People v. Giardino

Facts

Norliza G. lived with her mother and stepfather, D. Norliza's friend, the victim, was spending the night at Norliza's house. The victim had recently turned 16 years old. The victim consumed a single drink of bourbon over ice that D had poured for her. She described the drink as filling a 12-inch-tall glass 'a little more than halfway.' Norliza testified that the victim had two drinks, the first poured by D and the second poured by the victim herself. Norliza estimated the total amount of bourbon consumed by the victim to be five ounces. She felt 'woozy, very light headed' and slipped and fell while walking in the living room of the D's house. She became 'very giggly,' slurred her speech, could not walk straight, and generally 'wasn't altogether there.' Norliza saw her fall several times. Thomas Lyles testified that the victim appeared to be 'kind of tipsy' and later was clumsy and obviously intoxicated. She was never so intoxicated that she was close to passing out, that she did not know what she was doing, or that she could not physically resist. She then walked into a room where D and Lyles, his friend, were working on a computer. They were playing a pornographic CD depicting men and women engaging in sexual acts. D told the victim, 'I want to see you play with yourself.' Other witnesses testified that, upon seeing the activity depicted on the computer screen, the victim volunteered, 'I can do that,' to which D responded, 'Well, show me.' She pulled down her jeans and panties to below her knees, lay on the floor, and masturbated for three minutes. Norliza helped the victim pull up her clothes. She did not need Norliza's help, but she was 'wobbly.' D invited her either take some pictures of her or show some pictures to her. She went into the master bedroom. D dropped to his knees and touched her breast by pushing his hand under her shirt and bra. She pushed his hands down and told him, 'No, Mark,' because she did not want him to do that. The victim testified d picked her up the victim and set her on the foot of the waterbed. He pulled her pants and underwear down to her ankles, and pushed up her top and bra, exposing her breasts. She tried to sit up, but the alcohol caused her to fall back onto the bed. D then orally copulated her for 10 minutes. He then removed her shoes and pants, as well as his own clothes, and handcuffed her with her hands behind her head. She complained that the cuffs were too tight. D then engaged in sexual intercourse. D got up and put on his clothes when Norliza knocked on the door to the bedroom and said that her mother would be home soon. D and the victim walked out of the bedroom. D denied undressing the victim or himself or engaging in any sexual acts in the bedroom. Lyles and D got the victim out of the house to sober her up. In Lyles's view, she was 'tipsy,' and her level of intoxication was getting progressively worse. D stopped at a Motel 6 and rented a room. She was so intoxicated, Lyles and D were holding her by each arm to assist her up the stairs. She tripped and fell on her knees near the top of the stairs. She walked into the bathroom, disrobed, and started to take a shower. D pulled her out of the shower, and she began to get dressed. She sat on the floor because she was too intoxicated to put on her pants while standing. After she had put on only the shirt, D called to her. She came out of the bathroom, and both men were naked. D testified that as soon as she had disrobed, she came out of the bathroom and climbed onto one of the beds. While engaging in intercourse with Lyles, D told her, 'I want you to suck me.' She then began to orally copulate D. While engaging in intercourse with D, the victim orally copulated Lyles. She testified that she 'was conscious a little bit.' She felt like she 'was just doing what they were saying to do.' D took a bottle of Rush (amyl nitrite inhalant), poured some onto a washcloth, and put it over the victim's face. She tried to hold her breath and push his hands away. Lyles recalled that she also told D to stop applying it to her face. She was able to dress herself. As she was walking out, she still felt wobbly and light-headed, but she walked down the stairs without assistance. According to Norliza, when the victim returned to the house, she had 'sobered up a lot' and 'wasn't drunk anymore.' The victim testified that she did not resist. Lyles testified that she never said she did not want to have sex. She never said 'no,' 'don't,' 'stop,' or anything else indicating that she did not consent. She said that she wanted to engage in sexual relations. According to D, it did not appear that the victim was so drunk that she did not know what she was doing or that 'she was prevented mentally from resisting.' The victim spent that night and the next day with Norliza at D's house. At no time did she display any animosity toward Lyles or D or express any displeasure. D was charged and convicted of rape by intoxication, oral copulation by intoxication, oral copulation with a minor, and unlawful sexual intercourse. D appealed contending the court erred  by refusing to instruct the jury that lack of consent is an element of the charges of rape by intoxication and oral copulation by intoxication, by failing to instruct the jury concerning the meaning of 'prevented from resisting,' and by failing to instruct the jury concerning the effect of an honest and reasonably held but mistaken belief in the victim's ability to give legal consent.

Issues

Rule of Law

Holding and Decision

Legal Analysis

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