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.
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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
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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:
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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
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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).
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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
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“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
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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.
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Michael Johnson v. State of Indiana (mem. dec.)
Combined Opinion