Dissenting Opinion
White, J.I would concur in affirming the sentence for assault and battery with intent to gratify sexual desires if I were ponvinced that whenever a man commits an unsatisfactorily explained assault and battery on a fourteen-year-old girl the jury may .infer that he did so with intent to gratify sexual desires.
Each item in the catalogue of evidentiary facts the majority holds sufficient to support the inference is consistent with any of the many human emotions which from time to time move some people to attack others. Only two items suggest sexual intent: (1) staring at a girl clad in tight pants and a shorty blouse; (2) grabbing her under the breast (which she agreed was the same as grabbing her around the waist). The fact that he gave unbelievable excuses (he thought she was his wife; he thought she was a boy who had stolen his camera) proves him a liar but does not justify the inference that he was seeking sexual satisfaction. And the fact that his victim, to whom he was a stranger, expressed the suspicion that he intended to rape her is evidence of her state of .mind, not his.
*375Where no reason for an attack is apparent, the circumstance that the attacker was a man and the victim was a young female stranger may make it easier for one to suspect; that the man intended to gratify his sexual desires than that he intended to take her money or that, mistaking her for another, he intended to obtain revenge or sought redress for some real or imaginary wrong. But the.greater ease one feels with?.the suspicion of intent to gratify, does not elevate; it to the reliability of a reasonable inference. The fact of the-matter is tliat the circumstances under which this attack occurred are insufficient to sustain any reasonable inference;as tó 'the motive for this attack or the specific intent with which it wá's launched. ■ '
I unreservedly agree with the Supreme Court’s statement in Hale v. State (1967), 248 Ind. 630, 634, 230 N.E.2d 432,
“that [not] all cases must rise to the same degree of certainty [as did Parker v. State (1962), 243 Ind. 482, 185 N.E.2d 727; Shipman v. State (1962), 243 Ind. 245, 183 N.E.2d 823; Bush v. State (1957), 237 Ind. 280, 145 N.E.2d 10] as to the sufficiency of the evidence or-that physical contact with privates is necessary under the statute in question. While reasonable men might differ in regard to their conclusions about the intent with which the appellant acted in the facts at bar, it certainly cannot be validly contended that no reasonable man could find that the appellant unbuttoned the girl’s blouse and removed her panties with the intent to satisfy his sexual desires.”
In fact, I would be tempted to say that on the evidence recited in Hale no reasonable person, thinking as a reasonable person, could fail to find that Hale intended to gratify his sexual desires.
But hardly any.', reasonable person always thinks as -a reasonable person. There are times when one’s emotions delude one’s reason. I presume the jurors in the case at bar "are reasonable persons and I know that my colleagues are, yét it seems to me that no reasonable person, thinking as a reasonable person, could find that the. evidence in this case proves *376that Rollins attacked his victim with intent to gratify sexual desires. A reasonable person could certainly suspect that the attack was sexually motivated and his abhorrence of such a crime could so shock his sensibilities that his mind would fail to distinguish mere suspicion from reasonable inference. On no other premise can I understand the majority’s conclusion that “the totality of the evidence favorable to the State . . . was sufficient ... to support an inference of sexual motive.” (Majority opinion, page 373, ante.)
Evidence of a specific intent is as lacking in this case as in the unanimous Third District opinion in Simcox v. State (1975), 165 Ind. App. 16, 330 N.E.2d 391, in which a verdict of guilty of assault and battery with intent to commit a felony (either rape or aggravated assault and battery) was set aside.
I would reverse and remand with instructions to sentence Rollins on only that part of the conviction which is supported by substantial evidence of probative value: the conviction of the lesser included offense of assault and battery, a crime of which specific intent is not an essential element.
Note. — Reported at 360 N.E.2d 279.