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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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