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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. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

  2. GMA Ranger, I, too, was warned against posting on how the Ind govt was attempting to destroy me professionally, and visit great costs and even destitution upon my family through their processing. No doubt the discussion in Indy today is likely how to ban me from this site (I expect I soon will be), just as they have banned me from emailing them at the BLE and Office of Bar Admission and ADA coordinator -- or, if that fails, whether they can file a complaint against my Kansas or SCOTUS law license for telling just how they operate and offering all of my files over the past decade to any of good will. The elitist insiders running the Hoosier social control mechanisms realize that knowledge and a unified response will be the end of their unjust reign. They fear exposure and accountability. I was banned for life from the Indiana bar for questioning government processing, that is, for being a whistleblower. Hoosier whistleblowers suffer much. I have no doubt, Gma Ranger, of what you report. They fear us, but realize as long as they keep us in fear of them, they can control us. Kinda like the kids' show Ants. Tyrannical governments the world over are being shaken by empowered citizens. Hoosiers dealing with The Capitol are often dealing with tyranny. Time to rise up: https://www.theguardian.com/technology/2017/jan/17/governments-struggling-to-retain-trust-of-citizens-global-survey-finds Back to the Founders! MAGA!

  3. Science is showing us the root of addiction is the lack of connection (with people). Criminalizing people who are lonely is a gross misinterpretation of what data is revealing and the approach we must take to combat mental health. Harsher crimes from drug dealers? where there is a demand there is a market, so make it legal and encourage these citizens to be functioning members of a society with competitive market opportunities. Legalize are "drugs" and quit wasting tax payer dollars on frivolous incarceration. The system is destroying lives and doing it in the name of privatized profits. To demonize loneliness and destroy lives in the land of opportunity is not freedom.

  4. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

  5. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

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