MEMORANDUM DECISION
Dec 30 2015, 6:06 am
Pursuant to Ind. Appellate Rule 65(D),
this 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
R. Patrick Magrath Gregory F. Zoeller
ALCORN SAGE SCHWARTZ & MAGRATH, LLP Attorney General of Indiana
Madison, Indiana Indianapolis, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian Keith Roach, December 30, 2015
Appellant-Defendant, Court of Appeals Case No.
40A01-1503-CR-94
v. Appeal from the Jennings Circuit
Court
State of Indiana, The Honorable Jon W. Webster,
Appellee-Plaintiff Judge
Trial Court Cause No.
40C01-1010-FD-381
Altice, Judge.
Case Summary
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[1] Brian Keith Roach was originally charged with Sexual Battery 1 as a Class D
felony and Child Solicitation2 as a Class D felony. After Roach waived his right
to a jury trial, the case proceeded to a bench trial. At the conclusion of the
evidence, the trial court found Roach guilty of child solicitation as charged and
Class D felony Sexual Misconduct with a Minor3 as a lesser included offense of
sexual battery. On appeal, Roach argues that the trial court erred in convicting
him of sexual misconduct with a minor because such offense was neither an
inherently nor a factually included offense of sexual battery.
[2] We affirm.
Facts & Procedural History
[3] The facts pertinent to the issue presented follow. Roach and Sarah Perry were
married in 1993 and have three children, including K.R., who was fifteen years
old at the relevant time. On August 6, 2010, after Sarah returned home from
work, she spoke with K.R., who told her that Roach had molested her
“probably a month or so before” but could not remember an exact date.
Transcript at 39. According to K.R., Roach came into her room and got into her
1
Ind. Code § 35-42-4-8. Effective July 1, 2014, this offense was reclassified as a Level 6 felony. Because
Roach committed this offense prior to that date, it retains its prior classification as a Class D felony.
2
I.C. § 35-42-4-6. Effective July 1, 2014, this offense was reclassified as a Level 5 felony. Because Roach
committed this offense prior to that date, it retains its prior classification as a Class D felony. On appeal,
Roach makes no challenge to his conviction for this offense.
3
I.C. § 35-42-4-9. Effective July 1, 2014, this offense was reclassified as a Level 6 felony. Because Roach
committed this offense prior to that date, it retains its prior classification as a Class D felony.
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bed. He then laid on top of her and simulated sex while they were both
wearing clothes. Roach told K.R. to “keep quiet” and “go back to sleep” as he
continued to grind his pelvis into her. Id. at 47. Roach had an erection during
the encounter, but K.R. did not know if he ejaculated. K.R. testified that she
was scared and felt she was being forced “to lay there and have this happen.”
Id. at 57.
[4] On October 28, 2010, the State charged Roach with Count I, sexual battery as a
Class D felony, and Count II, child solicitation as a Class D felony. On June 3,
2014, the case proceeded to a bench trial, at the conclusion of which the trial
court found Roach not guilty of sexual battery, but guilty of Class D felony
sexual misconduct with a minor as a lesser included offense thereof. The trial
court also found Roach guilty of child solicitation. On March 5, 2015, the trial
court sentenced Roach to two years with six months suspended for each
conviction and ordered the sentences served consecutively for an aggregate
sentence of four years with one year suspended. Additional facts will be
provided as necessary.
Discussion & Decision
[5] Roach argues that the trial court erred in convicting him of sexual misconduct
with a minor as a lesser included offense of the charged offense of sexual
battery. Roach maintains that the former is not a factually included offense of
the latter and further argues that he was not given due notice of the potential
lesser included offense.
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[6] A lesser included offense is properly considered where the lesser included
offense is either inherently or factually included in the crime charged and if,
based upon the evidence presented in the case, there existed a serious
evidentiary dispute about the element or elements distinguishing the greater
from the lesser offense such that a fact finder could conclude that the lesser
offense was committed but not the greater. Wright v. State, 658 N.E.2d 563, 567
(Ind. 1995). An offense is an inherently lesser included offense if the alleged
lesser included offense may be established by proof of the same material
elements or less than all the material elements defining the crime charged or
where the only feature distinguishing the alleged lesser included offense from
the crime charged is that a lesser culpability is required to establish commission
of the lesser offense. Id. at 566. An offense is factually included “[i]f the
charging instrument alleges that the means used to commit the crime charged
include all of the elements of the alleged lesser included offense.” Id. at 567.
[7] The common context for lesser included offense questions is when a defendant
requests that a jury be instructed on a lesser offense. In such case, notice is not
an issue because the defendant is the proponent of the lesser charge and the
Wright test as to whether an offense is inherently or factually included is
dispositive. Id. at 565. Where, as here, the defendant did not request
consideration of the lesser offense, the question becomes whether the defendant
has “‘clear notice of the charge or charges against which the State summons
him to defend’ in order to know what he does—and just as importantly, does
not—need to defend against.” Young v. State, 30 N.E.3d 719, 723 (Ind. 2015)
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(citation omitted). Clear notice also serves to protect the accused from being
placed twice in jeopardy for the same offense. Wright, 658 N.E.2d at 565. As
our Supreme Court has recently noted, the Wright test, although vital to the
notice inquiry, is not always dispositive. Young, 30 N.E.3d at 724-25. In other
words, lesser inclusion (either inherent or factual) is not necessarily coextensive
with fair notice. Id. at 723.
[8] Here, the parties agree that sexual misconduct with a minor is not an inherently
included offense of sexual battery. The parties part ways on the questions of
whether the former is factually included in the latter and whether Roach had
fair notice. As noted above, an offense is factually included if the charging
instrument alleges that the means used to commit the crime charged include all
of the elements of the alleged lesser included offense. Wright, 658 N.E.2d at
567.
[9] The charging information for sexual battery alleged that Roach “did, with
intent to arouse or satisfy his own sexual desires or the sexual desires of another
person, touch another person, to-wit: K.R., when that person is compelled to
submit to touching by force or imminent threat of force.” 4 Appellant’s Appendix
at 28. The alleged lesser included offense of sexual misconduct with a minor is
defined in pertinent part as follows:
4
The charging information closely tracked the statutory language. See I.C. § 35-42-4-8.
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A person at least eighteen (18) years of age who, with a child at
least fourteen (14) years of age but less than sixteen (16) years of
age, performs or submits to any fondling or touching, of either
the child or the older person, with intent to arouse or to satisfy
the sexual desires of either the child or the older person, commits
sexual misconduct with a minor, a Class D felony.
I.C. § 35-42-4-9.
[10] The charging information alleged that the means used to commit the offense of
sexual battery was Roach’s conduct of touching K.R., his own daughter, with
intent to arouse or satisfy his own sexual desires or the sexual desires of K.R.5
The State’s evidence established that Roach got on top of K.R. and simulated
intercourse and that he had an erection during the encounter. This same
evidence also established the touching and intent element of the sexual
misconduct offense for which the trial court found Roach guilty. Thus, the
“means used” is the same to establish both offenses. Further, with regard to
notice of the age element, the charging information alleges that the offense was
committed against Roach’s own daughter. Roach does not even suggest that he
was not aware of his daughter’s age at the time of the incident. Under the facts
of this case, the crime of sexual misconduct with a minor is a factually lesser
included offense of sexual battery and Roach, being informed that the offense
5
The sexual battery offense also included an element of force not required to prove sexual misconduct with a
minor.
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was against his own daughter, had clear notice that he was being summoned to
defend against a crime against a fifteen-year-old victim.
[11] We further note that Roach did not object to the trial court’s guilty finding with
regard to the sexual misconduct offense as a lesser included offense of sexual
battery. Generally, the failure to object results in waiver of the issue for
appellate review. See Cole v. State, 28 N.E.3d 1126, 1135 (Ind. Ct. App. 2015).
Despite waiver, relief remains available under a narrow exception for
fundamental error.6 Lewis v. State, 34 N.E.3d 240, 246 (Ind. 2015).
Fundamental error is error that “constitutes a blatant violation of basic
principles, the harm or potential for harm is substantial, and the resulting error
denies the defendant fundamental due process.” Id. (quoting Mathews v. State,
849 N.E.2d 578, 587 (Ind. 2006)).
[12] In Miller, our Supreme Court considered the applicability of the fundamental
error doctrine in a situation similar to that presented here. 753 N.E.2d 1284.
Miller had robbed a bank in Indianapolis and then led police on a high-speed
chase. Miller eventually abandoned the vehicle and attempted to flee on foot.
During his attempted escape, Miller fired a handgun at three police officers.
Miller was charged with three counts of attempted murder, among others. At
6
The State also asserts that Roach did not raise fundamental error as a basis for relief on appeal. We observe
that in his brief on appeal, Roach does assert he was denied “basic due process” when the trial court
convicted him of an offense with which he was not charged and of which he did not have fair notice.
Appellant’s Brief at 7. In doing so, Roach cites to that portion of the Young case wherein our Supreme Court
discussed application of fundamental error to that case. See Young, 30 N.E.3d at 727.
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the conclusion of a bench trial, the court found Miller guilty of three counts of
criminal recklessness as factually lesser included offenses of attempted murder.
This court found that, even assuming the trial court was incorrect in ruling
criminal recklessness as a lesser included offense of attempted murder, there
was no fundamental error in finding Miller guilty of criminal recklessness. The
court noted that such is “particularly true here where Defendant makes no
claim on appeal that there was insufficient evidence to support his convictions
for criminal recklessness.” Miller, 753 N.E.2d at 1288; see also Wright, 658
N.E.2d at 567-68 (“[e]ven had the offense on which the trial court instructed the
jury in this case been neither inherently nor factually included in the offense
charged, it was not fundamental error to convict [the defendant] of that lesser
offense”).
[13] Likewise, here, Roach makes no claim that the evidence was insufficient to
support his conviction for sexual misconduct with a minor. With regard to the
age component of the sexual misconduct conviction, Roach does not suggest
that he did not have fair notice of his daughter’s age. Further, Roach’s defense
–that he did not touch K.R.—would have been the same for both offenses, and
such defense was clearly rejected by the court. Thus, even if the offense of
sexual misconduct with a minor is not a factually lesser included offense of
sexual battery, Roach’s convictions for the former do not constitute
fundamental error.
[14] Judgment affirmed.
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[15] Riley, J. and Brown, J., concur.
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