COA reverses sexual battery conviction on issue of first impression, declines to broaden ‘unaware’ prong

The Indiana Court of Appeals has reversed a man’s sexual battery conviction for touching a woman multiple times after finding it relied on an overly broad interpretation of the sexual battery statute.

In the case of Kristopher P. Gliva v. State of Indiana, 21A-CR-00332, Gliva was alleged to have touched C.U.’s bottom three times while she was shopping at a large retail store. C.U. felt and reacted to two of the three touchings. Once she realized it wasn’t an accident, she told Gliva to leave her alone and he walked off.

Relying on evidence of all three touches, the state charged Gliva with one count of Level 6 felony sexual battery, alleging that C.U. had been “unaware that the touching is occurring.” On appeal, Gliva argued the touchings did not constitute sexual battery because C.U. was in fact aware she was being touched.

Countering that point, the state argued the “unaware” language in the sexual battery statute encompasses any touching the victim does not anticipate receiving. As such, the state argued that includes Gliva’s groping because C.U. did not know he was going to touch her before she felt his hand on her body

In addressing an issue of first impression on the meaning of “unaware” in the context of the sexual battery statute, the COA concluded that the plain language of the statute does not support the state’s broad reading.

“The legislature chose to use present tense in stating sexual battery occurs when the victim ‘is unaware that the touching is occurring.’ The verb tense in this clause does not change, meaning contemporaneous unawareness and touching. To interpret this phrase to include touches the victim does not anticipate is unreasonable,” Judge Leanna Weissmann wrote for the unanimous panel.

Based on precedent from rape and criminal deviate conduct cases, it concluded the unaware prong of the sexual battery statute applies when the victim lacks knowledge or acquaintance of the touching or is unconscious of the touching as the touching is occurring.

“Unawareness that the touching is going to occur alone does not satisfy the provision,” it wrote. Thus, the COA concluded that it couldn’t say with confidence that the state met its burden of proving sexual battery beyond a reasonable doubt.

However, it did find sufficient evidence to support a conviction of Class B misdemeanor battery. It therefore reversed and remanded with instructions to enter judgment for battery as a Class B misdemeanor.

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