      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                     Apr 20 2015, 9:32 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
      Kathleen M. Sweeney                                       Gregory F. Zoeller
      Sweeney Hayes, LLC                                        Attorney General of Indiana
      Indianapolis, Indiana
                                                                Angela N. Sanchez
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Paul Bell, Jr.,                                           April 20, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                02A03-1410-CR-366
              v.                                                Appeal from the Allen Superior
                                                                Court
      State of Indiana,                                         The Honorable Frances M. Gull,
      Appellee-Plaintiff                                        Judge

                                                                Case No. 02D06-1401-FB-19




      Crone, Judge.


                                               Case Summary
[1]   Paul Bell, Jr., appeals his conviction and sentence for class D felony sexual

      battery, following a jury trial. The dispositive issue presented for our review is

      Court of Appeals of Indiana | Memorandum Decision 02A03-1410-CR-366 | April 20, 2015       Page 1 of 6
      whether the State presented sufficient evidence to support his conviction.

      Finding the evidence insufficient, we reverse and remand.


                                  Facts and Procedural History
[2]   On July 19, 2013, twenty-year-old A.J. attended a party at her best friend’s

      house in Fort Wayne. During the party, A.J. consumed “a glass of wine,

      possibly two” and one shot of vodka. Tr. at 64. A.J. testified that she was not

      intoxicated. A.J.’s former high school boyfriend, Landon, was also at the

      party. A.J. spoke with Landon outside for over an hour and the two kissed

      during that time. Around midnight, Bell arrived at the party. A.J. knew Bell

      and saw him arrive, but she did not interact with him.


[3]   Sometime after midnight, A.J. decided to go inside to go to bed. Landon was

      still at the party when A.J. went inside. A.J. had been sleeping for a few hours

      when she awoke with Bell on top of her, kissing and touching her. A.J. did not

      realize it was Bell but assumed it was Landon. A.J. kissed Bell back. A.J. was

      “in and out of sleep” as the kissing and touching continued. Id. at 75. At one

      point, Bell started to have sexual intercourse with A.J. and she still did not

      realize that he was not Landon. When Bell eventually asked A.J., “Do you

      know who I am?” she immediately realized he was not Landon. Id. at 76. A.J.

      tried to push Bell off her, but he continued to have sexual intercourse with her

      until he finally just “fell dead weight on top” of her. Id. A.J. pushed Bell off

      her and went downstairs to tell her friends what happened. A.J. was crying and

      upset.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1410-CR-366 | April 20, 2015   Page 2 of 6
[4]   The State charged Bell with class B felony rape and class D felony sexual

      battery. Regarding the sexual battery charge, the State alleged that Bell, with

      the intent to arouse or satisfy his own sexual desires or the sexual desires of

      A.J., touched A.J. when she was so mentally disabled or deficient that she

      could not give consent to the touching. Appellant’s App. at 20. A jury trial was

      held on August 12 and 13, 2014. The jury found Bell not guilty of rape, but

      guilty of class D felony sexual battery. The trial court sentenced Bell to three

      years’ imprisonment. This appeal ensued.


                                     Discussion and Decision
[5]   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.


[6]   To prove that Bell committed class D felony sexual battery as charged here, the

      State was required to prove that Bell, acting with intent to arouse or satisfy his

      own sexual desires or the sexual desires of A.J., touched A.J. when she was “so


      Court of Appeals of Indiana | Memorandum Decision 02A03-1410-CR-366 | April 20, 2015   Page 3 of 6
      mentally disabled or deficient that consent to the touching” could not be given.

      Ind. Code § 35-42-4-8(a)(1)(B).1 Bell contends that the State failed to prove that

      A.J. was “so mentally disabled or deficient” that she could not give her consent

      to the touching. Specifically, he argues that A.J.’s state of being asleep during

      the touching does not constitute being mentally disabled or deficient pursuant

      to the sexual battery statute. We agree.


[7]   The evidence indicates that A.J. had been sleeping for a few hours when she

      awoke to a male on top of her, kissing and touching her. A.J. assumed it was

      her ex-boyfriend. Although she was “half asleep,” A.J. kissed the male back.

      Tr. at 97. A.J. testified that she was “in and out of sleep” as the kissing and

      touching continued. Id. at 75. At one point, the male started to have sex with

      A.J. and she still did not realize that he was not her ex-boyfriend. A.J. stated

      that it was not until the male, Bell, asked her, “Do you know who I am?” that

      she realized he was not her ex-boyfriend. Id. at 76. A.J. testified that she was

      not intoxicated or impaired by any medication.


[8]   We agree with Ball that this evidence is insufficient, pursuant to Indiana Code

      Section 35-42-4-8(a)(1)(B), to establish that A.J. was so mentally disabled or

      deficient that consent to the touching could not be given. In Ball v. State, 945

      N.E.2d 252, 258 (Ind. Ct. App. 2011), trans. denied, another panel of this Court

      interpreted the phrase “mentally disabled or deficient” pursuant to the sexual



      1
        This statute was amended effective July 1, 2014. We cite the version in effect at the time Bell committed his
      crime.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1410-CR-366 | April 20, 2015               Page 4 of 6
      battery statute and determined that “being asleep does not constitute being

      mentally disabled or deficient.” In reaching its decision, the Ball court looked

      to the interpretation of similar language in the rape and criminal deviate

      conduct statutes and noted that the phrase “mentally disabled or deficient” had

      been interpreted to include those with lower than normal intelligence, highly

      intoxicated victims, and a victim who had unknowingly ingested eight Xanax.

      Id. at 257. The Ball court found that a victim’s state of being asleep during a

      touching had only been found to satisfy an additional, alternative prong

      included in the rape and criminal deviate conduct statutes, not then present in

      the sexual battery statute, which permits conviction of a defendant if the victim

      is “unaware” the conduct is occurring. Id. (citations omitted). After Ball,

      effective July 1, 2012, to June 30, 2014, our legislature amended the sexual

      battery statute to include a provision, similar to the other sex offense statutes,

      regarding the sexual touching of a victim who is “unaware that the touching is

      occurring.” Ind. Code § 35-42-4-8(a)(2). Curiously, the State did not charge

      Bell pursuant to this subsection of the statute nor argue at trial or ask the jury to

      be instructed as to this subsection.


[9]   We agree with the holding in Ball and conclude that A.J.’s state of being what

      she described as “half-asleep” during Bell’s touching (coupled with the apparent

      mistaken identity that occurred) is not equivalent to a mental disability or

      deficiency for the purposes of the sexual battery statute. See Perry v. State, 962

      N.E.2d 154, 159 (Ind. Ct. App. 2012) (agreeing with Ball and concluding that

      victim’s sleep and intoxication to the point of being “a little buzzed” was


      Court of Appeals of Indiana | Memorandum Decision 02A03-1410-CR-366 | April 20, 2015   Page 5 of 6
       insufficient to satisfy mentally disabled or deficient prong of sexual battery

       statute). Bell’s conduct toward his victim, however deplorable, simply does not

       meet the definition of sexual battery as charged and argued by the State. The

       State failed to prove the element of mental disability or deficiency beyond a

       reasonable doubt. Therefore, we reverse Bell’s sexual battery conviction.


[10]   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. Ball, 945

       N.E.2d at 258. Bell concedes on appeal that the evidence is sufficient to

       support a conviction for class B misdemeanor battery. See Ind. Code § 35-42-2-

       1(a). Thus, we reverse and remand with instructions for the trial court to enter

       judgment of conviction for class B misdemeanor battery and to resentence Bell

       accordingly.2


[11]   Reversed and remanded.


       Brown, J., and Pyle, J., concur.




       2
        Because we reverse and remand for resentencing based upon a lesser offense, we need not address Bell’s
       challenge to the three-year sentence imposed by the trial court.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1410-CR-366 | April 20, 2015            Page 6 of 6
