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Judges reverse felony sexual battery conviction

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Because the state didn’t prove an essential element needed to convict a man of Class D felony sexual battery, the Indiana Court of Appeals threw out his conviction. But there was enough evidence to support convicting the man of Class B misdemeanor battery.

In Mitchell A. McCarter v. State of Indiana, No. 26A04-1106-CR-409, Mitchell McCarter struck up a conversation with a teenage girl in Wal-Mart. He led her to believe he was a police officer and told her he could keep her out of trouble. The teen’s friend had tried to shoplift from the store and was being detained at the time McCarter began talking to the teen. He tried to get her to sit in his car and talk and got her to give him a kiss on the cheek. When she kissed him, McCarter grabbed her closer and tried to kiss her and put his hands on her and grabbed her buttocks.

He appealed his conviction of Class D felony sexual battery, arguing that force – which is needed to convict someone of the charge – wasn't proved because the teen was never afraid and he didn’t use force in his interaction with her.

The judges found the state didn’t prove the element of whether D.H. perceived she was compelled to submit to the groping through force or the threat of force, so they reversed his conviction. But there is enough evidence to support a lesser charge. The COA ordered the trial court enter a judgment for Class B misdemeanor battery and resentence McCarter.
 

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  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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