State v. Koperski

578 N.W.2d 837 (1998)

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Nature of the Case

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Facts

K.O. and Marti intended to spend that evening drinking and dancing at a popular Lincoln nightclub with Marti's friend, Tanja D. Marti was a close friend of D. Marti knew that Friday was D's birthday and that he was having a party at the house he shared with three other young men. The three young women briefly stopped by D's party, where Marti first introduced K.O. to Koperski. Marti and K.O. had intended to spend the night at Tanja's apartment. However, during the course of the evening, the women separated when Tanja left with her boyfriend. When Marti and K.O. arrived at Tanja's apartment around 2 a.m., Tanja was not home. Marti called D and asked if they could spend the night at his house. He agreed. There was an 'after-hours' party going on at D's when the women arrived. Both young women joined the party. K.O. felt ill and lay down on the couch in the living room, covered herself with a comforter, and fell asleep. Both K.O. and D were under the influence of alcohol, but not so intoxicated that either was obviously impaired. It is also uncontroverted that during the course of the evening, D had not made any sort of sexually suggestive remark directed at K.O. and that K.O. had not shown any sort of romantic interest in D. D checked on K.O. one last time. D woke her up, leaned over the back of the couch, and kissed her. K.O. stated that she kissed him back and that these kisses were French kisses. K.O. testified that as they kissed, D jumped over the back of the couch and landed on top of her. Once on top, he began aggressively grinding his hips against her hips, simulating sexual intercourse. K.O. said that at this point, she stopped kissing D, repeatedly told him no, and attempted to push him away. D got up onto his knees and, in one motion, pulled down her pants and underwear causing her pants to rip and two buttons to pop off. K.O. further testified that she tried to pull her pants back up but that D pulled them back down again. K.O. said that she was unable to get up off the couch at this time because D was kneeling on her pants which were around her calves. K.O. testified that D, with his penis now exposed and erect, lay back down on top of her. With D back on top of her, K.O. said that she again told D to stop. K.O. testified that for the next 20 minutes or so, D lay on top of her begging for sex and that she never consented to sexual penetration. K.O. testified that D penetrated her anyway and that she began crying. At this point, D stopped, got up, and, according to K.O., said, 'I'm sorry, I don't know what came over me.' D said that K.O. sat up, took hold of his shirt, and pulled him forward, at which time they began to kiss very passionately. D said that he climbed over the back of the couch and lay on top of K.O. They both removed the comforter that was between them and that he thought K.O. was attempting to pull down his pants. D then got to his knees, pulled down K.O.'s pants, and then stood up and removed his pants and shoes. D said that when he stood up, K.O. made no attempt to get up or leave. D lay back down on K.O. When he attempted to penetrate her, D testified that K.O. muttered 'no' one or two times. D asked K.O. if she was just teasing him. K.O. did not immediately answer. D then attempted to penetrate her again. K.O. uttered 'no' four or five times in a somewhat louder, crescendo-like fashion. D stopped, told K.O. he was sorry and retrieved a glass of water for her. D specifically denied begging for sex for 20 minutes or saying anything like 'I don't know what came over me.' The entire episode, from the time they began kissing until he stopped after K.O. repeatedly told him 'no,' lasted 5 to 7 minutes. D also testified that at the time, he did not believe he had sexually penetrated K.O., but that it was possible that he had. D said he knew that K.O. was upset and attempted to talk to her, but K.O. was not responsive. D retired to his bedroom. K.O. told Marti what had happened. K.O. said Marti was unsympathetic. K.O. and Marti left D's house and spent much of the rest of the day in Lincoln with Tanja. Tanja testified that K.O. was in good spirits, laughing and joking much of the time. After returning to Omaha and talking to her estranged husband, her roommate, and her best friend, K.O. presented herself to St. Joseph's Hospital and reported that she had been raped. D cooperated with the police, providing a taped statement shortly after being informed of K.O.'s charge and allowing the police access to search his house while he went to work. D then arranged to take the rest of the day off work so that he could cooperate further in the investigation. D's counsel asked the trial court to instruct the jury with respect to the issue of consent. The trial court refused. D appealed the judgment of conviction to the Court of Appeals, assigning as error the failure of the trial court to give his proffered jury instructions concerning the issue of consent. The Court of Appeals affirmed the district court's judgment. D appealed.