Ball v. State of Ind., 06A01-1007-CR-426
| Decision Date | 20 April 2011 |
| Docket Number | No. 06A01-1007-CR-426,06A01-1007-CR-426 |
| Parties | ROLAND BALL, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
ROLAND BALL, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff.
No. 06A01-1007-CR-426
COURT OF APPEALS OF INDIANA
April 20, 2011
FOR PUBLICATION
ATTORNEYS FOR APPELLANT:
HEATHER M. SHUMAKER
JEFFREY S. JACOB
Andreoli & Jacob
Zionsville, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General Indianapolis, Indiana
ROBB, Chief Judge
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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.
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.
Page 3
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:
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.
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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...
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