MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                         FILED
regarded as precedent or cited before any                           Feb 22 2019, 9:26 am

court except for the purpose of establishing                             CLERK
                                                                     Indiana Supreme Court
the defense of res judicata, collateral                                 Court of Appeals
                                                                          and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James D. Crum                                            Curtis T. Hill, Jr.
Coots Henke & Wheeler, PC                                Attorney General of Indiana
Carmel, Indiana                                          Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Zachary Joseph Jansen,                                   February 22, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2466
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable Gail Z. Bardach,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         29D06-1802-F6-1182



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2466 | February 22, 2019            Page 1 of 10
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Zachary Joseph Jansen (Jansen), appeals his conviction

      for sexual battery, a Level 6 felony, Ind. Code § 35-42-4-8(a)(1)(A).


[2]   We affirm.


                                                    ISSUE
[3]   Jansen raises one issue on appeal, which we restate as: Whether the State

      presented sufficient evidence beyond a reasonable doubt to support his

      conviction for sexual battery.


                      FACTS AND PROCEDURAL HISTORY
[4]   In August 2017, 21-year-old Jansen responded to an on-line public post by 18-

      year-old H.P. posted on the social networking application, Whisper. H.P.’s

      public post stated, “I’m really hiiiiiigh,” followed by several laughing emojis,

      and pasted on a background of a couple engaged in a kiss. (State’s Exh. 2).

      Jansen and H.P. entered into conversation and exchanged text messages via

      Snapchat and Kik. The conversations were “at times flirtatious in nature[.]”

      (Transcript Vol. II, p. 10).


[5]   A couple of days later, on August 11, 2017, H.P. agreed to meet Jansen in

      person. H.P. messaged Jansen her father’s address in Irvington and told him

      that it was about a 30-minute drive from Fishers. She informed him “Umm I

      haven’t decided if I’m gonna fuck you yet tho if that impacts your decision” to

      drive that far. (State’s Exh. 4). Jansen responded, “Im just looking to chill” to

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2466 | February 22, 2019   Page 2 of 10
      which H.P. replied, “Cool. Yeah come get me lol.” (State’s Exh. 4). Jansen

      picked H.P. up around 1:00 a.m., drove her to Fishers, and parked the car

      towards the back in a Walmart parking lot.


[6]   As soon as Jansen “turned the car off, he turn[ed] and just immediately

      start[ed] kissing” H.P. (Tr. p. 13). H.P. felt “uncomfortable” and just sat there,

      while Jansen kissed her and touched her breasts and buttocks. (Tr. p. 13).

      “Multiple times” she asked if they “could just sit there” and she tried to lean her

      body away from him. (Tr. p. 13). At one point, Jansen asked H.P. if she

      wanted to smoke “weed;” she agreed because it meant “he was going to stop

      touching [her].” (Tr. p. 14). However, before they smoked, Jansen wanted “to

      show [H.P.] his penis.” (Tr. p. 14). When H.P. declined, Jansen insisted and

      took off his pants and underwear. He “explained that his penis was not erect

      and that it’s bigger when it is erect, and then he began masturbating.” (Tr. p.

      14). After he finished, Jansen and H.P. smoked some marijuana in the car.


[7]   When H.P. informed Jansen that she wanted to go and that she was hungry,

      Jansen offered to purchase her some food and then take her home. Jansen

      ordered some fries from McDonald’s, and when they left McDonald’s, H.P.

      realized that he was not driving towards Irvington. Despite her repeated

      statements that she wanted to go home, Jansen drove H.P. to his parents’ house

      instead.


[8]   When they arrived, Jansen and H.P. went upstairs to his bedroom. When H.P.

      insisted that she wanted to go home, Jansen replied that he would take her


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2466 | February 22, 2019   Page 3 of 10
      home, but first he wanted to give her a back massage. He took off H.P.’s shirt

      and bra. She laid down on his bed and he gave her a back massage. She told

      him that she “didn’t like it.” (Tr. p. 17). Jansen continued to give her a back

      massage and “then he laid down in the bed” and started rubbing his hands over

      her breasts and her vagina over her shorts. (Tr. p. 17). He tried to take H.P.’s

      shorts off, but H.P. told him “no” and moved his hand away. (Tr. p. 17).

      Jansen “started to take off his belt and his pants, and [H.P.] broke down and

      cried[.]” (Tr. p. 17). She just kept repeating that she wanted to go home.

      Finally, Jansen agreed and drove her home.


[9]   The next day, the following text messages were exchanged between H.P. and

      Jansen:


              H.P.: Why didn’t you take me home when I asked?

              Jansen: I thought you were just over reacting cause you were
                    high.

              H.P.: Is that why you kept putting your hand down my shorts

              Jansen: Never went down

              H.P.: Fucking knew it
                    You piece of shit
                    Don’t fucking deny it

              Jansen: You moved my hand away

              H.P.: Then you moved it back
                    Again
                    And again
                    And again

              Jansen: Thought you were just waiting to get comftable [sic]

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2466 | February 22, 2019   Page 4 of 10
                        with me.
                        You told me “im not sure yet” not “im not down at all”

               H.P.: Before and then in the car I said I don’t want to.

               Jansen: Well that’s where my mind was. I got you food and
                     smoked u up. We don’t need to be friends, just take care of
                     your self.


       (State’s Exh. 4). H.P. contacted the police the same day.


[10]   On February 14, 2018, the State filed an Information, charging Jansen with two

       Counts of Level 6 felony sexual battery. On August 21, 2018, a bench trial was

       conducted, at the end of which the trial court found Jansen guilty of one Count

       of sexual battery (bedroom incident) and not guilty of the other (Walmart

       parking incident). On September 28, 2018, the trial court sentenced Jansen to

       545 days in the Indiana Department of Correction, with 541 days suspended to

       probation.


[11]   Jansen now appeals. Additional facts will be provided if necessary.


                               DISCUSSION AND DECISION
[12]   Jansen contends that the State failed to present sufficient evidence beyond a

       reasonable doubt to support his conviction for sexual battery. When reviewing

       the sufficiency of the evidence to support a conviction, we must consider only

       the probative evidence and reasonable inferences supporting the judgment.

       McGowan v. State, 89 N.E.3d 424, 427 (Ind. Ct. App. 2017). We do not assess

       witness credibility or reweigh the evidence. Id. We consider conflicting

       evidence most favorably to the trial court’s ruling. Id. We affirm the conviction
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2466 | February 22, 2019   Page 5 of 10
       unless no reasonable fact-finder 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. Id. The evidence is sufficient if an

       inference may reasonably be drawn from it to support the judgment. Id.


[13]   In order to convict Jansen, the State was required to establish beyond a

       reasonable doubt that Jansen, with the intent to arouse or satisfy his own sexual

       desires or the sexual desires of H.P., touched H.P. when she was compelled to

       submit to the touching by force or the imminent threat of force. See I.C. § 35-

       42-4-8(a)(1)(A). In his appellate brief, Jansen concedes that the evidence is

       sufficient to show that the touching occurred with the intent to arouse or satisfy

       his own sexual desires; however, he challenges the trial court’s conclusion that

       there was sufficient evidence to prove that H.P. was compelled to submit to the

       touching by force or the imminent threat of force.


[14]   In evaluating the compelling prong of the charge, “it is the victim’s perspective,

       not the assailant’s, from which the presence or absence of forceful compulsion

       is to be determined. This is a subjective test that looks to the victim’s

       perception of the circumstances surrounding the incident in question.”

       McCarter v. State, 961 N.E.2d 43, 46 (Ind. Ct. App. 2012), trans. denied.

       Evidence that a victim did not voluntarily consent to a touching does not, in

       itself, support the conclusion that the defendant compelled the victim to submit

       to the touching by force or threat of force. Id. “Not all touchings intended to

       arouse or satisfy sexual desires constitute sexual battery; only those in which the

       person touched is compelled to submit by force or imminent threat of force”

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2466 | February 22, 2019   Page 6 of 10
       satisfy the charge. Id. Furthermore, “the force need not be physical or violent,

       but may be implied from the circumstances.” Chatham v. State, 845 N.E.2d 203,

       206 (Ind. Ct. App. 2006).


[15]   In support of his argument that he did not compel H.P. by force or threat of

       force, Jansen relies on a line of case law indicating that even though force may

       have been used, the victim was not compelled to submit to it. In Scott-Gordon v.

       State, 579 N.E.2d 602, 604 (Ind. 1991), the defendant was charged with sexual

       battery for grabbing an employee’s buttocks, after which the employee punched

       the defendant in the eye. Our supreme court concluded that the employee’s

       immediate reaction demonstrated that he did not voluntarily consent to the

       touching by the defendant, but the court found no evidence to support the

       conclusion that the defendant compelled the employee to submit to the

       touching by force or imminent threat of force. Id. The court noted that the

       defendant made no threats to the employee and that the employee was not

       afraid of the defendant. Id. Accordingly, the court reversed the conviction. See

       also Frazier v. State, 988 N.E.2d 1257, 1261 (Ind. Ct. App. 2013) (reversing one

       of Frazier’s convictions for sexual battery where the defendant grabbed S.R.’s

       shoulder and ground his pelvis against her buttocks, and holding that, while

       some level of force facilitated the touching, the evidence did not show the

       victim was compelled to submit to the touching by force or threat of force);

       McCarter, 961 N.E.2d at 47 (noting that McCarter withdrew his hands after

       D.H. told him to “get off of [her]” and holding that, while the touching may

       have occurred with some force, the evidence did not show that D.H. was

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2466 | February 22, 2019   Page 7 of 10
       compelled to submit to it by force or threat of force); Chatham, 845 N.E.2d at

       205-08 (noting that Chatham came up behind [Kerns] and grabbed up with [his]

       hand in between [her] thighs and [her] crotch as far as [he] could,” and holding

       that Kerns did not have the opportunity to grant or deny consent to the

       touching and that the evidence was insufficient to show that Chatham

       compelled Kerns to submit to the touching by force or imminent threat of force,

       reversing his sexual battery conviction).


[16]   However, we hasten to point out that in Scott-Gordon, the supreme court also

       discussed the sufficiency of the evidence supporting two other sexual battery

       allegations. Scott-Gordon, 579 N.E.2d at 602. The facts relating to Count II

       alleged that Scott-Gordon told C.M., a passenger in his car, that he was horny

       and asked C.M. to masturbate him in exchange for money. Id. at 603. When

       C.M. refused, Scott-Gordon unzipped his own pants, took C.M.’s hand and

       stuck C.M.’s hand on Scott-Gordon’s penis. Id. at 603-04. C.M. pulled his

       hand away, but Scott-Gordon grabbed it and placed it back on his penis. Id. at

       604. This scenario occurred three or four times, despite C.M.’s repeated

       attempts to remove his hand from Scott-Gordon’s penis. Id. The court found

       that these facts supported one charge of sexual battery against Scott-Gordon.

       Id.


[17]   Mindful that “the force need not be physical or violent, but may be implied

       from the circumstances,” we turn to Bailey v. State, 764 N.E.2d 728 (Ind. Ct.

       App. 2002), trans. denied. See Chatham, 845 N.E.2d at 206. In Bailey, this court

       noted that Adams had two unsolicited encounters with Bailey prior to the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2466 | February 22, 2019   Page 8 of 10
       incident in question where Bailey grabbed her buttocks. Bailey, 764 N.E.2d at

       731. During one of those encounters Bailey approached Adams from behind

       and asked her if he could come home with her and pull down her pants. Id.

       Adams responded to this crude proposition by telling Bailey to leave her alone

       and by hurrying home. Id. In evaluating these circumstances, we found it

       noteworthy that because Adams hurried home after one of the previous

       encounters, “one could reasonably infer from [it] that Adams had reason to fear

       Bailey.” Id. at 732. This court concluded that despite Adams’s prior refusal of

       Bailey’s advances and her previously hurried retreat home, Bailey continued to

       grab Adams’ buttocks, thereby forcing her to submit to the touching. Id.


[18]   Viewing the circumstances surrounding the incident from H.P.’s perspective, it

       is clear that H.P. did not voluntarily submit to Jansen’s advances. When H.P.

       entered Jansen’s bedroom, she had already repeatedly informed him that she

       wanted to be taken home and that his persistent advances were unwelcome.

       However, with no other mode of transportation available to her besides

       Jansen’s vehicle, she was taken to Jansen’s parents’ home against her wishes.

       There, despite several requests to be taken home, Jansen advised her that he

       would drive her only after he gave her a back massage. It is reasonable to infer

       that Jansen leveraged the fact that he was her only mean of transportation and,

       seeing no other option of getting home, H.P. was psychologically forced into

       taking off her shirt and bra and submitting to a back massage—and further

       escalations of having her breasts groped and vagina rubbed—despite voicing her

       displeasure and continued pleadings to be taken home. See Chatham, 845


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2466 | February 22, 2019   Page 9 of 10
       N.E.2d at 206 (the force need not be physical or violent, but may be implied

       from the circumstances). Accordingly, based on the totality of the evidence, we

       find that the State presented sufficient evidence to support that H.P. was

       compelled by force to submit to Jansen’s touch.


                                             CONCLUSION
[19]   Based on the foregoing, we hold that the trial court properly convicted Jansen

       for sexual battery.


[20]   Affirmed.


[21]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2466 | February 22, 2019   Page 10 of 10
