Booker T. Moffett, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Booker Moffett appeals his convictions for sexual misconduct with a minor, a Level 5 felony, and sexual battery, a Level 6 felony. He argues that insufficient evidence supports his convictions and that, even if the evidence is sufficient, his convictions violate the prohibition against double jeopardy. We conclude that the two offenses constitute a single transaction under the facts of this case. Moffett's convictions, therefore, violate the prohibition against double jeopardy, and we must vacate Moffett's conviction for sexual battery. Sufficient evidence, however, supports Moffett's conviction for sexual misconduct with a minor, and we affirm this conviction. Accordingly, we affirm in part, reverse in part, and remand.

Issues

[2] Moffett raises three issues; however, two issues are dispositive. We restate the issues as follows:

I. Whether Moffett's convictions violate the prohibition against double jeopardy.

II. Whether sufficient evidence supports Moffett's conviction for sexual misconduct with a minor.

Facts

[3] In May 2023, K.H. was fourteen years old. Her parents allowed Moffett, who was fifty-five years old, a former employee of K.H.’s father, and had recently been living in his truck, to stay with the family. Moffett slept downstairs on the living room sofa. The family kept a security camera in the living room atop the mantle, and the camera was pointed toward the sofa.

[4] On May 20, 2023, K.H. sat on the sofa next to Moffett to watch a movie. The two were both in view of the security camera. K.H. told Moffett about a cruise she went on and that her mother had disapproved of K.H.’s swimsuit. Moffett told K.H. that that her mother was “right to be concerned about boys” because K.H. had a “curvy body.” Tr. Vol. II p. 157. Moffett then told K.H. that he had a dream about her, but “he couldn't say it because he would get into trouble.” Id.

[5] A few minutes later, K.H. stood up and went into the bathroom. While she was gone, Moffett got up from the sofa and adjusted the camera so that it no longer pointed toward where Moffett and K.H. had been seated on the sofa. K.H. returned to the sofa, and while the two watched the movie, Moffett began “rubbing” K.H.’s thigh. Id. at 160. Moffett stopped only when K.H.’s uncle walked into the living room. When the uncle left, Moffett again placed his hand on K.H.’s thigh. This time, he slowly moved his hand up and began “pinching” her breast. Id. at 161. K.H. tried “poking his hand” to move it away. Id. 163. Moffett also tried to hold K.H.’s hand, and K.H. “was like moving his hand and like trying to just get his hand away from [her.]” Id. at 183.

[6] The touching ended when family members came into the room, and Moffett went upstairs. K.H. also went upstairs to get hair products, and she and Moffett “started making conversation.” Id. at 163. K.H. told Moffett that she would not be sleeping downstairs anymore. Moffett told her, “[T]hat sucks, I was gonna [sic] give you a birthday present tonight.” Id. K.H. “immediately backed up.” Id.

[7] K.H. told her family about the touching. When K.H.’s parents confronted Moffett, he told them it was a “misunderstanding” and that he touched K.H. “by accident.” State's Ex. 3. K.H.’s family contacted law enforcement. Moffett told an officer that he and K.H. “laughed and joked around ․ and that was it.” State's Ex. 4.

[8] On May 22, 2023, the State charged Moffett with: Count I, sexual misconduct with a minor, a Level 5 felony; and Count II, sexual battery, a Level 6 felony. Moffett was tried before a jury in December 2024.

[9] The home security video from the living room camera was admitted into evidence. The video clearly shows Moffett adjusting the camera so that it no longer pointed toward where he and K.H. had been seated. Moffett testified in his own defense. He claimed that he moved the camera because he “didn't want to get into any kind of altercation with [K.H.’s father] by sitting there talking to [K.H.,]” and Moffett did not wish for K.H. to get in trouble. Tr. Vol. II p. 236.

[10] K.H. testified regarding the inappropriate touching. She testified that, after she went into the bathroom, she went back to the sofa and noticed the camera had been moved. Moffett started touching her thigh after she sat down, was interrupted when her uncle came into the room, and Moffett touched her breast after her uncle left; these two instances occurred approximately one or two minutes apart because she “went into the bathroom and then ․ came back.” Id. at 161. The video, however, does not show K.H. being touched before she went to the bathroom.

[11] In closing arguments, the State addressed K.H.’s testimony regarding the sequence of the touchings and her going to the bathroom. The State explained,

I will concede to you that the order that [K.H.] describes things about how some of the touchings happened before she went to the bathroom and that's before the camera was moved, I will concede to you that that's wrong. If there were touchings that happened prior to when [K.H.] went to the bathroom, you would've seen, you better believe you would've seen video surveillance of those. But [K.H. is] not lying to you. She's just mistaken about the order of things.

Tr. Vol. III pp. 5-6.

[12] The jury found Moffett guilty as charged. The trial court ordered him to serve concurrent sentences of three years on Count I, sexual misconduct with a minor, a Level 5 felony; and three years on Count II, sexual battery, a Level 6 felony; for a total sentence of three years in the Department of Correction. Moffett now appeals.

Discussion and Decision

I. Moffett's convictions violate the prohibition against double jeopardy.

[13] We first address Moffett's argument that his convictions for sexual misconduct with a minor and sexual battery violate the prohibition against double jeopardy. We agree that they do. We review double jeopardy violation claims de novo. Gaunt v. State, 209 N.E.3d 463, 465 (Ind. Ct. App. 2023) (citing Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020)), trans. denied.

[14] Sexual misconduct with a minor is governed by Indiana Code Section 35-42-4-9(a), which provides in relevant part:

A person at least eighteen (18) years of age who knowingly or intentionally performs or submits to sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) with a child less than sixteen (16) years of age, commits sexual misconduct with a minor, a Level 5 felony.

[15] Sexual battery is governed by Indiana Code Section 35-42-4-8(a), which provides in relevant 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; or

(B) so mentally disabled or deficient that consent to the touching cannot be given; or

(2) touches another person's genitals, pubic area, buttocks, or female breast when that person is unaware that the touching is occurring;

commits sexual battery, a Level 6 felony.

[16] “[S]ubstantive double jeopardy claims come in two principal varieties: (1) when a single criminal act or transaction violates a single statute but harms multiple victims, and (2) when a single criminal act or transaction violates multiple statutes with common elements and harms one or more victims.’ ” Demby v. State, 203 N.E.3d 1035, 1041-42 (Ind. Ct. App. 2021) (quoting Wadle, 151 N.E.3d at 247), trans. denied. Our Supreme Court's decision in Powell v. State, 151 N.E.3d 256 (Ind. 2020), addresses the first variety, and its decision in Wadle, 151 N.E.3d 227, addresses the second. Here, because Moffett's convictions implicate separate statutes, the Wadle test applies.

A. Wadle Step 1

[17] Wadle’s first step requires us to determine whether “ ‘the language of either statute clearly permits multiple punishment, either expressly or by unmistakable implication[.]’ ” A.W. v. State, 229 N.E.3d 1060, 1066 (Ind. 2024) (quoting Wadle, 151 N.E.3d at 248). If the statutes so permit, “ ‘the court's inquiry comes to an end and there is no violation of substantive double jeopardy.’ ” Id. (quoting Wadle, 151 N.E.3d at 248). Here, the relevant statutes do not clearly permit multiple punishment. Accordingly, we turn to Wadle’s second step.

B. Wadle Step 2

[18] Wadle’s second step requires the determination of whether the offenses are included “either inherently or as charged ․” Id. at 1067 (quoting Wadle, 151 N.E.3d at 248). If neither offense is an included offense of the other, “ ‘there is no violation of double jeopardy and the analysis ends—full stop.” Id. (quoting Wadle, 151 N.E.3d at 248). “But if one offense is included in the other, the court must proceed to Step 3.” Id. (citing Wadle, 151 N.E.3d at 248).

Whether the offenses are inherently included

[19] An offense is inherently included if it meets the definition of “included offense” in Indiana Code Section 35-31.5-2-168. Id. at 1066-67. Indiana Code Section 35-31.5-2-168 provides:

“Included offense” means an offense that:

(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;

(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or

(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.

[20] Moffett argues that the offenses here are included because sexual battery “differs from sexual misconduct with a minor in the respect that a less serious harm or risk of harm to the same person is required to establish its commission.” Appellant's Br. p. 18 (citing Ind. Code § 35-31.5-2-168(3)). We disagree; both sexual battery and sexual misconduct with a minor can result in serious harm to the victim. We also note that neither offense constitutes an attempt to commit the other, see Ind. Code § 35-31.5-2-168(2); and the offenses each contain a different statutory element, see Ind. Code § 35-31.5-2-168(1). Sexual misconduct as a Level 5 felony requires that the victim be less than the age of sixteen and that the perpetrator be at least twenty-one years of age, whereas sexual battery as a Level 6 felony requires the touching to be compelled by force or the threat of force. Thus, sexual battery and sexual misconduct with a minor are not inherently included.

Whether the offenses are factually included

[21] An offense is included as charged (or “factually included”) if “ ‘the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense.’ ” A.W., 229 N.E.3d at 1067 (quoting Wadle, 151 N.E.3d at 251 n.30). In determining whether offenses are included as charged, we “examine only the facts as presented on the face of the charging instrument.” Id. (emphasis in original). A.W. held that, “where ambiguities exist in a charging instrument about whether one offense is factually included in another, courts must construe those ambiguities in the defendant's favor, and thus find a presumptive double jeopardy violation at Step 2.” Id. at 1069 (citation omitted). “In this event, the State can later rebut this presumption at Step 3.” Id.

[22] Here, the charging informations alleged as follows:

[Sexual misconduct with a minor]: On or about May 21, 2023, in Hendricks County, Indiana[,] Moffett, being at least twenty-one (21) years of age, did knowingly or intentionally perform or submit to fondling or touching with K.H., a child less than sixteen (16) years of age, with the intent to arouse or satisfy the sexual desires of either [ ] Moffett or K.H.

[Sexual battery]: On or about May 21, 2023, in Hendricks County, Indiana[,] Moffett, with the intent to arouse or satisfy the sexual desires of either [ ] Moffett or K.H., did compel K.H. to submit to a touching by force or imminent threat of force.

Appellant's App. Vol. II pp. 5-6.

[23] The charging informations are ambiguous because it is unclear whether the sexual misconduct with a minor and sexual battery charges were based upon the same touching. The charging informations merely recite the statutory elements for each offense without providing additional detail regarding the timing and location of the touching. Because we must construe these ambiguities in Moffett's favor, we conclude that the offenses are factually included, and we must presume a double jeopardy violation. We next determine whether the State has rebutted the presumption of a double jeopardy violation in Wadle’s third and final step.

C. Wadle Step 3

[24] In Wadle’s final step, we “examine the facts underlying th[e] offenses, as presented in the charging instrument and as adduced at trial” to determine if the actions were two separate acts or were:

“so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” If the underlying facts reveal the two offenses are indeed “separate,” there is no Wadle violation, “even if one offense is, by definition, ‘included’ in the other.” That said, if the “facts show only a single continuous crime, and one statutory offense is included in the other, then the prosecutor may charge these offenses only as alternative (rather than cumulative) sanctions.”

A.W., 229 N.E.3d at 1071 (quoting Wadle, 151 N.E.3d at 249 (emphasis added)).

[25] Here, Moffett rubbed K.H.’s thigh but stopped when K.H.’s uncle entered the room. After the uncle left, Moffett again rubbed K.H.’s thigh and also touched her breast. Although there was a brief interruption between the touchings, we must conclude that the touchings were so compressed in terms of time, place, singleness of purpose, and continuity of action that they constituted one single transaction. The touchings all occurred within minutes while K.H. and Moffett were seated next to each other on the sofa. The trial court recognized as much in noting that the touchings constituted “one (1) occurrence” and running Moffett's convictions concurrently. Tr. Vol. III p. 48. We conclude that the State did not prove that the touchings constituted two separate acts, and we hold that Moffett's convictions constitute double jeopardy.

[26] “When a double jeopardy violation occurs, the conviction carrying the lesser punishment should be vacated.” Starks v. State, 210 N.E.3d 818, 823 (Ind. Ct. App. 2023) (citing Jones v. State, 159 N.E.3d 55, 65 (Ind. Ct. App. 2020), trans. denied), trans. denied. Accordingly, we remand with instructions that the trial court vacate Moffett's conviction for sexual battery, the lower level felony.¹ Because the trial court ordered Moffett's sentences to be served concurrently, this will have no effect on the length of Moffett's sentence.

II. Sufficient evidence supports Moffett's conviction for sexual misconduct with a minor.

[27] We next address whether sufficient evidence supports his remaining conviction for sexual misconduct with a minor. We conclude that the evidence is sufficient.

[28] Sufficiency of the evidence claims warrant a deferential standard of review in which we “neither reweigh the evidence nor judge witness credibility, instead reserving those matters to the province of the jury.” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024). A conviction is supported by sufficient evidence 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.” Id. In conducting this review, we consider only the evidence that supports the jury's determination, not evidence that might undermine it. Id. We affirm the conviction “ ‘unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.’ ” Sutton v. State, 167 N.E.3d 800, 801 (Ind. Ct. App. 2021) (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)).

[29] Moffett relies on Love v. State, 73 N.E.3d 693, 699 (Ind. 2017), which held that, although we do not reweigh evidence in sufficiency cases, “where the video evidence indisputably contradicts the trial court's findings, relying on such evidence and reversing the trial court's findings do not constitute reweighing.” Moffett argues that, as in Love, the video evidence undermines K.H.’s testimony because K.H. testified that she went to the bathroom after the touching began, whereas the video evidence does not show any touching before K.H. went to the bathroom.

[30] We are not persuaded by Moffett's argument. The video does not undermine the “essential” portions of K.H.’s testimony—that Moffett inappropriately touched her thigh and breast. Love, 73 N.E.3d at 699 (quotation omitted). In fact, the video could not undermine this testimony because Moffett moved the camera so that he and K.H. were out of the frame, which is suspicious behavior. Moffett also engaged in inappropriate conversation with K.H. by telling her that she had a “curvy body” and that he had a dream about her that would get him “into trouble.” Tr. Vol. II p. 157.

[31] Although K.H. appears to have been mistaken regarding the timing of her going to the bathroom and the touchings, the State addressed this discrepancy during its closing arguments. It was the jury's role to determine the credibility of K.H.’s testimony, and we will not second guess that determination on this record. Sufficient evidence supports Moffett's conviction for sexual misconduct with a minor.

Conclusion

[32] Moffett's convictions for both sexual misconduct with a minor and sexual battery violate the prohibition against double jeopardy. We therefore remand with instructions that his conviction for sexual battery be vacated. Nonetheless, sufficient evidence supports Moffett's conviction for sexual misconduct with a minor, and we affirm this conviction. Accordingly, we affirm in part, reverse in part, and remand.

[33] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   Because we order Moffett's conviction for sexual battery to be vacated, we need not address his arguments that insufficient evidence supports that conviction and that his sentence of three years for that conviction is above the statutory maximum for a Level 6 felony, although that is clearly the case. See Ind. Code § 35-50-2-7(b) (providing that the statutory maximum sentence for a Level 6 felony is two and one-half years).

Tavitas, Judge.

Judges Vaidik and Felix concur. Vaidik, J., and Felix, J., concur.