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:

SEAN P. HILGENDORF                               GREGORY F. ZOELLER
South Bend, Indiana                              Attorney General of Indiana

                                                 KARL M. SCHARNBERG
                                                 Deputy Attorney General

                                                                               FILED
                                                 Indianapolis, Indiana

                                                                           Mar 19 2012, 9:28 am
                                  IN THE
                       COURT OF APPEALS OF INDIANA                                 CLERK
                                                                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




T.N.S.,                                          )
                                                 )
          Appellant- Respondent,                 )
                                                 )
                 vs.                             )      No. 46A03-1105-JV-263
                                                 )
STATE OF INDIANA,                                )
                                                 )
          Appellee- Petitioner,                  )


                       APPEAL FROM THE LAPORTE CIRCUIT COURT
                         The Honorable Nancy L. Gettinger, Magistrate
                               Cause No. 46C01-1011-JD-673




                                       March 19, 2012



                  MEMORANDUM DECISION - NOT FOR PUBLICATION




ROBB, Chief Judge
                                Case Summary and Issues

       T.N.S. was adjudicated a delinquent for committing what would be sexual battery

if committed by an adult. On appeal, T.N.S. raises two issues: (1) whether the State

failed to provide sufficient evidence that T.N.S. committed the elements of sexual battery

and (2) whether the trial court erred in considering evidence of prior bad acts in violation

of Indiana Rule of Evidence 404(b). Concluding that the evidence is sufficient and the

trial court did not improperly consider prior bad acts as character evidence, we affirm.

                               Facts and Procedural History

       In October 2010, assistant principal Andrew Merritt received information from the

Director of Transportation about a complaint of harassment which allegedly occurred on

the school bus. The source of the complaint is unknown but the complaint alleged that

male student T.N.S. inappropriately touched a female student on three separate occasions.

In response to these allegations, Merritt conducted an investigation and interviewed seven

different students; among those students were T.N.S. and alleged victim B.L. B.L.

provided a written statement alleging that T.N.S. had, on three separate occasions,

touched both her and another female on the chest, butt, and thigh, while riding home on

the school bus and that he had held their hands down while committing these acts.

During the investigation, Merritt informed T.N.S. of the allegations that had been made

against him, and T.N.S. admitted to touching a girl “inappropriately,” but did not give

any specifics as to when, how, why, or what the touching was. Transcript at 82.

       On December 8, 2010, T.N.S. was alleged to be a delinquent child for committing

three acts that would have been sexual battery, Class D felonies, if he were an adult.

Following a fact-finding hearing in March 2011, the trial court found Counts II and III to
                                             2
be true and dismissed Count I. In May 2011, the trial court placed T.N.S. on official

probation, and ordered him to write a letter of apology to B.L. and complete a Family

Focus counseling class.

      T.N.S. now appeals his adjudications of delinquency.

                                Discussion and Decision

                               I. Sufficiency of Evidence

                                 A. Standard of Review

      On reviewing a challenge to the sufficiency of evidence supporting a criminal

conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State,

907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence supporting the

judgment and any reasonable inferences that can be drawn from such evidence.” Id.

Thus, we will affirm the conviction if there is substantial evidence of probative value

such that a reasonable trier of fact could have concluded the defendant was guilty beyond

a reasonable doubt. Id. “It is therefore not necessary that the evidence overcome every

reasonable hypothesis of innocence.” Ball v. State, 945 N.E.2d 252, 255 (Ind. Ct. App.

2011) (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)), trans. denied.

                  B. Evidence of Intent to Satisfy Own Sexual Desire

      Indiana Code section 35-42-4-8, defining the charge of sexual battery, provides:

           (a) 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:
           (1) compelled to submit to the touching by force or the imminent threat of
           force…
      commits sexual battery, a Class D felony.




                                            3
       T.N.S. first argues the State failed to prove beyond a reasonable doubt the

requirement that he had the “intent to arouse or satisfy [his] own sexual desires” when he

touched B.L. Although we cannot ascertain T.N.S.’s exact intent in touching B.L. absent

an admission, see Germaine v. State, 718 N.E.2d 1125, 1132 (Ind. Ct. App. 1999), trans.

denied, there is no other rational explanation for touching her in the locations, manner,

and frequency with which he did unless to sexually gratify himself.

       In ascertaining T.N.S.’s intent, we defer to our previous reasoning in a similar case

in which a male high school student was making sexual comments to and touching

female students in class. We reasoned that “[a] person’s intent may be determined from

[his] conduct and the natural consequences thereof and intent may be inferred from

circumstantial evidence. Furthermore, the intent to gratify required by the statute must

coincide with the conduct; it is the purpose or motivation for the conduct.” J.J.M. v.

State, 779 N.E.2d 602, 606 (Ind. Ct. App. 2002) (citation omitted), abrogated on other

grounds by R.J.G. v. State, 902 N.E.2d 804 (Ind. 2009). As such, the sexual manner in

which T.N.S. touched B.L. on three separate occasions clearly establishes his

“motivation” of “satisfying his own sexual desires.”

       T.N.S. further argues the State failed to prove that B.L. was “compelled to submit

to the touching by force or the imminent threat of force” and thus the touching by T.N.S.

rises merely to the level of battery. In regards to the force required for a charge of sexual

battery, our supreme court has previously stated that the “force need not be physical or

violent, but may be implied from the circumstances.” Scott-Gordon v. State, 579 N.E.2d

602, 604 (Ind. 1991).     A mere unwanted touching “does not, in itself, support the

conclusion that the defendant compelled the victim to submit to the touching by force or
                                             4
threat of force.” Bailey v. State, 764 N.E.2d 728, 730 (Ind. Ct. App. 2002), trans. denied.

However, in perceiving the touching, “it is the victim’s perspective, not the assailant’s,

from which the presence or absence of forceful compulsion is to be determined.” Tobias

v. State, 666 N.E.2d 68, 72 (Ind. 1996). T.N.S. argues that because B.L. did not report

the incidents and no other students came to B.L.’s aid, she could not have reasonably

perceived T.N.S.’s conduct as a threat upon her.

       Although those around B.L. at the time of the incident, as well as T.N.S., may not

have perceived the touching as compelling B.L. by force or the threat of imminent force,

the threat of force or lack thereof is ultimately determined through the eyes of the victim.

While B.L. may have initially “thought it was a joke and [T.N.S.] was not gonna do it

again,” tr. at 57, B.L. subsequently objected to T.N.S.’s fondling the second and third

time and asked him to stop, establishing her objections to T.N.S.’s behavior. Likewise,

B.L. testified that on the third occasion of T.N.S.’s inappropriate touching he “[held] her

hands down,” id. at 32, demonstrating the use of force upon her and her reasonable

perception of being compelled to submit to the touching by force or the threat of

imminent force. Thus, the State has sufficiently proven that B.L. perceived T.N.S.’s

touching as forceful and in furtherance of his intent to arouse or satisfy his own sexual

desires.

                            II. Admission of 404(b) Evidence

                                  A. Standard of Review

       A “trial court has inherent discretionary power on the admission of evidence, and

its decisions are reviewed only for abuse of that discretion.” Vasquez v. State, 868

N.E.2d 473, 476 (Ind. 2007) (quoting Jones v. State, 780 N.E.2d 373, 376 (Ind. 2002)).
                                             5
An abuse of discretion occurs “where the decision is clearly against the logic and effects

of the facts and circumstances.” Bradford v. State, 960 N.E.2d 871, 873 (Ind. Ct. App.

2012) (quoting Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001)).

                             B. Evidence of Prior Bad Acts

      It is well-settled in Indiana that admission of evidence of former crimes or

wrongful acts will be highly scrutinized to prevent the fact-finder from making the

forbidden inference that other wrongful conduct suggests present guilt. Barker v. State,

695 N.E.2d 925, 930 (Ind. 1998).        Evidence presented merely to demonstrate the

character of a defendant violates the policy of not biasing the fact-finder by presenting

evidence of all of the defendant’s prior wrongdoings. In line with this policy, Indiana

Rule of Evidence 404(b) provides:

      Evidence of other crimes, wrongs, or acts is not admissible to prove the
      character of a person in order to show action in conformity therewith. It
      may, however, be admissible for other purposes, such as proof of motive,
      intent, preparation, plan, knowledge, identity, or absence of mistake or
      accident, provided that upon request by the accused, the prosecution in a
      criminal case shall provide reasonable notice in advance of trial, or during
      trial if the court excuses pre-trial notice on good cause shown, of the
      general nature of any such evidence it intends to introduce at trial.

      The State questioned assistant principal Merritt regarding the existence of any

prior incidents of sexual conduct at school by T.N.S. and argued that this evidence would

be used to “show a pattern” of behavior. The court permitted the questions over the

defense’s objection. Tr. at 84. T.N.S.’s concern with the admission of evidence of his

prior sexually-related behavior is that its probative value was substantially outweighed by

its prejudicial value and thus this evidence was improperly considered by the trial court

as evidence of T.N.S.’s character. Our supreme court has previously stated that in

                                            6
assessing admissibility of Rule 404(b) evidence a trial court must “(1) determine that the

evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the

defendant’s propensity to commit the charged act and (2) balance the probative value of

the evidence against its prejudicial effect pursuant to Rule 403.” Ortiz v. State, 716

N.E.2d 345, 350 (Ind. 1999).

       T.N.S. first argues the trial court abused its discretion when it admitted, over

objection, testimony regarding T.N.S.’s prior bad acts when the State failed to provide

T.N.S. with notice of its intent to use the testimony. However, as Rule 404(b) provides,

the trial court can waive the requirement of pre-trial notice during the actual trial on good

cause shown. This is precisely what the trial court did when it permitted testimony by

assistant principal Merritt regarding prior incidents of sexual misconduct by T.N.S.

T.N.S. concedes in his appellate brief that while the trial court allowed the State’s

question of whether Merritt knew of prior incidents of sexual misconduct by T.N.S. to

demonstrate a pattern of behavior, once he answered “yes,” the “trial court prohibited any

further questioning.” Appellant’s Br. at 12.

       T.N.S. argues that the trial court was already “aware of inadmissible and

prejudicial information” when it prohibited the State from asking any further questions.

Id. The trial court appropriately terminated the line of questioning before it rose to the

level of prejudice.   We agree with T.N.S.’s argument that had further questioning

regarding his past conduct been permitted, it could have been unduly prejudicial.

However, the trial court proceeding was not a jury trial, and a trial court is presumed to

know and correctly apply the law. Donaldson v. State, 904 N.E.2d 294, 300 (Ind. Ct.

App. 2009). Moreover, the trial court’s findings of fact did not include any reference to
                                               7
the prior incidents and thus the testimony did not play any appreciable role, if at all, in

the trial court’s delinquency determination. See Evid. R. 103(a) (“Error may not be

predicated upon a ruling which admits or excludes evidence unless a substantial right of

the party is affected…”); Fleener v. State, 656 N.E.2d 1140, 1142 (Ind. 1995) (“an error

will be found harmless if its probable impact . . ., in light of all of the evidence in the

case, is sufficiently minor”).

       The evidence of T.N.S.’s prior unrelated conduct was presented to establish his

pattern of inappropriate touching and also to establish the element of the intent to arouse

his own sexual desires as required under Indiana Code section 35-42-4-8. The trial court

did not abuse its discretion in allowing evidence of T.N.S.’s prior unrelated conduct.

                                       Conclusion

       The State presented sufficient evidence of T.N.S.’s intent to satisfy his own sexual

desires and use of force as required under Indiana Code section 35-42-4-8, and the trial

court did not abuse its discretion in admitting evidence of T.N.S.’s prior unrelated

conduct. T.N.S.’s delinquency adjudications are affirmed.

       Affirmed.

NAJAM, J., and VAIDIK, J., concur.




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