dissenting.
I respectfully dissent. Criminal statutes are to be strictly construed, and words and phrases therein are to be given their plain and ordinary meaning. Based upon the facts before us, I agree with Bailey that the evidence fails to prove that Adams was compelled to submit to the touching by force or threat of force.
The majority looked to Scott-Gordon v. State, 579 N.E.2d 602 (Ind.1991), and concluded that Bailey's touching of Adams *733was analogous to Seott-Gordon's actions with C.M. Seott-Gordon was the executive director and general manager of Child Locators, a fund-raising organization, and in that capacity "hired and fired employees, some of whom were teenagers who worked part time." Id. at 6083. "While driving C.M. in his car," Seott-Gordon asked C.M. to masturbate him for money. Id. "When C.M. refused, Seott-Gordon unzipped his own pants, took C.M.'s hand and stuck it on Seott-Gordon's penis." Id. at 608-04. He did so "three or four times," and each time C.M. pulled the hand away. Id. at 604. Scott-Gordon further "placed his own hand down C.M.'s pants and touched C.M.'s penis, despite C.M.'s plea for him to stop." Id. This evidence was found to support two counts of sexual battery as "two separate and distinet touchings," in that Seott-Gordon "placed C.M.'s hand on his penis" and "placed his hand inside C.M.'s pants and touched C.M.'s penis." Id. The court stated that "force" sufficient for a conviction "may be implied from the cireumstances," and noted C.M.'s protestations and repeated refusals.
I find several critical differences between this case and the Seott-Gordon see-nario. First, Seott-Gordon was either an employer or a potential employer of C.M., a minor. Second, as a passenger in the car driven by Seott-Gordon, there was some confinement of C.M. by Seott-Gor-don. Both of these facts can also be viewed as posing some threat of force or compulsion prior to the battery. Further, C.M.'s protestations and repeated refusals were contemporaneous with the acts of battery. To me, these distinctions augur toward circumstantial evidence in Scoft-Gordon that could properly be considered in drawing reasonable inferences as to the element of "compelling by force or threat of force," but I find no such evidence here.
The majority notes Bailey's approach of Adams in the public park on another occasion, when he made a erude proposition-to which she responded by telling Bailey to leave her alone and hurrying away. However, unlike in Seott-Gordon, this incident was not contemporaneous with the touching charged as sexual battery. Further, on the occasion of the touching charged, Bailey simply ran from behind Adams and grabbed or touched her on the buttocks. The record is void of any evidence that Adams was even aware of Bailey's approaching her from behind before the touching occurred, let alone that she was compelled or forced by Bailey to submit to the touching. Based upon the facts of this case, the fear of Adams-subsequent to Bailey's touching her-does not support the necessary material element that she was compelled or forced to submit to Bailey's touching. Moreover, she was not confined or restrained in any way that forced her to submit to the touching. As our supreme court explained in Sceott-Gor-don, sexual battery occurs when the touching is not only (1) a knowing or intentional touching performed in a rude, insolent or angry manner, and (2) intended to arouse or satisfy sexual desires, but also (38) "the person touched is compelled to submit by foree or the imminent threat of force." 579 N.E.2d at 604.
I find no evidence from which the fact-finder could find beyond a reasonable doubt that Bailey had compelled Adams by foree or threat of foree to submit to his touching of her buttocks. Because I find the majority's analysis to be overreaching in light of our standard for the construction of criminal statutes, I would reverse.