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COA: Date-rape drug made victim 'unaware'

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals today tackled the meaning of "unaware" in the state's statute addressing rape in regards to the victim being under the influence of a known date-rape drug. In Herman Filice v. State of Indiana, No. 49A02-0707-CR-591, Chief Judge John Baker authored the unanimous opinion that required the court for the first time to address the various legal issues surrounding the defendant's sexual contact with a woman who had Rohypnol in her system during the contact. Filice met the victim, K.S., in Indianapolis at a bar. Filice and his roommate, Amie Moorehead, were in a group with an ex-boyfriend of K.S.'s friend. Early in the evening, K.S. was reported as not having any trouble functioning at the time and went to another bar with her friend to have some drinks. The group headed to another bar, which at this time K.S. became unsteady on her feet and sat slumped over on a couch. The bartender asked Filice's group to take K.S. home because she looked in "pretty bad shape" and was disturbing other customers. Moorehead and Filice took K.S. back to their apartment. There, Moorehead asked K.S. if she wanted a ride home but noticed K.S. was not very lucid and had difficulty nodding her head. Moorehead told K.S. she would take her home and went to bathroom. About five minutes later, she saw K.S. and Filice were naked in his bedroom with K.S.'s legs around him. Moorehead noted K.S. had the same kind of slumped posture she exhibited throughout the night. Moorehead went to her room and went to bed. K.S. didn't remember much of the evening, but did remember Filice putting his penis in her mouth and repeatedly attempting to do so. She testified at trial that she felt like she was floating above herself and wanted to say something but didn't have the ability to do what she wanted. The next day, K.S. went to the hospital and she was examined by a forensic nurse examiner Agnes Purdie. Purdie noted K.S. had bruises on her mouth, shoulder, thighs, and a bite mark on the inside of her thigh. K.S. tested positive for having Rohypnol in her system, which would have been present the night she was assaulted. The state charged Filice with six offenses; Filice filed a motion to dismiss a Class B felony attempted rape charge arguing the statute that defines rape is vague and that the meaning of "unaware" differs as to its application. The trial court denied his motion and he was found guilty of the attempted rape charge and Class B felony criminal deviate conduct; he was sentenced to 10 years on each count to be served concurrently. Filice's main argument on appeal is that Indiana Code Section 35-42-4-1(a)(2) is unconstitutionally vague because it doesn't provide fair notice that attempting to have sexual contact with a person who is able to talk, walk, and perform other routine tasks is prohibited because the person is unaware due to effects of a drug that there's no evidence a defendant would know about. But the Indiana Court of Appeals found sufficient evidence that Filice knew K.S. was unaware of the sexual conduct at the time it occurred. Under Indiana Code, a person who knowingly or intentionally has sexual intercourse with a person of the opposite sex when the other person is unaware that the sexual intercourse is occurring commits rape.

The appellate court relied heavily on its 2002 decision in Glover v. State, 760 N.E.2d 1120, 1123 (Ind. Ct. App. 2002). In Glover, the court adopted the dictionary definition of "unaware" and held that a victim must be unaware the sexual act is occurring for the defendant to be guilty of rape, wrote Chief Judge Baker. The use of the word "unaware" as opposed to "unconscious" leads the court to conclude the term includes, but isn't limited to, unconsciousness, he notes. Because a victim must be unaware, and having Rohypnol in one's system can create an outwardly appearance of unawareness, the language of the statute is adequate to inform a person of ordinary intelligence to know sexual intercourse with someone in a drug-induced state of unawareness is prohibited. Filice's argument that no one can conform to the statute because a person considering having sexual contact with someone who at the time appears to be functioning adequately, but later is unable to remember doing so, could be found guilty of rape. The chief judge notes Filice's argument could be compelling if not for the fact that K.S. wasn't in a condition where she was functioning normally and she was unaware of the act occurring. Filice was there when K.S. had to be removed from the bar, and he took her home in that state. She was in the same state while the two had sexual contact. The state presented sufficient evidence to show K.S. was unaware at the time of sexual contact through Moorehead's testimony and the testimony of a doctor that said someone under the influence of the drug can go in and out of consciousness and would be under the influence of the drug regardless of how you appear. The Court of Appeals affirmed the admittance of K.S.'s drug test as evidence to show she had the drug in her system at the time of the attempted rape and that the state presented sufficient evidence to sustain his conviction for criminal deviate conduct. Regarding the trial court's refusal to tender his proposed jury instruction, Chief Judge Baker wrote that based on the evidence, even if the trial court had given Filice's proposed instruction to the jury, "it would have concluded that there was a high probability that Filice knew that K.S. was unaware while he attempted to have sexual intercourse with her. Therefore, the jury still would have rendered a guilty verdict on the attempted rape charge and Filice has not been prejudiced by any error." However, the appellate court did vacate his sentence and remanded the trial court to shorten it to eight years served concurrently based on the fact that Filice had been a law-abiding citizen up until he committed these crimes, wrote Chief Judge Baker.
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  1. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  3. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  4. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  5. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

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