MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any
court except for the purpose of establishing                              Dec 12 2017, 9:39 am

the defense of res judicata, collateral                                        CLERK
                                                                           Indiana Supreme Court
estoppel, or the law of the case.                                             Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Anthony S. Churchward                                   Curtis T. Hill, Jr.
Fort Wayne, Indiana                                     Attorney General of Indiana

                                                        Katherine Cooper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Paul Weedmayer,                                         December 12, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1705-CR-983
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable John F. Surbeck,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        02D04-1608-F3-52



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-983 | December 12, 2017            Page 1 of 7
[1]   Paul Weedmayer appeals his conviction for Level 6 felony sexual battery. He

      contends that the trial court abused its discretion in instructing the jury.


[2]   We affirm.


                                       Facts & Procedural History


[3]   K.D., a twenty-four-year-old college student, met Weedmayer on March 12,

      2016, at a local nightclub in Fort Wayne. They exchanged phone numbers and

      began texting each other the following day. K.D. invited Weedmayer to her

      house on the evening of March 15, 2016, where she introduced him to several

      friends. The two talked and got to know each other and eventually moved to

      K.D.’s bedroom. They kissed but K.D. indicated she was not ready for sex, so

      they both fell asleep. Weedmayer left in the morning, and K.D. went to work.


[4]   Later that morning, K.D. began receiving text messages from Weedmayer in

      which he indicated that he loved her and wanted to see her again. This

      “freaked out” K.D., and she responded that she wanted to take it slow and start

      off as friends. Transcript at 35. Weedmayer agreed not to move too fast.


[5]   On March 18, 2016, K.D. and Weedmayer communicated about him coming

      over. When Weedmayer arrived sometime before 3:00 a.m., K.D.’s friends had

      already left and her roommate was not home. K.D. hugged Weedmayer, and

      they went up to her bedroom. They kissed but then Weedmayer’s kisses

      became aggressive. After she told him she did not want to have sex, he

      acknowledged her request but his kisses soon became even more aggressive. He


      Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-983 | December 12, 2017   Page 2 of 7
      climbed on top of her and began touching her. K.D. tried to move her head

      back and forth, and she kept telling him no. Weedmayer pulled his shorts

      down, pushed K.D.’s shorts and underwear to the side, and began to penetrate

      her vagina with his penis. K.D. then gathered enough strength to push him off.

      After a few moments of silence, she told him to leave. Weedmayer protested,

      apologized, and tried to persuade K.D. to let him stay, but she demanded that

      he leave. When he finally left, K.D. locked the door and called a friend to

      come stay with her because she was scared.


[6]   Weedmayer sent three text messages to K.D. immediately after leaving. He

      apologized, asked for forgiveness, and pleaded with her to answer. K.D. did

      not respond. Later that afternoon, he called repeatedly and sent her a message

      indicating that he was outside her house and wanted to talk. K.D. responded

      that she did not want to talk and told him to leave her alone. Weedmayer,

      however, continued to call and text. K.D. called the police that night and

      reported being raped. The following day, K.D. received more unwanted text

      messages from Weedmayer, which she ignored.


[7]   The text messages stopped for a few days and then on March 24, 2016,

      Weedmayer reached out to K.D. again. She responded, “Leave me

      alone…You had sex with me when I said no!” Exhibits at 24. Weedmayer

      replied in part, “Why you let emotion play with your mind you gotta

      understand when I say forgive me I am so sorry for what I did to you I didn’t

      mean to do it …” Id. at 25.



      Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-983 | December 12, 2017   Page 3 of 7
[8]    On August 31, 2016, the State filed a two-count information against

       Weedmayer, charging him with Level 3 felony rape and Level 6 felony sexual

       battery. At the jury trial on March 7, 2017, Weedmayer testified and refuted

       K.D.’s account of what happened. He claimed that they had only ever kissed

       and that on the morning in question, she was texting with another man in his

       presence, which made him angry. According to Weedmayer, he then called her

       a bitch and other names, which resulted in her kicking him out.


[9]    During closing argument, the defense acknowledged that K.D. and Weedmayer

       presented “diametrically opposed” stories and that the jury could not believe

       both of them. Transcript at 194. Ultimately, the jury rejected Weedmayer’s

       version of events and determined that he sexually assaulted K.D. The jury

       found him guilty of Level 6 felony sexual battery but acquitted him of rape.

       Thereafter, on April 11, 2017, the trial court sentenced Weedmayer to 2 years

       and 183 days, with 183 days served in jail and the remainder suspended to

       probation.


                                           Discussion & Decision


[10]   Weedmayer contends that the trial court abused its discretion when instructing

       the jury. Specifically, he challenges the following final instruction:


               The force necessary to sustain a rape conviction need not be
               physical. It may be constructive or implied from the
               circumstances. The presence or absence of forceful compulsion
               is to be determined from the victim’s perspective, not the
               assailant’s. This is a subjective test that looks to the victim’s


       Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-983 | December 12, 2017   Page 4 of 7
               perception of the circumstances surrounding the incident in
               question.


       Appendix Vol. II at 65. When objecting to this instruction below, Weedmayer

       argued that it was an appellate sufficiency standard, which minimized the

       State’s burden, and that the degree of force was not at issue in this case.


[11]   On appeal, Weedmayer reasserts his claim that the instruction inappropriately

       used an appellate standard of review. It is well established that the mere fact

       that certain language is used in appellate decisions does not make it proper

       language for instructions to the jury. See e.g., Ludy v. State, 784 N.E.2d 459, 462

       (Ind. 2003); Munford v. State, 923 N.E.2d 11, 15 (Ind. Ct. App. 2010). There is,

       however, “no blanket prohibition against the use of appellate decision language

       in jury instructions.” Munford, 923 N.E.2d at 15.


[12]   Beyond stating that the language came from an appellate standard of review,

       Weedmayer makes little attempt to address the instruction’s alleged failings.

       He baldly asserts that the instruction “creates a vision in the jury’s mind that

       [he] has already been convicted”. Appellant’s Brief at 14. We find this assertion

       to be wholly without merit.


[13]   Weedmayer also asserts that the instruction created a presumption that some

       amount of force was used and, therefore, the instruction did not accommodate

       his testimony that no unwanted sexual activity occurred. This argument is based

       on a distorted representation of Weedmayer’s testimony. He testified that the

       alleged sexual activity did not occur, not that it occurred but was consensual

       Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-983 | December 12, 2017   Page 5 of 7
       and without force. Moreover, we fail to see how the instruction created the

       presumption suggested by Weedmayer.


[14]   We have previously discouraged trial courts from using an instruction similar to

       this. In Newbill v. State, 884 N.E.2d 383, 393 (Ind. Ct. App. 2008), trans. denied,

       we explained:


               We tend to agree that the particular instruction, as given, may
               not properly reflect the perspective from which a jury should
               consider the evidence of forceful compulsion. Further,
               acknowledging the possible effect of such an instruction in the
               hypothetical Newbill presented, it appears to us that the
               “perspective” for a jury’s consideration of the evidence of forceful
               compulsion in a rape trial might better be described as either the
               “objective perspective of the victim” or the “reasonable
               perspective of the victim.” Therefore, we would discourage trial
               courts from using this language as an instruction in the future.


       Id. (emphasis in original) (footnotes omitted). The Newbill court, however,

       found no abuse of discretion because when read as a whole, the instructions did

       not mislead the jury and properly informed the jury that it was to consider and

       judge all the testimony and evidence presented. Id. at 394 (“an abuse of []

       discretion occurs when the instructions, as a whole, mislead the jury as to the

       law in the case”).


[15]   Even if Weedmayer asserted the same challenge to the instruction as that

       addressed in Newbill, we would similarly find no abuse of discretion based on a

       consideration of the jury instructions as a whole. Here, the trial court directed

       the jury to consider all of the instructions together and determine the facts from

       Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-983 | December 12, 2017   Page 6 of 7
       all of the evidence presented. The jurors were instructed that they were the

       exclusive judges of the evidence and the credibility of the witnesses. Moreover,

       in addition to instructing on the presumption of innocence, the court repeatedly

       instructed the jury regarding the State’s burden to prove beyond a reasonable

       doubt each and every element of the charged crimes, which included the force

       element of the rape charge. Considering the instructions as a whole, we

       conclude that the trial court did not abuse its discretion in giving the challenged

       instruction.


[16]   Judgment affirmed.


       May, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1705-CR-983 | December 12, 2017   Page 7 of 7
