David Wagner, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] David Wagner appeals his conviction for Level 6 felony sexual battery, arguing that the evidence is insufficient to support the conviction. We disagree and affirm.

Facts and Procedural History

[2] The evidence most favorable to Wagner's conviction is as follows. In August 2023, Wagner started seeing J.D. They would sometimes kiss and hug, and Wagner wanted a sexual relationship, but J.D. made clear she wasn't interested in that. When Wagner would try to put his hand on J.D.’s back or thigh, she told him no, and he complied.

[3] During one visit to J.D.’s apartment, Wagner exposed his penis and said, “Stroke it.” Tr. Vol. 2 p. 182; Tr. Vol. 3 p. 116. J.D. “looked away and told him to get out.” Tr. Vol. 2 p. 249. They continued to talk after that incident because the mutual friend who had introduced them, Amanda Hayes, told J.D. that Wagner was awkward but harmless. Thereafter, J.D., Wagner, and Hayes joked about Wagner's penis to “diffuse an awkward situation.” Id. at 183.

[4] On October 11, 2023, J.D. invited Wagner to her apartment. J.D. was happy he was coming over because “he said that he was going to stop talking about a lot of the sexual stuff, that he was going to approach it differently[.]” Id. at 189. When Wagner arrived, J.D. hugged him. Wagner tried to kiss her, but J.D. turned her head. Wagner asked why she wouldn't kiss him, and J.D. answered, “Because we're starting this all over and, you know, you're getting to know me.” Id. at 190. Later, J.D. hugged Wagner again, and Wagner put his hands on the small of her back near her buttocks. J.D. tried to pull away, and Wagner put his hand on the back of her neck, pulling her toward him, but stopped when she resisted.

[5] J.D. told Wagner he could stay the night but had to keep his clothes on. As Wagner walked toward the bedroom, he joked that he would get naked, and J.D. responded that he would not and that she trusted him. J.D. said “you wouldn't try to f*** me” and “you would not.” Ex. 33, Part 3 0:11-0:24; Tr. Vol. 2 p. 193. J.D. told him there would be “no shenanigans.” Tr. Vol. 2 p. 192.

[6] The two lay down in J.D.’s bed fully clothed, and J.D. began to fall asleep. When she was “half asleep,” she heard Wagner say, “Stroke it.” Id. at 194. J.D. became angry and said, “I don't know what you're doing but if you've got your d*** out, you better put it up and you need to get the f*** out.” Id. at 195. Wagner went from the bedroom to the living room, and J.D. followed him. Wagner was mad and said he was leaving. J.D. was going to give him a hug goodbye, but he pushed her backwards onto a couch and straddled her. Wagner repeatedly said “I want to eat your p****,” and J.D. repeatedly said no. Id. at 196. J.D. said, “We should not do this. You don't want to do this. What could you ․ possibly get out of that?” Id. Wagner tried to pull J.D.’s pajama pants off as she held on to the front of them. J.D. told him to stop because he was ripping her pants, and Wagner replied, “Then take them the fuck off. You're pissing me off.” Id. at 197. J.D. later discovered that the elastic on her pants was torn and stretched.

[7] Wagner was able to pull J.D.’s pants down. J.D. tried to sit up, but Wagner hit her on the chest, which “slammed” her back on the couch and took her breath away. Id. at 198. J.D. put her foot on the couch and tried to push away, but Wagner grabbed her by the ankle and pulled her back. J.D. was holding her legs together, but Wagner forced them apart. Wagner put his mouth and hands on J.D.’s vagina as J.D. tried to push him away and told him “no” and “stop.” Id. at 198-99. Wagner put his fingers inside her vagina, and J.D. testified that “it felt like he was punching me down there[.]” Id. at 199. J.D. was “horrified,” thought Wagner was going to kill her, and “just went somewhere else” mentally. Id. Wagner briefly left the room and then returned and said, “I'm going to eat your p****.” Id. at 200-01. J.D. told him no and that he hurt her with his fingers, and Wagner said he was sorry and that it was only one finger. Wagner eventually left the apartment.

[8] The next day, J.D. told Hayes and a co-worker about the assault. She was “in shock,” “shaking,” and “upset.” Tr. Vol. 3 pp. 21, 39. Hayes talked to Wagner about the incident a few days later, and he said he was sorry and that he “f***ed up.” Id. at 42.

[9] J.D. spoke to police and was photographed, and she saw a forensic nurse examiner. She had a hickey on her stomach, bruising near her ankle and on her hip near her vagina, and pain in her legs, arms, chest, back, shoulders, neck, and vagina. The nurse noted redness and pain in J.D.’s vaginal area. During the exam, J.D. was “visibly upset,” “crying,” “shaking,” and “self-blaming” and would not look at the nurse. Id. at 69.

[10] The State charged Wagner with two counts of Level 3 felony rape, Level 6 felony sexual battery, and Class A misdemeanor battery resulting in bodily injury. A jury trial was held in February 2025. The State presented the evidence detailed above, and Wagner testified in his own defense. He admitted engaging in sexual touching with J.D., including performing oral sex on her, but he claimed that it was all consensual and that “getting rough” was a normal part of their relationship. Id. at 104.

[11] The jury found Wagner not guilty on the rape charges but guilty of sexual battery and battery. The trial court entered a conviction for sexual battery but not on the battery count due to double-jeopardy concerns. The court sentenced Wagner to 910 days of community corrections (which, with good-time credit, he had already served).

[12] Wagner now appeals.

Discussion and Decision

[13] Wagner contends the evidence is insufficient to support his conviction for Level 6 felony sexual battery. When reviewing sufficiency-of-the-evidence claims, we neither reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). We will only consider the evidence supporting the conviction and any reasonable inferences that can be drawn from the evidence. Id. A conviction will be affirmed if there is substantial evidence of probative value to support each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.

[14] To convict Wagner of Level 6 felony battery as charged here, the State had to prove that, with the intent to arouse his or J.D.’s sexual desires, he compelled J.D. to submit to a touching by force or the imminent threat of force. Appellant's App. Vol. 2 p. 23; Ind. Code § 35-42-4-8(a)(1)(A). Wagner concedes that he engaged in sexual touching with J.D. but argues that he didn't compel her to submit to the touching by force or the imminent threat of force.

[15] Contrary to our standard of review, Wagner's argument focuses entirely on evidence that is favorable to him. He notes that he and J.D. regularly kissed and hugged, including that night; they were always joking; J.D. invited him into her bed; J.D. said she wasn't afraid when they came into the living room from her bedroom; Ring video from J.D.’s living room shows that she was laughing as he threw her onto the couch; and, according to him, J.D. sounded playful when she said “no.” Wagner doesn't address any of the evidence favorable to the conviction, which is substantial.

[16] J.D. testified that she made clear to Wagner that she didn't want, or at least wasn't ready for, a sexual relationship with him. When Wagner first exposed his penis to her, J.D. looked away and told him to get out. On the night of the incident, J.D. wouldn't let Wagner kiss her or touch her buttocks and told him they were just getting to know each other. While she invited Wagner to stay the night, she told him he had to keep his clothes on and that there would be “no shenanigans.” J.D. became angry when Wagner said “Stroke it,” telling him, “I don't know what you're doing but if you've got your d*** out, you better put it up and you need to get the f*** out.” Wagner got mad and said he was leaving, but when J.D. tried to give him a hug goodbye, he pushed her backwards onto the couch and straddled her.

[17] J.D. repeatedly said no when Wagner said he wanted to “eat [her] p****.” Wagner tried so hard to remove J.D.’s pants that he ripped them, and when J.D. told him to stop, he said, “Then take them the fuck off. You're pissing me off.” When J.D. tried to sit up, Wagner hit her chest, which “slammed” her back down and took her breath away. Wagner then forced J.D.’s legs apart and put his mouth and hands on her vagina as she tried to push him away and told him “no” and “stop.” J.D. testified that she was “horrified,” thought Wagner was going to kill her, and “just went somewhere else” mentally. Afterward, J.D. had a hickey on her stomach, bruising on her leg and hip, pain in her legs, arms, chest, back, shoulders, and neck, and redness and pain in her vaginal area. When J.D. told others about the incident, she was “in shock,” “shaking,” and “upset.” During her forensic exam, J.D. was “visibly upset,” “crying,” “shaking,” and “self-blaming” and would not look at the nurse. And when Hayes confronted Wagner about the incident, he said he was sorry and that he “f***ed up.”

[18] This evidence is more than sufficient to support the jury's conclusion that Wagner compelled J.D. to submit to sexual touching by force or the imminent threat of force. His argument is simply a request for us to reweigh the evidence, which we will not do. See Willis, 27 N.E.3d at 1066.

[19] Affirmed.

Vaidik, Judge.

Mathias, J., and Pyle, J., concur.