Glover v. State
| Citation | 760 N.E.2d 1120 |
| Decision Date | 09 January 2002 |
| Docket Number | No. 49A02-0106-CR-384.,49A02-0106-CR-384. |
| Parties | Royce GLOVER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Court of Appeals of Indiana |
Victoria Ursulskis, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Cecelia K. Hemphill, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellants-Defendant Royce Glover ("Glover") appeals his conviction of rape, a Class B felony.1 We affirm.
Glover presents three issues for review:
I. Whether the statute criminalizing rape of an "unaware" person is unconstitutionally vague;
II. Whether there is sufficient evidence to establish that the victim in this case was "unaware"; and
III. Whether the State exercised peremptory challenges in a manner that violated Glover's right to equal protection of the law.
On the evening of October 2, 1999, C.F. and J.B., the victim in this case, attended a party at the Indianapolis apartment of Nicholas Washington ("Washington"). (R. 632-33.) Before arriving at the party, they had been drinking gin and orange juice. (R. 109.) They continued to drink at the party. (R. 123.) During the party, J.B. suddenly collapsed in the kitchen. (R. 124.) Washington carried J.B., with her feet dragging on the ground, into a bedroom. (R. 127, 245.) She was mumbling incoherently, with her eyes closed. (R. 128, 191-2.) Soon thereafter, C.F. collapsed and was carried into the same bedroom. (R. 133.)
Later, Desiree Hixenbaugh ("Hixenbaugh") and Jessica Puppe went into the bedroom to check on their friends. (R 134.) Neither girl had pants on, and J.B. was "hanging off the side of the bed." (R. 134.) Washington and Glover were in the room. (R. 135.) Hixenbaugh and Joe Smith ("Smith") decided to take C.F. and J.B. home. C.F. and J.B. were "passed out" and were carried to Smith's car. (R. 139, 142.)
When Hixenbaugh determined that neither of her friends was responsive, and C.F. was not breathing, she summoned an ambulance. (R. 147.) C.F., whose blood alcohol content was .367, never regained consciousness. (R. 330, 385.) J.B., whose blood alcohol content was .377, regained consciousness and reported to a nurse that she had been raped. (R. 331, 348, 352, 377, 395.) Hixenbaugh reported to a police officer that she believed C.F. had been raped.
During the ensuing investigation, Glover stated that he had consensual sex with J.B. He and Washington were arrested. Glover was charged with the rape of J.B. Washington was charged with the rape of C.F. (R. 31-2.)2 At the conclusion of a joint trial, Glover was convicted and sentenced to ten years imprisonment. He now appeals.
Prior to trial, Washington3 filed a Motion to Dismiss challenging the constitutionality of Indiana Code section 35-42-4-1(a)(2), which provides in pertinent part:
[A] person who knowingly or intentionally has sexual intercourse with a member of the opposite sex when:
(2) the other person is unaware that the sexual intercourse is occurring ... commits rape, a Class B felony.
Glover orally joined in the Motion to Dismiss and the stated grounds in support thereof, specifically, that the statute is impermissibly vague under both the United States Constitution and the Indiana Constitution because the term "unaware" is undefined. After hearing argument on December 11, 2000, the trial court denied the motion to dismiss. Again at trial, the defendants lodged an unsuccessful motion to dismiss. Glover now contends that he was entitled to dismissal of the charge against him because the statute under which he was convicted is constitutionally infirm.
When the validity of a statute is challenged, the reviewing court begins with a presumption of constitutionality. State v. Lombardo, 738 N.E.2d 653, 655 (Ind.2000). The burden to rebut this presumption is upon the challenger, and all reasonable doubts must be resolved in favor of the statute's constitutionality. Id. A statute will not be found unconstitutionally vague if individuals of ordinary intelligence would comprehend it adequately to inform them of the proscribed conduct. Id. at 656. The statute need only inform the individual of the generally proscribed conduct; it need not list with exactitude each item of conduct prohibited. Smith v. State, 727 N.E.2d 763, 766 (Ind.Ct.App. 2000). A statute is void for vagueness only if it is vague as applied to the precise circumstances of the instant case. Id. Likewise, federal vagueness analysis involves an inquiry into whether the prohibitions are clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972).
Indiana courts have not specifically construed the term "unaware" in the context of the Rape statute, Indiana Code section 35-42-4-1(a)(2).4 However, in Becker v. State, 703 N.E.2d 696 (Ind.Ct. App.1998), this Court examined the term "unaware" within the context of the Criminal Deviate Conduct Statute, Indiana Code section 35-42-4-2(a)(2):
.
Moreover, it is the general, if not universal, rule that if a man has intercourse with a woman while she is asleep, he is guilty of rape because the act is without her consent.
Id. at 698. We adopt the foregoing definition of the term "unaware" in the context of the Rape statute, Indiana Code section 35-42-4-1(a)(2), which, like the Criminal Deviate Conduct statute, requires that the victim is "unaware" that the sexual act is occurring. Moreover, under the circumstances of the instant case, we hold that the language of the Rape statute may be fairly construed as adequate to inform an individual of ordinary intelligence that sexual intercourse with an individual who has lost consciousness due to inebriation is proscribed.
Accordingly, the trial court properly denied Glover's Motion to Dismiss.
To convict Glover of a violation of Indiana Code section 35-42-4-1(a)(2) as charged, the State was required to show that he knowingly or intentionally had intercourse with J.B. while J.B. was unaware that the intercourse was occurring. Glover contends that the State presented insufficient evidence that J.B. was "unaware" that intercourse was occurring. We disagree.
In reviewing a claim of insufficiency of the evidence, we neither weigh the evidence nor judge witness credibility. Becker, 703 N.E.2d at 697. Rather, we examine only the evidence most favorable to the State, along with all reasonable inferences to be drawn therefrom. Id. If there is substantial evidence of probative value from which a jury could find guilt beyond a reasonable doubt, we will affirm. Id.
Glover admitted having sexual intercourse with J.B. (R. 865.) J.B. testified that she did not agree to have sex with Glover or to have her clothing removed. (R. 653, 677.) Hixenbaugh testified that J.B. "collapsed" in the kitchen and was so intoxicated at the time she was taken into the bedroom that she could not stand unassisted. (R. 124, 127-28, 133.) She further testified that J.B. was barely mumbling and "making no sense." (R. 127, 139.) She characterized J.B.'s condition during the drive home as "passed out." (R. 142.) Dorien Riddick, another party guest, testified that J.B. "passed out" before being carried to the bedroom. (R. 189.) He described J.B. as incoherent and "mumbling a little." (R. 191-2.) Smith also characterized J.B. as "passed out" and "mumbling." (R. 244-5.) He testified that J.B. was carried, with her feet dragging on the floor, into the bedroom. Dr. Gerald Braverman testified that he examined J.B. at the hospital and found her unconscious due to severe intoxication. (R. 392-3.) J.B. was unresponsive to stimulation, lacking eye movement and spontaneous movement of her extremities. Her pupils were fixed and dilated. (R. 392.) This testimony is sufficient to permit the jury to infer that J.B. was unaware that the act of intercourse was occurring.
During jury selection, the State exercised peremptory challenges to remove three African-American women from the venire; namely, Ms. Parris, Mrs. Adams and Mrs. Bonds. Ultimately, one African-American woman was selected as a juror. Glover, who is also African-American, moved the court to require the State to explain the exercise of challenges and also moved the court to declare a mistrial. The trial court concluded that the State had advanced race-neutral explanations for the challenges, and denied Glover's motion for a mistrial. In reliance upon Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, ...
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