FOR PUBLICATION


ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

DEBORAH MARKISOHN                               GREGORY F. ZOELLER
Marion County Public Defender Agency            Attorney General of Indiana
Indianapolis, Indiana
                                                NICOLE M. SCHUSTER
                                                Deputy Attorney General
                                                Indianapolis, Indiana

                                                                              FILED
                                                                         Jun 08 2012, 9:26 am

                             IN THE
                                                                                 CLERK
                   COURT OF APPEALS OF INDIANA                                 of the supreme court,
                                                                               court of appeals and
                                                                                      tax court




BETWEL BIRARI,                                  )
                                                )
      Appellant-Defendant.                      )
                                                )
             vs.                                )     No. 49A02-1111-CR-1009
                                                )
STATE OF INDIANA,                               )
                                                )
      Appellee-Plaintiff.                       )


                   APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Kurt Eisgruber, Judge
                       The Honorable Steven Rubick, Magistrate
                          Cause No. 49G01-1107-FB-52231



                                       June 8, 2012


                             OPINION - FOR PUBLICATION


BROWN, Judge
       Betwel Birari appeals his conviction for attempted rape as a class B felony. Birari

raises two issues which we revise and restate as:

       I.     Whether the evidence is sufficient to sustain his conviction; and

       II.    Whether the prosecutor committed prosecutorial misconduct that
              resulted in fundamental error.

We affirm.

       The relevant facts follow. Birari and A.J. both worked at a nursing home as

certified nursing assistants and became friends. Birari told A.J. that he wanted to take

their friendship to the “next level,” and A.J. indicated that she just wanted to remain

friends. Transcript at 30. At one point, Birari sent A.J. a text message that stated: “I pray

that we get married one day.” Id. at 42. Later, he sent A.J. a text message that stated:

“To be honest with you, I like you much but you treat me like trash. Am sorry . . . .” Id.

A.J. responded with a message that stated: “Well, I’m sorry you feel that way. I think

you are immature. I told you from the beginning I only wanted to be friends. I do not

have strong feelings for you and you can’t understand that.” Id. at 43.

       On July 22, 2011, A.J. finished her shift at work at 11:00 p.m. and went to her

mother’s house with Birari. A.J. and Birari then went to pick up A.J.’s two-year-old

cousin. The three then went to A.J.’s apartment which she shared with a roommate. A.J.

had not discussed the possibility of taking her relationship with Birari to another level nor

touched Birari in a romantic way during the evening.

       It became late, and A.J. told Birari that he could stay over and that she would take

him home in the morning. The apartment was not fully furnished and A.J. decided that

Birari would sleep at the foot of the bed, A.J. would sleep in the middle, and her two-
                                           2
year-old cousin would sleep at the top of the bed. A.J. was wearing sweatpants and a

tank top when she went to bed, and Birari was wearing sweatpants and a shirt.

       Sometime after 4:00 a.m., A.J. went to sleep and later woke up and found Birari,

who was wearing only boxer shorts, on top of her and “felt his penis near [her] vagina.”

Id. at 58-59. Specifically, A.J. felt his penis touching her bare skin and that “it seemed

like he was trying to find” her vagina, but his penis did not enter her vagina. Id. at 83.

A.J. realized that she was no longer wearing her sweatpants. A.J. asked Birari what he

was doing and Birari attempted to put his arms around her and said, “[A.J.], no, no.” Id.

at 60. A.J. “got [Birari] off immediately,” turned on the light, put her pants on, and

started swinging her fists at him. Id. at 61. Birari said, “Just let me go, please. Just let

me go.” Id. at 63. A.J. screamed for help from her roommate who responded and

“started swinging on [Birari] as well.” Id. at 64. A.J. and her roommate were able to

remove Birari from the apartment despite his attempts to resist.

       Once outside of the apartment, Birari, wearing only his boxer shorts, pushed back

against the door. A.J. and her roommate were unable to close the door, and A.J. retrieved

a knife to “try to get [Birari] away from the door.” Id. at 66. A.J. chased Birari out of the

building with the knife and she returned to the apartment. A.J.’s roommate called the

police while A.J. was hyperventilating, and Birari yelled, “Please, don’t call the police.

Just kill me.” Id. at 96. The police arrived and arrested him.

       On July 26, 2011, the State charged Birari with two counts of attempted rape as

class B felonies. The State later filed a motion to dismiss the first count, and the court

granted the motion. Specifically, the State charged Birari with attempting to:

                                             3
       knowingly have sexual intercourse with [A.J.], a member of the opposite
       sex, when [A.J.] was unaware that the sexual intercourse was occurring, by
       engaging in conduct that constituted a substantial step toward the
       commission of the crime of Rape, that is, [Birari], after removing [A.J.’s]
       pants, got on top of [A.J.] and rubbed his erect penis on [A.J.’s] bare vagina
       ....

Appellant’s Appendix at 40.

       During the trial, A.J. and her roommate testified to the foregoing facts. A.J.

testified that she felt Birari’s penis near her vagina, that she felt his penis touching her

bare skin and that “it seemed like he was trying to find” her vagina. Transcript at 83.

During cross-examination, A.J. testified that Birari’s penis had not touched her vagina at

the point that she started striking him. The following exchange then occurred during

redirect examination of A.J.:

       Q      [A.J.], I was hoping to avoid this. It will be awkward for everyone,
              but I think we need to talk about the female sex organ. I’m going to
              use a Kleenex box, if I might. The female sex organ: the labia
              majora, the labia minora, and the inner vagina. Please point – tell
              the jury where Mr. Birari’s penis was touching you on July 23, 2011,
              when you woke up?

       A      Around this area, on the side.

       Q      Okay.

       THE COURT:           Are you marking the Kleenex box, [prosecutor]?

       [Prosecutor]:        On the Kleenex box she is talking about the inner
                            portion of the labia majora.

       Q      And when you’re talking about the vagina, are [you] talking in
              medical terms or are you talking about the inside of the vagina as
              you see it?

       A      I’m talking about the inside.


                                               4
       Q        But as far as your genitals, Mr. Birari’s penis was touching them but
                not inside; is that right?

       A        Correct.

Id. at 81-82.

       After the State rested, Birari moved for a directed verdict.        Birari’s counsel

argued:

       They have to specifically prove that he rubbed his erect penis on her bare
       vagina, and there’s been no proof of that. “Vagina” is defined as: “A canal
       in a female mammal that leads from the uterus to the external orifice of the
       genital canal.” There hasn’t been any testimony of that. If you want to
       increase what the vagina definition means, no jury could reasonably find
       him guilty of that with the conflicting statements with her telling the officer
       that it didn’t touch her labia or her vagina and her statements in court today
       ....

Id. at 144. The court denied Birari’s motion and stated:

       [T]he evidence before the jury is that [A.J.] awakened while Betwel Birari
       was on top of her with his penis near her genitals. [The prosecutor], using a
       Kleenex box in unfortunate ways, demonstrated to the jury where the
       touching allegedly occurred. There is now substantial evidence before the
       jury as to the female anatomy. The jury can draw its own conclusions on
       the touching that has been alleged and determine whether that is sufficient
       to sustain a conviction. I am not going to invade the province of the jury
       and make the ultimate conclusion.

Id. at 144-145.

       During closing argument, Birari’s counsel argued that there was no evidence that

Birari touched A.J.’s vagina and that the word vagina is defined as “[t]he canal of a

female mammal that leads from the uterus to the external orifice of the genital canal.” Id.

at 164. During rebuttal, the prosecutor argued that Birari “pulled his clothes off, pulled

her pants off, took his bare penis and put it on her, whether it’s her vagina or her vulva or

her labia minora, majora.” Id. at 173. The prosecutor stated that A.J. was telling the
                                         5
truth and “the only bright spot I can see, that [A.J.’s two-year-old cousin] didn’t have to

experience what he wanted her to. Whether or not he wanted her to watch, I don’t know .

. . .” Id. at 159. The jury found Birari guilty as charged. The court sentenced Birari to

eight years in the Department of Correction.

                                               I.

       The first issue is whether the evidence is sufficient to sustain Birari’s conviction

for attempted rape as a class B felony. When reviewing claims of insufficiency of the

evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v.

State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the evidence

and the reasonable inferences therefrom that support the verdict. Id. We will affirm the

conviction if there exists evidence of probative value from which a reasonable trier of

fact could find the defendant guilty beyond a reasonable doubt. Id. The uncorroborated

testimony of one witness, even if it is the victim, is sufficient to sustain a conviction.

Ferrell v. State, 565 N.E.2d 1070, 1072-1073 (Ind. 1991).

       The offense of rape is governed in this circumstance by Ind. Code § 35-42-4-1(2),

which provides that “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.” An attempt is defined by

Ind. Code § 35-41-5-1, which states in part that “[a] person attempts to commit a crime

when, acting with the culpability required for commission of the crime, he engages in

conduct that constitutes a substantial step toward commission of the crime. An attempt to

commit a crime is a felony or misdemeanor of the same class as the crime attempted.” A

                                               6
“substantial step” toward the commission of a crime, for purposes of the crime of

attempt, is any overt act beyond mere preparation and in furtherance of intent to commit

an offense. Hughes v. State, 600 N.E.2d 130, 131 (Ind. Ct. App. 1992). Whether a

defendant has taken a substantial step toward the commission of the crime, so as to be

guilty of attempt to commit that crime, is a question of fact to be decided by the trier of

fact based on the particular circumstances of the case. Id. “[W]hen determining whether

the defendant has taken a substantial step toward a crime, the focus is on what has been

completed, not on what remains to be done.” Hughes v. State, 600 N.E.2d 130, 132 (Ind.

Ct. App. 1992). Thus, to convict Birari of attempted rape as a class B felony, the State

needed to prove that Birari: (1) knowingly or intentionally; (2) took a substantial step; (3)

toward having sexual intercourse; (4) with A.J. when she was unaware that the sexual

intercourse was occurring.

        Birari argues that the evidence is insufficient because: (A) there was a failure to

prove the substantial step alleged in the charging information; (B) he did not have the

intent to rape A.J.; and (C) A.J. was not unaware of the situation.

A.      Variance Between Charging Information & Proof at Trial

        Birari argues that the charging information alleged that he rubbed his erect penis

on A.J.’s bare vagina and that his conviction must be reversed because the State failed to

prove the substantial step it specifically alleged in the charging information. 1 The State



        1
           Birari also argues that the State never established that his penis was erect as alleged in the
charging information. However, the record reveals that Indianapolis Police Detective Jeremy Warman
testified that A.J. told him that she “was awakened by Mr. Birari on top of her attempting to insert his
erect penis in her vagina.” Transcript at 137.

                                                   7
contends that Birari was not misled by the variance in the evidence from the allegations

and specifications in the charge in either the preparation or maintenance of his defense.

The State argues that the variance between the allegation that Birari rubbed his erect

penis on A.J.’s vagina as a substantial step in an attempted rape and the proof that

Birari’s penis touched the inner labia majora of A.J.’s genitalia was not fatal. In his reply

brief, Birari argues that the State incorrectly attempts to couch his argument as

complaining of an immaterial variance between the charging information and the

evidence presented.2

         Birari essentially argues that there is a material variance between the charging

information and the evidence produced at trial which resulted in insufficient evidence to

convict him as charged. See Rupert v. State, 717 N.E.2d 1209, 1211-1212 (Ind. Ct. App.

1999) (addressing the defendant’s argument of whether a variance between the

information and the evidence was fatal in the context of the issue of whether the evidence

was insufficient to support the defendant’s conviction). Thus, we will address Birari’s

argument as one of an alleged variance between the charging information and the proof at

trial.

         An information must be “a plain, concise, and definite written statement of the

essential facts constituting the offense charged,” Ind. Code § 35-34-1-2(d), and “must be

sufficiently specific to apprise the defendant of the crime for which he is charged and to


         2
          Birari cites portions of Chief Justice Emmert’s opinion in Madison v. State, 234 Ind. 517, 130
N.E.2d 35 (1955), in his briefs in support of his argument. In Madison, Chief Justice Emmert concluded
that a jury instruction was fatally defective and that there was a fatal variance amounting to a failure of
proof between the averments of the charging affidavit and the evidence produced at trial. 234 Ind. at 526,
540, 130 N.E.2d at 39, 45. However, the four remaining Justices concurred in the reversal for the giving
of the jury instruction, but disagreed with the reasoning on the variance. Id. at 541, 130 N.E.2d at 46.
                                                    8
enable him to prepare a defense.” Bonner v. State, 789 N.E.2d 491, 493 (Ind. Ct. App.

2003) (quoting Jones v. State, 467 N.E.2d 1236, 1241 (Ind. Ct. App. 1984)). “A criminal

defendant has the right to be advised of the nature and cause of the accusation against

him. There must be consistency between the allegations charged and the proof adduced .

. . .” Simmons v. State, 585 N.E.2d 1341, 1344 (Ind. Ct. App. 1992) (citation omitted).

A variance is an essential difference between proof and pleading. Allen v. State, 720

N.E.2d 707, 713 (Ind. 1999). Not all variances are material or fatal, however. Id. The

test to determine whether a variance between the proof at trial and a charging information

or indictment is fatal is as follows:

       (1) was the defendant misled by the variance in the evidence from the
       allegations and specifications in the charge in the preparation and
       maintenance of his defense, and was he harmed or prejudiced thereby;

       (2) will the defendant be protected in the future criminal proceeding
       covering the same event, facts, and evidence against double jeopardy?

Mitchem v. State, 685 N.E.2d 671, 677 (Ind. 1997) (quoting Harrison v. State, 507

N.E.2d 565, 566 (Ind. 1987)).3 In other words, to award relief on the basis of a variance

between allegations in the charge and the evidence at trial, the variance must be such as

to either have misled the defendant in the preparation and maintenance of his defense
       3
           The Court in Mitchem noted:

       Applying this test is essential because it addresses two constitutional guaranties of the
       accused in criminal prosecutions. Part one of the test meets the requirements under Art.
       1, § 13 of the Indiana Constitution which entitles defendant “to demand the nature and
       cause of the accusation against him, and to have a copy thereof.” The second part of the
       test for variance meets the requirements of Art. 1, § 14 of the Indiana Constitution which
       provides that “no person shall be put in jeopardy twice for the same offense.” See
       Madison, 234 Ind. at 545-46, 130 N.E.2d at 48 (concurring opinion of Arterburn, J., in
       which three other justices concurred).

685 N.E.2d at 677 n.8.

                                                   9
with resulting harm or prejudice or leave the defendant vulnerable to double jeopardy in a

future criminal proceeding covering the same event, facts, and evidence. Winn v. State,

748 N.E.2d 352, 356 (Ind. 2001).

       We find Rupert v. State, 717 N.E.2d 1209 (Ind. Ct. App. 1999), instructive. In

Rupert, the State charged the defendant with committing child molesting by forcing a

one-year-old child to submit to an act of “deviate sexual conduct, to-wit: fellatio.” 717

N.E.2d at 1211. On appeal, the defendant argued that the State was constrained by the

charging information to prove that he performed fellatio on the child to obtain a

conviction, and that sucking and nibbling on the child’s scrotum did not constitute

fellatio. Id. The court held that “[a]ssuming without deciding that Rupert’s actions did

not constitute fellatio, we conclude that the variance between the charging information

and the evidence presented at trial is not material.” Id. The court observed that the

defendant’s defense was not prejudiced by the charging information as the defendant was

well aware of the allegedly criminal conduct of which he was accused. Id. at 1212. The

court also held that it did not view double jeopardy as an issue. Id. The court concluded

that “the variance between the specific act of criminal deviate conduct charged, fellatio,

and the act upon which the conviction rests, sucking the scrotum, was not material” and

that there was sufficient evidence to sustain the defendant’s conviction. Id.

       Here, Birari was well aware of the alleged criminal conduct of which he was

accused. Indeed, Birari states in his reply brief that he “does not complain of a lack of

notice, nor does he complain that the allegations mislead him in his defense.”

Appellant’s Reply Brief at 4. With respect to the second prong, Birari states: “Neither

                                            10
does [he] complain that he would be subject to future criminal prosecutions based upon

this same incident.” Id. Under the circumstances, we conclude that any variance was not

material.

B.      Intent

        Birari argues that his conduct does not demonstrate any intent to rape A.J. nor

were his actions strongly corroborative of criminal culpability. Birari contends that his

conduct showed that he liked A.J., hoped to have sex with her, and tried to initiate a

consensual encounter.4 The State argues that “the fact that A.J. woke up and thwarted

[Birari’s] plan to rape her while she was sleeping is the reason that this is an attempted

crime, not a completed one.” Appellee’s Brief at 7.

        With respect to Birari’s argument that he lacked the intent to commit rape, we

observe that “a person’s intent may be determined from their conduct and the natural

consequences thereof and that the intent may be inferred from circumstantial evidence.”

Coleman v. State, 546 N.E.2d 827, 831 (Ind. 1989), reh’g denied. “It is not required that

a defendant make a direct statement of intent to rape nor is it necessary that clothing be

removed in order to express such intent.” Id. The record reveals that A.J. repeatedly told

Birari that she merely wanted to remain friends. While A.J. was asleep in bed with her

two-year-old cousin, Birari removed his clothes, removed A.J.’s sweatpants, and placed

his erect penis near A.J.’s vagina. After A.J. and her roommate were able to remove

Birari from their apartment, Birari yelled, “Please, don’t call the police. Just kill me.”

        4
           Birari also argues that “[p]erhaps due to cultural differences, [he] misunderstood A.J.’s
invitation and thought inviting him to sleep in her bed demonstrated a romantic interest in him.”
Appellant’s Brief at 11-12. Birari does not cite to the record for this proposition and our review of the
record does not reveal support for this statement.
                                                   11
Transcript at 96. We conclude that the State presented evidence of probative value from

which a reasonable jury could have found that Birari acted with the requisite intent.

C.     Whether A.J. was Unaware

       Birari contends that A.J. awoke and rejected his advances indicating that she was

very much aware of the situation. To the extent that Birari argues that the statute

governing rape “was not enacted to protect a woman who was both aware of her situation

and capable of refusing consent” and attempts to distinguish this case from others where

the victims had ingested alcohol or drugs which rendered them unable to consent, we find

Birari’s argument does not have merit.       In Glover v. State, the court adopted the

following definition of the term “unaware” in the context of the rape statute:

       “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.

760 N.E.2d 1120, 1124 (Ind. Ct. App. 2002) (quoting Becker v. State, 703 N.E.2d 696,

698 (Ind. Ct. App. 1998)), trans. denied. A.J. was asleep during the time that Birari

removed his clothes and her sweatpants and only woke up when Birari was on top of her

and attempting to insert his erect penis in her vagina.       We conclude that the State

presented evidence of probative value from which a reasonable jury could have found

that A.J. was unaware. See Graham v. State, 736 N.E.2d 822, 828 (Ind. Ct. App. 2000)

(holding that the evidence was sufficient to support the defendant’s conviction for rape as

a class B felony where the defendant proceeded to have sexual intercourse with the
                                       12
victim while she was asleep and unaware such intercourse was occurring), trans. denied.

In summary, we conclude that the State presented evidence of probative value from

which a reasonable jury could have found Birari guilty of attempted rape as a class B

felony.

                                            II.

       The next issue is whether the prosecutor committed prosecutorial misconduct that

resulted in fundamental error. In reviewing a properly preserved claim of prosecutorial

misconduct, we determine: (1) whether the prosecutor engaged in misconduct, and if so,

(2) whether the misconduct, under all of the circumstances, placed the defendant in a

position of grave peril to which he or she should not have been subjected. Cooper v.

State, 854 N.E.2d 831, 835 (Ind. 2006). Whether a prosecutor’s argument constitutes

misconduct is measured by reference to case law and the Rules of Professional Conduct.

Id. The gravity of peril is measured by the probable persuasive effect of the misconduct

on the jury’s decision rather than the degree of impropriety of the conduct. Id.

       When an improper argument is alleged to have been made, the correct procedure is

to request the trial court to admonish the jury. Id. If the party is not satisfied with the

admonishment, then he or she should move for mistrial. Id. Failure to request an

admonishment or to move for mistrial results in waiver. Id. Here, Birari did not object to

the prosecutor’s closing argument and did not request an admonishment or a mistrial.

Thus, Birari has waived the issue.

       Where, as here, a claim of prosecutorial misconduct has not been properly

preserved, our standard for review is different from that of a properly preserved claim.

                                            13
Id.   More specifically, the defendant must establish not only the grounds for the

misconduct but also the additional grounds for fundamental error. Id. Fundamental error

is an extremely narrow exception that allows a defendant to avoid waiver of an issue. Id.

It is error that makes “a fair trial impossible or constitute[s] clearly blatant violations of

basic and elementary principles of due process . . . present[ing] an undeniable and

substantial potential for harm.” Id.

       Birari argues that the prosecutor improperly informed the jury that A.J. was telling

the truth. Birari cites the following portion of the prosecutor’s rebuttal:

       To be dragged through the courtroom and being called a liar in front of
       strangers and her family and friends, to relive the most horrific moment in
       her recent memory? There’s no motivation to lie here, ladies and
       gentlemen, and that’s because she isn’t. She’s telling you the truth. She
       wasn’t prepped. She wasn’t given anything. She came in here and told you
       what happened.

Transcript at 172. Birari also points to the following portion of the prosecutor’s closing

argument:

       That’s the only bright spot I can find, besides the fact that he didn’t get to
       complete this act, is that that [A.J.’s two-year-old cousin] didn’t have to
       wake up to this. That’s the only bright spot I can see, that she didn’t have
       to experience what he wanted her to. Whether or not he wanted her to
       watch, I don’t know, but when you take the pants off and you take your
       clothes off and you do that next to her, then whatever is coming to you,
       quite frankly, you deserve.

Id. at 159 (emphasis added). Birari argues that there was no testimony regarding his

interactions with the two-year-old and that the prosecutor “improperly intimated [that he]

wanted the two year old to watch him having sex.” Appellant’s Brief at 23.

       The State argues that the prosecutor properly argued that the jury could believe

A.J. because the evidence indicated that she had no motive to lie and that it was an
                                          14
undisputed fact that a two-year-old child was sleeping in the bed with A.J. and Birari

during the attempted rape. The State also argues that even if the prosecutor’s arguments

were improper, there is no indication that the arguments resulted in fundamental error.

         While we believe that the prosecutor’s comments were improper, we cannot say

that such conduct resulted in fundamental error. In addition to A.J.’s testimony, the State

also presented the testimony of her roommate as well as a recording of the 911 call which

included A.J. hyperventilating in the background. Also, before the prosecutor made the

comments that Birari challenges on appeal, the prosecutor stated:

         The statements of the attorneys, what I am saying, what [the defense
         attorney] has said and what he will say is not evidence. We argue our
         positions to you, but it doesn’t mean that what we say is evidence. So the
         things that you’ve heard that come from that table today, aren’t evidence.
         None of them are.

Transcript at 157. Further, the jury was instructed:

         When the evidence is complete, the attorneys may make final arguments.
         These final arguments are not evidence. The attorneys are permitted to
         characterize the evidence, discuss the law and attempt to persuade you to a
         particular verdict. You may accept or reject those arguments as you see fit.

Appellant’s Appendix at 58. The jury was also instructed as follows: “You are the

exclusive judges of the evidence, which may be either witness testimony or exhibits,”

“[s]tatements made by the attorneys are not evidence,” and “[y]our verdict should be

based on the law and the facts as you find them.”           Id. at 55, 65-66.    Under the

circumstances, we cannot say that the prosecutor’s comments resulted in fundamental

error.

         For the foregoing reasons, we affirm Birari’s conviction for attempted rape as a

class B felony.
                                             15
      Affirmed.

BAKER, J., and KIRSCH, J., concur.




                                     16
