MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jul 02 2020, 9:20 am
court except for the purpose of establishing
                                                                               CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Thomas M. Leatherman                                      Curtis T. Hill, Jr.
Leatherman & Miller Law Office                            Attorney General of Indiana
Goshen, Indiana
                                                          Myriam Serrano
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David Sharp,                                              July 2, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2958
        v.                                                Appeal from the Elkhart Superior
                                                          Court
State of Indiana,                                         The Honorable Kristine Osterday,
Appellee-Plaintiff                                        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 1 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.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2958 | July 2, 2020   Page 2 of 7
[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 3 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.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2958 | July 2, 2020   Page 4 of 7
                                  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




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2958 | July 2, 2020   Page 5 of 7
       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

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2958 | July 2, 2020   Page 6 of 7
       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.




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