                                                                          Jul 16 2013, 7:03 am
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:                              ATTORNEYS FOR APPELLEE:

KRISTIN A. MULHOLLAND                                GREGORY F. ZOELLER
Appellate Public Defender                            Attorney General of Indiana
Crown Point, Indiana
                                                     KATHERINE MODESITT COOPER
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

DELFORD W. JONES,                                    )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )      No. 45A03-1209-CR-401
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Diane Ross Boswell, Judge
                               Cause No. 45G03-1011-FC-115



                                           July 16, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge
      Delford W. Jones (“Jones”) appeals his convictions for child molesting,1 a Class

C felony and sexual battery,2 a Class D felony, contending that there was insufficient

evidence of his intent to arouse or satisfy either his sexual desires or those of V.F. to

support his convictions. Concluding that the State failed to prove this element, we

reverse Jones’s convictions for Class C felony child molesting and Class D felony sexual

battery and remand with instructions that the trial court enter judgment of conviction for

Class B misdemeanor battery and re-sentence as appropriate.

      We reverse and remand with instructions.

                          FACTS AND PROCEDURAL HISTORY

      In the fall of 2010, Jones, who had blood pressure issues, and his wife, Alice, who

had suffered two strokes, were receiving home care from Charlene, a registered nurse

who had known Jones and his family for ten years. On October 22, 2010, Charlene was

not scheduled to work. However, at the request of Jones’s daughter, Charlene and her

thirteen-year-old daughter, V.F., stopped by the house to check on Alice; this was

something V.F. had done with her mother four or five times previously.

      About forty-five minutes later, Charlene left to buy V.F. dinner, while V.F. stayed

in the Jones’s living room drawing pictures for Alice. While V.F. did not typically do

chores at the Jones’s house, at Jones’s request, she carried a bottle of detergent to the

basement. Jones asked V.F. to load the dirty clothes into the washer, and as she bent over

to do so, Jones “slapped [her] butt.” Tr. at 59. V.F. continued to load the washer, but as

      1
          See Ind. Code § 35-42-4-3(b).
      2
          See Ind. Code § 35-42-4-8.

                                            2
she stood up, Jones put his arms around V.F. and hugged her so that she was facing him

and her feet were off the ground. Jones gave V.F. a kiss that made contact with her cheek

when she turned her head.3 Jones then picked V.F. up, and saying that he wanted to show

V.F. something, tried to carry her to the side of the basement where, V.F. testified, she

knew there was a bed. Id. at 60, 78, 92. After wriggling free from Jones and from the

hold he had on her arm, V.F. ran upstairs. Jones remained in the basement for five

additional minutes. Charlene returned about ten minutes later and found Jones in the

kitchen and V.F. in the living room with Alice. Charlene noticed that Alice was upset,

but Alice’s physical limitations from past strokes prevented Alice from speaking.

       V.F. told her mother about the incident after they had left Jones’s home. The next

day, Charlene confronted Jones and asked him to write down what happened. In the

letter, Jones said that he felt badly about “teasing” V.F., that he had done what V.F.

reported, and that he was sorry “if [V.F.] thought [he] was being any way sexual.” Def.’s

Ex.1-B. Charlene reported the incident to the police and gave Jones’s letter to the police.

A detective from the Griffin Police Department interviewed V.F., Charlene, Jones and

Jones’s daughter.

       Jones was charged with child molesting, a Class C felony, and sexual battery, a

Class D felony. A jury returned a verdict of guilty on both counts. The trial court,

however, found that the Class D sexual battery conviction merged with the child

molesting conviction and imposed a four-year sentence, two years of which were

       3
           On cross examination, the State asked V.F., “Okay. Your testimony was today that he maybe
tried to kiss you on the mouth, what do you mean by maybe”? Tr. at 79. V.F. answered, “I don’t know
where he was trying to go, but when I moved my head he got me on the cheek.” Id.

                                                 3
suspended to probation. Jones now appeals.

                                    DISCUSSION AND DECISION

        “It is well established that where a defendant is challenging the sufficiency of the

evidence to support a conviction, we neither reweigh the evidence nor judge the

credibility of the witnesses, and we affirm if there is substantial evidence of probative

value supporting each element of the crime from which a reasonable trier of fact could

have found the defendant guilty beyond a reasonable doubt.” Prickett v. State, 856

N.E.2d 1203, 1206 (Ind. 2006) (internal quotation marks omitted). The fact finder bears

the responsibility for determining whether the evidence in a given case is sufficient to

satisfy each element of an offense, and we consider conflicting evidence in the light most

favorable to the trial court’s ruling. Id. We will reverse a conviction, however, if the

record does not reveal substantial evidence of probative value, and there is a reasonable

doubt in the minds of reasonably prudent persons. Clark v. State, 695 N.E.2d 999, 1002

(Ind. Ct. App. 1998), trans. denied.

        On appeal, Jones contends that the State presented insufficient evidence of the

required element that he “acted with the intent to arouse or satisfy either his sexual

desires or those of V.F.” Appellant’s Br. at 6. The State had to prove this element in

order to convict Jones of child molesting4 and sexual battery.5 Mere touching alone is not


        4
          The child molesting statute provides in pertinent part: “A person who, with a child under
fourteen (14) years of age, performs or submits to any fondling or touching, of either the child or the older
person, with intent to arouse or to satisfy the sexual desires of either the child or the older person,
commits child molesting, a Class C felony.” Ind. Code § 35-42-4-3(b) (emphasis added).
        5
            The sexual battery statute provides in pertinent part:


                                                        4
sufficient to satisfy the burden of proving the crime of child molesting or sexual battery;

the State must also prove that the act of touching was accompanied by the specific intent

to arouse or satisfy sexual desires. Rodriguez v. State, 868 N.E.2d 551, 553 (Ind. Ct.

App. 2007). “The intent to arouse or satisfy the sexual desires of the child or the older

person may be established by circumstantial evidence and may be inferred from the

actor’s conduct and the natural and usual sequence to which such conduct usually

points.” Id. at 553-54 (citations omitted) (internal quotation marks omitted).

       Jones, who was seventy-five at the time of the alleged incident, maintains that

while it may have been inappropriate for him to slap a thirteen-year-old girl on the

bottom, kiss her cheek, and carry her to the basement stairs, his action was not sexual in

nature, i.e., there was no proof that he acted with intent to satisfy or arouse anyone’s

sexual desires. Appellant’s Br. at 6. The State responds that there “is no innocent motive

here for slapping a thirteen-year-old girl’s buttocks and hugging her tightly so that he

could kiss her.” Appellee’s Br. at 8. The State fails to point to any evidence in the record

or any inference to be drawn from such evidence to demonstrate that such slapping and

hugging was done with the intent to arouse or satisfy sexual desires.

       Jones cites to Clark, as support for his claim that the evidence of intent to arouse

       (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; []
               ....
       commits sexual battery, a Class D felony.

Ind. Code § 35-42-4-8 (emphasis added).

                                                   5
was insufficient. In that case, Clark appealed, in pertinent part, the sufficiency of the

evidence to support his conviction of child molesting. Clark, 695 N.E.2d at 1001. The

facts underlying that conviction were that Clark was in his workshop with his six-year-

old daughter C.C. Id. There, he “removed C.C.’s pants, hung her upside down on a nail,

and tickled her under the arms.” Id. A customer approaching the shop heard C.C.

screaming. Thereafter, the customer observed that C.C. was hanging upside down and

was naked except for a shirt. Id. When Clark saw the customer, he took C.C. down and

redressed her. Based on these facts, our court found insufficient evidence of the element

of intent to arouse or satisfy Clark or C.C.’s sexual desires. This court found that while

the actions raised a question of “propriety of Clark’s behavior, standing alone, they do

not constitute substantial evidence of probative value on the element of intent.” Id. at

1002.    Accordingly, our court was “constrained to reverse Clark’s child molesting

conviction.” Id.

        Here, the State maintains that:

        [Defendant] performed intentional sexual acts on [V.F.]. Defendant
        slapped her on the buttocks in a provocative manner as she bent over to do
        the laundry. There was no reason for Defendant to have done this other
        than to engage V.F. sexually. But, Defendant did not stop there. He
        proceeded to hug V.F. so tightly—in a “bear hug”—that he lifted her off
        the ground and then he kissed her. From these acts, the jury could
        reasonably conclude that Defendant intended sexual arousal. The fact that
        V.F. was able to thwart Defendant’s actions by turning away from him and
        later escaping from his grasp does not negate Defendant’s intent. It is
        reasonable to infer that Defendant would have continued to touch or fondle
        V.F. if she had not escaped his grasp and fled up the stairs.

Appellee’s Br. at 7 (citations omitted).

        The State argues that Clark is inapposite because Jones is not “V.F.’s father or

                                            6
grandfather and there was no testimony that Jones is related to V.F. at all. There was also

no testimony that he had established the kind of relationship with V.F. where his slapping

of the child’s buttocks could be viewed as playful and his kiss could be viewed as

innocent.” Id. at 7-8 (emphasis added). Contrary to the State’s contention, Jones did not

have the burden of proving that his relationship with V.F. was such that the slap was

merely playful; instead, the State had to “prove beyond a reasonable doubt that the act of

touching was accompanied by the specific intent to arouse or satisfy sexual desires.”

Bass v. State, 947 N.E.2d 456, 460 (Ind. Ct. App. 2011), trans. denied.

       In closing argument, the State made the following statements:

       [V.F.] went down into the basement of the home of the defendant to help
       him wash clothes, something she had never done before; and while she’s
       there, while she’s down there helping him, bending over to put those
       clothes into the washing machine, the defendant smacks her butt, not an
       accidental brush, not a kind of pat, smacks her butt. That, ladies and
       gentlemen, arises to the level of child molestation.

       We will talk about intent more. The defense will argue to you there’s no
       sexual desire of intent [sic], but the elements are that the defendant, Delford
       Jones, with the intent to arouse or satisfy the sexual desires of him or [V.F.]
       when [V.F.] was a child . . . under 14 years of age—remember she was 13
       at the time—knowingly performed or submitted to any fondling or touching
       of either the child, [V.F.], or the defendant.

       The smacking of the butt, we talked about this in jury selection. Smacking
       of the butt can be fondling. It can be touching, and then after he does that,
       he picks her up in a bear-hug fashion facing face to face and he carries her,
       and at some point he tries to kiss her. [V.F.] can’t say whether or not, yes,
       he’s trying to kiss her on the mouth, but she says when she turns her head,
       he gets her on the side of her face.

       [V.F.]’s hugged. She can’t really move at that point, and he tries to kiss
       her. She has to wiggle free. He holds her arm to try to come see something
       on the other side of the basement. That, ladies and gentlemen, is sexual
       battery. . . .

                                             7
Tr. at 163-64.

       In McCoy v. State, 574 N.E.2d 304 (Ind. Ct. App. 1991), we reviewed a

prosecutor’s statement during closing arguments that the defendant’s admission that he

kissed a fifteen-year-old child was sufficient by itself to obtain a conviction for child

molesting by fondling and touching. We concluded that the prosecutor misstated the law.

McCoy, 574 N.E.2d at 308. As support, we cited DeBruhl v. State, 544 N.E.2d 542 (Ind.

Ct. App. 1989), and noted that “‘kissing on the neck even coupled with removal of

clothing is not sufficient to support a conviction for child molesting by fondling and

touching because the intent element is not met.’” McCoy, 574 N.E.2d at 308 (quoting

DeBruhl, 544 N.E.2d at 546) (emphasis in original).

       Thereafter, we clarified that the inappropriateness of the McCoy prosecutor’s

comment arose, not because the prosecutor focused on the act of kissing, but instead

because the prosecutor “misrepresented that the act of kissing a child constituted child

molesting without considering the intent of that act.” Nuerge v. State, 677 N.E.2d 1043,

1049 n.3 (Ind. Ct. App. 1997), trans. denied.         Like the comments of the McCoy

prosecutor, here, the State’s closing remarks failed to truly address Jones’s intent to

arouse. However, finding as we do that the evidence of intent to arouse was insufficient

to support Jones’s convictions, we do not address the issue of prosecutorial misconduct.

       This is a troubling case. We do not condone Jones’s actions. At the very least,

they were inappropriate. Nevertheless, the State had the burden to prove much more than

inappropriate conduct. Its burden was to prove beyond a reasonable doubt that Jones had



                                            8
the intent to arouse or satisfy either his sexual desires or those of V.F. at the time he

slapped her buttocks, carried her in a bear hug, and kissed her. The State failed in its

burden. Accordingly, we must reverse Jones’s convictions for child molesting and sexual

battery.

       However, 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. Perry v. State, 962 N.E.2d 154,

159 (Ind. Ct. App. 2012); Ball v. State, 945 N.E.2d 252, 258 (Ind. Ct. App. 2011), trans.

denied. Indiana Code section 35-42-2-1(a) provides, “[a] person who knowingly or

intentionally touches another person in a rude, insolent, or angry manner commits

battery, a Class B misdemeanor.” “Evidence of touching, however slight, is sufficient to

support a conviction for battery.” Ball, 945 N.E.2d at 258 (citing Mishler v. State, 660

N.E.2d 343, 348 (Ind. Ct. App. 1996)). The evidence at trial was that Jones slapped V.F.

on the bottom, carried her in a bear hug, kissed her, and grabbed her arm as V.F. tried to

flee upstairs. The rude nature of the touching can be inferred because V.F. did not desire

that Jones take any of these actions. See Ball, 945 N.E.2d at 258 (evidence of kiss that

was “not desire[d]” was sufficient to prove Class B misdemeanor battery). We conclude

the evidence presented at trial was sufficient to prove Jones committed battery as a Class

B misdemeanor. See Perry, 962 N.E.2d at 169 (reversing sexual battery conviction for

insufficient evidence but remanding for entry of judgment of conviction of battery); Ball,

945 N.E.2d at 258 (reversing sexual battery conviction for insufficient evidence but

remanding for entry of judgment of conviction of battery). We, therefore, reverse Jones’s

                                             9
convictions for Class C felony child molesting and Class D felony sexual battery and

remand with instructions that the trial court enter judgment of conviction for Class B

misdemeanor battery and re-sentence as appropriate.

      Reversed and remanded with instructions.

VAIDIK, J., and PYLE, J. concur.




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