ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VICTORIA URSULSKIS STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
CECELIA K. HEMPHILL
Deputy Attorney General
COURT OF APPEALS OF INDIANA
ROYCE GLOVER, )
vs. ) No. 49A02-0106-CR-384
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton Pratt, Judge
Cause No. 49G01-9910-CF-172478
January 9, 2002
OPINION FOR PUBLICATION
Appellant-Defendant Royce Glover (Glover) appeals his conviction of rape, a Class B felony.
Glover presents three issues for review:
Whether the statute criminalizing rape of an unaware person is unconstitutionally vague;
Whether there is sufficient evidence to establish that the victim in this case
was unaware; and
Whether the State exercised peremptory challenges in a manner that violated Glovers right
to equal protection of the law.
Facts and Procedural History
On the evening of October 2, 1999, C.F. and J.B., the victim in
this case, attended a party at the Indianapolis apartment of Nicholas Washington (Washington).
(R. 632-33.) Before arriving at the party, they had been drinking
gin and orange juice. (R. 109.) They continued to drink at
the party. (R. 123.) During the party, J.B. suddenly collapsed in
the kitchen. (R. 124.) Washington carried J.B., with her feet dragging
on the ground, into a bedroom. (R. 127, 245.) She was
mumbling incoherently, with her eyes closed. (R. 128, 191-2.) Soon thereafter,
C.F. collapsed and was carried into the same bedroom. (R. 133.)
Later, Desiree Hixenbaugh (Hixenbaugh) and Jessica Puppe went into the bedroom to check
on their friends. (R. 134.) Neither girl had pants on, and
J.B. was hanging off the side of the bed. (R. 134.)
Washington and Glover were in the room. (R. 135.) Hixenbaugh and
Joe Smith (Smith) decided to take C.F. and J.B. home. C.F. and
J.B. were passed out and were carried to Smiths car. (R. 139,
When Hixenbaugh determined that neither of her friends was responsive, and C.F. was
not breathing, she summoned an ambulance. (R. 147.) C.F., whose blood
alcohol content was .367, never regained consciousness. (R. 330, 385.) J.B.,
whose blood alcohol content was .377, regained consciousness and reported to a nurse
that she had been raped. (R. 331, 348, 352, 377, 395.)
Hixenbaugh reported to a police officer that she believed C.F. had been raped.
During the ensuing investigation, Glover stated that he had consensual sex with J.B.
He and Washington were arrested. Glover was charged with the rape
of J.B. Washington was charged with the rape of C.F. (R.
See footnote At the conclusion of a joint trial, Glover was convicted and
sentenced to ten years imprisonment. He now appeals.
Discussion and Decision
I. Constitutionality of Indiana Code section 35-42-4-1(a)(2)
Prior to trial, Washington
See footnote filed a Motion to Dismiss challenging the constitutionality of
Indiana Code section 35-42-4-1(a)(2), which provides in pertinent part:
[A] person who knowingly or intentionally has sexual intercourse with a member of
the opposite sex when:
the other person is unaware that the sexual intercourse is occurring . .
. commits rape, a Class B felony.
Glover orally joined in the Motion to Dismiss and the stated grounds in
support thereof, specifically, that the statute is impermissibly vague under both the United
States Constitution and the Indiana Constitution because the term unaware is undefined.
After hearing argument on December 11, 2000, the trial court denied the motion
to dismiss. Again at trial, the defendants lodged an unsuccessful motion to
dismiss. Glover now contends that he was entitled to dismissal of the
charge against him because the statute under which he was convicted is constitutionally
When the validity of a statute is challenged, the reviewing court begins with
a presumption of constitutionality.
State v. Lombardo, 738 N.E.2d 653, 655 (Ind.
2000). The burden to rebut this presumption is upon the challenger, and
all reasonable doubts must be resolved in favor of the statutes constitutionality.
Id. A statute will not be found unconstitutionally vague if individuals of
ordinary intelligence would comprehend it adequately to inform them of the proscribed conduct.
Id. at 656. The statute need only inform the individual of
the generally proscribed conduct; it need not list with exactitude each item of
conduct prohibited. Smith v. State, 727 N.E.2d 763, 766 (Ind. Ct. App.
2000). A statute is void for vagueness only if it is vague
as applied to the precise circumstances of the instant case. Id.
Likewise, federal vagueness analysis involves an inquiry into whether the prohibitions are clearly
defined. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct.
2294, 2298 (1972).
Indiana courts have not specifically construed the term unaware in the context of
the Rape statute, Indiana Code section 35-42-4-1(a)(2).
See footnote However, in
Becker v. State,
703 N.E.2d 696 (Ind. Ct. App. 1998), this Court examined the term unaware
within the context of the Criminal Deviate Conduct Statute, Indiana Code section 35-42-4-2(a)(2):
The term unaware has not been defined by the legislature. In such
circumstances, penal statutes are to be strictly construed against the State and should
be held to prohibit only that conduct which is clearly within the spirit
and letter of the statutory language. Marshall v. State, 602 N.E.2d 144,
147 (Ind. Ct. App. 1992), trans. denied. However, criminal statutes are not
to be narrowed to the point that they exclude cases which the language
fairly covers. Barger v. State, 587 N.E.2d 1304, 1306 (Ind. 1992).
Penal statutes should be interpreted in order to give efficient operation to the
expressed intent of the legislature. Id. Words and phrases are taken
in their plain, ordinary, and usual meaning unless a different purpose is manifested
by the statute. JKB, Sr. v. Armour Pharmaceutical Co., 660 N.E.2d 602
(Ind. Ct. App. 1996), trans. denied. Statutes relating to the same general
subject matter are in pari materia and should be construed together so as
to produce a harmonious statutory scheme. Sanders v. State, 466 N.E.2d 424,
428 (Ind. 1984).
Unaware is defined as not aware: lacking knowledge or acquaintance; Unconscious.
Websters Third New International Dictionary 2483 (1986 ed.). We have noted that
a person is unconscious during sleep. See Brooks v. Bloom, 151 Ind.App.
312, 279 N.E.2d 591, 595 (1972).
Moreover, it is the general, if not universal, rule that if a man
has intercourse with a woman while she is asleep, he is guilty of
rape because the act is without her consent.
Id. at 698. We adopt the foregoing definition of the term unaware
in the context of the Rape statute, Indiana Code section 35-42-4-1(a)(2), which, like
the Criminal Deviate Conduct statute, requires that the victim is unaware that the
sexual act is occurring. Moreover, under the circumstances of the instant case,
we hold that the language of the Rape statute may be fairly construed
as adequate to inform an individual of ordinary intelligence that sexual intercourse with
an individual who has lost consciousness due to inebriation is proscribed.II. Sufficiency of the Evidence
Accordingly, the trial court properly denied Glovers Motion to Dismiss.
To convict Glover of a violation of Indiana Code section 35-42-4-1(a)(2) as charged,
the State was required to show that he knowingly or intentionally had intercourse
with J.B. while J.B. was unaware that the intercourse was occurring. Glover
contends that the State presented insufficient evidence that J.B. was unaware that intercourse
was occurring. We disagree.
In reviewing a claim of insufficiency of the evidence, we neither weigh the
evidence nor judge witness credibility. Becker, 703 N.E.2d at 697. Rather,
we examine only the evidence most favorable to the State, along with all
reasonable inferences to be drawn therefrom. Id. If there is substantial
evidence of probative value from which a jury could find guilt beyond a
reasonable doubt, we will affirm. Id.
Glover admitted having sexual intercourse with J.B. (R. 865.) J.B. testified
that she did not agree to have sex with Glover or to have
her clothing removed. (R. 653, 677.) Hixenbaugh testified that J.B. collapsed
in the kitchen and was so intoxicated at the time she was taken
into the bedroom that she could not stand unassisted. (R. 124, 127-28,
133.) She further testified that J.B. was barely mumbling and making no
sense. (R. 127, 139.) She characterized J.B.s condition during the drive
home as passed out. (R. 142.) Dorien Riddick, another party guest,
testified that J.B. passed out before being carried to the bedroom. (R.
189.) He described J.B. as incoherent and mumbling a little. (R.
191-2.) Smith also characterized J.B. as passed out and mumbling. (R.
244-5.) He testified that J.B. was carried, with her feet dragging on
the floor, into the bedroom. Dr. Gerald Braverman testified that he examined
J.B. at the hospital and found her unconscious due to severe intoxication.
(R. 392-3.) J.B. was unresponsive to stimulation, lacking eye movement and spontaneous
movement of her extremities. Her pupils were fixed and dilated. (R.
392.) This testimony is sufficient to permit the jury to infer that
J.B. was unaware that the act of intercourse was occurring.
III. Peremptory Juror Challenges
During jury selection, the State exercised peremptory challenges to remove three African-American
women from the venire; namely, Ms. Parris, Mrs. Adams and Mrs. Bonds.
Ultimately, one African-American woman was selected as a juror. Glover, who is
also African-American, moved the court to require the State to explain the exercise
of challenges and also moved the court to declare a mistrial. The
trial court concluded that the State had advanced race-neutral explanations for the challenges,
and denied Glovers motion for a mistrial. In reliance upon Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), Glover now argues that
the challenges to three African-Americans denied him equal protection of the law.
The exercise of racially discriminatory peremptory challenges is constitutionally impermissible. Wright v.
State, 690 N.E.2d 1098, 1104 (Ind. 1997) (citing Batson v. Kentucky, 476 U.S.
79, 106 S.Ct. 1712 (1986)). To raise a prima facie equal protection
clause claim, a defendant must establish that (1) the juror is a member
of a cognizable racial group; (2) the prosecutor has exercised peremptory challenges to
remove that groups members from the jury; and (3) the facts and circumstances
of this case raise an inference that the exclusion was based on race.
Id. The excluded juror need not be of the same race
as the defendant. Id. Once a defendant makes the requisite prima
facie showing, the burden shifts to the prosecutor to provide a race-neutral explanation
for the peremptory strikes, and the trial court must determine whether the defendant
has carried his burden of proving purposeful discrimination. Id. On appeal,
the trial courts decision on the question of discriminatory intent is accorded great
deference. Id. Unless a discriminatory intent is inherent in the prosecutors
explanation, the reason offered generally will be deemed race-neutral. Id.
Here, although the trial court did not specifically find that Glover had made
the requisite prima facie showing, the court implicitly did so, asking the prosecutor
to state her reasons for the peremptory strikes. The prosecutor responded as
follows. Mrs. Parris had indicated that her experience with alcohol use was
limited to one instance when she was a teenager, and that the alcohol
had made her sick. The prosecutor expressed concern that Mrs. Parris would
be unable to appreciate the mental state of very-intoxicated victims. Mrs. Bonds
had indicated on the juror questionnaire that she had an upcoming doctors appointment,
and that she expected to see if she had cancer. (R. 79.)
Further, Mrs. Bonds indicated that she had a hard time coming up
with a rape scenario that did not involve a gun or a knife.
(R. 79.) Finally, Ms. Adams made a statement that an individual
might be able to give consent to intercourse despite alcohol-induced unconsciousness. The
trial court deemed these explanations race-neutral. We agree that the State provided
logical non-discriminatory reasons for the strikes. The State is not required to
include within the venire jurors who indicate an inability to be fair and
impartial. Moreover, the States responses, as a whole, do not disclose inherent
discriminatory intent. Glover has demonstrated no reversible error in this regard.
The statutory provision under which Glover was charged and convicted is not
void for vagueness. The State presented sufficient evidence to establish that the
victim was unaware that intercourse was taking place. Finally, Glover was not
denied his due process right to a jury of his peers.
SHARPNACK, J., and DARDEN, J., concur.
nd. Code § 35-42-4-1(a)(2).
No criminal charges were filed relative to C.F.s death.
Footnote: Washington and Glover were tried in a joint trial.
Footnote: However, in
Bryant v. State, 644 N.E.2d 859, 860 n.1 (Ind. 1994),
our Supreme Court observed that the victims illness and intoxication could have, alternatively,
caused the Rape charge to be brought under the unaware subsection of the