Dalvinder Singh v. State of Indiana ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Apr 23 2014, 5:58 am
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DYLAN A. VIGH GREGORY F. ZOELLER
Law Offices of Dylan A. Vigh, LLC Attorney General of Indiana
Indianapolis, Indiana
LARRY D. ALLEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DALVINDER SINGH, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1306-CR-313
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Barbara L. Crawford, Judge
Cause No. 49F09-1202-FD-8957
April 23, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Dalvinder Singh appeals his conviction of Class D felony sexual battery.1 Singh
asserts there was insufficient evidence his victim was compelled by force or imminent threat
of force to submit to Singh’s touch. We affirm.
FACTS AND PROCEDURAL HISTORY
Singh, a manager of a gas station convenience store, called to arrange a meeting with
E.P., the sales manager of one of Singh’s tobacco suppliers, to get help registering with the
tobacco vendor website and to have E.P. explain electronic fund transfers. On August 10,
2011, E.P. arrived at the convenience store a little after noon and walked back to Singh’s
office to meet him. When Singh explained that he could not access the internet on his
computer, E.P. pulled up a chair next to Singh and opened her laptop so that she could help
Singh register on the tobacco vendor website. Singh placed his hand on E.P.’s shoulder, then
moved his hand to E.P.’s knee just above her kneecap. E.P. told Singh several times that she
was very uncomfortable and asked him to stop touching her. E.P. removed Singh’s hand five
or six times. E.P. then moved her chair away from Singh, but he walked around behind E.P.
and began rubbing her shoulders. Singh remarked that E.P. was very pretty and asked if the
rubbing of her shoulders felt good. E.P. replied no, and she suggested that they move to the
front of the store to review the cigarette inventory.
After fifteen minutes assessing the store’s tobacco products, Singh requested they
return to the office so E.P. could answer another question. After they entered the office,
Singh closed the door behind him and stood between E.P. and the door. Singh then reached
1
Ind. Code § 35-42-4-8.
2
out to hug E.P. and grabbed underneath her buttocks. E.P. tried to put her arms near her
chest to create separation, but Singh pulled her closer and tried to kiss her. E.P. turned her
head so that Singh’s kiss landed on her cheek near her mouth. E.P. pushed Singh away and
headed for the door, but before she could exit Singh grabbed her from behind and cupped the
side of her breasts. E.P. again pulled away from Singh and left the store.
The State charged Singh with three counts of Class D felony sexual battery. The trial
court found beyond a reasonable doubt that Singh used force, but found him guilty of only
one count of sexual battery because the incidents were so close in time.2
DISCUSSION AND DECISION
When reviewing a claim of insufficient evidence, we do not reweigh the evidence or
judge credibility of witnesses. Bailey v. State, 764 N.E.2d 728, 730 (Ind. Ct. App. 2002),
trans. denied. We look only to the evidence and reasonable inferences most favorable to the
conviction. Id. The conviction will be affirmed if evidence of probative value exists from
which a fact finder could find the defendant guilty beyond a reasonable doubt. Id. Ind. Code
§ 35-42-4-8(a)(1)(A) states, in relevant part:
A person who, with intent to arouse or satisfy the person’s own sexual desires or
sexual desires of another person . . . touches another person when that person is . . .
compelled to submit to the touching by force or the imminent threat of force . . .
commits sexual battery.
2
The trial court did not explicitly state Singh used force, but it distinguished this case from Perry v. State, 962
N.E.2d 154 (Ind. Ct. App. 2012), and McCarter v. State, 961 N.E.2d 43 (Ind. Ct. App. 2012), trans denied,
while referencing Singh’s use of force. The trial court found that because Singh grabbed E.P., pulled her into
him, and attempted to kiss her despite her struggling, there was sufficient evidence to prove “beyond a
reasonable doubt there was Sexual Battery.” (Tr. at 139.)
3
Force may be actual or implied from the circumstances. Bailey, 764 N.E.2d at 730.
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.There was ample evidence E.P. was compelled to submit to the touching by force or
threat of force. Singh continued to touch E.P. after she asked him to stop and told him she
felt uncomfortable. When they went to the office a second time, Singh closed the door, stood
between E.P. and the door, pulled E.P. toward him, grabbed her buttocks, and then attempted
to kiss her on the mouth. E.P. not only protested, but also physically resisted these touches.
She put her hands in front of her chest to create separation when Singh embraced her, and she
tilted her head away from Singh when he tried to kiss her. Even after E.P. was able break
free from Singh, he grabbed her from behind and groped her breasts as she tried to leave.
These facts demonstrate Singh used force to compel E.P. to submit to the touching. See
Frazier v. State, 988 N.E.2d 1257, 1261 (Ind. Ct. App. 2013) (holding evidence Frazier
grabbed victim’s hand and placed it on his crotch was sufficient to demonstrate forceful
compulsion). Singh’s arguments to the contrary are invitations for us to reweigh the
evidence, which we cannot do. See Bailey, 764 N.E.2d at 730 (appellate court cannot
reweigh evidence or judge the credibility of witnesses).
4
Because the State presented sufficient evidence Singh forced E.P. to submit to the
touching required for conviction of Class D felony sexual battery, we affirm.
Affirmed.
VAIDIK, C.J., and RILEY, J., concur.
5