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.