Keith Lemar Michael, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Keith Lemar Michael argues that his convictions for Level 4 felony child molesting and Level 6 felony sexual battery constitute double jeopardy. We agree and remand to the trial court with instructions to vacate the conviction and sentence for sexual battery.¹

Facts and Procedural History

[2] The evidence most favorable to Michael's convictions is as follows. One day in August of 2018, Michael was babysitting his 10-year-old niece, W.S. They sat in a recliner to watch a movie, with W.S. on Michael's lap. At some point, Michael started touching W.S.’s stomach. W.S. moved his hand away and continued watching the movie. Michael kept touching W.S.’s stomach, and she kept moving his hand away. Eventually, Michael put his hand under W.S.’s shirt and under her bra. W.S. slapped Michael on the face, and “he said he was sorry and that he wouldn't do it again.” Tr. Vol. 3 p. 130. But as they continued watching the movie, Michael touched W.S.’s thigh. He then “grabbed” W.S.’s hand, “put it” on his penis (which was out of his pants), and moved it “up and down.” Id. at 131. W.S. turned around, kicked Michael in the face, and ran to the bathroom.

[3] W.S. didn't initially tell anyone about the touching, but after a few months she told her mother. When police interviewed Michael, he largely admitted the touching. The State charged Michael with Level 4 felony child molesting and Level 6 felony sexual battery as follows:

[Level 4 felony child molesting]

The undersigned says that between August 1, 2018 and August 31, 2018 in Owen County, State of Indiana, Keith Lemar Michael did perform or submit to fondling or touching with W.S.S., a Child under the age of fourteen years, to-wit: 10, with the intent to arouse or satisfy the sexual desires of the child or defendant contrary to the form of the statutes in such cases made and provided by I.C. 35-42-4-3(b) and against the peace and dignity of the State of Indiana.

*****

[Level 6 felony sexual battery]

The undersigned says that between August 1, 2018 and August 31, 2018 in Owen County, State of Indiana, Keith Lemar Michael, with the intent to arouse or satisfy the sexual desires of defendant or W.S.S., did compel W.S.S. to submit to a touching by force contrary to the form of the statutes in such cases made and provided by I.C. 35-42-4-8(a)(1)(A) and against the peace and dignity of the State of Indiana.

Appellant's App. Vol. 2 pp. 45-46.

[4] A jury trial was held in August 2024, and W.S. testified as detailed above. During its closing argument, the State discussed the same evidence in addressing both counts:

I want to break down the remaining elements for count 1, child molesting. The things that are being disputed that I believe you should focus on during your deliberations. With regard to count 1, elements 2 and 4 are pretty similar. And the argument would be the same for each of them. Which is did the Defendant have the intent to arouse or satisfy the sexual desires of either W.S. or himself. Well, how do we know someone's intent? Did the Defendant act knowingly? How do we know whether somebody was acting knowingly or intentionally? We know somebody's intent because of their actions. When someone touches a 10-year-old kid on the breasts, it's not a mistake. When someone forces a 10-year-old to touch their penis, it's not a mistake. Either one of those things satisfy that the Defendant was acting knowingly or intentionally when he engaged in that touching, or when he submitted to that touching. It shows that it was - his conscious objective to engage in that behavior. And it took a kick to the head by W.S. to get him to stop or even apologize for his actions. With regard to element 5 of count 1, which is that the Defendant either performed fondling or touching of W.S. or he submitted to fondling of himself by W.S. The State only needs to prove one of those things. Uh, but in this case, we have both. That W.S. was fondled by the Defendant and that W.S. - that the Defendant submitted to fondling by, um, by W.S. W.S. testified that her uncle touched her breasts, and not just did so, but she – that he, excuse me, that he did so under her shirt and under her bra. The Defendant admitted that he had touched her breasts when he talked to Detective Cummins. His own statement corroborates W.S.’s testimony. And for submitting to fondling or touching by W.S., W.S. testified that the Defendant took his hand and made her touch his penis. She said that the Defendant made her hand going in up and down motion [sic] and that it lasted approximately 4 seconds. And that her hand felt, I think she said, warm or gooey or something to that effect. The Defendant told Detective Cummins that he had his pajama pants on, but he wasn't wearing any underwear. He admitted that his penis was erect and that while it was erect, W.S.’s hand fell on his penis. Those statements also corroborate W.S.’s testimony and is proof that he either, uh, excuse me, that he submitted to fondling or touching by W.S. The fact that his penis was erect also proves the element of intent. That his intent was sexual in nature. With regard to count 2, sexual battery, what elements remain for this count? Well again, they are similar to count one. Elements 2 and 3 regard, um, the intent to arouse or satisfy either his own sexual desires or those of W.S. And the evidence of that is the same argument for count 1. It's the last element is really what differentiates counts 1 and 2. Element 4 is that W.S. was compelled to submit to touching by force. Um, what evidence was there of force? Well, W.S. testified that when this fondling of her breasts occurred that the Defendant had his arms around her. She also testified that the Defendant used his hand and forced her hand to touch his penis. That is the evidence of force in this case. I know I mentioned it in opening statements, but it bears repeating. Any amount of force is sufficient. There is only a slight force that's required. The only reason that W.S. touched his penis is because the Defendant was acting like some kind of puppeteer controlling her movements.

Tr. Vol. 3 pp. 183-85.

[5] The jury found Michael guilty as charged. Michael argued that convictions on both counts would constitute double jeopardy, but the trial court disagreed. The court sentenced Michael to 6 years for child molesting and 1 year for sexual battery, to be served concurrently.

[6] Michael now appeals.

Discussion and Decision

[7] Michael contends that the two convictions constitute double jeopardy under Wadle v. State, 151 N.E.3d 227 (Ind. 2020). We review double-jeopardy claims de novo. Id. at 237. Though our Supreme Court decided Wadle two years after Michael was charged, both parties treat it as controlling, so we will do the same.

[8] In Wadle, our Supreme Court established the following 3-step test for determining whether convictions under multiple statutes with common elements constitute double jeopardy:

[W]e first look to the statutes themselves. If either statute clearly permits multiple punishment, whether expressly or by unmistakable implication, the court's inquiry comes to an end and there is no violation of substantive double jeopardy. But if the statutory language is not clear, then a court must apply our included-offense statutes to determine whether the charged offenses are the same. See [Ind. Code] § 35-31.5-2-168. If neither offense is included in the other (either inherently or as charged), there is no violation of double jeopardy. But if one offense is included in the other (either inherently or as charged), then the court must examine the facts underlying those offenses, as presented in the charging instrument and as adduced at trial. If, based on these facts, the defendant's actions were so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction, then the prosecutor may charge the offenses as alternative sanctions only. But if the defendant's actions prove otherwise, a court may convict on each charged offense.

Id. at 253 (quotation omitted). The Court has since clarified that the second step is satisfied, and the third step is necessary, if the charging information was ambiguous as to whether one offense was included in the other. A.W. v. State, 229 N.E.3d 1060, 1066-71 (Ind. 2024).

[9] Here, the State concedes that we should reach the third step. As to the first step, neither the child-molesting statute (I.C. § 35-42-4-3) nor the sexual-battery statute (I.C. § 35-42-4-8) “clearly permits multiple punishment, whether expressly or by unmistakable implication.” As to the second step, the State acknowledges that the charging information, which essentially tracked the statutory language without specifying which of Michael's acts supported each charge, was ambiguous as to whether the sexual battery was included in the child molesting, or vice versa.

[10] At the third step, we examine the facts underlying the offenses “as presented in the charging instrument and as adduced at trial.” Wadle, 151 N.E.3d at 253. There can be only one conviction if “the defendant's actions were so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.” Id. Michael contends that is the case here, noting that the State, in its closing argument, discussed all the touching when addressing the child-molesting count and did so again when addressing the sexual-battery count.

[11] The State doesn't dispute that its closing argument blurred the lines between the two counts. Rather, it asserts that the third step of Wadle is limited to consideration of the evidence presented and that the evidence presented here shows that Michael committed two criminal acts—one before W.S. slapped him and one after. The State didn't draw this distinction during its closing argument—in fact, it didn't mention the slap at all—but it contends that closing arguments are irrelevant to the Wadle analysis. See Appellee's Br. p. 12. But in A.W., our Supreme Court explained that both “actual evidence and arguments at trial” can be considered at step three. 229 N.E.3d at 1070; see also Wadle, 151 N.E.3d at 254 (discussing the prosecutor's closing argument at step three). Here, the State's closing argument described one continuous episode of sexual touching. While that episode may have satisfied all the elements of both child molesting and sexual battery, the third step of Wadle establishes that there can be only one conviction. We therefore direct the trial court to vacate the lower-level conviction—sexual battery—and the corresponding sentence.

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

FOOTNOTES

1.   Michael also argues that there is insufficient evidence to support the sexual-battery conviction. Because we reverse that conviction on double-jeopardy grounds, we need not address the sufficiency argument.

Vaidik, Judge.

Judges Tavitas and Felix concur. Tavitas, J., and Felix, J., concur.