31 N.E.3d 40 (Ind.App. 2015), 79A02-1408-CR-573, Johnson v. State

Docket NºCourt of Appeals 79A02-1408-CR-573
Citation31 N.E.3d 40
Opinion JudgeBailey, Judge.
Party NameScotty Johnson, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff
AttorneyATTORNEY FOR APPELLANT: Bruce W. Graham, Graham Law Firm P.C., Lafayette, Indiana. ATTORNEY FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, Lyubov Gore, Deputy Attorney General, Indianapolis, Indiana.
Judge PanelBailey, Judge. Robb, J., and Brown, J., concur. Robb, J., and Brown, J., concur.
Case DateMarch 26, 2015
CourtCourt of Appeals of Indiana

Page 40

31 N.E.3d 40 (Ind.App. 2015)

Scotty Johnson, Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff

Court of Appeals No. 79A02-1408-CR-573

Court of Appeals of Indiana

March 26, 2015

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

Appeal from the Tippecanoe Superior Court. The Honorable Thomas H. Busch, Judge. Cause No. 79D02-1304-FB-14.

ATTORNEY FOR APPELLANT: Bruce W. Graham, Graham Law Firm P.C., Lafayette, Indiana.

ATTORNEY FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, Lyubov Gore, Deputy Attorney General, Indianapolis, Indiana.

Bailey, Judge. Robb, J., and Brown, J., concur.

MEMORANDUM DECISION

Bailey, Judge.

Case Summary

[¶1] Scotty Lee Johnson (" Johnson" ) was convicted after a jury trial of Criminal Deviate Conduct, as a Class B felony,1 and Sexual Battery, as a Class D felony; 2 he was also adjudicated as a Habitual Offender.3 Johnson now challenges his convictions.

[¶2] We affirm.

Facts and Procedural History

[¶3] On August 23, 2012, Johnson had gone to Columbian Park in Lafayette with his girlfriend, Cynthia, and Cynthia's daughter, " S." S. was dancing on a stage in the park while Johnson watched and recorded her with a video camera. Cynthia alternately watched S. and walked around the park near the stage.

[¶4] Around late afternoon, sixteen-year-old B.W. and her brothers, " C." and " J.J.," walked to Columbian Park from their home nearby, where they lived with their mother (" Mother" ) and her boyfriend (" Stepfather" ). When the three children left for the park, B.W. brought a radio with her, and she was wearing a tank top and shorts.

[¶5] B.W. and her brothers all had developmental disabilities. B.W. was identified as having a mild cognitive impairment, with an intelligence quotient (" IQ" ) of less than 70. One of her brothers was profoundly autistic and was nonverbal; the other brother had limited ability to speak in conversation with others. Mother and Stepfather generally allowed the children to go to the park unaccompanied because the family's home was six houses away from the park. Stepfather was accustomed to going to the park to check on the children on these occasions.

[¶6] B.W. and her brothers arrived at the stage area. Her brothers sat or stood nearby, but B.W. brought her radio onstage and began dancing with S. Johnson continued recording, and at various points also got onstage and danced with B.W. and S. At one point, B.W.'s bra strap was slipping. Without request, Johnson adjusted it for her.

[¶7] After about an hour, Johnson, Cynthia, and S. left the stage area to return home. B.W. needed to use the bathroom and walked to a separate building where men's and women's restrooms were located. C. and J.J. waited for her nearby.

[¶8] At some point during their walk home, Johnson told Cynthia that he was going back to the park because B.W., C., and J.J. had asked him to " smoke weed" with them. Johnson then returned to the park, while Cynthia and S. stopped at a gas station to get a drink, and then returned home. Johnson returned to the park on his bicycle carrying a backpack that had his video camera, a laptop computer, a pair of sweatpants belonging to Cynthia, and a black bra.

[¶9] Shortly after B.W. entered the farthest stall in the women's restroom, Johnson entered the restroom and approached B.W.'s stall. Johnson manipulated the lock to the stall, causing it to open, then stepped in and closed the stall door.

[¶10] After entering the stall, Johnson told B.W. to change out of her shorts and into the sweatpants he had been carrying in his backpack. B.W. complied; Johnson then put his hand in her pants and inserted his finger into B.W.'s vagina several times. B.W. asked him to stop, and Johnson said he would do so if she kissed him. B.W. did so, and Johnson stopped.

[¶11] Johnson then took the black bra from his backpack and told B.W. to change into the black bra. B.W. complied and took off her bra; while B.W.'s bra was off, Johnson kissed her right breast. B.W. then put on the black bra. Johnson exposed his penis and said that he wanted to have sex with B.W.; B.W. refused, telling Johnson that she had a boyfriend.

[¶12] At some point during these events, Stepfather arrived at the park to check on the children. He found J.J. and C. standing near the women's restroom building, still waiting for B.W. To hurry B.W. along, Stepfather opened the bathroom door and asked B.W. to come out soon. Johnson replied, saying that B.W. would be out shortly.

[¶13] Stepfather thought hearing a male voice was unusual, but remembered that sounds from the men's and women's restrooms echo between one another. He checked the men's restroom, but found no one there. By this point, J.J. and C. had begun to walk home on their own, and Stepfather had to catch up with them.

[¶14] Shortly after this, B.W. ran out of the women's restroom. Crying and distraught, she ran past Stepfather and her brothers. When B.W. arrived home, she was still shaking and crying. At the time, B.W. was still wearing the sweatpants and bra Johnson had given her, and was carrying her own bra; she had left the shorts she was wearing behind. B.W.'s mother immediately called police.

[¶15] After an investigation, police identified Johnson as the individual who was in the bathroom with B.W. On March 22, 2013 the State charged Johnson with Criminal Deviate Conduct; Criminal Confinement, as a Class D felony; 4 and Sexual Battery. On May 2, 2014, the State alleged that Johnson was a Habitual Offender.

[¶16] A jury trial was conducted on June 10 and June 11, 2014. At the end of the trial, the jury found Johnson guilty as charged of Criminal Deviate Conduct and Sexual Battery, and found him not guilty of Criminal Confinement. After the jury's verdict, Johnson stipulated to his status as a Habitual Offender.

[¶17] A sentencing hearing was conducted on July 3, 2014. At the hearing's conclusion, the trial court entered judgments of conviction against Johnson for Criminal Deviate Conduct and Sexual Battery, and adjudicated Johnson to be a Habitual Offender. The trial court sentenced Johnson to fifteen years imprisonment for Criminal Deviate Conduct and two years imprisonment for Sexual Battery, with these terms running concurrently. The trial court also ordered Johnson's sentence for Criminal Deviate Conduct enhanced by twenty years imprisonment as a result of his status as a Habitual Offender. This yielded an aggregate term of imprisonment of thirty-five years.

[¶18] This appeal ensued.

Discussion and Decision

[¶19] On appeal, Johnson challenges the sufficiency of the evidence underlying his convictions.

[¶20] Our standard of review in sufficiency cases is well settled. We consider only the probative evidence and reasonable inferences supporting the judgment. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh evidence. Id. Because the jury is able to observe the demeanor of witnesses and ascertain their credibility, " [w]e will not invade the province of the jury and determine whom to believe." Perry v. State, 541 N.E.2d 913, 916 (Ind. 1989). We will affirm the conviction unless " no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Drane, 867 N.E.2d at 146 (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). There is sufficient evidence if an inference may reasonably be drawn from the evidence to support the judgment. Id. (quoting Pickens v. State, 751 N.E.2d 331, 334 (Ind.Ct.App...

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