Ball v. State , No. 06A01–1007–CR–426.

Docket NºNo. 06A01–1007–CR–426.
Citation945 N.E.2d 252
Case DateApril 20, 2011
CourtCourt of Appeals of Indiana

945 N.E.2d 252

Roland BALL, Appellant–Defendant,
v.
STATE of Indiana, Appellee–Plaintiff.

No. 06A01–1007–CR–426.

Court of Appeals of Indiana.

April 20, 2011.


[945 N.E.2d 253]

Heather M. Shumaker, Jeffrey S. Jacob, Andreoli & Jacob, Zionsville, IN, Attorneys for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION
ROBB, Chief Judge.
Case Summary and Issues

Following a jury trial, Roland Ball was convicted of sexual battery, a Class D felony. Ball appeals his conviction, raising three issues for our review, of which we find the following dispositive: whether the evidence is sufficient to support his conviction. Concluding there is insufficient evidence of sexual battery but sufficient evidence of the lesser-included offense of battery, we reverse and remand.

Facts and Procedural History 1

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. Transcript at 108. 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.

The State charged Ball with sexual battery. The information is captioned “Sexual Battery[;] I.C. 35–42–4–8(a)(2)[;] a Class D Felony.” Appellant's Appendix at 55. The body of the information alleges:

[945 N.E.2d 254]

Ball did with the intent to arouse [or] satisfy his own sexual desires or the sexual desires of another person when that person is so mentally disabled or deficient that consent to the said touching cannot be given, to-wit: Ronald Ball did kiss Shaun Dozier while she was unable to consent to such kissing while she was sleeping, contrary to the form of the statutes in such cases made and provided by I.C. 35–42–4–8(a)(1) and against the peace and dignity of the State of Indiana.

Id. In the trial court's preliminary instructions to the jury, it read the allegations of the information as stated above. See Tr. at 99. It then instructed the jury on the statutory definition of sexual battery as follows:

The crime of Sexual Battery is defined by statute as follows 35–42–4–8 Sexual Battery. A person who, with the intent to arouse or satisfy the person's own sexual desires or the sexual desires of another person touches another person when that person is, one compelled to submit to the touching by force or the imminent threat of force or two, so mentally disabled or deficient that consent to the touching cannot be given commits Sexual Battery, a Class D felony.

Id. at 100.

Dozier and the investigating officer testified for the State and were cross-examined by Ball's counsel. Ball moved for a directed verdict at the conclusion of the State's case, noting the State was required to establish

a couple of things [including] there has to be either compelling the person to submit to the touching by force or the imminent threat of force, which is not the prong that is alleged in this case, or there has to be proof that the ... alleged victim is so mentally disabled or deficient that consent to the touching cannot be given.

Id. at 139 (emphasis added). Ball argued there was no evidence to establish Dozier was mentally disabled or deficient and the State responded that because Dozier was asleep she was “not mentally able to consent to any touching....” Id. at 141. The motion for directed verdict was denied, and the defense rested without presenting any additional evidence. During closing argument, both the State and Ball's counsel referenced only the mentally disabled or deficient prong of the sexual battery statute.

The trial court gave the jury final instructions which again included the allegations contained in the information. The final instruction on the statutory definition of the crime read as follows:

[A] person who with intent to arouse or satisfy the person's own sexual desires or the sexual desires of another person touches another person so mentally disabled or deficient that consent to said touching cannot be given, commits sexual battery, a Class D Felony.

Id. at 156. In addition, the jury was instructed on the elements of the crime as follows:

To convict the Defendant, the State must have proved each of the following elements. One, the Defendant ... knowingly or intentionally. Two, with intent to arouse or satisfy his own sexual desires or the sexual desires of Ms. Dozier. Three, touched Ms. Dozier. Four, when Ms. Dozier was so mentally disabled or deficient that said, that consent to the touching could not be given.

Id. at 156–57.

The jury found Ball guilty of sexual battery and he was sentenced to one and one-half years at the Indiana Department of Correction with six months to be executed and the remainder suspended to supervised

[945 N.E.2d 255]

probation. Ball now appeals his conviction.

Discussion and Decision 2
I. Standard of Review

Our standard of reviewing a sufficiency claim is well-settled:

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146–47 (Ind.2007) (quotations, citations, and footnote omitted) (emphasis in original). The interpretation of a statute, however, is a question of law that we review de novo. Montgomery v. State, 878 N.E.2d 262, 266 (Ind.Ct.App.2007).
II. Elements of the Charge

Sexual battery as a Class D felony is defined by statute as:

(a) A person who, with intent to arouse or satisfy the person's own sexual desires or the sexual desires of another person, touches another person when that person is:

(1) compelled to submit to the touching by force or the imminent threat of force; or

(2) so mentally disabled or deficient that consent to the touching cannot be given;

commits sexual battery, a Class D felony.

Ind.Code §...

To continue reading

Request your trial
18 practice notes
  • Kelley v. Commonwealth, Record No. 1063-17-4
    • United States
    • Virginia Court of Appeals of Virginia
    • 8 d2 Janeiro d2 2019
    ...the victim's face and attempted to force a kiss on her. See Parish, 56 Va. App. at 330-31, 693 S.E.2d 315. See generally Ball v. State, 945 N.E.2d 252, 258 (Ind. Ct. App. 2011) (holding that the evidence that the defendant kissed the victim when she did "not desire his kisses" pro......
  • Adetokunbo v. State, No. 49A02–1407–CR–511.
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 d1 Abril d1 2015
    ...Ind.Code § 35–42–2–1(b)(1). “Evidence of touching, however slight, is sufficient to support a conviction for battery.” Ball v. State, 945 N.E.2d 252, 258 (Ind.Ct.App.2011), trans. denied.[12] As to the battery count, the charging information stated in relevant part: “On or about 11/27/2013,......
  • Johnson v. State, No. 79A02–1408–CR–573.
    • United States
    • Indiana Court of Appeals of Indiana
    • 26 d4 Março d4 2015
    ...consent is not an element of the offense; it is the inability to give consent that is required to show mental disability or deficiency. 945 N.E.2d 252, 257 (Ind.Ct.App.2011) (emphasis in original).[24] In support of its case, the State introduced testimony from B.W., Mother, and Ann Jackson......
  • Markham v. State, A14-1093
    • United States
    • Court of Appeals of Minnesota
    • 20 d2 Janeiro d2 2015
    ...(Ind. 2013). In Ball v. State, the defendant was charged with sexual battery for licking and kissing the face of aPage 9sleeping woman. 945 N.E.2d 252, 253 (Ind. App. 2011) transfer denied, 962 N.E.2d 640 (Ind. 2011).1 In sum, these cases illustrate that Indiana's sexual battery statute pen......
  • Request a trial to view additional results
18 cases
  • Kelley v. Commonwealth, Record No. 1063-17-4
    • United States
    • Virginia Court of Appeals of Virginia
    • 8 d2 Janeiro d2 2019
    ...the victim's face and attempted to force a kiss on her. See Parish, 56 Va. App. at 330-31, 693 S.E.2d 315. See generally Ball v. State, 945 N.E.2d 252, 258 (Ind. Ct. App. 2011) (holding that the evidence that the defendant kissed the victim when she did "not desire his kisses" pro......
  • Adetokunbo v. State, No. 49A02–1407–CR–511.
    • United States
    • Indiana Court of Appeals of Indiana
    • 27 d1 Abril d1 2015
    ...Ind.Code § 35–42–2–1(b)(1). “Evidence of touching, however slight, is sufficient to support a conviction for battery.” Ball v. State, 945 N.E.2d 252, 258 (Ind.Ct.App.2011), trans. denied.[12] As to the battery count, the charging information stated in relevant part: “On or about 11/27/2013,......
  • Johnson v. State, No. 79A02–1408–CR–573.
    • United States
    • Indiana Court of Appeals of Indiana
    • 26 d4 Março d4 2015
    ...consent is not an element of the offense; it is the inability to give consent that is required to show mental disability or deficiency. 945 N.E.2d 252, 257 (Ind.Ct.App.2011) (emphasis in original).[24] In support of its case, the State introduced testimony from B.W., Mother, and Ann Jackson......
  • Markham v. State, A14-1093
    • United States
    • Court of Appeals of Minnesota
    • 20 d2 Janeiro d2 2015
    ...(Ind. 2013). In Ball v. State, the defendant was charged with sexual battery for licking and kissing the face of aPage 9sleeping woman. 945 N.E.2d 252, 253 (Ind. App. 2011) transfer denied, 962 N.E.2d 640 (Ind. 2011).1 In sum, these cases illustrate that Indiana's sexual battery statute pen......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT