Christopher Underwood v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Apr 23 2015, 9:06 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 ATTORNEYS FOR APPELLEE
Bart M. Betteau Gregory F. Zoeller
Betteau Law Office, LLC Attorney General of Indiana
New Albany, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Christopher Underwood, April 23, 2015
Appellant-Defendant, Court of Appeals Case No.
10A04-1405-CR-234
v. Appeal from the Clark Circuit Court
The Honorable Joseph P. Weber,
State of Indiana, Judge
Appellee-Plaintiff
Case No. 10C03-1402-FD-248
Crone, Judge.
Case Summary
[1] Christopher Underwood appeals his conviction for class D felony sexual
battery, following a jury trial. We restate and address three issues on appeal:
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(1) whether the trial court abused its discretion when it refused Underwood’s
proffered jury instruction regarding the presumption of innocence; (2) whether
the trial court abused its discretion in limiting the scope of cross-examination;
and, (3) whether the State presented sufficient evidence of forceful compulsion
to support a sexual battery conviction. Finding no abuse of discretion but that
the evidence was insufficient, we reverse and remand.
Facts and Procedural History
[2] The facts favorable to the verdict indicate that on January 30, 2014,
Underwood and L.S., a female, were both inmates of the Clark County Jail.
Underwood, another male inmate, and L.S. were being transported from the
courtroom back to the jail by one guard. All three inmates’ wrists and feet
were shackled. L.S. alleged that first, when the inmates were on the elevator,
Underwood was standing behind her and touched her buttocks. L.S. alleged
that subsequently, when the inmates were walking down the hallway,
Underwood again touched her buttocks. L.S. alleged that then, when the
inmates were in the courthouse garage area and the guard had his back turned,
Underwood touched her buttocks a third time. She alleged that he grabbed
underneath her buttocks quite hard. L.S. complained to the transport officer
that Underwood had touched her. Video surveillance of the garage area shows
Underwood approaching L.S. from behind with his hands down by her
buttocks and then L.S. quickly jerking away from him after apparently being
touched.
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[3] The State charged Underwood with three counts of class D felony sexual
battery based upon the three separate incidents alleged by L.S. Each count
alleged that Underwood, with the intent to arouse or satisfy his own sexual
desires, touched L.S. when she was compelled to submit to the touching by
force or the imminent threat of force. A jury trial was held on April 24, 2014.
At the conclusion of the State’s evidence, Underwood moved for a directed
verdict arguing that the State had presented no evidence that L.S. had been
compelled to submit to any of the alleged touchings by force or the imminent
threat of force as required by Indiana Code Section 35-42-4-8(a)(1)(A). The
trial court denied the motion and Underwood proceeded to present evidence.
At the close of the evidence, the trial court instructed the jury regarding the
elements of sexual battery as well as the elements of the lesser-included offense
of battery. The jury found Underwood not guilty of sexual battery or battery
regarding the first two counts, but guilty of one count of class D felony sexual
battery regarding the incident in the garage area. This appeal ensued.
Discussion and Decision
Section 1 – The jury was adequately instructed regarding the
presumption of innocence.
[4] We first address Underwood’s assertion that the trial court abused its discretion
when it refused his proffered jury instruction regarding the presumption of
innocence. The trial court has broad discretion in instructing the jury, and we
review that discretion only for abuse. Kane v. State, 976 N.E.2d 1228, 1231
(Ind. 2012). To determine whether the court properly refused a proffered
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instruction, we consider: (1) whether the proffered instruction correctly states
the law; (2) whether there was evidence presented at trial to support giving the
instruction; and (3) whether the substance of the instruction was covered by
other instructions that were given. Id. (citing Mayes v. State, 744 N.E.2d 390,
394 (Ind. 2001)). “We consider the instructions ‘as a whole and in reference to
each other’ and do not reverse the trial court ‘for an abuse of discretion unless
the instructions as a whole mislead the jury as to the law in the case.’” Helsley v.
State, 809 N.E.2d 292, 303 (Ind. 2004) (quoting Carter v. State, 766 N.E.2d 377,
382 (Ind. 2002)).
[5] Underwood relied on Robey v. State, 454 N.E.2d 1221 (Ind. 1983), and Lee v.
State, 964 N.E.2d 859, 864 (Ind. Ct. App. 2014), trans. denied (2012) as authority
for his proposed instruction that included language stating that the presumption
of innocence “continues in favor of the accused throughout the trial” and that
the jury “should attempt to fit the evidence to the presumption that the
[a]ccused is innocent.” Appellant’s App. at 111. In McCowan v. State, No.
64S03-1408-CR-516 (Ind. Mar. 25, 2015), our supreme court recently noted that
Robey (and the precedent that followed) enunciated a seemingly bright line rule
requiring, upon request, a jury instruction with the abovementioned language,
but then applied a flexible standard merely requiring the jury instructions as a
whole to discuss the same principles. Slip op. at 7-8, 11. The McCowan court
unequivocally and prospectively resolved this conflicting ruling in Robey and
held that “it is the absolute right of every criminal defendant to receive the
following jury instruction upon request: ‘The presumption of innocence
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continues in favor of the defendant throughout the trial. You should fit the
evidence to the presumption that the defendant is innocent if you can
reasonably do so.’” Id. at 1-2.1
[6] Because this unequivocal rule is to be applied prospectively, and given the
ambiguity in the law at the time of Underwood’s trial, we review the trial
court’s refusal of his requested instruction pursuant to the more general
standard enunciated in Robey and consider whether, taken as a whole, “[the jury
instructions] ‘adequately directed the jury to receive and evaluate the trial
evidence while in the posture of presuming the defendant innocent and
demanding of the State that it produce strong and persuasive evidence of guilt
wholly at odds with innocence.’” Id. at 11 (quoting Robey, 454 N.E.2d at 1222).
Our review of the jury instructions here reveals that the jury was adequately
instructed regarding these principles. Accordingly, we cannot say that the trial
court abused its discretion when it refused Underwood’s proffered instruction.
Section 2 – The trial court did not abuse its discretion in
limiting the scope of cross-examination.
[7] Next, we briefly address Underwood’s contention that the trial court abused its
discretion in limiting his cross-examination of L.S. Specifically, Underwood
asserts that he was prevented from sufficiently cross-examining L.S. regarding
1
The McCowan court stated, “If the defendant adds to or varies this language in his request, inclusion of that
variation remains within the discretion of the trial court, under the traditional three-prong analysis
established by our jurisprudence.” Id. at 9 (footnote and citation omitted).
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her pending criminal charges or her alleged bias caused by her financial status.
The scope and extent of cross-examination is within the discretion of the trial
court, and we will reverse only upon a finding of an abuse of discretion. Manuel
v. State, 971 N.E.2d 1262, 1266 (Ind. Ct. App. 2012). “Trial judges retain wide
latitude to impose reasonable limits on the right to cross-examination based on
concerns about, among other things, harassment, prejudice, confusion of the
issues, the witness’ safety, or interrogation that is repetitive or only marginally
relevant.” Washington v. State, 840 N.E.2d 873, 886 (Ind. Ct. App. 2006), trans.
denied.
[8] Despite his assertions to the contrary, our review of the record indicates that
Underwood was sufficiently permitted to attack L.S.’s credibility with evidence
of her pending charges as well as explore relevant aspects of L.S.’s alleged bias
such that his opportunity for effective cross-examination was not infringed
upon. See id. (we will reverse trial court’s decision to limit scope of cross-
examination only when court’s restriction substantially affects defendant’s
rights). Thus, we cannot say that the trial court abused its discretion.
Moreover, we conclude that if error did occur, any such error was harmless.
See Koenig v. State, 933 N.E.2d 1271, 1273 (Ind. 2010) (violation of right to
cross-examination does not require reversal if State can show beyond a
reasonable doubt that error did not contribute to verdict). In light of the video
evidence viewed by the jury (and by this Court) which corroborates L.S.’s
testimony that Underwood touched her, and the extent of cross-examination
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that was permitted, we can say with confidence that the trial court’s limitation
on cross-examination did not contribute to the verdict.
Section 3 – The State did not prove forceful compulsion
beyond a reasonable doubt.
[9] Underwood challenges the sufficiency of the evidence to support his conviction.
Specifically, he contends that the State did not prove that L.S. was compelled to
submit to his touching by force or the imminent threat of force as required for
sexual battery.2 When reviewing the sufficiency of the evidence to support a
conviction, we examine only the probative evidence and reasonable inferences
that support the verdict. Morgan v. State, 22 N.E.3d 570, 573 (Ind. 2014). We
do not assess witness credibility or reweigh evidence. Id. Rather, we consider
only the evidence most favorable to the verdict and will affirm the conviction
unless no reasonable factfinder 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. Drane v. State, 867 N.E.2d 144, 146
(Ind. 2007). The evidence will be deemed sufficient if an inference may
reasonably be drawn from it to support the conviction. Id.
2
Underwood also contends that the trial court erred in denying his motion for a directed verdict. However,
Underwood called witnesses and presented evidence after the denial of his motion, and “‘one who elects to
present evidence after a denial of his motion for directed verdict made at the end of the State’s case waives
appellate review of the denial of that motion.”’ Cox v. State, 19 N.E.3d 287, 290-91 (Ind. Ct. App. 2014)
(quoting Snow v. State, 560 N.E.2d 69, 74 (Ind. Ct. App. 1990)).
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[10] To prove that Underwood committed class D felony sexual battery, the State
was required to prove that Underwood, acting with intent to arouse or satisfy
his own sexual desires, touched L.S. when she was compelled to submit to the
touching by force or the imminent threat of force. Ind. Code § 35-42-4-
8(a)(1)(A). 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. Frazier v. State, 988
N.E.2d 1257, 1261 (Ind. Ct. App. 2013). “In fact, not all touchings intended to
arouse or satisfy sexual desires constitute sexual battery; rather, only those in
which the person touched is compelled to submit by force or the imminent
threat of force violate Indiana Code § 35-42-4-8.” Bailey v. State, 764 N.E.2d
728 (Ind. Ct. App. 2002), trans. denied. 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). The presence or absence of forceful
compulsion is to be viewed from the victim’s perspective, not the assailant’s.
Frazier, 988 N.E.2d at 1261. Our supreme court has explained that this is a
subjective test and the issue is “whether the victim perceived the aggressor’s
force or imminent threat of force as compelling her compliance.” Tobias v.
State, 666 N.E.2d 68, 72 (Ind. 1996).
[11] Underwood contends that the State did not prove forceful compulsion beyond a
reasonable doubt. We agree. The evidence most favorable to the veridict
indicates that, while L.S. and Underwood were in the garage area of the
courthouse, Underwood approached L.S. from behind and touched her
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buttocks. There is insufficient evidence, however, that in doing so, Underwood
committed any act of force or threat of force to compel L.S. to submit to the
touching. Although L.S. testified that she was scared of Underwood because he
had already touched her twice earlier,3 there is no evidence that L.S. was even
aware that Underwood was approaching her from behind before this touching
occurred, let alone that she was somehow compelled by force or the imminent
threat of force by him to submit to the touching. Indeed, L.S. admitted on
cross-examination that Underwood did not use any force to compel her to
submit to the touching and that the touch was a “surprise” to her. Tr. at 330.
The evidence establishes that the touch was rude and unwanted, yes, but
compelled by force, no.
[12] We are unpersuaded by the State’s argument that the jury could reasonably
infer that L.S. was compelled to submit to the touching, not based upon any act
of force or threat of force by Underwood, but due to the force imposed by the
“broader circumstances” of her incarceration and the fact that she was
restrained by shackles and unable to avoid the touch. Appellee’s Br. at 11. As
our supreme court has specifically stated, it is the “aggressor’s force or
imminent threat of force” that must compel the victim to submit to a touching,
not some extraneous force that is wholly outside the control of the aggressor as
3
The only evidence that Underwood had earlier touched L.S. came from L.S.’s testimony. Two defense
witnesses who watched surveillance video of L.S. and Underwood in the elevator and the hallway testified
that Underwood did not touch L.S. on either of those occasions. The jury found Underwood not guilty of
sexual battery or the lesser-included offense of battery relating to those two alleged incidents.
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argued by the State here. Tobias, 666 N.E.2d at 72. Based upon the evidence
presented, we conclude that no reasonable factfinder could find the elements of
sexual battery proven beyond a reasonable doubt. Therefore, we reverse
Underwood’s sexual battery conviction.
[13] “When a conviction is reversed because of insufficient evidence, we may
remand to the trial court to enter a judgment of conviction upon a lesser-
included offense if the evidence is sufficient to support the lesser offense.”
Chatham, 845 N.E.2d at 208. A lesser-included offense is factually included in
the charged crime if the charging instrument alleged that the means used to
commit the crime included all the elements of the alleged lesser-included
offense. Id.
[14] A person commits class B misdemeanor battery if he knowingly or intentionally
touches another person in a rude, insolent, or angry manner. Ind. Code § 35-
42-2-1(b)(1). The amended charging information provided that on January 30,
2014, Underwood “did, with intent to arouse or satisfy his own sexual desires,
touch L.S. when she was compelled to submit to the touching by force or the
imminent threat of force, to wit: in the garage at the jail book-in door of the
Clark County Courthouse while being transported to the jail after a court
hearing.” Appellant’s App. at 29. The means used to commit sexual battery as
alleged in the charging instrument included all the elements of class B
misdemeanor battery. There was sufficient evidence to establish that
Underwood knowingly or intentionally touched L.S.’s buttocks in a rude,
insolent, or angry manner. Thus, we reverse and remand with instructions for
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the trial court to enter judgment of conviction for class B misdemeanor battery
and to resentence Underwood accordingly.
[15] Reversed and remanded.
Brown, J., and Pyle, J., concur.
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