dissenting.
This court has reheard the trial of this cause. It has drawn its own factual conclusions and then erroneously applied its own interpretation of the standard to be met in proof of an intentional tort. Additionally, to reach this result the majority has considered Evid. R. 701 and 704 in a manner to deprive the trial court of the benefit of the expert opinion presented by appellee. Further, the court would allow a layman to testify as to his conclusion on a legal issue which the courts have failed to appropriately define.
As another member of this court has often opined: "Once again members of this court have chosen to inteiject their views on the facts and to substitute their judgment for that of a trial court." (A partial quote from the dissent in State v. Cochran [Aug. 6, 1990], Warren App. No. CA89-11-070, unreported.)
Therefore, I dissent.