight on [Ba.M.]

      and he said, ‘I’m tired of you.’” Tr. Vol. II, p. 10. Ba.M. could feel Letcher’s

      stomach and erect penis pressing against her. Letcher also attempted to kiss

      Ba.M. on her face. Ba.M. indicated that if she had not turned her head when

      he tried to kiss her, “he would have got a full frontal kiss on me.” Tr. Vol. II, p.

      26. Letcher pulled away after Ba.M.’s assistant instructed him to “[g]et off

      her.” Tr. Vol. II, p. 10.


[3]   Later that afternoon, Ba.M. again encountered Letcher, this time in a VA

      Hospital hallway. A security video recording of the encounter demonstrates

      that while Ba.M. was standing with her back to the wall, Letcher approached

      Ba.M., impeded her ability to step away from him, and attempted to grab both

      of her hands and wrists. Ba.M. repeatedly attempted to pull her hands away

      from Letcher before he was ultimately able to grab ahold of her left wrist. Once

      Letcher grabbed ahold of her wrist, Ba.M. attempted to remove Letcher’s hand

      from her wrist. Letcher held onto Ba.M.’s wrist for a few moments before

      letting go of her wrist and allowing her to pass by him. The video further

      demonstrated that at least one other employee witnessed Letcher’s actions.

      Ba.M. subsequently reported Letcher’s actions to VA police officers.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1705-CR-909 | October 11, 2017   Page 3 of 11
[4]   On October 6, 2015, the State charged Letcher with Count I–Level 6 felony

      sexual battery, Count II–Level 6 felony criminal confinement, Count III–Level

      6 felony criminal confinement, and Count IV–Class B misdemeanor battery.

      The trial court conducted a bench trial on February 28, 2017, after which it

      found Letcher guilty as charged. The trial court subsequently imposed an

      aggregate 545-day suspended sentence. This appeal follows.



                                 Discussion and Decision
                              I. Double Jeopardy Concerns
[5]   Letcher contends that his convictions for Count II–Level 6 felony criminal

      confinement and Count IV–Class B misdemeanor battery violate the

      prohibitions against double jeopardy. Specifically, Letcher argues that these

      convictions cannot stand because the same evidence that was used to prove

      Count I was also used to prove Count II, and similarly that the same evidence

      that was used to prove Counts III was also used to prove Count IV. The State

      agrees and concedes that the convictions for Count II and Count IV cannot

      stand and should be vacated. We therefore remand the matter to the trial court

      with the instruction to vacate Letcher’s convictions under Counts II and IV.



                           II. Sufficiency of the Evidence
[6]   Letcher also contends that the evidence is insufficient to sustain his remaining

      convictions for Count I–Level 6 felony sexual battery and Count III–Level 6

      felony criminal confinement.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1705-CR-909 | October 11, 2017   Page 4 of 11
               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


      Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

      quotations omitted). “In essence, we assess only whether the verdict could be

      reached based on reasonable inferences that may be drawn from the evidence

      presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

      original). Upon review, appellate courts do not reweigh the evidence or assess

      the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

      2002).


                      A. Count I–Level 6 Felony Sexual Battery
[7]   In charging Letcher with Count I–Level 6 felony sexual battery, the State

      alleged as follows:


               On or about September 10, 2015, in the morning, Robert
               Letcher, with the intent to arouse or satisfy the sexual desires of
               Robert Letcher, did compel [Ba.M.] to submit to a touching by


      Court of Appeals of Indiana | Memorandum Decision 49A04-1705-CR-909 | October 11, 2017   Page 5 of 11
        force or imminent threat of force, to-wit: by physically pushing
        [Ba.M.] against a wall and attempting to kiss her[.]


Appellant’s App. Vol. II–Confidential, p. 22. The Indiana General Assembly

has defined the crime of sexual battery as follows:


        (a) 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 threat of force;
                      or
                      (B) so mentally disabled or deficient that
                      consent to the touching cannot be given;
                      or
               (2) touches another person’s genitals, pubic area,
               buttocks, or female breast when that person is
               unaware that the touching is occurring;
        commits sexual battery, a Level 6 felony.


Ind. Code § 34-42-4-8.


        “[I]t is the victim’s perspective, not the assailant’s, from which
        the presence or absence of forceful compulsion is to be
        determined. This is a subjective test that looks to the victim’s
        perception of the circumstances surrounding the incident in
        question.” McCarter v. State, 961 N.E.2d 43, 46 (Ind. Ct. App.
        2012) (citing Tobias v. State, 666 N.E.2d 68, 72 (Ind. 1996), [ ]),
        trans. denied. Force “may be implied from the circumstances.”
        Id. (citing Bailey v. State, 764 N.E.2d 728, 731 (Ind. Ct. App.
        2002), trans. denied.). Evidence that 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. Id. (citations omitted). “Not all
        touchings intended to arouse or satisfy sexual desires constitute

Court of Appeals of Indiana | Memorandum Decision 49A04-1705-CR-909 | October 11, 2017   Page 6 of 11
               sexual battery; only those in which the person touched is
               compelled to submit by force or imminent threat of force violate
               Indiana Code section 35-42-4-8.” Id.


      Frazier v. State, 988 N.E.2d 1257, 1261 (Ind. Ct. App. 2013) (second set of

      brackets added).


[8]   Letcher argues on appeal that because kissing is not conduct that is covered in

      subsection (a)(2) of the sexual battery statute, the State failed to both allege and

      prove that he committed a sexual battery upon Ba.M. Letcher, however, fails

      to acknowledge that a reading of the charging information makes it clear that

      the State did not allege that he violated subsection (a)(2) of the statute, but

      rather subsection (a)(1).1


[9]   The relevant facts demonstrate that during the morning hours of September 10,

      2015, Letcher came into Ba.M.’s basement office and indicated that they were

      “wanted upstairs.” Tr. Vol. II, p. 9. Ba.M., who had been giving instructions

      to her assistant when Letcher entered the office, indicated that Letcher should

      “[g]o on up there” and that she would be upstairs shortly. Tr. Vol. II, p. 10.

      Letcher “cocked his head to the side” before rushing over to Ba.M. Tr. Vol. II,

      p. 10. He then “pinned [Ba.M.] back up against [her assistant’s] desk and the




      1
        For this reason, Letcher’s reliance on our prior opinion in Ball v. State, 945 N.E.2d 252 (Ind. Ct. App.
      2011), trans. denied, is misplaced. In Ball, the State sought to allege that the defendant committed sexual
      battery under subsection (a)(2) by kissing the victim while the victim was asleep and thus unable to consent.
      Upon review, we concluded that the fact that the victim was asleep at the time of the attack did not render
      her equivalent to being mentally disabled or deficient such that she was unable to give consent. 945 N.E.2d
      at 258.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1705-CR-909 | October 11, 2017            Page 7 of 11
       other desk with [her] arms behind [her]. Pressing his body on [her] body where

       [she] couldn’t move. He had both of [her] arms pinned behind [her].” Tr. Vol.

       II, p. 10. Letcher “put all his weight on [Ba.M.] and he said, ‘I’m tired of

       you.’” Tr. Vol. II, p. 10. Ba.M. could feel Letcher’s stomach and erect penis

       pressing against her. Letcher also attempted to kiss Ba.M. on her face. Ba.M.

       indicated that if she had not turned her head when he tried to kiss her, “he

       would have got a full frontal kiss on me.” Tr. Vol. II, p. 26. Letcher pulled

       away after Ba.M.’s assistant instructed him to “[g]et off her.” Tr. Vol. II, p. 10.


[10]   These facts are sufficient to prove that Letcher, with intent to arouse or satisfy

       his own sexual desires, touched Ba.M. and that Ba.M. was compelled to submit

       to the touching by force. As such, the evidence is sufficient to sustain Letcher’s

       conviction for Level 6 felony sexual battery. Letcher’s claim otherwise

       amounts to nothing more than an invitation for this court to reweigh the

       evidence, which we will not do. See Stewart, 768 N.E.2d at 435.


                B. Count III–Level 6 Felony Criminal Confinement
[11]   In charging Letcher with Count III–Level 6 felony criminal confinement, the

       State alleged as follows:


               On or about September 11[2], 2015, in the afternoon, Robert
               Letcher did knowingly confine [Ba.M.] without the consent of




       2
         Although the charging information indicated that the alleged acts took place during the afternoon hours of
       September 11, 2015, it is undisputed by the parties that the alleged acts actually took place during the
       afternoon hours of September 10, 2015.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1705-CR-909 | October 11, 2017           Page 8 of 11
               said [Ba.M.], by physically grabbing [Ba.M.] against a wall and
               forcing her to remain there[.]


       Appellant’s App. Vol. II–Confidential, p. 23. The Indiana General Assembly

       has defined the crime of criminal confinement as follows:


               A person who knowingly or intentionally confines another
               person without the other person’s consent commits criminal
               confinement. Except as provided in subsection (b), the offense of
               criminal confinement is a Level 6 felony.


       Ind. Code § 35-42-3-3(a). To “‘confine’ means to substantially interfere with

       the liberty of a person.” Ind. Code § 35-42-3-1.


[12]   Letcher claims that the video contradicts Ba.M.’s testimony. Specifically, he

       argues that the video demonstrates that “there was no interference, much less

       substantial interference, with [Ba.M.]’s liberty.” Appellant’s Br. p. 12. Further,

       while Letcher concedes that his conduct was “certainly boorish, rude and

       entirely inappropriate,” he claims that “it was simply not the basis for a

       criminal conviction.” Appellant’s Br. p. 13. He further claims that if his

       “clumsy attempt to flirt and to hold hands constitutes the basis for a felony

       offense, then a whole range of stupid male behavior would be subject to serious

       criminal liability. The conduct depicted in the video was obnoxious, not

       criminal.” Appellant’s Br. p. 13.


[13]   Contrary to Letcher’s self-serving characterization of the events depicted on the

       video, we do not believe that the actions depicted in the security camera video

       were directly at odds with Ba.M.’s testimony. Consistent with Ba.M.’s

       Court of Appeals of Indiana | Memorandum Decision 49A04-1705-CR-909 | October 11, 2017   Page 9 of 11
       testimony, the video shows that while Ba.M. was standing with her back to the

       wall, Letcher approached Ba.M., impeded her ability to step away from him,

       and attempted to grab both of her hands. Ba.M. attempted to pull her hands

       away from Letcher before he was ultimately able to grab ahold of her left wrist.

       The video demonstrates that once Letcher grabbed ahold of her wrist, Ba.M.

       tried to remove Letcher’s hand from her wrist. Letcher held onto Ba.M.’s wrist

       for a few moments before letting go of her wrist and allowing her to pass by

       him. The video further shows that, again consistent with Ba.M.’s testimony, at

       least one other employee witnessed Letcher’s actions.


[14]   The video coupled with Ba.M.’s testimony is sufficient to prove that Letcher

       knowingly or intentionally confined Ba.M. without Ba.M.’s consent. As such,

       the evidence is sufficient to sustain Letcher’s conviction for Level 6 felony

       criminal confinement. As was the case above, Letcher’s claim otherwise

       amounts to nothing more than an invitation for this court to reweigh the

       evidence, which we will not do. See Stewart, 768 N.E.2d at 435.



                                               Conclusion
[15]   In sum, we agree with the parties that Letcher’s convictions under Counts II

       and IV violate the prohibitions against double jeopardy and must therefore be

       vacated on remand. We further conclude that the evidence is sufficient to

       sustain Letcher’s remaining convictions under Counts I and III.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1705-CR-909 | October 11, 2017   Page 10 of 11
[16]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions.


       May, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1705-CR-909 | October 11, 2017   Page 11 of 11
