Robert Dill, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] In September of 2003, during a party that A.K.’s parents were hosting, Robert Dill placed his tongue in A.K.’s mouth, kissing her for at least fifteen to twenty seconds, before her stepfather intervened. The State charged Dill with Class D felony sexual battery, and, after a bench trial, Dill was found guilty as charged. Dill was eventually sentenced to two years of incarceration. Dill contends that the evidence was insufficient to support his conviction. Because we disagree, we affirm.

Facts and Procedural History

[2] On September 13, 2003, then-eleven-year-old ¹ A.K.’s parents were hosting a party of about ten to fifteen adults, including Dill, and several children in their Indianapolis backyard. A.K. has spina bifida, is paralyzed from the waist down, and uses a wheelchair. At some point, A.K.’s mother looked over and saw Dill kissing A.K. “in her mouth” with an “intimate kiss.” Tr. Vol. II p. 61. A.K.’s mother alerted A.K.’s stepfather, who looked over and saw the kiss, which had lasted “like 15, 20 seconds” before he intervened. Tr. Vol. II p. 70.

[3] The next day, the State charged Dill with Class D felony sexual battery. At the bench trial on July 14, 2005, A.K.’s mother testified that A.K. had been an “easily intimidated” and “shy” child. Tr. Vol. II pp. 59, 60. She also testified that A.K. had had a “shocked look” after the incident, and identified Dill as the person she had seen kissing A.K. A.K.’s stepfather also identified Dill as the perpetrator and testified that he had seen Dill “French kissing” A.K., with “his tongue in [A.K.]’s mouth.” Tr. Vol. II p. 69. He also testified that A.K. had “looked scared” and “was visibly upset.” Tr. Vol. II pp. 70, 71.

[4] A.K. did not identify Dill as the man who had kissed her. A.K. testified that “[h]e like put his tongue in my mouth[,]” that she had not wanted him to do that, and that she had been “scared.” Tr. Vol. II p. 77. A.K. testified that she had felt “like [she] could stop him[,]” but when asked “[w]hat did you think would happen if you tried to make him stop kissing you?”, A.K. testified, “I was – I was trying to push him away.” Tr. Vol. II pp. 77–78. A.K. testified “he touched me on the leg.” Tr. Vol. II p. 75. A.K. further testified that after her stepfather had come over, she had not been upset. The trial court found Dill guilty as charged.

[5] On September 8, 2005, Dill failed to appear for his sentencing hearing and a warrant was issued for his arrest. On April 6, 2025, Dill was apprehended, and, on May 5, 2025, the trial court sentenced Dill to two years of incarceration.

Discussion and Decision

[6] Dill contends that the evidence is insufficient to support his conviction.

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 factfinder 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) (brackets, citations, and quotations omitted). Stated differently, in reviewing the sufficiency of the evidence, “we consider only the evidence and reasonable inferences most favorable to the convictions, neither reweighing evidence nor reassessing witness credibility” and “affirm the judgment unless no reasonable factfinder could find the defendant guilty.” Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016).

[7] To prove that Dill was guilty of Class D felony sexual battery, the State was required to prove that he, “with intent to arouse or satisfy [his] own sexual desires or the sexual desires of another person, touche[d] another person when that person is[ ] compelled to submit to the touching by force or the imminent threat of force[.]” Ind. Code § 35-42-4-8(a)(1) (1998).² Dill first contends that the evidence was insufficient to support the conclusion that he had kissed A.K. with the intent to arouse or satisfy his own sexual desire. Intent to arouse “may be established by circumstantial evidence and inferred from the defendant's conduct and the natural and usual sequence to which such conduct usually points.” Rose v. State, 36 N.E.3d 1055, 1062 (Ind. Ct. App. 2015).

[8] Dill “French” kissed A.K. using his tongue, for fifteen to twenty seconds, and touched her leg. Tr. Vol. II p. 76. We have previously concluded that the natural and usual sequence associated with “tongue” kissing is sexual arousal, see Davis v. State, 956 N.E.2d 726, 730 (Ind. Ct. App. 2011), trans. denied, and we are unpersuaded by Dill's attempt to distinguish Davis from the facts of his case.³ In affirming Davis's conviction for child molesting, we concluded that the trial court had reasonably inferred from Davis kissing the victim twice using her tongue, her statement that she had become aroused from her conduct, and “the natural and usual sequence associated with ‘tongue kissing’ that Davis intended to arouse or satisfy sexual desires.” 956 N.E.2d at 730 (emphasis added).

[9] In support of our conclusion, we looked to the opinions of our “sister jurisdictions” which were consistent with our conclusion that the natural and usual sequence associated with “tongue” kissing is sexual arousal. See id. at 730 n.3 (Ind. Ct. App. 2011) (citing People v. Calusinski, 733 N.E.2d 420, 426 (Ill. Ct. App. 2000) (providing that a “French” kiss is an inherently sexual act which generally results in sexual excitement and arousal, and, therefore, one could reasonably infer that the defendant intentionally placed his tongue in the victim's mouth for his own sexual arousal); Cornelius v. State, 445 S.E.2d 800, 803–04 (Ga. Ct. App. 1994) (providing that the evidence that defendant “French” kissed the eleven-year-old victim was sufficient to support the conclusion that the defendant was guilty of child molestation with the intent to “arouse his sexual desires”)). Applying these cases to the instant case, the trial court reasonably concluded that Dill had acted with the intent to arouse or satisfy the sexual desires of himself or A.K.

[10] Dill also contends that the evidence was insufficient to support the conclusion that A.K. had been compelled to submit to the touching by force or the imminent threat of force. “Although an element of sexual battery is that the victim was compelled to submit to the touching by force or the imminent threat of force, the force need not be physical or violent, but may be implied from the circumstances.” Perry v. State, 962 N.E.2d 154, 157–58 (Ind. Ct. App. 2012) (citation omitted). Moreover, “it is the victim's perspective, not the assailant's, from which the presence or absence of forceful compulsion is to be determined.” Tobias v. State, 666 N.E.2d 68, 72 (Ind. 1996). “This is a subjective test that looks to the victim's perception of the circumstances surrounding the incident in question.” Id. “The issue is thus whether the victim perceived the aggressor's force or imminent threat of force as compelling her compliance.” Id. Finally, “[t]he fear experienced by the victim must precede the touching for the fear to indicate that the victim was compelled to submit to the touching by force or the imminent threat of force.” Chatham v. State, 845 N.E.2d 203, 207 (Ind. Ct. App. 2006).

[11] The evidence in this case was sufficient to support the trial court's conclusion that A.K. had been compelled to submit to Dill's touching by force. A.K., paralyzed from the waist down, had been “trying to push” Dill away during the kiss. Tr. Vol. II p. 78. Again, Dill had been kissing A.K. for fifteen to twenty seconds before her stepfather intervened. Dill attempts to compare the facts of this case with the facts of Smith v. State, 678 N.E.2d 1152 (Ind. Ct. App. 1997), trans. denied, which is readily distinguishable. In Smith, a panel of this court reversed Smith's conviction for sexual battery, concluding that the evidence did not show that the victim was compelled to submit to Smith's fondling by force or the imminent threat of force where the victim testified that he had had “no reason to be afraid of Smith before the incident[,]” and he “did not say anything to Smith while he was fondling him because he ‘didn't know what to do.’ ” 678 N.E.2d at 1155. The Smith panel explained that, “[a]lthough it is clear that J.H. did not consent to the touching, evidence that a victim did not voluntarily consent to a touching does not, in itself, support the conclusion that the defendant compelled the victim to submit to the touching by force or threat of force.” Id.

[12] Here, the evidence goes beyond A.K.’s merely not consenting to Dill's conduct. While A.K. testified that she had felt “like [she] could stop” Dill, when asked “[w]hat did you think would happen if you tried to make him stop kissing you?”, A.K. testified, “I was – I was trying to push him away.” Tr. Vol. II pp. 77–78. Her statement indicates that Dill had physically overpowered A.K., despite her attempts to push him away, and had continued his conduct. With only her upper body to fend Dill off, A.K.’s stepfather was finally the one who had “stopped it.” Tr. Vol. II p. 70.

[13] Furthermore, A.K. testified that she had not wanted Dill to put his tongue in her mouth, and that she had been “scared.” Tr. Vol. II p. 77. She testified that after her stepfather had come over, she had not been upset. Her stepfather also observed that when he approached Dill kissing A.K., A.K. had appeared scared. Even though A.K. did not specifically testify that she had been fearful prior to the moment that Dill had forced his tongue into her mouth, she had attempted to push him away and testified that she had felt “scared.” Tr. Vol. II pp. 77. It seems exceedingly reasonable under the circumstances that A.K., a shy, eleven-year-old girl paralyzed from the waist down and in a wheelchair, had felt forced to submit to Dill's unwanted kiss, in which he had pushed his tongue into her mouth, especially considering the fact that she had attempted to push him away during his conduct.

[14] Considering only the evidence most favorable to Dill's conviction, we conclude that the evidence is sufficient to support the trial court's conclusion that that A.K. had been compelled to submit to Dill's touching by force or the imminent threat of force. Therefore, the evidence was sufficient to sustain Dill's conviction. Dill's arguments to the contrary effectively amount to an invitation to reweigh the evidence, which we will not do.

[15] We affirm the judgment of the trial court.

FOOTNOTES

1.   Testimony and documents conflict as to whether A.K. was ten or eleven years old at the time of the incident, however, A.K.’s date of birth in the record suggests that she was eleven.

2.   We note that we apply the version of Indiana Code § 35-42-4-8 that was in effect at the time of the offense.

3.   To the extent that Dill relies on Clark v. State, 695 N.E.2d 999 (Ind. Ct. App. 1998), we are further unpersuaded, as Clark is readily distinguishable from this case. In Clark, a panel of this court concluded that although the facts clearly raised questions about the propriety of Clark's behavior, “standing alone, they [did] not constitute substantial evidence of probative value on the element of intent.” Clark, 695 N.E.2d at 1002. Unlike Clark, who had removed all of his six-year-old daughter's clothes except for her shirt, hung her upside down on a nail, and tickled her underarms, 695 N.E.2d at 1002, here, Dill placed his tongue into the mouth of an eleven-year-old girl and “French” kissed her, touching her leg. Tr. Vol. II p. 76. Again, the natural and usual sequence associated with Dill's conduct is sexual arousal, and the trial court reasonably concluded that Dill acted with the intent to arouse or satisfy the sexual desires of himself. Furthermore, to the extent that Dill attempts to argue that A.K. did not identify him in the courtroom, he has not challenged the sufficiency of the State's evidence to prove that he was the person responsible for touching A.K., and he was identified by both of A.K.’s parents as the perpetrator of the conduct.

Bradford, Judge.

Weissmann, J., and DeBoer, J., concur.