Schnitz v. State

HOFFMAN, Judge,

dissenting.

I respectfully dissent.

The majority has properly stated this Court's standard of review and ignored its application to the facts. Stated concisely, upon review for sufficient evidence, this Court will look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. Loyd v. State (1980), 272 Ind. 404, 398 N.E.2d 1260. It is not within the province of this Court to weigh conflicting evidence or to judge the credibility of witnesses. Furthermore, a conviction need not be substantiated through direct evidence, but may be sustained on the basis of circumstantial evidence alone. Thomas v. State (1983), Ind., 451 N.E.2d 651.

The majority reverses all six counts of conviction stating there is "no evidence from which it reasonably can be inferred that Schnitz intended to harass, annoy, or alarm his daughter." However, it is a universally accepted tenet of criminal law that every sane person is presumed to intend the natural and probable consequences of his own actions. Intent may be inferred from the voluntary commission of an act or from surrounding circumstances. Morris v. State (1979), 270 Ind. 245, 384 N.E.2d 1022; In re Vincent (1978), 268 Ind. 101, 374 N.E.2d 40; Watson v. State (1970), 255 Ind. 348, 264 N.E.2d 616.

I believe that substantial evidence of probative value supports all counts of conviction. The record indicates the defendant was convicted for sexually molesting his daughter in 1979 and 1981. The victim became a very disturbed young woman who required intensive psychological therapy. During his second period of incarceration, the defendant wrote six letters to his daughter which described in vivid detail his desire to commit incest with her. Some of the letters included graphic accounts of the defendant's sexual fantasies, while others contained extremely revealing photographs of naked men and women engaging in various sexual activities. The defendant asked his daughter to pose for photos wearing a bra and panties while assuming sexually provocative positions. Given the past relationship between the defendant and the victim, these letters do not indicate an attempt at legitimate communication.

Furthermore, I believe the majority ignores the victim's testimony in reaching its conclusion. The victim testified as follows:

"Q Tammy, can you tell us when you received the letters that I showed you from your father, what kind of effect did that have on you?
"A They upset me.
"Q Did you ever ask your father not to write letters like that to you?
"A I did onee or twice.
"Q and what-did he continue to write letters to you?
"A Yes.
"Q Do you know when it was you asked him not to write to you?
"A No I don't.
"Q Was it after these letters were written or before these letters-
"A They were after a couple of them had been written."

This evidence indicates the defendant continued to send letters after the victim *64asked him to stop. The majority, however, concludes:

f "[There is no evidence Schnitz received her request and, even if there was such evidence, there is no evidence he sent another letter to her after receiving hers." 1

By rejecting the explicit testimony of the victim in favor of defendant's testimony, the majority is improperly reweighing the evidence.

The trial court could reasonably infer the defendant's continued behavior indicated an intent to harass, annoy, or alarm the victim. The evidence is more than sufficient to prove beyond a reasonable doubt that the defendant intended to violate IND. CODE § 85-45-2-2(a)(2). I would affirm the judgment on all counts of conviction.

. The majority concludes that the victim's request was communicated by mail. The evidence, however, does not indicate the form of her communication.