State v. Smith

178 P.3d 672 (2008)

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Nature of the Case

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Facts

S.L. met D, her friend of 5 months, to have dinner and 'a couple drinks.' She had no sexual or romantic interest in him and was dating another man. They consumed a large quantity of beer on the way home, S.L. passed out in D's vehicle. D indicated it was not safe for her to drive and offered his bedroom, promising to sleep on the couch. She invited D to sleep on one side of the bed, but she did not intend to have sex with him. S.L. awakened in the night and felt something on her hips but went back to sleep until she awoke. She had nothing on from the waist down. She also discovered what looked to be semen with a black pubic hair on her genital area. She left the house. The next day she was examined and spoke to police about the incident. D was charged with one count of rape proscribing the act of sexual intercourse without consent under circumstances where the victim is incapable of giving a valid consent due to the effect of alcoholic liquor or narcotic drug, which condition is known by D or reasonably apparent. D testified that he went to sleep on the couch and did not remember anything else until he awoke the next morning. D requested an instruction on voluntary intoxication, but the district court refused and instructed the jury that 'voluntary intoxication is not a defense to a charge of rape.' D was found guilty and appealed.