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

• Court: Indiana Court of Appeals
• Decided: March 26, 2015
• Docket: 79A02-1408-CR-573
• Status: Published

Opinion

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 The Indiana General Assembly repealed this provision of the Indiana Code in 2013 and recodified the substantive provisions at issue in this case at I.C. § 35-42-4-8 (Ind. 2013), the sexual battery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

[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