June 2011 Archives

A man's conviction for sexual battery was reversed by the Indiana Court of Appeals. The man was accused of walking up behind an unsuspecting woman and groping her in the thighs and crotch. The woman immediately turned around and the man ran away. He was arrested and charged with sexual battery, a Class D felony. He was convicted at trial of sexual battery, a Class D felony. He then appealed the conviction arguing that he had not compelled the woman to submit to a sexual touching, as required by the sexual battery statute. 

The Indiana sexual battery statute provides that a person commits sexual battery who, with intent to arouse or satisfy the person's sexual desires or the sexual desires of another person, touches another person, when that person is compelled to submit to the touching by force or the imminent threat to use force.  Evidence that a victim did not voluntarily consent to a touching does not, in itself, support the conclusion that the defendant compelled the victim to submit to the touching by force or the threat of force. 

The evidence presented at trial was that the alleged victim was unsuspecting and did not have the opportunity to consent or not consent to the touching. She immediately turned around and the man ran away. The Indiana Court of Appeals determined that although the touching could support a misdemeanor battery conviction, there was insufficient evidence to convict the man of sexual battery. The Court found that the sexual battery statute required the State to prove that the woman had been compelled to submit by force to the touching. The Court found that the definition of sexual battery in Indiana requires more than an unwanted sexual touching. There must be evidence that the victim was compelled to submit by force.

Sexual battery is a sex crime in Indiana, which means a conviction requires registering as a sex offender. Battery is a Class B misdemeanor and not a sex crime. If you are accused of sexual battery, you should contact an experienced Indiana criminal attorney immediately. You may have a defense to a charge of sexual battery, if the State cannot prove that he alleged victim was compelled to submit to a sexual touching. 

The Indiana Court of Appeals has reversed a man's conviction for sexual battery, finding that kissing a sleeping victim does not meet the definition of sexual battery in Indiana. In this case a woman and two men had been watching television. The two men went to purchase more alcohol and the woman fell asleep while they were gone. She awoke to one of the men kissing and licking her face. The man was arrested and charged with sexual battery, a Class D felony.  He was convicted at trial and appealed.

The Indiana Court of Appeals reversed the man's conviction for sexual battery, finding that a sleeping person was not mentally disabled or deficient, as required by the Indiana sexual battery statute. Sexual battery is a sex crime in Indiana, which requires a convicted person to register as a sex offender. To convict a person of sexual battery, the State must prove that a person, with 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 the touching by force or the imminent threat of force or (2) so mentally disabled or deficient that consent to the touching cannot be given.  In this case, the State argued that the sleeping woman was "so mentally disabled or deficient that consent could not be given", because she could not consent if she was asleep. The Court of Appeals noted that lack of consent is not an element of sexual battery; it is the inability to give consent that is required to show mental disability or deficiency.  The Court held that sleep is not the equivalent to a mental disability for purposes of the sexual battery statute and reversed the man's conviction.

Sexual battery is a Class D felony and carries a penalty of 6 months to 3 years in prison. Sexual battery is also a sex crime in Indiana which requires one convicted of the offense to register as a sex offender. Certain acts that involve a sex-related touching are not sufficient to convict someone of sexual battery. If you are charged with sexual battery, you should contact an experienced Indiana criminal attorney immediately.

Criminal charges for possession of marijuana in Indiana can be based on either actual or constructive possession of marijuana. When marijuana is found in a person's home, a resident can be found in constructive possession of marijuana when the State proves that the defendant had both the intent, and the capability, to maintain dominion and control over the marijuana.  However, the presence of marijuana in someone's home, by itself, is not enough for the State to prove constructive possession.

If marijuana is found during a search of a house or apartment where multiple people live, the State still must prove actual or constructive possession to convict one of the residents of a crime. This is a common situation when college students are living together and one or more of the roommates has marijuana in the home. In the absence of proof that a respective resident intended to control the marijuana, a conviction cannot be sustained for possession of marijuana.

Relevant evidence of the intent to control marijuana can include: (1) incriminating statements made by a defendant; (2) attempted flight or furtive gestures; (3) evidence of manufacturing drugs; (4) proximity of marijuana to the defendant; (5) location of marijuana within the defendant's plain view; and (6) the mingling of marijuana or contraband with other items owned by the defendant. You should never consent to a search of your home or give statements to police without a lawyer present. If police obtain a search warrant to search your residence, you should remain silent and not make any incriminating statements. If you avoid making incrimination statements, there may be insufficient evidence to convict you of possession of marijuana, even if marijuana is found in your home.

Police are trained at interrogating people and obtaining confessions. In marijuana cases, police often threaten that someone must confess or they will go to jail. If you are suspected or accused of having marijuana in your home, you should never give a statement to police without an experienced criminal attorney present. You may have a valid defense to a charge of constructive possession of marijuana. 

To revoke a defendant's probation for failing to pay financial obligations, the State must prove that the probationer had the ability to pay. The Indiana Court of Appeals has reversed a trial court's order to revoke probation, because the State failed to present evidence that the defendant had the ability to make the payments that were ordered as a term of probation. 

The Indiana Court of Appeals held that a trial court may revoke probation for failure to satisfy a financial obligation only if the State satisfies its burden to prove by a preponderance of evidence: 1) less than full payment; and 2) the probationer submitted less than full payment recklessly, knowingly, or intentionally. To prove "knowingly" the State must show by a preponderance of the evidence that the probationer was able to pay.  In the case at hand, the defendant denied that he had violated probation, despite the fact that he had not made the payments that were ordered. He presented evidence that health problems and unemployment contributed to his inability to make the ordered payments.  At the evidentiary hearing, the State failed to present evidence to establish the defendant was able to pay.

The trial court found that the defendant failed to make the ordered payments during a time in which he was employed, and revoked the defendant's entire three year sentence. The Indiana Court of Appeals ruled that despite the fact the defendant had failed to make payments during a time when he was employed, the burden of proof remained on the State to prove by a preponderance of evidence that the defendant had the ability to make the payments.

It should be noted that, a defendant who admits to violating probation by failing to meet financial obligations, waives the requirement that the State prove that the defendant had the ability to pay. If the State files a petition to revoke probation in Indiana, alleging that the defendant failed to meet financial obligations, it is important to contact an experienced Indiana criminal attorney. The petition to revoke probation may be able to be successfully defended at an evidentiary hearing. The burden of proof is on the State at an evidentiary hearing. An experienced criminal attorney may be able to successfully defend a probation violation based on failure to pay court-ordered financial obligations, by holding the State to its burden of proof.