Scott-Gordon v. StateScott-Gordon v. State
ON PETITION FOR TRANSFER
This mаtter comes to us on a pro se petition to transfer from the Court of Appeals. In a memorandum decision, the Court of Appeals affirmed Seоtt-Gordon's convictions and sentence for three counts of sexual battery.
Sceott-Gordon raises the following issues 'in his petition:
1. Whether the evidence was sufficient to support the convictions for sexual battery;
2. Whether the trial court improperly admitted evidence about pedophilia;
8. Whether the trial court improperly allowed the State to introduce certain rebuttal evidence;
4. Whеther the trial court failed to allow Seott-Gordon to proceed with his defense pro se;
5. Whether Scott-Gordon was denied the opportunity to рresent witnesses and evidence in his favor;
6. Whether Scott-Gordon was improperly detained before arraignment; and
7. Whether the sentences imposed were improper.
Seott-Gordon was the executivе director and general manager of Child Locators, a fund-raising organization which he operated out of an office in his home in New Albany, Indiana. The оrganization printed and distributed literature concerning missing children and engaged in several types of fund-raising activities. As part of his duties with Child Locators, Sceott-Gоrdon hired and fired employees, some of whom were teenagers who worked part time. Count I of the charges against Seott-Gor-don alleged that hе touched C.M.'s penis when C.M. was compelled to submit to the touching by force. Count II alleged that Seott-Gordon grabbed C.M.'s hand and put his hand on Scott-Gordon's penis when C.M. was compelled to submit to the touching by force. Count IH alleged that Scott, Gordon touched J.H.'s buttocks when J.H. was compelled to submit to the touching by force. After a jury trial, Scott-Gordon was found guilty. The trial court imposed consecutive three-year sentences on Sceott-Gor-don for the three сlass D felony convictions, resulting in a total sentence of nine years.
Seott-Gordon contends that the evidence at trial was insufficient to sustain any of thе convictions for sexual battery. His attack on the sufficiency of the evidence is two-pronged. First, he claims there was insufficient evidence to convict on both counts I and II, and that, instead, the activities charged in both counts were one incident and, therefore, one offense. Second, Sceоtt-Gordon asserts that there was no evidence of force or threat of force as required by the sexual battery statute.
When reviewing the sufficiency оf the evidence, we do not reweigh evidence or judge the credibility of witnesses. Jones v. State (1989), Ind.,
The statute prohibiting sexual battery reads in pertinent part:
A person who, with the intent to arouse or satisfy the person's own sexual desires or the sexual desires of another person, touches another person when that person is:
1. compelled to submit to touching by force or imminent threat of force commits sexual battery, a Class D felony.
The evidenсe most favorable to the judgment is as follows. While driving C.M. in his car, Seott-Gordon told C.M. that he was horny and asked C.M. to masturbate him in exchange for money. When C.M. refused, Seott-Gordon unzipped his own pants, took
Scott-Gordon argues that this evidence could only establish a single offense under the statute. We disagree. While the incidents involving C.M. took place during the single ride in Scott-Gordon's car, there wеre two distinct and separate episodes of touching in order to gratify sexual desires. First, he placed C.M.'s hand on his penis and, secondly, after rejection and protestation by C.M., placed his hand inside of C.M.'s pants and touched C.M.'s penis. These two separate and distinct touchings constitute separatе and distinct offenses. Riggs v. State (1987), Ind.,
As to Seott-Gordon's argument that there was insufficient evidence of force, we find no reported cases in Indiana discussing the nаture or amount of foree necessary to support a conviction for sexual battery. We note, however, that the wording of
With respect to count III, the following evidence is most favorable to the verdict. J.H. testified that on the date of thе incident, he was in the pressroom at the Child Locators offices. Because he was engaged in running the press at the time, he called to Seott-Gordon and asked him to bring his lighter into the pressroom. Seott-Gordon approached J.H. from behind, grabbed his buttocks, and told J.H. that he had received "a free feеl." Immediately after, J.H. jumped back and hit Seott-Gor-don in the eye with his fist. Scott-Gordon stepped away from J.H., but threatened to fire him if he ever did that again. We сonclude that J.H.'s immediate reaction demonstrated that he did not voluntarily consent to the touching by Scott-Gordon, but we do not find evidence to suppоrt the conclusion that Seott-Gordon compelled J.H. to submit to the touching by force or imminent threat of force. Not all touchings constitute battery; only thоse which are knowingly or intentionally performed in a rude, insolent or angry manner violate
Conclusion
Accordingly, we now grant transfer, reverse the conviction and sentence on count III, and affirm the remaining convictions and sentences.