Maurice Frazier v. State of Indiana , 2013 Ind. App. LEXIS 276 ( 2013 )

FOR PUBLICATION
Jun 10 2013, 8:43 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KIMMERLY A. KLEE GREGORY F. ZOELLER
Greenwood, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MAURICE FRAZIER, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1210-CR-526
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Reuben B. Hill, Judge
Cause No. 49F18-1105-FD-031557
June 10, 2013
OPINION - FOR PUBLICATION
VAIDIK, Judge
Case Summary
Former corrections officer Maurice Frazier appeals the sufficiency of evidence for
his convictions of two counts of sexual battery committed while he was on duty at the
Marion County Jail. A sexual-battery conviction requires the State to prove that a
defendant, with intent to arouse or satisfy his sexual desires or the sexual desires of the
victim, touched the victim when she was compelled to submit to the touching by force or
the imminent threat of force. Here, Frazier grabbed the victim’s hand and placed it on his
crotch, and we find that to be sufficient evidence to affirm one of the two sexual-battery
convictions. But we find that the State failed to prove compulsion by force or imminent
threat of force on the other sexual-battery conviction, and we therefore remand that count
with instructions to enter a judgment of conviction for Class A misdemeanor battery.
Frazier also contends that his convictions violate double-jeopardy principles. A
conviction for official misconduct requires proof that a public servant knowingly or
intentionally committed an offense in the performance of his official duties. Frazier
argues that the underlying offense used for his official-misconduct conviction was his
sexual-battery conviction; therefore, he claims the same evidence was used to find him
guilty of both crimes. We conclude that there is no double-jeopardy violation, despite the
same evidence being used for both offenses, because each crime has a different victim—a
female sheriff’s deputy was the victim of sexual battery and the public was the victim of
Frazier’s official misconduct. We also conclude that there is no double-jeopardy
violation with respect to Frazier’s other convictions. We reverse in part, affirm in part,
and remand.
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Facts and Procedural History
In 2011, Frazier was a corrections officer at the Marion County Jail. S.R., a
female Marion County Sherriff’s Department Deputy, was on duty when Frazier
instructed her to accompany him to inspect the cell blocks. When they approached one of
the block doors, Frazier grabbed Deputy S.R.’s shoulder from behind and ground his
pelvis against her buttocks. Deputy S.R. pulled away and continued the inspection.
Several weeks later, Deputy S.R. had another encounter with Frazier. While
Deputy S.R. was working in the control center, Frazier knocked on the door. Deputy
S.R. opened the door for him, and Frazier sat down beside her at the control-center desk.
He began talking to Deputy S.R. and asked her why they never “messed around.” Tr. p.
24. Deputy S.R. told Frazier that she did not date coworkers or married men like Frazier.
Undeterred, Frazier told Deputy S.R. that they could “go where the cameras won’t see us
. . . .” Id. at 25. Deputy S.R. refused. Frazier persisted, pointing out a specific spot in
the control tower without cameras saying, “They can’t see us over there.” Id. When
Deputy S.R. again refused, Frazier grabbed her breast. Deputy S.R. stood up and walked
away from Frazier, pretending she was retrieving something. Frazier followed her and
grabbed her arm. Id. at 26. Deputy S.R. told him to stop. Deputy S.R. moved behind a
pillar to avoid Frazier, but Frazier followed her and grabbed her arm a second time. Id.
Again, Deputy S.R. told Frazier to stop. She then moved away and sat down at the
control-center desk.
Frazier sat down next to her again and grabbed her hand, placing it on his crotch.
Deputy S.R. pulled her arm away and told him to stop for the third time. Frazier
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responded by grabbing her breast with one hand and her crotch with the other. Deputy
S.R. pushed him away and heard a knock at the control-center door. Another employee
entered the room, and Frazier acted as if nothing had happened. Deputy S.R. reported the
incident the next day.
In May 2011, the State charged Frazier with seven felony counts, only four of
which pertain to Deputy S.R. and are relevant to our analysis: Count I, sexual battery of
Deputy S.R. as a Class D felony; Count II, sexual battery of Deputy S.R. as a Class D
felony; Count III, criminal confinement of Deputy S.R. as a Class D felony; and Count
IV, official misconduct as a Class D felony. At the close of Frazier’s bench trial, the
State specified the conduct underlying the sexual-battery charges:
Count II is the one[,] that was where he forced [Deputy S.R.] to grab his
crotch and . . . he grabbed hers. As to Count I we would ask that that be
based upon the incident where he grinded [sic] on her as she was trying to .
. . do the [cell-block inspection]. We acknowledge that there wasn’t the
force necessary for the sexual battery for [Count I] from her testimony
today. We would ask however, that you not dismiss that count and that you
find the lesser[-]included misdemeanor battery on that count.
Id. at 56. The State also explained that the criminal-confinement charge was based on the
incident in the control center where Frazier “grabbed [Deputy S.R.] on a couple of
occasions[,] stopping her from moving . . . .” Id.
The trial court found Frazier guilty of Counts I, II, III, and IV. The trial court set
forth the evidence underlying each conviction:
With regard to Count I . . . Frazier . . . did touch the breast and or buttocks
of [Deputy S.R.] . . . finding of guilty.
* * * * *
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I find that [] Frazier did take his hand and force [Deputy S.R.] to move her
hand to his crotch and that . . . meets in the court’s mind the element of
force [as to Count II].
* * * * *
And . . . Count III . . . [Frazier] did knowingly confine [Deputy S.R.] by
preventing her from moving out of the corner and or an area of the [control
center] . . . .
* * * * *
As to Count IV, [] Frazier . . . while being a public servant, that is an
employee of the Marion County Sheriff’s Department[,] did knowingly or
intentionally perform an act that a public servant is forbidden by law to
perform, and that is [sexual battery] . . . .
Id. at 82-83. Frazier was sentenced to concurrent terms on the four convictions for a total
of 545 days, with 180 days to be served in Community Corrections and 365 days
suspended to probation.
Frazier now appeals.
Discussion and Decision
On appeal, Frazier contends that there is insufficient evidence to support his two
convictions for sexual battery. He also argues that his convictions violate two double-
jeopardy theories, the actual-evidence test and the continuing-crime doctrine.
I. Sufficiency of Evidence
Our standard of review with regard to sufficiency claims is well settled. In
reviewing a sufficiency claim, this Court does not reweigh the evidence or judge the
credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct. App.
2010), reh’g denied, trans. denied. We consider only the evidence most favorable to the
judgment and the reasonable inferences drawn therefrom and affirm if the evidence and
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those inferences constitute substantial evidence of probative value to support the
judgment. Id. Reversal is appropriate only when a reasonable trier of fact would not be
able to form inferences as to each material element of the offense. Id.To prove sexual battery as a Class D felony, the State was required to show
beyond a reasonable doubt that Frazier, with intent to arouse or satisfy his own sexual
desires or the sexual desires of Deputy S.R., touched Deputy S.R. when she was
compelled to submit to the touching by force or the imminent threat of force. See Ind.
Code § 35-42-4-8(a)(1)(A). “[I]t 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) (citing
Tobias v. State, 666 N.E.2d 68, 72 (Ind. 1996), trans. denied), trans. denied. Force “may
be implied from the circumstances.” Id. (citing Bailey v. State, 764 N.E.2d 728, 731 (Ind.
Ct. App. 2002), 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. (citations omitted). “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 violate Indiana Code section 35-42-4-8.” Id.Frazier contends that the State did not prove compulsion by force or imminent
threat of force. We agree as to Count I—arising from the incident where Frazier grabbed
Deputy S.R.’s shoulder and ground his pelvis against her buttocks—which the State
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conceded at trial it had not proven. While some level of force facilitated the touching, the
evidence does not show that she was “compelled to submit to it by force or threat of
force.” Id. (citing Smith, 678 N.E.2d at 1155) (emphasis in original). However, we reach
a different conclusion with respect to Count II. Count II arose from the incident in the
control center, where Frazier forcefully grabbed Deputy S.R.’s hand and placed it on his
crotch. This is sufficient evidence of forceful compulsion to sustain Count II.
Because we conclude that the State did not prove sexual battery as alleged in
Count I, we must reverse that conviction. When we reverse a conviction for insufficient
evidence, we may remand and order the trial court to enter a judgment of conviction upon
a lesser-included offense if the evidence is sufficient to support the lesser offense. Id. at
47 (citation omitted). Indiana Code section 35-42-2-1(a)(1)(C) provides that an
individual commits Class A misdemeanor battery if they knowingly or intentionally
touch a penal-facility employee in a rude, insolent, or angry manner while the penal-
facility employee is engaged in the execution of his official duties.1 At trial, the State
showed that Frazier grabbed Deputy S.R., a penal-facility employee, from behind and
ground his pelvis against her buttocks while she was engaged in her official duties. We
remand with instructions to enter judgment for battery as a Class A misdemeanor and to
sentence Frazier accordingly.
II. Double Jeopardy
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Similarly, Section 35-42-2-1(a)(1)(B) provides that an individual commits Class A
misdemeanor battery if they knowingly or intentionally touch a law-enforcement officer (“or a person
summoned and directed by the officer”) in a rude, insolent, or angry manner while the officer is engaged
in the execution of the officer’s official duty.
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Frazier also contends that his convictions violate the Double Jeopardy Clause of
the Indiana Constitution.2 He argues that his convictions violate two double-jeopardy
theories—the actual-evidence test and the continuing-crime doctrine. Whether
convictions violate double jeopardy is a question of law which we review de novo.
Vermillion v. State, 978 N.E.2d 459, 464 (Ind. Ct. App. 2012) (citing Grabarczyk v. State,
772 N.E.2d 428, 432 (Ind. Ct. App. 2002)).
Article 1, Section 14 of the Indiana Constitution provides that “[n]o person shall
be put in jeopardy twice for the same offense.” In Richardson v. State, 717 N.E.2d 32(Ind. 1999), our Supreme Court concluded that two or more offenses are the same offense
in violation of Article 1, Section 14 if, with respect to either the statutory elements of the
challenged crimes or the actual evidence used to obtain convictions, the essential
elements of one challenged offense also establish the essential elements of another
challenged offense. Under the actual-evidence test, we examine the actual evidence
presented at trial in order to determine whether each challenged offense was established
by separate and distinct facts. Id. at 53. To find a double-jeopardy violation under this
test, we must conclude that there is “a reasonable possibility that the evidentiary facts
used by the fact-finder to establish the essential elements of one offense may also have
been used to establish the essential elements of a second challenged offense.” Id.Frazier also contends that his convictions violate the continuous-crime doctrine,
which is “a category of Indiana’s prohibition against double jeopardy.” Walker v. State,
932 N.E.2d 733, 736 (Ind. Ct. App. 2010) (citing Boyd v. State, 766 N.E.2d 396, 400
2
Frazier does not argue that his convictions violate federal double-jeopardy principles.
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(Ind. Ct. App. 2002), reh’g denied). “The continuing crime doctrine essentially provides
that actions that are sufficient in themselves to constitute separate criminal offenses may
be so compressed in terms of time, place, singleness of purpose, and continuity of action
as to constitute a single transaction.” Id. (citing Riehle v. State, 823 N.E.2d 287, 296
(Ind. Ct. App. 2005), trans. denied). We have explained, however, that the doctrine
“does not seek to reconcile the double jeopardy implications of two distinct chargeable
crimes; rather, it defines those instances where a defendant’s conduct amounts only to a
single chargeable crime.” Id. at 736 (citing Boyd, 766 N.E.2d at 400).
We have reversed Frazier’s conviction on Count I, the first sexual-battery charge,
and ordered the trial court to enter a judgment of conviction for battery as a Class A
misdemeanor. But Frazier’s argument is that any conviction on Count I would violate
double-jeopardy principles. We disagree. The record shows that Count I was based on
Frazier’s interaction with Deputy S.R. during a cell-block inspection where he grabbed
the deputy’s shoulder and ground his pelvis against her buttocks. Count I is the only
charge based upon this incident, and the incident occurred weeks before the control-
center incident. There is no double-jeopardy violation here.
Nor is there a double-jeopardy violation on Count II, the second sexual-battery
charge. In order to prove Frazier guilty of Count II, the State was required to show
beyond a reasonable doubt that Frazier, with intent to arouse or satisfy his own sexual
desires or the sexual desires of Deputy S.R., touched Deputy S.R. when she was
compelled to submit to the touching by force or the imminent threat of force. See Ind.
Code § 35-42-4-8(a)(1)(A). At trial, the State argued that Frazier committed Count II of
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sexual battery in the control center when he “forced [Deputy S.R.] to grab his crotch . . .
.” Tr. p. 56. And this was the evidence the trial court relied upon when pronouncing
judgment. Id. at 82 (“I find that Mr. Frazier did take his hand and force [Deputy S.R.] to
move her hand to his crotch and that . . . meets in the court’s mind the element of force
[as to Count II].”). This evidence is separate and distinct from the evidence for Count I,
and the control-center incident occurred weeks after the incident underlying Count I.
Frazier’s conviction on Count II does not violate double-jeopardy principles.
To establish Count III, the criminal-confinement charge, the State had to show that
Frazier knowingly or intentionally confined Deputy S.R. without her consent. Ind. Code
§ 35-42-3-3. Count III, like Count II, stemmed from Frazier’s conduct in the control
center. For this reason, Frazier argues that his conviction on this count violates the
actual-evidence test and the continuing-crime doctrine. Specifically, he argues that the
evidence that he grabbed Deputy S.R.’s arm was used to establish both this charge and
the sexual-battery charge. This is incorrect. Before the sexual battery, Frazier grabbed
Deputy S.R’s arm twice during the time when she was trying to get away from him, Tr. p.
26, and this evidence was used to convict him of criminal confinement. After the
confinement, when she had returned to sit at the control-center desk, he grabbed Deputy
S.R.’s hand and forced her to touch his crotch, and this evidence was used to convict him
of sexual battery. Frazier’s actions that gave rise to the confinement and sexual-battery
charges were not coextensive. See Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002)
(citing Richardson, 771 N.E.2d at 55) (giving the example of a confinement conviction
vacated because it was coextensive with the behavior necessary to establish an element of
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a robbery conviction). There is also no continuing-crime violation. The continuing-
crime doctrine does not apply where there are two distinct chargeable crimes, which is
the case here. Frazier committed criminal confinement when he grabbed Deputy S.R.’s
arm twice and blocked her movement in the control center. The criminal confinement
ended when Deputy S.R. moved past him and returned to her seat at the control-center
desk. After Frazier also sat down, he committed a new crime by forcefully grabbing
Deputy S.R.’s hand and putting it on his crotch. Thus, the continuing-crime doctrine has
no application here.
Finally, we reach Frazier’s challenge to Count IV, his official-misconduct
conviction. To establish Count IV, the State had to show that Frazier, as a public servant,
knowingly or intentionally committed an offense in the performance of his official duties.
Ind. Code § 35-44.1-1-1(1). Frazier argues that this conviction violates the actual-
evidence test because the same actual evidence of sexual battery was used to convict him
of sexual battery and official misconduct. He also argues that his conviction on Count IV
violates the continuing-crime doctrine because, as with Counts II and III, it stems from
his actions in the control center. In response, the State argues that an official-misconduct
conviction is not subject to double-jeopardy principles, but notes that this issue “appears
to be unresolved[.]” Appellee’s Br. p. 11.
In Richardson, our Supreme Court acknowledged that double jeopardy is not
implicated where different victims are involved. 717 N.E.2d at 50, n.40. And our Courts
have repeatedly upheld this principle, finding no double-jeopardy violation where there
are multiple victims of the same crime. See Bald v. State, 766 N.E.2d 1170, 1172 n.4
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(Ind. 2002) (no double-jeopardy violation where defendant was convicted of one count of
arson and three counts of felony murder based upon three deaths and one bodily injury
that arose out of one fire); see also Whaley v. State, 843 N.E.2d 1, 15 (Ind. Ct. App.
2006) (two convictions for resisting law enforcement did not violate double jeopardy
even though defendant’s actions involved a single incident of resisting because defendant
injured two people as a result of his resistance), trans. denied; Williamson v. State, 798
N.E.2d 450, 456-57 (Ind. Ct. App. 2003) (defendant’s five arson convictions, each of
which pertained to a different arson victim, did not violate double jeopardy), trans.
denied. Here, too, there are separate victims: Deputy S.R., the victim of sexual battery,
and the public, the victim of Frazier’s official misconduct. We therefore conclude that
there is no double-jeopardy violation under either theory claimed by Frazier.
Reversed in part, affirmed in part, and remanded.
KIRSCH, J., and PYLE, J., concur.
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