ROBB, C.J.
The facts most favorable to the verdict show that Roland Ball and Shaun Dozier were both residents at a housing complex for senior citizens and people needing specially-designed apartments. Dozier is in a wheelchair and takes “extremely strong medication for pain” that affects her memory. . . . One evening in October 2009, Dozier’s neighbor Jacob and Ball were watching movies with Dozier in her apartment. Jacob and Ball were drinking beer, but Dozier had nothing to drink. At some point in the evening, Jacob and Ball left to go to the liquor store to get more beer for themselves and to get a bottle of wine for Dozier at her request. Dozier fell asleep while they were gone. She testified that she awoke to Ball kissing and licking her face. After she asked him to stop twice, he did and left her apartment.
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Ball contends the State failed to prove that Dozier, by virtue of being asleep, was so mentally disabled or deficient that she could not give her consent to the touching. [Footnote omitted.] Ball argues being asleep is not equivalent to being mentally disabled or deficient. The nature of Ball’s claim requires us to interpret the meaning of “mentally disabled or deficient” as it is written in the sexual battery statute, which does not define the phrase. In addition, no reported case has considered the question of whether sleep constitutes mental disability or deficiency for purposes of the sexual battery statute. . . . .
Ball also points us to the rape and criminal deviate conduct statutes, both of which include, in identical language, the force or threat of force and mental disability or deficiency prongs, found in the sexual battery statute. See Ind. Code §§ 35-42-4-1 (rape) & 35-42-4-2 (criminal deviate conduct); see also Scott-Gordon, 579 N.E.2d at 604 (noting no reported cases discussing force or threat of force prong of sexual battery statute and therefore looking to cases interpreting identical language in rape statute for guidance). In a criminal deviate conduct case alleging mental disability or deficiency, this court held that “[t]he plain and ordinary meaning of the words ‘mentally disabled or deficient’ is subnormal intelligence or mental disease or defect.” Douglas v. State, 484 N.E.2d 610, 613 (Ind. Ct. App. 1985). Noting the phrase “mental disability or deficiency” is qualified by the resultant inability to give consent, the meaning has been expanded for purposes of those statutes to include not only a victim with lower-than-normal intelligence, see, e.g., Bozarth v. State, 520 N.E.2d 460, 463 (Ind. Ct. App. 1988) (twenty-one year old victim was deaf, legally blind, and had a mental age of approximately ten years old and an I.Q. between fifty and seventy), trans. denied, but also a victim who was highly intoxicated, Gale v. State, 882 N.E.2d 808, 818 (Ind. Ct. App. 2008), and a victim who had unknowingly ingested eight Xanax, Hancock v. State, 758 N.E.2d 995, 1004 (Ind. Ct. App. 2001), aff’d in relevant part, 768 N.E.2d 880 (Ind. 2002). As noted in Warrick v. State, 538 N.E.2d 952, 955 (Ind. Ct. App. 1989), however, the “mental disability or deficiency” prong of the criminal deviate conduct statute “primarily exists to prevent abuse of persons in our society who, by reason of mental disability, are unable to protect themselves from sexual abuse.” [Footnote omitted.] The lack of consent is not an element of the offense; it is the inability to give consent that is required to show mental disability or deficiency.
The rape and criminal deviate conduct statutes, however, include an additional, alternative prong not present in the sexual battery statute: a defendant may be convicted under either of those statutes if the victim is unaware the conduct is occurring. See Ind. Code §§ 35-42-4-1(a)(2); 35-42-4-2(a)(2). “Unaware” has been defined as “not aware: lacking knowledge or acquaintance: unconscious.” Becker v. State, 703 N.E.2d 696, 698 (Ind. Ct. App. 1998) (quoting Webster’s Third New World Dictionary 2483 (1986 ed.)). Circumstances in which we have found a victim to be unaware include where the victim was asleep, as “a person is unconscious during sleep,” id. (reviewing sufficiency of criminal deviate conduct conviction), and where the victim had lost consciousness due to intoxication, Glover v. State, 760 N.E.2d 1120, 1124 (Ind. Ct. App. 2002) (reviewing sufficiency of rape conviction), trans. denied. Notably, although a victim who was unconscious due to intoxication has supported a conviction charged under either the mentally disabled or deficient or unawareness prongs, see Gale, 882 N.E.2d at 818 (mentally disabled or deficient), Glover, 760 N.E.2d at 1124 (unaware), sleep has only supported a conviction charged under the unawareness prong, not the mentally disabled or deficient prong, Becker, 703 N.E.2d at 698.
The State posited at oral argument that the unawareness prong might have been left out of the sexual battery statute so as not to catch “innocent conduct” within its definition. And yet, the State conceded, in addressing a hypothetical situation similar to the facts of Chatham, that a person on a crowded bus who gropes a stranger from behind would be guilty of neither sexual battery by force or threat of force nor sexual battery on a mentally disabled or deficient victim, despite the victim being unable to consent to the touching prior to it occurring due to not knowing it was going to happen. Rather, the State agreed, despite the sexual, deliberate, and unwelcome nature of the touching, this conduct would be battery, presumptively a Class B misdemeanor. If the sexual battery statute would not apply to this conduct, we do not believe it should apply to Ball’s conduct, either, simply because Dozier was asleep when he initiated the contact.
. . . The plain meaning of “mentally disabled or deficient,” as well as the facts of the cases in which a victim has been found to be mentally disabled or deficient, would exclude a temporary, natural state such as sleep from inclusion in that phrase. Moreover, the legislature did not include in the sexual battery statute the “unawareness” provision included in other sex offense statutes, and we believe it would be disharmonious to construe “mentally disabled or deficient” to include sleep for purposes of the sexual battery statute when the same phrase does not include sleep for purposes of the other sexual offense statutes. We therefore conclude that being asleep does not constitute being mentally disabled or deficient.
Dozier did not give her consent to Ball’s advances but she was not unable to give her consent – in fact, as soon as she became aware of them, she expressly refused them. Although Ball does not dispute that he kissed Dozier while she slept, this is not conduct which is fairly covered by the definition of sexual battery. We therefore hold that the State failed to prove the element of mental disability or deficiency beyond a reasonable doubt and reverse Ball’s conviction for sexual battery, a Class D felony.
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Sleep is not equivalent to a mental disability or deficiency for purposes of the sexual battery statute, and therefore, the State’s evidence that Ball’s victim was sleeping when he began kissing her is insufficient to support his conviction for sexual battery. However, the evidence proves Ball committed battery upon his victim. We therefore reverse Ball’s sexual battery conviction and remand to the trial court to enter judgment for battery as a Class B misdemeanor.
DARDEN, J., and MAY, J., concur.