Michael Johnson v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 27, 2017
• Docket: 49A02-1612-CR-2821
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 27 2017, 11:09 am regarded as precedent or cited before any 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 Matthew D. Anglemeyer Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Henry A. Flores, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael Johnson, July 27, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1612-CR-2821 v. Appeal from the Marion Superior Court State of Indiana, The Honorable William Nelson, Appellee-Plaintiff. Judge Trial Court Cause No. 49G18-1507-F6-25672

Robb, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2821 | July 27, 2017 Page 1 of 8 Case Summary and Issue [1] Following a jury trial, Michael Johnson was convicted of intimidation, a Level

6 felony; sexual battery, a Level 6 felony; battery, a Class B misdemeanor;

public intoxication, a Class B misdemeanor; and disorderly conduct, a Class B

misdemeanor. On appeal, Johnson challenges his convictions for sexual battery

and intimidation, raising one issue for our review: whether the evidence is

sufficient to support his convictions. Concluding the evidence is sufficient, we

affirm.

Facts and Procedural History [2] Tonya Anderson is a certified nursing assistant working in home healthcare.

On July 18, 2015, Anderson went to David Britton’s home where she assists

him with food preparation, taking medicine, and putting on clothes. When

Anderson arrived, Britton and his friend, Steven Orman, were sitting on

Britton’s front porch.

[3] Shortly thereafter, Michael Johnson, a neighbor from across the street,

approached them. Johnson carried a half-empty bottle of liquor and smelled

strongly of alcohol. Britton did not want Johnson on his porch and Anderson

told Johnson that “David doesn’t want you up here . . . .” Transcript, Volume

2 at 10. Johnson told Anderson “F you B . . . don’t worry about this stuff . . .

it’s not none of your business . . . .” Id. Johnson was “totally drunk” and when

Anderson threatened to call the police, Johnson responded he would “burn

Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2821 | July 27, 2017 Page 2 of 8 down the house” and “kill [her] and David if the police showed up . . . .” Id. at

11-12. Eventually, Anderson called the police, who escorted Johnson back to

his home with orders to remain there.

[4] Immediately after the police departed, Johnson returned to Britton’s home.

Anderson told Johnson to leave and that she was going to call the police.

Johnson again threatened to “burn the house down . . . .” Id. at 16. Johnson

then climbed up on the porch, pushed Anderson against the wall, and put one

hand around her neck. Johnson then placed his other hand up her dress and on

her vagina, saying, “B you know you like this.” Id. at 17. Anderson then

pushed Johnson away. The police returned and arrested Johnson.

[5] The State charged Johnson with intimidation, a Level 6 felony; sexual battery, a

Level 6 felony; battery, a Class B misdemeanor; public intoxication, a Class B

misdemeanor; and disorderly conduct, a Class B misdemeanor. A jury found

Johnson guilty as charged and the trial court sentenced Johnson to an aggregate

sentence of 910 days. Johnson now appeals.

Discussion and Decision I. Standard of Review [6] Johnson’s arguments challenge the sufficiency of the evidence to support his

convictions. Our standard of review for sufficiency of the evidence claims is

well-settled:

Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2821 | July 27, 2017 Page 3 of 8 First, we neither reweigh the evidence nor judge the credibility of witnesses. Second, we consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence. A conviction will be affirmed if there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. . . . [W]e consider conflicting evidence most favorably to the [verdict].

Willis v. State, 27 N.E.3d 1065, 1066-67 (Ind. 2015) (citations and quotations

omitted).

II. Sexual Battery [7] Johnson argues the evidence is insufficient to support his conviction for sexual

battery. Indiana’s sexual battery statute provides, in pertinent part,

A person who, with intent to arouse or satisfy the person’s own sexual desires or the sexual desires of another person:

(1) touches another person when that person is:

(A) compelled to submit to the touching by force or the imminent threat of force;

***

commits sexual battery, a Level 6 felony.

Ind. Code § 35-42-4-8(a)(1)(A). The element of force may be implied from the

circumstances and need not be physical or violent. Scott-Gordon v. State, 579

N.E.2d 602, 604 (Ind. 1991). Moreover, “it is the victim’s perspective, not the

assailant’s, from which the presence or absence of forceful compulsion is to be

Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2821 | July 27, 2017 Page 4 of 8 determined.” Tobias v. State, 666 N.E.2d 68, 72 (Ind. 1996). The test is a

“subjective test that looks to the victim’s perception of the circumstances

surrounding the incident in question.” Id. Therefore, the issue is “whether the

victim perceived the aggressor’s force or imminent threat of force as compelling

her compliance.” Id.

[8] Johnson contends the State failed to prove he compelled Anderson to submit to

the touching by force or imminent threat of force. Johnson argues he did not

compel Anderson with force, but that “[h]e just did it.” Brief of Appellant at

15. However, Johnson’s argument completely ignores crucial portions of

Anderson’s testimony. Anderson testified Johnson returned to Britton’s porch

and she told him he needed to leave. Johnson then approached her and moved

“close in [her] face,” pushed her against the wall, and put one hand around her

neck. Tr., Vol. 2 at 17. Johnson then placed his other hand up her dress and on

her vagina, saying, ““B you know you like this.” Id. Anderson responded by

angrily shoving him in the chest. Johnson’s act of pushing Anderson against

the wall and holding her by her neck is sufficient evidence to prove Johnson

used force to compel her to submit to his unwanted touching.1

1 Johnson also alleges because “[h]e just did it[,]” and Anderson did not have the “opportunity to grant or deny” consent to the touching, there is insufficient evidence to support his conviction. Br. of Appellant at 15. There is no statutory requirement that Anderson have the opportunity to “grant or deny consent[,]” id., nor can this be reasonably inferred from our opinion in Chatham v. State, 845 N.E.2d 203, 208 (Ind. Ct. App. 2006), to which Johnson cites. The sexual battery statute only requires that Johnson touched Anderson with the intent to satisfy his own or her sexual desires and that Anderson was compelled to submit to the touching by force or imminent threat of force. Ind. Code § 35-42-4-8(a)(1)(A).

Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2821 | July 27, 2017 Page 5 of 8 III. Intimidation [9] Johnson also alleges there is insufficient evidence to sustain his conviction for

intimidation. In order to convict Johnson of intimidation, the State was

required to prove that he communicated a threat to another person, with the

intent that the other person be placed in fear of retaliation for a prior lawful act.

Ind. Code § 35-45-2-1(a)(2) (2014).

[10] Here, Johnson approached Britton’s home while unwelcome and was asked to

leave. When Anderson threatened to call the police, Johnson responded he

would burn the house down “if [she] call[ed] the police . . . and he [would] kill

[her] and David if the police showed up.” Tr., Vol. 2 at 12. Anderson then

called the police and they escorted Johnson back to his home. Johnson again

returned to Britton’s porch and Anderson told him to leave. Once again,

Johnson responded he would “burn the house down . . . [and] kill ya’ll” if the

police returned. Id. at 16.

[11] Johnson urges that we reverse his intimidation conviction and alleges his threat

was conditional and therefore insufficient to support his conviction. In support

of his argument, Johnson cites to Causey v. State, 45 N.E.3d 1239 (Ind. Ct. App.

2015). In Causey, police officers responded to a report of a disturbance at the

defendant’s residence. After law enforcement arrived and tried to talk with the

defendant, he told the officers to get off his property and stated, “[i]f you come

any closer I’ll shoot.” Id. at 1240. A panel of this court reversed the

defendant’s intimidation conviction and held the defendant’s threat was

Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2821 | July 27, 2017 Page 6 of 8 “conditional” and intended to dissuade the officers from coming any closer,

and was not a threat related to any past conduct of the officers. Id. at 1241.

[12] However, in Roar v. State, 52 N.E.3d 940 (Ind. Ct. App. 2016), adopted and

incorporated by Roar v. State, 54 N.E.3d 1001 (Ind. 2016), another panel of this

court disagreed with Causey. In Roar, the defendant saw the victim serve an

eviction notice on the defendant’s sister. The defendant began yelling at the

victim, verbally abusing her and accusing her of being unprofessional. The

defendant threatened to kill her “if [she] came back on the property.” Id. at

943. In disagreeing with Causey, the Roar majority opinion noted,

Mere use of conditional language in the course of communicating a threat does not vitiate the statute’s application when the factual predicate for the threat was a prior lawful act of the victim. Stated another way, the language a defendant uses in communicating a threat may be relevant to the fact-finder’s assessment of the defendant’s intent, but the language used is not the only relevant consideration.

Id. at 944. Moreover, our supreme court granted transfer in Roar and adopted

the majority’s analysis. Roar, 54 N.E.3d at 1001; see also Chastain v. State, 58

N.E.3d 235, 240 (Ind. Ct. App. 2016) (noting by granting transfer and adopting

the majority opinion in Roar, our supreme court disapproved of the analysis and

holding in Causey), trans. denied.

[13] In this case, Johnson twice threatened Anderson. The first threat occurred after

Anderson lawfully asked him to leave the premises, threatened to call the

police, and then did so. The second threat occurred when Johnson returned

Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2821 | July 27, 2017 Page 7 of 8 and Anderson again stated she would call the police if he did not leave. The

police again were called. Therefore, despite Johnson’s conditional language,

each threat was based on a prior lawful act by Anderson and is sufficient

evidence to support Johnson’s conviction for intimidation.

Conclusion [14] We conclude there is sufficient evidence to sustain Johnson’s convictions for

sexual battery and intimidation. Accordingly, we affirm.

[15] Affirmed.

Vaidik, C.J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1612-CR-2821 | July 27, 2017 Page 8 of 8