      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                    Apr 23 2015, 9:06 am
      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                                    ATTORNEYS FOR APPELLEE
      Bart M. Betteau                                           Gregory F. Zoeller
      Betteau Law Office, LLC                                   Attorney General of Indiana
      New Albany, Indiana
                                                                Larry D. Allen
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Christopher Underwood,                                    April 23, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                10A04-1405-CR-234
              v.                                                Appeal from the Clark Circuit Court

                                                                The Honorable Joseph P. Weber,
      State of Indiana,                                         Judge
      Appellee-Plaintiff
                                                                Case No. 10C03-1402-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 10A04-1405-CR-234 | April 23, 2015    Page 1 of 11
      (1) whether the trial court abused its discretion when it refused Underwood’s

      proffered 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 support a sexual battery 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 verdict 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 one guard. All three inmates’ wrists and feet

      were shackled. L.S. alleged that first, when the inmates were on the elevator,

      Underwood was standing behind her and touched her buttocks. L.S. alleged

      that subsequently, when the inmates were walking down the hallway,

      Underwood again touched her buttocks. L.S. alleged that then, when the

      inmates were in the courthouse garage area and the guard had his back turned,

      Underwood touched 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 apparently being

      touched.



      Court of Appeals of Indiana | Memorandum Decision 10A04-1405-CR-234 | April 23, 2015   Page 2 of 11
[3]   The State charged Underwood with three counts of class D felony sexual

      battery based upon the three separate incidents alleged by L.S. Each 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 35-42-4-8(a)(1)(A). The

      trial court denied the motion and Underwood proceeded to present evidence.

      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 regarding 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 proffered jury instruction regarding the presumption of

      innocence. The trial court has broad discretion in instructing the jury, and we

      review that discretion only for abuse. Kane v. State, 976 N.E.2d 1228, 1231

      (Ind. 2012). To determine whether the court properly refused a proffered

      Court of Appeals of Indiana | Memorandum Decision 10A04-1405-CR-234 | April 23, 2015   Page 3 of 11
      instruction, we consider: (1) whether the proffered instruction correctly states

      the law; (2) whether there was evidence presented 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, 766 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.2d 859, 864 (Ind. Ct. App. 2014), trans. denied (2012) as authority

      for his proposed instruction that included language stating that 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.

      64S03-1408-CR-516 (Ind. Mar. 25, 2015), our 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 abovementioned language,

      but then applied a flexible standard merely requiring the jury instructions as a

      whole to discuss the same principles. Slip op. at 7-8, 11. The McCowan court

      unequivocally and prospectively resolved 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 innocence

      Court of Appeals of Indiana | Memorandum Decision 10A04-1405-CR-234 | April 23, 2015   Page 4 of 11
      continues in favor of the defendant throughout the trial. You should fit the

      evidence to the presumption that the defendant is innocent if you can

      reasonably do so.’” Id. at 1-2.1


[6]   Because this 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

      standard 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 it 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 instructions here reveals that the jury was adequately

      instructed regarding these principles. Accordingly, 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, “If 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
      established by our jurisprudence.” Id. at 9 (footnote and citation omitted).

      Court of Appeals of Indiana | Memorandum Decision 10A04-1405-CR-234 | April 23, 2015              Page 5 of 11
      her pending criminal 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 substantially affects defendant’s

      rights). Thus, we cannot say that the trial court abused its discretion.

      Moreover, we 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 beyond 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-examination




      Court of Appeals of Indiana | Memorandum Decision 10A04-1405-CR-234 | April 23, 2015   Page 6 of 11
      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 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.




      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 his 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 10A04-1405-CR-234 | April 23, 2015             Page 7 of 11
[10]   To prove that Underwood committed class D felony sexual battery, the State

       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 § 35-42-4-

       8(a)(1)(A). 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. 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 § 35-42-4-8.” Bailey v. State, 764 N.E.2d

       728 (Ind. Ct. App. 2002), 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

       compulsion 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 this is a

       subjective test and the 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. We agree. The evidence most favorable to the veridict

       indicates that, while L.S. and Underwood were in the garage area of the

       courthouse, Underwood approached L.S. from behind and touched her


       Court of Appeals of Indiana | Memorandum Decision 10A04-1405-CR-234 | April 23, 2015   Page 8 of 11
       buttocks. There is insufficient evidence, however, that in doing so, Underwood

       committed any act of force or threat 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 there is no evidence that L.S. was even

       aware that Underwood was approaching her from behind before this touching

       occurred, let alone that she was somehow compelled by force or the imminent

       threat of force by him to submit 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]   We are unpersuaded by the State’s argument that the jury could reasonably

       infer that L.S. was compelled to submit 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 that Underwood had earlier touched L.S. came from L.S.’s testimony. Two defense
       witnesses who watched 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 occasions. The jury found Underwood not guilty of
       sexual battery or the lesser-included offense of battery relating to those two alleged incidents.

       Court of Appeals of Indiana | Memorandum Decision 10A04-1405-CR-234 | April 23, 2015           Page 9 of 11
       argued 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 conviction.


[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 misdemeanor battery if he knowingly or intentionally

       touches another person in a rude, insolent, or angry manner. Ind. Code § 35-

       42-2-1(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

       hearing.” 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. There was sufficient evidence to establish that

       Underwood knowingly or intentionally touched L.S.’s buttocks in a rude,

       insolent, or angry manner. Thus, we reverse and remand with instructions for

       Court of Appeals of Indiana | Memorandum Decision 10A04-1405-CR-234 | April 23, 2015   Page 10 of 11
       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.




       Court of Appeals of Indiana | Memorandum Decision 10A04-1405-CR-234 | April 23, 2015   Page 11 of 11
