Weissmann, J.
Today we reject the State’s request to broaden the unaware prong of the sexual battery statute to include unawareness that a touching is going to occur as opposed to unawareness that a touching is actually occurring. This holding comports with precedent interpreting the unaware prongs of the rape and criminal deviate conduct statutes.
Gliva’s conviction relies on an overly broad interpretation of the sexual battery statute. We therefore reverse and remand with instructions to enter a judgment for battery as a class B misdemeanor.
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Gliva does not argue that he never touched C.U.’s buttocks at all, only that the touchings did not constitute sexual battery because C.U. was aware she was being touched. Gliva asks that we reverse and remand with instructions to enter a battery conviction instead. The State counters that the “unaware” language in the sexual battery statute encompasses any touching that the victim does not anticipate receiving. In the State’s view, this includes Gliva’s groping because C.U. did not know he was going to touch her before she felt his hand on her body. The meaning of “unaware” in the context of the sexual battery statute under which Gliva was charged is an issue of first impression.
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Indiana’s sexual battery statute states:
(a) A person who, with intent to arouse or satisfy the person’s own sexual desires or the sexual desires of another person:
(1) touches another person when that person is:
A. compelled to submit to the touching by force or the imminent threat of force; or
B. so mentally disabled or deficient that consent to the touching cannot be given; or
(2) touches another person’s genitals, pubic area, buttocks, or female breast when that person is unaware that the touching is occurring;
commits sexual battery, a Level 6 felony.
Ind. Code § 35-42-4-8. Gliva was charged under part (a)(2), which we will call the “unaware prong.” We will call part (a)(1)(A) the “force prong” and part (a)(1)(B) the “mentally deficient prong.”
The unaware prong was added to the sexual battery statute in 2012. 2012 Ind. Legis. Serv. P.L. 72-2012 (West). This amendment followed a series of appellate rulings limiting the prior statute’s application. Led by our Supreme Court’s observation that “not all touchings intended to arouse or satisfy sexual desires constitute sexual battery,” our courts determined that the force prong does not apply to gropings similar to those alleged here.
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In 2011, we refused to apply the mentally deficient prong to sleeping victims. Ball v. State, 945 N.E.2d 252, 258 (Ind. Ct. App. 2011) (reversing sexual battery conviction and remanding with instructions to enter judgment for misdemeanor battery for defendant who kissed and licked victim’s face while she was sleeping), trans. denied; see also Perry v. State, 962 N.E.2d 154, 159 (Ind. Ct. App. 2012) (reversing sexual battery conviction and remanding with instructions to enter conviction for misdemeanor battery for defendant who touched victim’s vagina while she was sleeping). In Ball, we noted that because the legislature had not included an unawareness provision in the statute as it had in other sex offense statutes, we would not construe “mentally disable or deficient” to include sleep. Id. A year after our decision in Ball, the legislature amended the sexual battery statute to include the “unaware” prong.
We have construed “unaware” in Indiana’s rape statute and the now-repealed criminal deviate conduct statute as “not aware: lacking knowledge or acquaintance; Unconscious.” Glover v. State, 760 N.E.2d 1120, 1124 (Ind. Ct. App. 2002) (citing Sanders v. State, 466 N.E.2d 424, 428 (Ind. 1984)).
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Gliva and the State disagree on when a victim must be unaware to satisfy the statute. Gliva argues that the victim must be unaware of the touching as it is occurring. The State argues that the victim must merely be unaware that the touching is about to occur. Gliva’s interpretation would encompass sexual touchings of victims who are sleeping, passed out from alcohol use, or under the influence of drugs that impair their perception and engagement with reality, among others. The State’s interpretation would transform significantly more behavior from Class B misdemeanor battery into Level 6 felony sexual battery, including all of those touchings and any touching the victim did not anticipate, including the groping convictions reversed by our Supreme Court in Scott-Gordon and Chatham. Scott-Gordon, 579 N.E.2d at 604; Chatham, 845 N.E.2d at 207-8.
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.” Ind. Code § 35-42-4- 8(a)(2) (emphasis added). 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.
The legislature chose the same present tense language in the sexual battery statute as previously employed in the rape statute and the criminal deviate statute: “is unaware . . . is occurring.” Ind. Code § 35-42-4-1; Ind. Code § 35-42- 4-2 (repealed 2014). In cases applying those statutes, victims were found unaware when they were sleeping, halfway asleep, extremely intoxicated, and under the influence of Rohypnol.
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Importantly, the victims in these rape and criminal deviate conduct cases became aware of the illegal acts after the crime had already been completed.
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Based on this precedent, we conclude 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.
Under our construction of the statute, which requires unawareness contemporaneous with the touching, we cannot say with confidence that the State met its burden of proving sexual battery beyond a reasonable doubt.
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C.U. testified that she felt two of the touchings, indicating that she was concurrently aware of them. Tr. Vol. II, p. 58-59. Neither of these touchings
can form the basis of a sexual battery conviction. Nevertheless, the State presented these two touchings and erroneously told the jury this evidence proved sexual battery. Though Gliva potentially touched C.U. a third time, we cannot say with certainty that the jury relied only on this act in finding Gliva guilty of sexual battery. We therefore are unconvinced that an inference may reasonably be drawn from the evidence to support the verdict.
The evidence is sufficient, however, to support a conviction of misdemeanor battery. “A person who knowingly or intentionally . . . touches another person in a rude, insolent, or angry manner . . . commits battery, a Class B misdemeanor.” Ind. Code § 35-42-2-1(c)(1). We therefore reverse and remand with instructions to enter judgment for battery as a class B misdemeanor.
The judgment is reversed and remanded for further proceedings consistent with this opinion.
Mathias, J., and Tavitas, J., concur.