State v. Lisauain

2015 WL 3538813 (2015)

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Nature of the Case

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Facts

The 14-year-old victim was living with her mother and her siblings. The 46-year-old D, a family friend, had been staying at the home a few nights each week after he had to move out of his cousin's apartment. On October 23, the victim lay down on the couch to watch television. D arrived at the home and went over to the couch. The victim moved her feet so he could sit and then he said she could put her feet back. D asked her if she liked foot rubs and she stated, “Yeah. My nanna gives them to me all the time.” D started rubbing her feet. D then asked if she ever got her toes sucked. She responded, “No.” When D started sucking on her toes, the victim “was in shock.” D told the victim that she was “dangerously beautiful,” to which she did not respond because that scared her. D told her that “he was going to tear [her] up.” She “didn't know exactly what he meant by it.” D moved off the couch and he was “on his knees” below where the victim's head was on the couch. D asked her “if he could go lower.” She didn't answer him because she “couldn't believe what was going on.” D pulled her pants and underwear down and “moved [her] legs … on his shoulders or above his shoulders.” The victim did nothing to help him and did not say anything. D performed cunnilingus and penetrated her vagina with his fingers. He stopped when he got a telephone call and then he left. Two weeks later, she told people that she had been sexually assaulted. D was charged with aggravated felonious assault. D moved to dismiss the aggravated felonious sexual assault charges based upon the alleged insufficiency of the evidence. The trial court denied the motion. D was found guilty and moved for judgment notwithstanding the verdict (JNOV). The trial court denied the motion, finding that “a rational jury could conclude beyond a reasonable doubt that the victim did not consent to D's sexual conduct.” D appealed. D claims the court’s rulings conflict with the plain language of the statute, which specifically requires that lack of consent be indicated by the victim either through words or conduct. The victim never said anything.