Rollins v. State

CASE SUMMARY

Buchanan, P.J.

Appellant Elzea Rollins, Jr. (Rollins) appeals a conviction of Assault and Battery with Intent to Gratify Sexual Desires,¹ claiming insufficient evidence on the element of intent to gratify sexual desires.

We affirm.

FACTS

The evidence most favorable to the State and before the jury reveals the following:

On September 23, 1974, after 8:00 o’clock in the evening between dusk and dark, the fourteen-year-old female victim went to the neighborhood laundromat to purchase some cans of soft drinks. She was wearing tight pants, a shorty blouse, and an open jacket.

While in the laundromat, she noticed Rollins sitting in his car in the laundromat parking lot, staring at her. When she left, Rollins followed her in his car.

As the victim walked down the sidewalk toward her home, she turned to discover that Rollins was still following her in his car, which he then parked in an alley. He continued to follow her on foot until she turned a corner. Then he crossed the street and approached her asking if she were familiar with an address on Caroline Street.

When she replied that she did not know of the address, Rollins approached her from the front, grabbed her — wrapping one arm around her under her breast — and threw her to the ground. They “tussled” on the ground for about a minute.

The victim stood and demonstrated for the jury just how Rollins had encircled his arm under her breast. In response to the question on what made her believe the attack was sexually motivated, she replied, “The way he grabbed me.”

The victim screamed during the “tussling” and Rollins attempted to cover her mouth with his free hand. Her screams brought immediate assistance from neighbors, however.

When the neighbors yelled and came toward the pair, Rollins fled the scene — only to be quickly apprehended. Upon apprehension, Rollins told his captors the victim was his wife.

When a police officer arrived shortly thereafter, Rollins told him he had seen the victim steal a radio and camera from his car and he was attempting to apprehend her. The police found these items in Rollins’ car.

At trial Rollins contended he acted under the assumption the victim was a boy and a thief.

Upon this evidence, the jury convicted Rollins of assault and battery with intent to gratify sexual desires.

ISSUE

Was there sufficient evidence of probative value to permit the jury to conclude beyond a reasonable doubt that Rollins intended to gratify sexual desires when he grabbed the victim and threw her to the ground ?

PARTIES’ CONTENTIONS — Rollins contends that he acted under the assumption he was apprehending a thief who had just stolen items from his car and that there was nothing in these actions to permit an inference of an intent to gratify sexual desires.

The State simply counters that these facts allow a reasonable inference of intent to gratify sexual desires.

DECISION

CONCLUSION — It is our conclusion that there was sufficient evidence of probative value to permit the jury to conclude beyond a reasonable doubt that Rollins intended to gratify sexual desires.

As recently emphasized in Kash v. State ² when the sufficiency of circumstantial evidence is questioned,

this Court must carefully examine the evidence most favorable to the State, not to determine whether every reasonable hypothesis of innocence is overcome, but to determine whether reasonable persons could form an inference with regard to each material element of the offense so as to ascertain defendant’s guilt beyond a reasonable doubt. McAfee v. State (1973), 259 Ind. 687, 291 N.E.2d 554; Traylor v. State (1975), 164 Ind. App. 50, 326 N.E.2d 614.³

Even more specifically, in Farno v. State,⁴ we recognized our mandate not to reweigh the evidence if there exist two reasonable inferences, one of guilt and one of innocence:

If the circumstantial evidence bearing upon [an element of the crime] could reasonably lead to either of two inferences, one of guilt and one of innocence, an appellate tribunal is not free to reweigh the evidence and determine which should have predominated in the mind of the trier of fact.⁵

The crime of assault and battery with intent to gratify sexual desires, as set out in Indiana Code section 35-1-54-4,

has two components — an evil intent coupled with an overt act. The act alone does not constitute the crime unless it is done with a specific intent declared unlawful by the statute in this state. Mere touching alone is not sufficient to constitute the crime here involved. There must also be proved beyond a reasonable doubt, the specific intent at the time of touching to gratify sexual desires or to frighten the child as stated in the statute.⁶

Thus, for us to reverse this conviction, we must conclude that the composite effect of all the favorable facts supporting the conviction as a matter of law does not create a reasonable inference of sexual motive. Otherwise, we would be merely reweighing the evidence.

We recognize that most cases decided under this statute have dealt with expressions or overt actions which more conclusively indicate sexual motive in the assault and battery.⁷ While many cases have dealt with direct, overt sexual acts, “this is not to say that all cases must rise to the same degree of certainty as to the sufficiency of the evidence or that physical contact with privates is necessary under the statute in question.”⁸

Examining the totality of the evidence favorable to the State and recognizing the jury’s opportunity to observe the witnesses and weigh the evidence, we conclude there was sufficient evidence of probative value to support an inference of sexual motive:

(1) Rollins sat in his car staring at the victim (clad in tight pants and a shorty blouse) while she was in the laundromat as the dark of evening hours approached;

(2) He followed her in his car in what may be fairly characterized as a “stalking” action;

(3) He parked in an alley and continued his pursuit of her on foot;

(4) He approached her and asked her a question totally unrelated to any prior events or reasons later given to justify his actions;

(5) He then grabbed her without further comment under the breast and threw her to the ground, (demonstrated to the jury by her with the demeanor of the immediate events interpreted by her as sexual);

.(6)- He attempted to muffle her screams and they “tussled” on the ground-until interrupted by astute neighbors;

"(7) Rollins fled in the face of imminent assistance for the ‘ victim; - • •

(8) The jury heard two distinct inconsistent accounts of motive offered by Rollins at different times.

Under these circumstances it was not unreasonable for the jury to infer that Rollins’ attack was sexually motivated.⁹

Affirmed.

Garrard, J., concurs; White, J., dissents with separate opinión.

1 . ind. code § 35-1-54-4 (Burns 1975).

2 . (1975), 166 Ind. App. 666, 337 N.E.2d 573.

3 . Id. at 671, 337 N.E.2d at 574.

4 . (1974), 159 Ind. App. 627, 308 N.E.2d 724.

5 . Id. at 629, 308 N.E.2d at 725-26 (citations omitted).

6 . Markiton v. State (1957), 236 Ind. 232, 235-36, 139 N.E.2d 440, 441-42 (citations omitted).

7 . See, e.g., Hale v. State (1967), 248 Ind. 630, 230 N.E.2d 432 (defendant unbuttoned girl’s blouse and removed her panties).

8 . Hale v. State, supra at 634, 230 N.E.2d at 434.

9 . See Lisenko v. State (1976), 266 Ind. 488, 355 N.E.2d 841.