State v. Jones

804 N.W.2d 409 (2011)

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Nature of the Case

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Facts

E.B. and her friend, Abby, began celebrating Abby's twenty-first birthday together. They started at Bill's Bar in Sioux City. E.B. estimated she consumed eight to ten beers and at least three shots of liquor. At 1:00 a.m., they met Abby's boyfriend, Chance, and his friend, D, at another bar. The group continued to drink before going to Chance's house. Chance lived with Brent. When they arrived at the home, Chance, D, Abby, and E.B. got into a hot tub. E.B. consumed another three or four beers. Chance and Abby eventually left the hot tub to go to bed. D and E.B. also left the hot tub, but sat on barstools in the kitchen and conversed with Brent, who had been awakened from the noise of everyone in the hot tub. Brent later testified to having one beer during the conversation in the kitchen. E.B. had another drink. Brent testified that E.B. 'carried on the conversations and she didn't seem wasted or drunk or anything like that. Around 3:30 a.m., E.B. went to sleep on the couch in the living room. D lay down on the ottoman near the couch where E.B. was sleeping. E.B. asked D if he wanted to share her blanket. D agreed and shortly thereafter, the two had consensual sexual intercourse. Chance and Abby testified that they saw D and E.B. asleep together on the ottoman early the next morning. E.B. testified that although she went to sleep on the couch, she woke up on the floor with D on top of her, orally and digitally penetrating her. After physically resisting and verbally refusing, E.B. succeeded in getting D off of her. Because of the amount of alcohol she drank, E.B. testified she went back to sleep on a nearby chair instead of leaving. E.B. awoke a second time on the couch, with D behind her, with her pants and underwear at her knees and D penetrating her from behind. E.B. testified she yelled at D, pulled her clothes back on, and retreated to the bathroom until D left. E.B. went to the hospital the next day and reported the rape. D's sperm was discovered. D was charged with two counts of third-degree rape and two counts of sexual contact.

D testified in his defense saying, 'I don't know if she was intoxicated that night.' D requested this instruction: Consent is not a defense to the crime of Rape, defined as sexual penetration where the victim is incapable of giving consent because of intoxication, if the victim is unable to exercise reasonable judgment as to the harm involved, and if the Defendant knew that the person was unable to exercise reasonable judgment. The court refused. It did not believe that D’s actual knowledge of the victim’s ability to consent was part of the crime. D was convicted and appealed.