MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                      Mar 26 2015, 8:57 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                                   ATTORNEY FOR APPELLEE
Bruce W. Graham                                          Gregory F. Zoeller
Graham Law Firm P.C.                                     Attorney General of Indiana
Lafayette, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Scotty Johnson,                                         March 26, 2015

Appellant-Defendant,                                    Court of Appeals Case No.
                                                        79A02-1408-CR-573
        v.                                              Appeal from the Tippecanoe
                                                        Superior Court
                                                        The Honorable Thomas H. Busch,
State of Indiana,                                       Judge
Appellee-Plaintiff                                      Cause No. 79D02-1304-FB-14




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A02-1408-CR-573 |March 26, 2015     Page 1 of 13
                                             Case Summary
[1]   Scotty Lee Johnson (“Johnson”) was convicted after a jury trial of Criminal

      Deviate Conduct, as a Class B felony,1 and Sexual Battery, as a Class D felony;2

      he was also adjudicated as a Habitual Offender.3 Johnson now challenges his

      convictions.


[2]   We affirm.



                              Facts and Procedural History
[3]   On August 23, 2012, Johnson had gone to Columbian Park in Lafayette with

      his girlfriend, Cynthia, and Cynthia’s daughter, “S.” S. was dancing on a stage

      in the park while Johnson watched and recorded her with a video camera.

      Cynthia alternately watched S. and walked around the park near the stage.


[4]   Around late afternoon, sixteen-year-old B.W. and her brothers, “C.” and “J.J.,”

      walked to Columbian Park from their home nearby, where they lived with their

      mother (“Mother”) and her boyfriend (“Stepfather”). When the three children




      1
        Ind. Code § 35-42-4-2(a) (West 2012). The Indiana General Assembly repealed this provision of the
      Indiana Code in 2013 and recodified the substantive provisions at issue in this case at I.C. § 35-42-4-8 (Ind.
      2013), the sexual battery statute. In light of the revisions to Indiana’s statutes, we apply the substantive
      provisions in effect at the time of Johnson’s offense. See I.C. § 1-1-5.5-21(a) (providing that changes to the
      Indiana Code apply only to those offenses and proceedings commenced after the effective date of the revised
      statutes).
      2
          I.C. § 35-42-4-8.
      3
          I.C. § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 79A02-1408-CR-573 |March 26, 2015               Page 2 of 13
      left for the park, B.W. brought a radio with her, and she was wearing a tank top

      and shorts.


[5]   B.W. and her brothers all had developmental disabilities. B.W. was identified

      as having a mild cognitive impairment, with an intelligence quotient (“IQ”) of

      less than 70. One of her brothers was profoundly autistic and was nonverbal;

      the other brother had limited ability to speak in conversation with others.

      Mother and Stepfather generally allowed the children to go to the park

      unaccompanied because the family’s home was six houses away from the park.

      Stepfather was accustomed to going to the park to check on the children on

      these occasions.


[6]   B.W. and her brothers arrived at the stage area. Her brothers sat or stood

      nearby, but B.W. brought her radio onstage and began dancing with S.

      Johnson continued recording, and at various points also got onstage and

      danced with B.W. and S. At one point, B.W.’s bra strap was slipping. Without

      request, Johnson adjusted it for her.


[7]   After about an hour, Johnson, Cynthia, and S. left the stage area to return

      home. B.W. needed to use the bathroom and walked to a separate building

      where men’s and women’s restrooms were located. C. and J.J. waited for her

      nearby.


[8]   At some point during their walk home, Johnson told Cynthia that he was going

      back to the park because B.W., C., and J.J. had asked him to “smoke weed”

      with them. Johnson then returned to the park, while Cynthia and S. stopped at

      Court of Appeals of Indiana | Memorandum Decision 79A02-1408-CR-573 |March 26, 2015   Page 3 of 13
       a gas station to get a drink, and then returned home. Johnson returned to the

       park on his bicycle carrying a backpack that had his video camera, a laptop

       computer, a pair of sweatpants belonging to Cynthia, and a black bra.


[9]    Shortly after B.W. entered the farthest stall in the women’s restroom, Johnson

       entered the restroom and approached B.W.’s stall. Johnson manipulated the

       lock to the stall, causing it to open, then stepped in and closed the stall door.


[10]   After entering the stall, Johnson told B.W. to change out of her shorts and into

       the sweatpants he had been carrying in his backpack. B.W. complied; Johnson

       then put his hand in her pants and inserted his finger into B.W.’s vagina several

       times. B.W. asked him to stop, and Johnson said he would do so if she kissed

       him. B.W. did so, and Johnson stopped.


[11]   Johnson then took the black bra from his backpack and told B.W. to change

       into the black bra. B.W. complied and took off her bra; while B.W.’s bra was

       off, Johnson kissed her right breast. B.W. then put on the black bra. Johnson

       exposed his penis and said that he wanted to have sex with B.W.; B.W. refused,

       telling Johnson that she had a boyfriend.


[12]   At some point during these events, Stepfather arrived at the park to check on

       the children. He found J.J. and C. standing near the women’s restroom

       building, still waiting for B.W. To hurry B.W. along, Stepfather opened the

       bathroom door and asked B.W. to come out soon. Johnson replied, saying that

       B.W. would be out shortly.



       Court of Appeals of Indiana | Memorandum Decision 79A02-1408-CR-573 |March 26, 2015   Page 4 of 13
[13]   Stepfather thought hearing a male voice was unusual, but remembered that

       sounds from the men’s and women’s restrooms echo between one another. He

       checked the men’s restroom, but found no one there. By this point, J.J. and C.

       had begun to walk home on their own, and Stepfather had to catch up with

       them.


[14]   Shortly after this, B.W. ran out of the women’s restroom. Crying and

       distraught, she ran past Stepfather and her brothers. When B.W. arrived home,

       she was still shaking and crying. At the time, B.W. was still wearing the

       sweatpants and bra Johnson had given her, and was carrying her own bra; she

       had left the shorts she was wearing behind. B.W.’s mother immediately called

       police.


[15]   After an investigation, police identified Johnson as the individual who was in

       the bathroom with B.W. On March 22, 2013 the State charged Johnson with

       Criminal Deviate Conduct; Criminal Confinement, as a Class D felony; 4 and

       Sexual Battery. On May 2, 2014, the State alleged that Johnson was a Habitual

       Offender.


[16]   A jury trial was conducted on June 10 and June 11, 2014. At the end of the

       trial, the jury found Johnson guilty as charged of Criminal Deviate Conduct




       4
           I.C. § 35-42-3-3.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1408-CR-573 |March 26, 2015   Page 5 of 13
       and Sexual Battery, and found him not guilty of Criminal Confinement. After

       the jury’s verdict, Johnson stipulated to his status as a Habitual Offender.


[17]   A sentencing hearing was conducted on July 3, 2014. At the hearing’s

       conclusion, the trial court entered judgments of conviction against Johnson for

       Criminal Deviate Conduct and Sexual Battery, and adjudicated Johnson to be a

       Habitual Offender. The trial court sentenced Johnson to fifteen years

       imprisonment for Criminal Deviate Conduct and two years imprisonment for

       Sexual Battery, with these terms running concurrently. The trial court also

       ordered Johnson’s sentence for Criminal Deviate Conduct enhanced by twenty

       years imprisonment as a result of his status as a Habitual Offender. This

       yielded an aggregate term of imprisonment of thirty-five years.


[18]   This appeal ensued.



                                 Discussion and Decision
[19]   On appeal, Johnson challenges the sufficiency of the evidence underlying his

       convictions.


[20]   Our standard of review in sufficiency cases is well settled. We consider only the

       probative evidence and reasonable inferences supporting the judgment. Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of

       witnesses or reweigh evidence. Id. Because the jury is able to observe the

       demeanor of witnesses and ascertain their credibility, “[w]e will not invade the

       province of the jury and determine whom to believe.” Perry v. State, 541 N.E.2d

       Court of Appeals of Indiana | Memorandum Decision 79A02-1408-CR-573 |March 26, 2015   Page 6 of 13
       913, 916 (Ind. 1989). We will affirm the conviction unless “no reasonable fact-

       finder could find the elements of the crime proven beyond a reasonable doubt.”

       Drane, 867 N.E.2d at 146 (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind.

       2000)). There is sufficient evidence if an inference may reasonably be drawn

       from the evidence to support the judgment. Id. (quoting Pickens v. State, 751

       N.E.2d 331, 334 (Ind. Ct. App. 2001)).


[21]   Johnson was convicted of Criminal Deviate Conduct and Sexual Battery. To

       convict Johnson of Criminal Deviate Conduct, as charged, the State was

       required to prove beyond a reasonable doubt that Johnson knowingly or

       intentionally cased B.W. to perform or submit to Johnson’s touching of her

       vagina, while B.W. was mentally disabled or deficient such that she could not

       give consent to the conduct. See I.C. § 35-42-4-2(a) (West 2012); App’x at 7.

       To convict Jonson of Sexual Battery, as charged, the State was required to

       prove beyond a reasonable doubt that Johnson, with intent to arouse or satisfy

       his sexual desires or those of B.W., touched B.W. while she was so mentally

       disabled or deficient that she could not give consent to the touching. I.C. § 35-

       42-4-8.


[22]   On appeal, Johnson does not contend that he did not engage in sexual conduct

       with B.W. Rather, Johnson argues that the State failed to adduce sufficient

       evidence as to B.W.’s incapacity to give consent, and advances two arguments

       in this respect. First, Johnson contends that there was insufficient evidence to

       establish B.W.’s incapacity to consent. Second, Johnson argues that even if

       there was sufficient evidence of B.W.’s incapacity to consent, there nevertheless

       Court of Appeals of Indiana | Memorandum Decision 79A02-1408-CR-573 |March 26, 2015   Page 7 of 13
       was insufficient evidence that he knew or should reasonably have known that

       B.W. was mentally disabled or deficient such that she could not give consent.

       We address these arguments in turn.


                                        Capacity to Consent
[23]   This Court has previously addressed cases regarding the sufficiency of the

       evidence as to incapacity to consent to sexual conduct due to mental disability

       or deficiency. Summarizing a number of these cases, this Court observed in

       Ball v. State:

               In a criminal deviate conduct case alleging mental disability or
               deficiency, this court held that “[t]he plain and ordinary meaning of
               the words ‘mentally disabled or deficient’ is subnormal intelligence or
               mental disease or defect.” Douglas v. State, 484 N.E.2d 610, 613 (Ind.
               Ct. App. 1985). Noting the phrase “mental disability or deficiency” is
               qualified by the resultant inability to give consent, the meaning has
               been expanded for purposes of those statutes to include not only a
               victim with lower-than-normal intelligence, see, e.g., Bozarth v. State,
               520 N.E.2d 460, 463 (Ind. Ct. App. 1988) (twenty-one year old victim
               was deaf, legally blind, and had a mental age of approximately ten
               years old and an I.Q. between fifty and seventy), trans. denied, but also
               a victim who was highly intoxicated, Gale v. State, 882 N.E.2d 808, 818
               (Ind. Ct. App. 2008), and a victim who had unknowingly ingested
               eight Xanax, Hancock v. State, 758 N.E.2d 995, 1004 (Ind. Ct. App.
               2001), aff'd in relevant part, 768 N.E.2d 880 (Ind. 2002). As noted in
               Warrick v. State, 538 N.E.2d 952, 955 (Ind. Ct. App. 1989), however,
               the “mental disability or deficiency” prong of the criminal deviate
               conduct statute “primarily exists to prevent abuse of persons in our
               society who, by reason of mental disability, are unable to protect
               themselves from sexual abuse.” The lack of consent is not an element
               of the offense; it is the inability to give consent that is required to show
               mental disability or deficiency.
       945 N.E.2d 252, 257 (Ind. Ct. App. 2011) (emphasis in original).


       Court of Appeals of Indiana | Memorandum Decision 79A02-1408-CR-573 |March 26, 2015   Page 8 of 13
[24]   In support of its case, the State introduced testimony from B.W., Mother, and

       Ann Jackson (“Jackson”), a special education teacher familiar with B.W.

       Jackson testified concerning B.W.’s cognitive and behavioral abilities, and

       provided documents concerning B.W.’s abilities in the form of B.W.’s

       individualized education plan (“IEP”). The IEP indicated that B.W.’s

       eligibility for special education services was the result of a cognitive disability.

       Specifically, the IEP indicated that B.W. had a mild mental disability, and

       “General Cognitive Ability on Differential Ability Scales placed her in the

       borderline to mild deficit range.” (Ex. 16.) Johnson testified that students with

       a “mild” cognitive disability have IQs ranging between 50 and 70. (Tr. at 151.)

       This result was determined when B.W. was six years old, and Johnson testified

       that IQ scores do not tend to change significantly during an individual’s

       lifetime. (Tr. at 154.)


[25]   Mother also testified at the trial and stated that at the time of the trial, after

       B.W. had turned eighteen years old, B.W. was not able to be left alone

       overnight, could not cook for herself, and did not have a driver’s license.

       Jackson agreed that it would be a “bad idea” for B.W. to drive a vehicle. (Tr. at

       153.) And a witness called by Johnson, Tracy Bibler (“Bibler”), another of

       B.W.’s teachers, testified that B.W. was easily influenced and that her generally

       positive assessment of B.W.’s abilities was made in comparison to those of

       other special education students. (Tr. at 168, 170.) The jury also heard

       testimony from B.W., during which they were able to judge for themselves

       B.W.’s capabilities.


       Court of Appeals of Indiana | Memorandum Decision 79A02-1408-CR-573 |March 26, 2015   Page 9 of 13
[26]   In his brief, Johnson contends that while there was evidence that B.W. had

       intellectual deficits, the statute “does not say consent is invalid merely because

       the victim is naïve, inexperienced, immature, or easily influenced.”

       (Appellant’s Br. at 11.) Yet Indiana courts have held that the ordinary meaning

       of “mentally disabled or deficient” involves “subnormal intelligence or mental

       disease or defect,” with an aim toward protecting vulnerable members of

       society who are unable to protect themselves from sexual abuse. Ball, 945

       N.E.2d at 257 (quoting Douglas, 484 N.E.2d at 613). And Johnson’s argument

       disregards B.W.’s testimony that she did not invite or verbally agree to

       Johnson’s conduct and that she felt afraid during the encounter with Johnson in

       the bathroom, and that B.W. objected to Johnsons’s request to engage in sexual

       intercourse by explaining that she had a boyfriend.


[27]   There was evidence introduced at trial to establish B.W.’s intellectual deficits,

       and not merely that B.W. was naïve, inexperienced, or otherwise easily

       influenced. Accordingly, we cannot conclude that there was insufficient

       evidence from which a reasonable jury could conclude that B.W. was incapable

       of giving consent due to mental defect or disability.


                                     Knowledge of Capacity
[28]   Johnson’s other contention on appeal is that, given B.W.’s incapacity to

       consent, nevertheless Johnson did not know B.W. was sufficiently mentally

       disabled or deficient as to be unable to give consent.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1408-CR-573 |March 26, 2015   Page 10 of 13
[29]   As to Johnson’s conviction for Sexual Battery, as charged, we note that neither

       the charging statute nor the charging information require the State to prove any

       knowledge on the part of a defendant. Rather, the intent element is expressed

       with respect to the defendant’s purpose in arousing or satisfying sexual desires

       where such touching is not consented to or cannot be consented to; it is not, as

       in the Deviate Sexual Conduct statute, required for each element of the offense.

       See I.C. § 35-42-4-8(a)(1). Having already concluded that there was sufficient

       evidence of B.W.’s incapacity to consent, we accordingly leave Johnson’s

       Sexual Battery conviction undisturbed without need for further analysis.


[30]   We turn now to Johnson’s conviction for Criminal Deviate Conduct. The

       charging statute for Criminal Deviate Conduct requires that the State prove

       knowledge or intent as to each element of the offense. See I.C. § 35-42-4-2(a)

       (West 2012); Gale v. State, 882 N.E.2d 808, 816 (Ind. Ct. App. 2008)

       (concluding that, under the similarly-worded Rape statute, the defendant “had

       to be aware of a high probability that [the victim] was unaware that sexual

       intercourse was occurring”). Here, Johnson contends that there was

       insufficient evidence adduced at trial that he knew of a high probability that

       B.W. could not consent to sexual activity with him due to her mental disability

       or deficiency.


[31]   Evidence supporting the judgment on this matter was presented by the State in

       the form of an audio recording of a conversation between Johnson and Cynthia

       during the police investigation, a video recording of B.W. dancing with S. on

       the stage at Columbian Park, and B.W.’s testimony at trial.

       Court of Appeals of Indiana | Memorandum Decision 79A02-1408-CR-573 |March 26, 2015   Page 11 of 13
[32]   Cynthia testified at the trial concerning the events of August 23, 2012. She also

       participated with a police investigation, and used a digital recorder provided by

       police to record a conversation with Johnson during which the two discussed

       the events associated with this case. In the recording of this conversation,

       which recording was admitted into evidence at trial, Johnson agreed with

       Cynthia that in retrospect it seemed to him that B.W., J.J., and C. were “not all

       there.” (Ex. 14.) Cynthia, who unlike Johnson was not present at the stage

       area for the entire time B.W. was onstage, responded that B.W.’s mental state

       was obvious to her as soon as B.W. got on the stage with S. and began dancing.

       (Ex. 14.) And camera recordings from the stage make it clear that B.W.

       continued dancing with S. for nearly an hour, affording Johnson ample

       opportunity to observe B.W. (Ex. 18.)


[33]   Further, as noted above, the jury had the opportunity to hear B.W.’s testimony

       and to assess her demeanor at trial. This would have included an opportunity

       for the jurors to assess B.W.’s cognitive abilities during both direct and cross

       examination. See Perry, 541 N.E.2d at 916 (recognizing as within the province

       of the jury assessment of a witness’s demeanor). And, as we noted before, the

       evidence is not at all clear that B.W. considered any of her interaction with

       Johnson in the bathroom at Columbian Park to have been consensual.


[34]   Based upon the recordings of Cynthia’s conversation with Johnson and of B.W.

       dancing with S., together with the jury’s opportunity to see B.W. for

       themselves, we cannot conclude that there was insufficient evidence from

       which a reasonable finder of fact could conclude that Johnson knew of a high

       Court of Appeals of Indiana | Memorandum Decision 79A02-1408-CR-573 |March 26, 2015   Page 12 of 13
       probability that B.W. was not competent to consent to sexual touching. We

       accordingly affirm Johnson’s convictions.



                                              Conclusion
[35]   There was sufficient evidence adduced at trial both of B.W.’s incapacity to

       consent to sexual conduct and of Johnson’s knowledge of a reasonable

       probability that B.W. was not competent to consent. We accordingly affirm

       Johnson’s convictions.


[36]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A02-1408-CR-573 |March 26, 2015   Page 13 of 13
