Judges disagree on intent issue in rape trial

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A panel of Indiana Court of Appeals judges disagreed as to whether a defendant in a rape case put his intent at issue during trial by attempting to show his victim consented to sex with him.

In Otho L. Lafayette v. State of Indiana, No. 45A03-0803-CR-118, Otho Lafayette was charged with eight counts, including rape and sexual battery, following an incident with a woman, C.E., who he met at a gas station. They exchanged phone numbers and spoke by phone several times over the course of a month until Lafayette suggested they go to dinner. They met and he took her at gunpoint to an apartment where he raped her.

At trial, the state wanted to have another woman, E.C., testify. Lafayette was convicted of attempting to rape E.C. in 1997. The trial court admitted E.C.'s testimony pursuant to Ind. Evid. Rule 404(b) over Lafayette's objections.

At issue in the appeal is whether E.C.'s testimony should have been allowed. Judges Terry Crone and James Kirsch, who concurred in a separate opinion, found the testimony shouldn't have been admitted to show what Lafayette's intent was with C.E. The state suggested Lafayette put his intent at issue when he gave a statement to police that the sex was consensual and when his counsel explored the issue of C.E.'s credibility during voir dire and opening statements. This meant the state should be able to use the 404(b) evidence to show contrary intent, the state argued.

The majority ruled that a criminal defendant doesn't put his intent at issue at any stage of the proceedings merely by questioning a victim's credibility, wrote Judge Crone. Also by asserting an alleged rape victim consented to sex doesn't present a claim of particular contrary intent for purposes of 404(b). Based on Indiana Supreme Court precedent, the majority held E.C.'s testimony wasn't admissible to prove whether C.E. consented to having sex with Lafayette. They also ruled E.C.'s testimony shouldn't have been allowed under Ind. Evid. Rule 402.

The judges found the admittance of E.C.'s testimony to not be a harmless error and believed it prejudicially impacted the jury and contributed to Lafayette's guilty verdict. The majority remanded for a new trial.

Judge Nancy Vaidik dissented because she believed Lafayette put his intent at issue during trial and the evidence of his previous attempted rape was relevant. Because he admitted he had sex with C.E., the relevant intent in this case is Lafayette's intent to use or threaten force. The Court of Appeals has previously ruled where a defendant in a rape case alleges the sex was consensual, the defendant placed his contrary intent at issue for the purpose of Rule 404(b), wrote Judge Vaidik. Transcripts of the trial show his defense counsel avoided the terms "consent" or "consensual" but still placed Lafayette's contrary intent - the victim's consent - at issue.

Judge Vaidik also wrote Lafayette's previous attempted rape conviction is admissible under Evid. Rule 402 because it revealed a nearly identical scenario in how Lafayette met both women and got them alone to attack them.


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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues