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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be 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: ELLEN M. O'CONNOR Marion County Public Defender Agency Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana SCOTT L. BARNHART Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ROBERT WHITESIDE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0612-CR-1164

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Grant W. Hawkins, Judge Cause No. 49G05-0605-FB-91513

July 16, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Robert Whiteside appeals his conviction for Criminal Deviate Conduct, as a Class B felony, following a bench trial. Whiteside raises two issues for our review: 1. Whether the State presented sufficient evidence that his victim was unaware of his act. Whether his sentence is inappropriate in light of the nature of the offense and his character.

2.

We affirm. FACTS AND PROCEDURAL HISTORY C.H. and T.D. met as first-year college students at the University of Indianapolis. In May of 2006, T.D. moved into C.H.'s apartment. On May 19, Whiteside, T.D.'s stepfather, arrived at C.H.'s apartment to take T.D. to some bars. Before leaving the apartment, Whiteside "hung out" with C.H., her boyfriend Jose Orozco, and his brother Jorge Cano for about half an hour. Appellant's Brief at 3. While Whiteside and T.D. were gone, Jose fell asleep, and C.H. and Jorge drank alcohol while watching television. Around 3:30 the next morning, Whiteside and T.D. returned to C.H.'s apartment. They were noticeably intoxicated. Shortly thereafter, T.D. and Jorge left to get more soda to make mixed drinks. C.H. and Whiteside remained in the kitchen. Whiteside repeatedly told C.H. "how beautiful [she] was and how gorgeous [she] was[,] and he kept trying to give [her] . . . half[-]hugs." Transcript at 26. C.H. "felt very uncomfortable with him." Id. After T.D. and Jorge returned, everyone consumed more alcohol. T.D. and Jorge then went into the living room and started wrestling. Shortly thereafter, C.H. started to
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wrestle with T.D. Whiteside then "jumped on top of" C.H. "and started throwing [her] around." Id. at 29. T.D. noticed that her stepfather was acting "a little too friendly" to C.H. Id. at 202. C.H. was uncomfortable wrestling with Whiteside, so she stopped and went to her bedroom. In her room, she told Jose that she "wasn't feeling comfortable, that [Whiteside] had been hitting on [her]." Id. at 31. Later that morning, T.D. began vomiting and asked Whiteside to get C.H. for her. Whiteside entered the darkened bedroom and put his hand on C.H.'s chest, although C.H. did "not think it was on purpose." Id. at 32. At about 6:30 a.m., Jose awoke and found Whiteside in the bedroom "staring [C.H.] down." Id. at 160. Whiteside was standing at C.H.'s side of the bed. When Jose left for work around 8:00 a.m., Whiteside was in a living room chair. At some point thereafter, C.H. dreamed that someone was performing oral sex on her. C.H. "was rolling around pushing . . . him or whoever it was off." Id. at 32. C.H. "wasn't in a deep sleep anymore, like you know how you wake up and you kind of know what's going on but you're not fully awake." Id. at 34. In "rolling around," C.H. "snapped out of it" and felt a man's tongue and mouth on her vagina. Id. at 33-34. C.H. pulled her covers off of her and found Whiteside in her bed. Whiteside told C.H. that he "thought you were my wife." Id. at 35. On May 22, the State charged Whiteside with criminal deviate conduct, as a Class B felony. On November 9, following a bench trial in which C.H. testified, the court found Whiteside guilty as charged and sentenced him to the advisory sentence 1 of ten
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Although the trial court referred to Whiteside's sentence as "the presumptive sentence," transcript at 255, Whiteside committed his crime under the advisory sentencing scheme and therefore

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years. The court found Whiteside's criminal history to be an aggravating circumstance, but found that that aggravator was balanced by the mitigating circumstance that this was "unlikely to occur again." Id. at 255. This appeal ensued. DISCUSSION AND DECISION Issue One: Awareness Whiteside first contends that the State did not present sufficient evidence to support his conviction. Specifically, Whiteside maintains that the State did not

sufficiently show that C.H. was "unaware" of his act of oral sex on her. When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Nolan v. State, 863 N.E.2d 398, 402 (Ind. Ct. App. 2007), trans. denied. We look only to the probative evidence supporting the judgment and the reasonable inferences that may be drawn from that evidence to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the conviction, it will not be set aside. Id. To prove criminal deviate conduct as charged, the State was required to show that Whiteside "knowingly or intentionally cause[d] another person to . . . submit to deviate sexual conduct when[] . . . the other person [was] unaware that the conduct [was] occurring." Ind. Code

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