Ronald G. Becker v. State

FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

JAMES F. STANTON    JEFFREY A. MODISETT
Crown Point, Indiana    Attorney General of Indiana

             RANDI E. FROUG
            Deputy Attorney General
            Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

RONALD G. BECKER, ) ) Appellant-Defendant, ) ) vs. ) No. 45A03-9804-CR-178 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable James L. Clement, Judge
Cause No. 45G04-9702-CF-37

December 28, 1998

OPINION - FOR PUBLICATION

BAILEY, Judge Case Summary
    Appellant-Defendant Ronald G. Becker ("Becker") appeals his conviction after a jury trial of Criminal Deviate Conduct, a class B felony.See footnote 1 We affirm.
Issue
    The sole issue raised on appeal may be restated as whether the evidence was sufficient to demonstrate that the victim was unaware that the act of deviate sexual conduct was occurring as required to sustain a conviction under Ind. Code § 35-42-4-2(a)(2).
Facts
    The evidence most favorable to the verdict reveals that Becker admitted to police that he had placed his finger in the victim's vagina while she was asleep. (R. 168-69). The victim testified that on several occasions, she awoke to find that Becker was molesting her. (R. 71-75).
Discussion and Decision
    Becker argues that the evidence is insufficient to sustain his conviction because the victim testified that she awoke during the molestations and, thus, that she was aware that they were occurring.
Standard of Review
     The standard for reviewing the sufficiency of evidence is well-settled. We neither weigh the evidence nor judge witness credibility. Roach v. State, 695 N.E.2d 934, 941 (Ind. 1998). 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, then we will affirm. Id. The uncorroborated testimony of a victim is sufficient to sustain a conviction. Robertson v. State, 538 N.E.2d 241, 242 (Ind. 1989).
    This is the first Indiana case to examine the term "unaware" under this subsection of the Criminal Deviate Conduct statute, Ind. Code § 35-42-4-2(a)(2). Similarly, no Indiana case has been decided under the analogous provision of the Rape statute, Ind. Code § 35-42- 4-1(a)(2), which requires proof that the victim "is unaware that the sexual intercourse is occurring."See footnote 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 1303, 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." Webster's 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. See 65 Am Jur 2d § 8 at 766 (1972); 75 C.J.S. Rape § 14 A. at 480 (1952); Commonwealth of Pennsylvania v. Price, 40 Pa.Super 256, 616 A.2d 681, 683-84 (1992) (sleep constitutes unconsciousness under statute which includes the definition of rape to include intercourse with a victim who is unconscious); Ex parte Childers, 310 P.2d 776, 777 (Okla. Crim. App. 1957) (the general, if not universal, rule is that sleep vitiates consent); State v. Stroud, 362 Mo. 124, 240 S.W.2d 111, 112-13 (1951); State v. Welch, 191 Mo. 179, 89 S.W. 945 (1905).     Under the circumstances of the present case, the jury could reasonably infer that the victim was unaware that the act of deviate sexual conduct was occurring while she was asleep. Becker's argument that the victim was aware of the conduct once she awoke lacks merit because the crime had been completed at that point. Therefore, the evidence was sufficient to support Becker's conviction.
Affirmed.
NAJAM, J., and SHARPNACK, C.J., concur.

Footnote:     1 Ind. Code § 35-42-4-2(a)(2).Footnote:     2 However, in Bryant v. State, 644 N.E.2d 859, 860 n.1 (Ind. 1994), our supreme court noted that, due to the victim's illness and intoxication, the defendant could have been charged with Rape under the "unaware" subsection, now Ind. Code § 35-42-4-1(a)(2).