Tubbs v. State

Per Curiam.

This is an appeal in a criminal action in which the defendant-appellant was charged by affidavit in one count, the offense of assault and battery tending to frighten a child under the age of twelve (12) years. The case was tried before a special judge without a jury, and the appellant was found guilty of the offense.

The appellant asserts error that the trial court erred in overruling appellant’s motion for a new trial.

The record indicates that the trial was held before a special judge and appellant was found to be guilty as charged on July 8, 1965. Thereafter appellant filed a belated motion for a new trial on September 29, 1965.

The appellant’s sole assignment of errors is that the court erred in overruling the appellant’s motion for a new trial. The motion for a new trial read as follows:

“The defendant in the above entitled cause moves the Court for a new trial therein for the following reasons:

1. That the finding of court is contrary to law.”

The testimony before the trial court indicated the following:

“Q. I would like to direct your attention back to a couple of years ago when you lived with Mr. Ollis Perry and ask you whether or not you had, in September of that year, been in the apartment of Willie Tubbs and his wife?

“A. Yes.

“Q. I see, and what was the occasion or why were you up in his apartment on that day, September 7?

“A. I was supposed to be going to the store for him.

“Q. Had someone asked you to go to the store for them ?

“A. Yes.

“Q. Who was that?

“A. His wife.

“Q. And tell us what happened when you went up to his apartment.

“A. Well, I was supposed to be going to the store for him. She was in the kitchen writing a grocery list. That’s what she was supposed to be doing, and while that was going on I was sitting on the couch and he got on the couch with me and he went up under my dress.

“Q. And what do you mean he tried to go up under your dress? What did he do?

“A. He went up under my dress and felt my privates.

“Q. I see. Were you frightened by this ?

“A. Yes.”

It is the opinion of the court that the finding of the trial court is supported by sufficient evidence including the age of the infant. It is held on appeals from a criminal conviction the state is entitled to the most favorable version of the evidence together with all such reasonable inferences as may be drawn therefrom. Greenwalt v. State (1965), 6 Ind. Dec. 129, [246 Ind. 608], 209 N. E. 2d 254; Wojcik v. State (1965), 4 Ind. Dec. 664, [246 Ind. 257], 204 N. E. 2d 866.

Nor will a finding or verdict below be disturbed for insufficiency of evidence unless there is a total absence of some evidence on an essential element of the crime charged. Greenwalt v. State, supra; Wojcik v. State, supra.

The record indicates a sufficiency of such evidence to support the conviction of the appellant for the crime charged.

Likewise, the trial judge accepted the evidence as sufficient to support an inference since the finding of guilty resulted. This court has consistently held that the determination of controlling inferences is exclusively for the trial court. Tait v. State (1963), 244 Ind. 35, 188 N. E. 2d 537; Dennison v. State (1952), 230 Ind. 353, 103 N. E. 2d 443; Schlegel v. State (1950), 228 Ind. 205, 91 N. E. 2d 167; Christen v. State (1950), 228 Ind. 30, 89 N. E. 2d 445.

The finding of the trial court is sustained and the judgment in this case must be affirmed.

Jackson, J., dissents with opinion.