Christopher Mills, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Following a bench trial, Christopher Mills was convicted of sexual misconduct with a minor, a Level 5 felony, and sexual battery, a Level 6 felony. Mills appeals and claims that the State presented insufficient evidence to support his conviction for sexual battery. We disagree and affirm.

Issue

[2] Mills presents one issue: whether the State presented sufficient evidence to support Mills’ conviction for sexual battery.

Facts

[3] In January 2023, the victim in this case, L.B., was fourteen years old; Mills was thirty-two. L.B.’s best friend was Mills’ daughter, T.M. L.B. often spent time at Mills’ home and regularly spent the night there. L.B. considered Mills to be like a “second dad.” Tr. Vol. II p. 140. L.B. rode the bus to Mills’ home after school because her family lived outside the school district.

[4] On January 4, 2023, L.B. was at Mills’ home before school. While L.B. was in the kitchen, Mills walked over to her and “flipped” or “flicked” L.B.’s breast. Id. at 150, 153. L.B. told no one what happened and left for school soon thereafter. L.B. rode the bus to Mills’ home after school and waited for her mother to pick her up. When L.B. arrived, Mills was sitting on the couch and asked her to come over to him for a hug. Mills pulled L.B. onto his lap and began to “mess with” L.B.’s bra and attempted to pull her bra down. Id. at 141. This made L.B. feel uncomfortable, so she pushed Mills away and fell off the couch. Mills fell on top of L.B. and pulled her pants down, but her underwear stayed up. L.B. kicked Mills off her, pulled her pants back up, and ran up the stairs to T.M.’s bedroom.

[5] L.B. was scared and texted her mother to ask if she could be picked up early. L.B.’s mother told L.B. that she could not pick her up early because her husband was currently using their only car. Sometime later, while L.B. was still in T.M.’s bedroom, Mills went upstairs and pulled L.B. into the hallway. Mills used his hands to unclasp L.B.’s bra. L.B. quickly reclasped her bra and returned to T.M.’s bedroom. L.B. and T.M. then went downstairs.

[6] While Mills, L.B., and T.M. were all downstairs in the same room, Mills texted L.B. and asked if she minded that he was “picking on” her. Ex. Vol. I p. 3 (State's Ex. 1). Mills also told L.B. that she was “playing hard to get” and said that she “kn[ew] the target of the attack.” Id. Mills also told L.B., “I'm not trying to be a pest but I don't want to have this talk where someone else might see the conversation. I don't want to get in trouble for messing with you․” Id. at 4 (State's Ex. 2) (ellipses in original). Mills then asked L.B., “If it doesn't bother you why do you fight so hard lol.” Id. L.B. responded, “reflex and habit,” and also stated, “sometimes it does bother me most of the time it does not all the time tho [sic].” Id. at 5 (State's Ex. 3). Mills then stated, “Obviously I need you to get rid of this convo when we're done, but would you be bothered if I saw you without clothes? Like when does it bother you?” Id. L.B. responded, “Yea I would be bothered and idk it just bothers me a lot.” Id. Mills replied, “I'm sorry. You know I wouldn't ever do anything to hurt you right? I thought you didn't mind.” Id. He then asked, “So you don't want me to play with you like that?” Id. L.B. responded, “Not really.” Id. at 6 (State's Ex. 4). Contrary to Mills request, L.B. did not delete these text messages.

[7] L.B.’s mother picked her up from Mills’ house that evening, and L.B. later disclosed to her boyfriend what Mills had done to her. L.B.’s boyfriend encouraged L.B. to tell her mother about Mills’ actions. L.B. told her mother and showed her the text messages exchanged between L.B. and Mills. L.B.’s parents informed law enforcement on January 6, 2023, a police officer spoke with L.B. at school, and she disclosed the sexual touchings to the officer. L.B. also disclosed the touchings to a caseworker from the Department of Child Services.

[8] On February 21, 2023, the State charged Mills with sexual misconduct with a minor, a Level 5 felony, and sexual battery, a Level 6 felony. Mills waived his right to a jury trial, and the case proceeded to a bench trial on January 15 and February 26, 2025. The trial court found Mills guilty as charged. Mills now appeals.

Discussion and Decision

A. Standard of Review

[9] Mills challenges the sufficiency of the evidence supporting his conviction for sexual battery. 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 [fact-finder].” 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 will 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)).

B. The Sexual Battery Statute

[10] To convict Mills of sexual battery as a Level 6 felony, the State had to prove that Mills, “with the intent to arouse or satisfy [his] own sexual desires or the sexual desires of another person, ․ touche[d] another person when that person [was] ․ compelled to submit to the touching by force or the imminent threat of force[.]” Ind. Code § 35-42-4-8(a)(1)(A). The intent to arouse or satisfy the sexual desires of the other person or the defendant may be established by circumstantial evidence and can be inferred from the defendant's conduct and the natural and usual sequence to which such conduct usually points. Rodriguez v. State, 868 N.E.2d 551, 553-54 (Ind. Ct. App. 2007) (citing Kanady v. State, 810 N.E.2d 1068, 1069-70 (Ind. Ct. App. 2004)).

[11] “ ‘Not all touchings intended to arouse or satisfy sexual desires constitute sexual battery; only those [touchings] in which the person touched is compelled to submit by force or imminent threat of force violate [the sexual battery statute].’ ” Frazier v. State, 988 N.E.2d 1257, 1261 (Ind. Ct. App. 2013) (quoting McCarter v. State, 961 N.E.2d 43, 46 (Ind. Ct. App. 2012)). 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 threat of force. Id.

[12] Although the victim must have been “compelled to submit to the touching by force or the imminent threat of force, ‘the force need not be physical or violent, but may be implied from the circumstances.’ ” E.S. v. State, 198 N.E.3d 701, 703 (Ind. Ct. App. 2022) (quoting Perry v. State, 962 N.E.2d 154, 158 (Ind. Ct. App. 2012)). The relevant question is whether the victim perceived the aggressor's force or imminent threat of force as compelling the victim's compliance. Id. (citing Perry, 962 N.E.2d at 158). Any “ ‘fear experienced by the victim must precede the touching for the fear to indicate that the victim was compelled to submit to the touching by force or imminent threat of force.’ ” Id. at 703-04 (quoting Perry, 962 N.E.2d at 158). “[I]t is the victim's perspective, not the assailant's, from which the presence or absence of forceful compulsion is to be determined. This is a subjective test that looks to the victim's perception of the circumstances surrounding the incident in question.” Frazier, 988 N.E.2d at 1261 (Ind. Ct. App. 2013) (citing McCarter, 961 N.E.2d at 46).

C. We are not bound by the prosecutor's arguments.

[13] We first address Mills’ claim that our review of the evidence should be limited to the first incident in which he touched L.B.’s breast. Mills notes that, during the State's closing statement at trial, the prosecuting attorney argued that the touching of L.B.’s breast constituted the sexual battery. Mills claims that the State cannot now argue that the other touchings support his conviction for sexual battery. We disagree.

[14] It is well settled that the arguments of counsel are not evidence. Thomas v. State, 774 N.E.2d 33, 36 (Ind. 2002). And, contrary to Mills’ claims, the prosecutor's argument was not a judicial admission. “To qualify as a judicial admission, an attorney's remarks must be a ‘clear and unequivocal admission of fact.’ ” Tanksley v. State, 144 N.E.3d 824, 826 (Ind. Ct. App. 2020) (quoting Parker v. State, 676 N.E.2d 1083, 1086 (Ind. Ct. App. 1997)), trans. denied. “Stated differently, the attorney's remarks ‘must be an intentional act of waiver[,] not merely assertion or concession made for some independent purpose.’ ” Id. (quoting Collins v. State, 366 N.E.2d 229, 232 (Ind. Ct. App. 1977)).

[15] Here, the prosecutor did not clearly and unequivocally admit to any fact, i.e., she did not admit that the other touchings were not sexual battery; she simply argued that the touching of the breast was sexual battery. As we explained in Albrecht v. State, “[w]e ․ are bound neither by [a party]’s argument nor the trial court's rationale, as it is well-settled that we ‘will affirm a conviction on any basis fairly presented by the record.’ ” 185 N.E.3d 412, 424 (Ind. Ct. App. 2022) (quoting Mesarosh v. State, 459 N.E.2d 426, 428 (Ind. Ct. App. 1984)), trans. denied. Thus, we are not bound by the prosecutor's argument, and we will consider all the evidence that supports Mills’ conviction.

D. Sufficient evidence supports Mills’ conviction for sexual battery.

[16] Considering all of the evidence that supports the trial court's judgment, we conclude that sufficient evidence supports Mills’ conviction for sexual battery. There was evidence that Mills touched L.B.’s breast, attempted to unfasten her bra, and pulled down her pants. From this, the trial court could reasonably conclude that Mills touched L.B. with the intent to arouse or satisfy his or L.B.’s sexual desire. See Rose v. State, 36 N.E.3d 1055, 1062 (Ind. Ct. App. 2015) (holding that jury could reasonably infer defendant's intent to arouse or satisfy his or victim's sexual desires from his act of touching the victim's breasts).

[17] Mills argues, however, that there was no evidence that L.B. was compelled to submit to the touching by force or the imminent threat of force. We disagree. Mills touched L.B.’s breast in the morning before she went to school. When L.B. returned to Mills’ home after school, he pulled L.B. onto his lap while they were sitting on the couch and attempted to pull L.B.’s bra down. L.B. was uncomfortable with Mills’ actions, pushed him away, and fell off the couch. Mills fell on top of L.B. and pulled her pants down. L.B. had to kick Mills off her to escape. Mills then went upstairs, pulled L.B. into the hallway, and unfastened her bra. From this, the trial court could reasonably conclude that L.B. was compelled to submit to Mills’ touching by force or the imminent threat of force. See Hutton v. State, 190 N.E.3d 413, 416 (Ind. Ct. App. 2022) (affirming conviction for sexual battery where victim testified that defendant grabbed her by the hips, pinned her against the bathroom sink, then touched her genital area while restraining her, and it was only after the defendant touched the victim that she could break free).

[18] The facts here are distinguishable from those in the cases that have found insufficient evidence of compulsion by force or threat of force. In Scott-Gordon v. State, 579 N.E.2d 602 (Ind. 1991), the defendant walked up behind the victim and grabbed his buttocks, causing the victim to punch the defendant. The Court held that there was no evidence of force or threat of force to support a conviction for sexual battery. Id. at 604.

[19] In Smith v. State, 678 N.E.2d 1152 (Ind. Ct. App. 1997), the defendant put his hands in the first victim's pants and fondled that victim's penis. This victim said nothing to Smith and pulled away after the fondling stopped; he also testified that he had no reason to be afraid of Smith before the incident. Smith also placed his hands inside the shorts of another victim while the victim was asleep and fondled the victim's penis. The second victim also said nothing to Smith during the fondling and did not discuss the incident with Smith after it ended. On appeal, this Court held that, in both cases, the State failed to prove that the fondlings were compelled by force or the imminent threat of force. Id. at 1155.

[20] In Chatham v. State, 845 N.E.2d 203 (Ind. Ct. App. 2006), the defendant walked up behind the victim and grabbed her genital area. When the victim turned around and walked away, the defendant ran away. We held that this was insufficient to support an inference of compulsion by force or threat of force because the victim's fear arose only after the touching. Id. at 207-08. And in Perry v. State, 962 N.E.2d 154, 158-59 (Ind. Ct. App. 2012), this Court concluded there was no force when the defendant fondled the victim in her sleep, and even though the defendant continued when the victim awoke, she froze in fear without resisting.

[21] In contrast, here, during the incident on the couch, L.B. resisted Mills by pushing him away, kicking him off her, and fleeing upstairs. She then attempted to leave Mills’ home by texting her mother to pick her up. Thus, L.B. demonstrated a fear of Mills’ actions before the incident in the hallway. Undeterred by L.B.’s rejection of his advances, Mills then grabbed L.B. in the hallway and unclasped her bra. The text messages exchanged between Mills and L.B. that same day confirm Mills’ awareness that L.B. was uncomfortable. All of this evidence supports a reasonable inference that L.B. submitted to Mills’ sexual touching by force or the imminent threat of force.

Conclusion

[22] The State presented sufficient evidence to support Mills’ conviction for sexual battery, a Level 6 felony. Accordingly, we affirm the trial court's judgment.

[23] Affirmed.

Tavitas, Judge.

Judges Bailey and Kenworthy concur. Bailey, J., and Kenworthy, J., concur.