Pursuant to Ind. Appellate Rule 65(D),                                  Sep 12 2013, 5:36 am
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:

ZACHARY A. WITTE                                  GREGORY F. ZOELLER
Fort Wayne, Indiana                               Attorney General of Indiana

                                                  JUSTIN F. ROEBEL
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

GREGORY VOLTAIRE,                                 )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )        No. 02A03-1303-CR-104
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Wendy W. Davis, Judge
                             Cause No. 02D06-1207-FD-1015



                                      September 12, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


SHEPARD, Senior Judge
       Gregory Voltaire appeals his class D felony sexual battery convictions and his

class B misdemeanor battery sentence. We affirm his convictions but reverse and remand

on a sentencing issue.

                         FACTS AND PROCEDURAL HISTORY

       In August 2011, eighteen-year-old D.J. interviewed with Voltaire for a job at his

clothing store, Voltaire Designs. At the end of the interview, Voltaire told her she could

start the next day.

       Voltaire called D.J. shortly after the interview and asked her to come back. When

she got there, he told her he liked his employees to wear clothing from his store. D.J.

picked out a shirt and some jeans but then realized she did not have enough money for

the jeans. Voltaire said they could “work something out.” Tr. p. 107. D.J. declined and

said she could pay for the jeans the next day, but Voltaire again insisted they could “work

something out.” Id. D.J. believed Voltaire was asking for sex. Id. at 121-22.

       When D.J. went to put the jeans back, Voltaire pushed her into his office, locked

the door behind them, and subjected her to several unwanted sexual touchings. D.J.

managed to get away only after her cell phone rang and a customer entered the store.

       Sixteen-year-old C.Y. worked at Voltaire Designs from August through October

2011. As with D.J., Voltaire told C.Y. he preferred the employees to wear clothing from

the store. He pointed out a bra and underwear and asked C.Y. to model them for him.

C.Y. did not try them on. She took them to the back room and emerged a little later,

telling Voltaire they did not fit.



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      During C.Y.’s employment, Voltaire repeatedly touched her in ways that made her

uncomfortable. For example, he subjected her to long hugs, pressed his erections against

her body, and tried to get her to touch his penis. These advances scared C.Y., and she

finally decided she could not take it anymore when Voltaire told her that “we can’t help

what happens in the store” and that “humans can’t control themselves” and then

“smacked [her] butt” as she was leaving at the end of her shift. Id. at 171, 175, 176.

C.Y. walked out and never returned.

      A jury found Voltaire guilty of two counts of class D felony sexual battery and

one count of class B misdemeanor battery. The trial court sentenced him to one and a

half years on the first D felony, with half a year suspended to probation; one and a half

years on the second D felony, with one year suspended to probation; and one year

suspended to probation for the B misdemeanor. The felonies were ordered to be served

consecutively with each other but concurrent to the misdemeanor.

                                        ISSUES

      Voltaire raises two issues: (1) whether the evidence is sufficient to sustain his

class D felony sexual battery convictions and (2) whether his one-year sentence for class

B misdemeanor battery exceeds the maximum term authorized by statute.

                            DISCUSSION AND DECISION

                        I. SUFFICIENCY OF THE EVIDENCE

      As to both victims, Voltaire contends that the State did not sufficiently prove that

they were compelled to submit to the touching by force or the imminent threat of force.



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       When reviewing the sufficiency of the evidence, we do not reweigh the evidence

or judge the credibility of the witnesses. Delarosa v. State, 938 N.E.2d 690 (Ind. 2010).

We affirm if the probative evidence and reasonable inferences supporting the verdicts

could have allowed a reasonable jury to find the defendant guilty beyond a reasonable

doubt. Id.

       To convict Voltaire of the class D felony sexual batteries, the State had to prove

beyond a reasonable doubt that he touched D.J. and C.Y., with intent to arouse or satisfy

his or their sexual desires, when they were compelled to submit to the touching by force

or the imminent threat of force. See Ind. Code § 35-42-4-8(a)(1) (1998). The presence or

absence of forceful compulsion is to be determined from the perspective of the victim,

not the assailant. McCarter v. State, 961 N.E.2d 43 (Ind. Ct. App. 2012), trans. denied.

       The evidence regarding D.J. shows that Voltaire pushed her into his office and

locked the door. D.J. struggled and pushed him away, telling him no and to get off of

her, but he kept grabbing her and “pull[ing her] back onto him.” Tr. p. 109. At one

point, he grabbed her neck in a way that made her feel he would choke her, and she

feared he would hurt or kill her. Id. at 111. Voltaire unbuttoned her pants, put his hand

inside her shirt, and rubbed his erection against her bottom. Id.

       The evidence regarding C.Y. shows she felt compelled to submit to Voltaire’s

persistent advances over the course of several months.              He subjected her to

uncomfortable, lingering hugs where “he wouldn’t let go.” Id. at 171. When C.Y. tried

to get away from his grip, he would exert force to stop her. Id. at 172. He kissed her

during one hug but only got part of her lip because she moved away. Id. at 170. On

                                             4
fifteen to twenty different occasions, Voltaire hugged or touched C.Y. where she could

feel his erection against her body. Id. at 159. Once when she was sitting down, Voltaire

got on his knees between her legs, grabbed her legs, asked if her boyfriend ever

performed oral sex on her, and said he could do it better. Id. at 156. On another

occasion, he grabbed her arm and tried to put her hand on his penis. Id. at 162-63. On

yet another occasion, he tried to give her a massage and then tried to get on top of her and

“straddle” her. Id. at 172-73. C.Y. tried to stop him, but he “forcefully continued” until

she was able to push him off. Id. at 173. C.Y. thought Voltaire was a “predator” and was

scared of him. Id. at 182.

       Voltaire argues that there was not enough evidence that D.J. and C.Y. submitted

out of fear. While fear may be evidence of force or threat of force, fear is not an element

of sexual battery, nor is it a prerequisite to proving force or imminent threat of it.

McCarter, 961 N.E.2d at 46.

       We conclude the evidence is sufficient to show that D.J. and C.Y. were compelled

to submit to Voltaire’s sexual touchings by force or the imminent threat of force.

                     II. MISDEMEANOR BATTERY SENTENCE

       Voltaire next contends his one-year sentence suspended to probation for the class

B misdemeanor battery violates Indiana Code section 35-50-3-3 (1977), which provides

in relevant part, “A person who commits a Class B misdemeanor shall be imprisoned for

a fixed term of not more than one hundred eighty (180) days.” The State concedes

Voltaire’s sentence improperly exceeds the statutory maximum for a class B

misdemeanor but notes the court’s authority to place him on probation for one year if any

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part of his misdemeanor sentence is suspended. See Ind. Code § 35-50-3-1(b) (2002).

We therefore reverse the class B misdemeanor sentence and remand with instructions to

enter a sentence complying with our misdemeanor sentencing statutes.

                                    CONCLUSION

      We affirm in part, reverse in part, and remand with instructions.

VAIDIK, J., and BROWN, J., concur.




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