MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Apr 20 2015, 9:32 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
Kathleen M. Sweeney Gregory F. Zoeller
Sweeney Hayes, LLC Attorney General of Indiana
Indianapolis, Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Paul Bell, Jr., April 20, 2015
Appellant-Defendant, Court of Appeals Case No.
02A03-1410-CR-366
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances M. Gull,
Appellee-Plaintiff Judge
Case No. 02D06-1401-FB-19
Crone, Judge.
Case Summary
[1] Paul Bell, Jr., appeals his conviction and sentence for class D felony sexual
battery, following a jury trial. The dispositive issue presented for our review is
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whether the State presented sufficient evidence to support his conviction.
Finding the evidence insufficient, we reverse and remand.
Facts and Procedural History
[2] On July 19, 2013, twenty-year-old A.J. attended a party at her best friend’s
house in Fort Wayne. During the party, A.J. consumed “a glass of wine,
possibly two” and one shot of vodka. Tr. at 64. A.J. testified that she was not
intoxicated. A.J.’s former high school boyfriend, Landon, was also at the
party. A.J. spoke with Landon outside for over an hour and the two kissed
during that time. Around midnight, Bell arrived at the party. A.J. knew Bell
and saw him arrive, but she did not interact with him.
[3] Sometime after midnight, A.J. decided to go inside to go to bed. Landon was
still at the party when A.J. went inside. A.J. had been sleeping for a few hours
when she awoke with Bell on top of her, kissing and touching her. A.J. did not
realize it was Bell but assumed it was Landon. A.J. kissed Bell back. A.J. was
“in and out of sleep” as the kissing and touching continued. Id. at 75. At one
point, Bell started to have sexual intercourse with A.J. and she still did not
realize that he was not Landon. When Bell eventually asked A.J., “Do you
know who I am?” she immediately realized he was not Landon. Id. at 76. A.J.
tried to push Bell off her, but he continued to have sexual intercourse with her
until he finally just “fell dead weight on top” of her. Id. A.J. pushed Bell off
her and went downstairs to tell her friends what happened. A.J. was crying and
upset.
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[4] The State charged Bell with class B felony rape and class D felony sexual
battery. Regarding the sexual battery charge, the State alleged that Bell, with
the intent to arouse or satisfy his own sexual desires or the sexual desires of
A.J., touched A.J. when she was so mentally disabled or deficient that she
could not give consent to the touching. Appellant’s App. at 20. A jury trial was
held on August 12 and 13, 2014. The jury found Bell not guilty of rape, but
guilty of class D felony sexual battery. The trial court sentenced Bell to three
years’ imprisonment. This appeal ensued.
Discussion and Decision
[5] 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.
[6] To prove that Bell committed class D felony sexual battery as charged here, the
State was required to prove that Bell, acting with intent to arouse or satisfy his
own sexual desires or the sexual desires of A.J., touched A.J. when she was “so
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mentally disabled or deficient that consent to the touching” could not be given.
Ind. Code § 35-42-4-8(a)(1)(B).1 Bell contends that the State failed to prove that
A.J. was “so mentally disabled or deficient” that she could not give her consent
to the touching. Specifically, he argues that A.J.’s state of being asleep during
the touching does not constitute being mentally disabled or deficient pursuant
to the sexual battery statute. We agree.
[7] The evidence indicates that A.J. had been sleeping for a few hours when she
awoke to a male on top of her, kissing and touching her. A.J. assumed it was
her ex-boyfriend. Although she was “half asleep,” A.J. kissed the male back.
Tr. at 97. A.J. testified that she was “in and out of sleep” as the kissing and
touching continued. Id. at 75. At one point, the male started to have sex with
A.J. and she still did not realize that he was not her ex-boyfriend. A.J. stated
that it was not until the male, Bell, asked her, “Do you know who I am?” that
she realized he was not her ex-boyfriend. Id. at 76. A.J. testified that she was
not intoxicated or impaired by any medication.
[8] We agree with Ball that this evidence is insufficient, pursuant to Indiana Code
Section 35-42-4-8(a)(1)(B), to establish that A.J. was so mentally disabled or
deficient that consent to the touching could not be given. In Ball v. State, 945
N.E.2d 252, 258 (Ind. Ct. App. 2011), trans. denied, another panel of this Court
interpreted the phrase “mentally disabled or deficient” pursuant to the sexual
1
This statute was amended effective July 1, 2014. We cite the version in effect at the time Bell committed his
crime.
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battery statute and determined that “being asleep does not constitute being
mentally disabled or deficient.” In reaching its decision, the Ball court looked
to the interpretation of similar language in the rape and criminal deviate
conduct statutes and noted that the phrase “mentally disabled or deficient” had
been interpreted to include those with lower than normal intelligence, highly
intoxicated victims, and a victim who had unknowingly ingested eight Xanax.
Id. at 257. The Ball court found that a victim’s state of being asleep during a
touching had only been found to satisfy an additional, alternative prong
included in the rape and criminal deviate conduct statutes, not then present in
the sexual battery statute, which permits conviction of a defendant if the victim
is “unaware” the conduct is occurring. Id. (citations omitted). After Ball,
effective July 1, 2012, to June 30, 2014, our legislature amended the sexual
battery statute to include a provision, similar to the other sex offense statutes,
regarding the sexual touching of a victim who is “unaware that the touching is
occurring.” Ind. Code § 35-42-4-8(a)(2). Curiously, the State did not charge
Bell pursuant to this subsection of the statute nor argue at trial or ask the jury to
be instructed as to this subsection.
[9] We agree with the holding in Ball and conclude that A.J.’s state of being what
she described as “half-asleep” during Bell’s touching (coupled with the apparent
mistaken identity that occurred) is not equivalent to a mental disability or
deficiency for the purposes of the sexual battery statute. See Perry v. State, 962
N.E.2d 154, 159 (Ind. Ct. App. 2012) (agreeing with Ball and concluding that
victim’s sleep and intoxication to the point of being “a little buzzed” was
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insufficient to satisfy mentally disabled or deficient prong of sexual battery
statute). Bell’s conduct toward his victim, however deplorable, simply does not
meet the definition of sexual battery as charged and argued by the State. The
State failed to prove the element of mental disability or deficiency beyond a
reasonable doubt. Therefore, we reverse Bell’s sexual battery conviction.
[10] 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. Ball, 945
N.E.2d at 258. Bell concedes on appeal that the evidence is sufficient to
support a conviction for class B misdemeanor battery. See Ind. Code § 35-42-2-
1(a). Thus, we reverse and remand with instructions for the trial court to enter
judgment of conviction for class B misdemeanor battery and to resentence Bell
accordingly.2
[11] Reversed and remanded.
Brown, J., and Pyle, J., concur.
2
Because we reverse and remand for resentencing based upon a lesser offense, we need not address Bell’s
challenge to the three-year sentence imposed by the trial court.
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