MEMORANDUM DECISION
                                                                    Dec 30 2015, 6:06 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
R. Patrick Magrath                                      Gregory F. Zoeller
ALCORN SAGE SCHWARTZ & MAGRATH, LLP                     Attorney General of Indiana
Madison, Indiana                                        Indianapolis, Indiana

                                                        Chandra K. Hein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brian Keith Roach,                                      December 30, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        40A01-1503-CR-94
        v.                                              Appeal from the Jennings Circuit
                                                        Court
State of Indiana,                                       The Honorable Jon W. Webster,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        40C01-1010-FD-381



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 40A01-1503-CR-94 | December 30, 2015     Page 1 of 9
[1]   Brian Keith Roach was originally charged with Sexual Battery 1 as a Class D

      felony and Child Solicitation2 as a Class D felony. After Roach waived his right

      to a jury trial, the case proceeded to a bench trial. At the conclusion of the

      evidence, the trial court found Roach guilty of child solicitation as charged and

      Class D felony Sexual Misconduct with a Minor3 as a lesser included offense of

      sexual battery. On appeal, Roach argues that the trial court erred in convicting

      him of sexual misconduct with a minor because such offense was neither an

      inherently nor a factually included offense of sexual battery.


[2]   We affirm.


                                          Facts & Procedural History


[3]   The facts pertinent to the issue presented follow. Roach and Sarah Perry were

      married in 1993 and have three children, including K.R., who was fifteen years

      old at the relevant time. On August 6, 2010, after Sarah returned home from

      work, she spoke with K.R., who told her that Roach had molested her

      “probably a month or so before” but could not remember an exact date.

      Transcript at 39. According to K.R., Roach came into her room and got into her




      1
       Ind. Code § 35-42-4-8. Effective July 1, 2014, this offense was reclassified as a Level 6 felony. Because
      Roach committed this offense prior to that date, it retains its prior classification as a Class D felony.
      2
       I.C. § 35-42-4-6. Effective July 1, 2014, this offense was reclassified as a Level 5 felony. Because Roach
      committed this offense prior to that date, it retains its prior classification as a Class D felony. On appeal,
      Roach makes no challenge to his conviction for this offense.
      3
       I.C. § 35-42-4-9. Effective July 1, 2014, this offense was reclassified as a Level 6 felony. Because Roach
      committed this offense prior to that date, it retains its prior classification as a Class D felony.

      Court of Appeals of Indiana | Memorandum Decision 40A01-1503-CR-94 | December 30, 2015                Page 2 of 9
      bed. He then laid on top of her and simulated sex while they were both

      wearing clothes. Roach told K.R. to “keep quiet” and “go back to sleep” as he

      continued to grind his pelvis into her. Id. at 47. Roach had an erection during

      the encounter, but K.R. did not know if he ejaculated. K.R. testified that she

      was scared and felt she was being forced “to lay there and have this happen.”

      Id. at 57.


[4]   On October 28, 2010, the State charged Roach with Count I, sexual battery as a

      Class D felony, and Count II, child solicitation as a Class D felony. On June 3,

      2014, the case proceeded to a bench trial, at the conclusion of which the trial

      court found Roach not guilty of sexual battery, but guilty of Class D felony

      sexual misconduct with a minor as a lesser included offense thereof. The trial

      court also found Roach guilty of child solicitation. On March 5, 2015, the trial

      court sentenced Roach to two years with six months suspended for each

      conviction and ordered the sentences served consecutively for an aggregate

      sentence of four years with one year suspended. Additional facts will be

      provided as necessary.


                                          Discussion & Decision


[5]   Roach argues that the trial court erred in convicting him of sexual misconduct

      with a minor as a lesser included offense of the charged offense of sexual

      battery. Roach maintains that the former is not a factually included offense of

      the latter and further argues that he was not given due notice of the potential

      lesser included offense.


      Court of Appeals of Indiana | Memorandum Decision 40A01-1503-CR-94 | December 30, 2015   Page 3 of 9
[6]   A lesser included offense is properly considered where the lesser included

      offense is either inherently or factually included in the crime charged and if,

      based upon the evidence presented in the case, there existed a serious

      evidentiary dispute about the element or elements distinguishing the greater

      from the lesser offense such that a fact finder could conclude that the lesser

      offense was committed but not the greater. Wright v. State, 658 N.E.2d 563, 567

      (Ind. 1995). An offense is an inherently lesser included offense if the alleged

      lesser included offense may be established by proof of the same material

      elements or less than all the material elements defining the crime charged or

      where the only feature distinguishing the alleged lesser included offense from

      the crime charged is that a lesser culpability is required to establish commission

      of the lesser offense. Id. at 566. An offense is factually included “[i]f the

      charging instrument alleges that the means used to commit the crime charged

      include all of the elements of the alleged lesser included offense.” Id. at 567.


[7]   The common context for lesser included offense questions is when a defendant

      requests that a jury be instructed on a lesser offense. In such case, notice is not

      an issue because the defendant is the proponent of the lesser charge and the

      Wright test as to whether an offense is inherently or factually included is

      dispositive. Id. at 565. Where, as here, the defendant did not request

      consideration of the lesser offense, the question becomes whether the defendant

      has “‘clear notice of the charge or charges against which the State summons

      him to defend’ in order to know what he does—and just as importantly, does

      not—need to defend against.” Young v. State, 30 N.E.3d 719, 723 (Ind. 2015)


      Court of Appeals of Indiana | Memorandum Decision 40A01-1503-CR-94 | December 30, 2015   Page 4 of 9
      (citation omitted). Clear notice also serves to protect the accused from being

      placed twice in jeopardy for the same offense. Wright, 658 N.E.2d at 565. As

      our Supreme Court has recently noted, the Wright test, although vital to the

      notice inquiry, is not always dispositive. Young, 30 N.E.3d at 724-25. In other

      words, lesser inclusion (either inherent or factual) is not necessarily coextensive

      with fair notice. Id. at 723.


[8]   Here, the parties agree that sexual misconduct with a minor is not an inherently

      included offense of sexual battery. The parties part ways on the questions of

      whether the former is factually included in the latter and whether Roach had

      fair notice. As noted above, an offense is factually included if the charging

      instrument alleges that the means used to commit the crime charged include all

      of the elements of the alleged lesser included offense. Wright, 658 N.E.2d at

      567.


[9]   The charging information for sexual battery alleged that Roach “did, with

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

      person, touch another person, to-wit: K.R., when that person is compelled to

      submit to touching by force or imminent threat of force.” 4 Appellant’s Appendix

      at 28. The alleged lesser included offense of sexual misconduct with a minor is

      defined in pertinent part as follows:




      4
          The charging information closely tracked the statutory language. See I.C. § 35-42-4-8.


      Court of Appeals of Indiana | Memorandum Decision 40A01-1503-CR-94 | December 30, 2015       Page 5 of 9
               A person at least eighteen (18) years of age who, with a child at
               least fourteen (14) years of age but less than sixteen (16) 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
               sexual misconduct with a minor, a Class D felony.


       I.C. § 35-42-4-9.


[10]   The charging information alleged that the means used to commit the offense of

       sexual battery was Roach’s conduct of touching K.R., his own daughter, with

       intent to arouse or satisfy his own sexual desires or the sexual desires of K.R.5

       The State’s evidence established that Roach got on top of K.R. and simulated

       intercourse and that he had an erection during the encounter. This same

       evidence also established the touching and intent element of the sexual

       misconduct offense for which the trial court found Roach guilty. Thus, the

       “means used” is the same to establish both offenses. Further, with regard to

       notice of the age element, the charging information alleges that the offense was

       committed against Roach’s own daughter. Roach does not even suggest that he

       was not aware of his daughter’s age at the time of the incident. Under the facts

       of this case, the crime of sexual misconduct with a minor is a factually lesser

       included offense of sexual battery and Roach, being informed that the offense




       5
        The sexual battery offense also included an element of force not required to prove sexual misconduct with a
       minor.

       Court of Appeals of Indiana | Memorandum Decision 40A01-1503-CR-94 | December 30, 2015           Page 6 of 9
       was against his own daughter, had clear notice that he was being summoned to

       defend against a crime against a fifteen-year-old victim.


[11]   We further note that Roach did not object to the trial court’s guilty finding with

       regard to the sexual misconduct offense as a lesser included offense of sexual

       battery. Generally, the failure to object results in waiver of the issue for

       appellate review. See Cole v. State, 28 N.E.3d 1126, 1135 (Ind. Ct. App. 2015).

       Despite waiver, relief remains available under a narrow exception for

       fundamental error.6 Lewis v. State, 34 N.E.3d 240, 246 (Ind. 2015).

       Fundamental error is error that “constitutes a blatant violation of basic

       principles, the harm or potential for harm is substantial, and the resulting error

       denies the defendant fundamental due process.” Id. (quoting Mathews v. State,

       849 N.E.2d 578, 587 (Ind. 2006)).


[12]   In Miller, our Supreme Court considered the applicability of the fundamental

       error doctrine in a situation similar to that presented here. 753 N.E.2d 1284.

       Miller had robbed a bank in Indianapolis and then led police on a high-speed

       chase. Miller eventually abandoned the vehicle and attempted to flee on foot.

       During his attempted escape, Miller fired a handgun at three police officers.

       Miller was charged with three counts of attempted murder, among others. At




       6
         The State also asserts that Roach did not raise fundamental error as a basis for relief on appeal. We observe
       that in his brief on appeal, Roach does assert he was denied “basic due process” when the trial court
       convicted him of an offense with which he was not charged and of which he did not have fair notice.
       Appellant’s Brief at 7. In doing so, Roach cites to that portion of the Young case wherein our Supreme Court
       discussed application of fundamental error to that case. See Young, 30 N.E.3d at 727.

       Court of Appeals of Indiana | Memorandum Decision 40A01-1503-CR-94 | December 30, 2015              Page 7 of 9
       the conclusion of a bench trial, the court found Miller guilty of three counts of

       criminal recklessness as factually lesser included offenses of attempted murder.

       This court found that, even assuming the trial court was incorrect in ruling

       criminal recklessness as a lesser included offense of attempted murder, there

       was no fundamental error in finding Miller guilty of criminal recklessness. The

       court noted that such is “particularly true here where Defendant makes no

       claim on appeal that there was insufficient evidence to support his convictions

       for criminal recklessness.” Miller, 753 N.E.2d at 1288; see also Wright, 658

       N.E.2d at 567-68 (“[e]ven had the offense on which the trial court instructed the

       jury in this case been neither inherently nor factually included in the offense

       charged, it was not fundamental error to convict [the defendant] of that lesser

       offense”).


[13]   Likewise, here, Roach makes no claim that the evidence was insufficient to

       support his conviction for sexual misconduct with a minor. With regard to the

       age component of the sexual misconduct conviction, Roach does not suggest

       that he did not have fair notice of his daughter’s age. Further, Roach’s defense

       –that he did not touch K.R.—would have been the same for both offenses, and

       such defense was clearly rejected by the court. Thus, even if the offense of

       sexual misconduct with a minor is not a factually lesser included offense of

       sexual battery, Roach’s convictions for the former do not constitute

       fundamental error.


[14]   Judgment affirmed.



       Court of Appeals of Indiana | Memorandum Decision 40A01-1503-CR-94 | December 30, 2015   Page 8 of 9
[15]   Riley, J. and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 40A01-1503-CR-94 | December 30, 2015   Page 9 of 9
