MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Nov 20 2017, 9:10 am

this Memorandum Decision shall not be                                            CLERK
regarded as precedent or cited before any                                    Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                       Curtis T. Hill, Jr.
Brooke Smith                                            Attorney General of Indiana
Keffer Barnhart LLP
                                                        Angela Sanchez
Indianapolis, Indiana                                   Supervising Officer Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Latham E. Small,                                        November 20, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A05-1704-CR-926
        v.                                              Appeal from the
                                                        Allen Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     John F. Surbeck, Jr., Judge
                                                        Trial Court Cause No.
                                                        02D04-1604-F3-27



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1704-CR-926 | November 20, 2017          Page 1 of 17
[1]   Following a jury trial, Latham E. Small (“Small”) was convicted of two counts

      of Level 3 felony rape,1 one count of Class A misdemeanor battery resulting in

      bodily injury,2 and one count of Class B misdemeanor furnishing alcohol to a

      minor.3 He appeals his two rape convictions and raises the following restated

      issues:


                 I. Whether one of the two convictions for Level 3 felony rape
                 must be vacated because they were based on the same act and
                 violate Indiana’s prohibition against double jeopardy; and


                 II. Whether the evidence is sufficient to sustain either of Small’s
                 two convictions for Level 3 felony rape.


[2]   We affirm in part, vacate in part, and remand with instructions.


                                      Facts and Procedural History
[3]   Small and H.S. married in May 2015, and they lived with H.S.’s parents. In

      October 2015, H.S.’s nineteen-year-old sister, H.D., also moved into the

      residence. On the evening of October 21, 2015, Small, H.S., H.D., and their

      mother, K.D., had dinner together at the home, and, after dinner, the four of

      them had a bonfire in the fire pit on the backyard patio.4 Small and K.D. had

      two or three alcoholic drinks, but sisters H.S. and H.D. did not have any.



      1
          See Ind. Code § 35-42-4-1(a)(2).
      2
          See Ind. Code § 35-42-2-1(c)(1).
      3
          See Ind. Code § 7.1-5-7-8(a)(1).
      4
          K.D.’s husband, who was also the father of H.S. and H.D., was a firefighter and was on duty at the time.


      Court of Appeals of Indiana | Memorandum Decision 02A05-1704-CR-926 | November 20, 2017           Page 2 of 17
      Around 9:00 p.m., H.S. and K.D., went inside and went to bed, leaving Small

      and H.D. outside. Small suggested that H.D. finish her mother’s drink, but

      H.D. declined. Small went in the house and came back out with two shots of

      alcohol, offering one to H.D. She drank the shot, and as the night continued,

      Small kept offering shots to H.D., who drank them and became increasingly

      intoxicated. At one point, Small went in the house, and when he came back

      outside, he slid his hand down H.D.’s shirt and rubbed her breast. She told him

      not to do that again, because “it wasn’t right, and he was married to my sister.”

      Tr. Vol. I at 216.


[4]   Small sat back down, and the two continued to talk. H.D. “start[ed] to not

      remember things” around that point in the night. Id. Her next recollection was

      finding herself “out in the middle of the lawn and [Small] was trying to shove

      his penis in my face.” Id. H.D. “blacked out [] again for a while,” but then

      woke to find her pajama pants down around her knees, and she saw Small

      walking into the house. Id. at 217. She got up, felt “really dizzy” and “really

      nauseous,” and went back into the house, headed toward her bedroom. Id. In

      the hallway, H.D. encountered her sister, H.S., who asked H.D., “what’s going

      on, are you okay,” but H.D. did not say anything to her. Id. at 218; Tr. Vol. II

      at 192. Concerned that H.D. had been drinking, H.S. woke their mother, K.D.,

      for assistance. K.D. and H.S. comforted H.D., who was crying and threw up,

      and they heard H.D. make references to “bad Latham” and “that is my sister.”

      Tr. Vol II at 35.




      Court of Appeals of Indiana | Memorandum Decision 02A05-1704-CR-926 | November 20, 2017   Page 3 of 17
[5]   H.S. went to another room and confronted Small to find out what he had done

      to H.D. Initially, Small denied doing anything, but later stated, “All I tried to

      do was kiss her.” Id. at 35, 213. A physical altercation ensued between Small

      and K.D., and H.S. called 911. Officer Nicholas Keefer (Officer Keefer”) of the

      Allen County Sheriff’s Department5 responded to the domestic battery dispatch

      call at around 12:05 a.m. and was the first to arrive; other law enforcement and

      emergency personnel came to the scene, too. Officer Keefer encountered K.D.

      in the garage and spoke to her. He also spoke to Small, who yelled to Officer

      Keefer, “[I]t’s me, I’m the one you’re looking for.” Id. at 61.


[6]   As Officer Keefer spoke to Small, he heard a scream from a back bedroom.

      Officer Jason Schmieman (“Officer Schmieman”) went to the room and found

      H.D. in bed, and fresh vomit on the floor. H.D. was crying and appeared to be

      “very intoxicated.” Id. at 85. Officer Schmieman tried to talk to H.D. and ask

      her what happened. She said she did not know “[a]nd then seconds later she

      said she might have been raped but she did not remember.” Id. at 86. Officer

      Keefer learned from H.D. that “bad things happened,” but could not get detail

      from H.D. Id. at 66. Officer Keefer eventually learned from H.D. that Small

      had touched her breast and tried to remove her pants, but H.D. did not know if

      he had sexual intercourse with her because she had blacked out. Id. at 68-69.




      5
       We note that some law enforcement individuals who testified referred to their employer as the Allen
      County Sheriff’s Department, while others identified it as the Allen County Police Department, see tr. vol. II
      at 57, 83, 88, 144, but they generally refer to each other as “officers,” not deputies, see id. at 59, 64, 65, 84,
      and we will do the same in this decision.

      Court of Appeals of Indiana | Memorandum Decision 02A05-1704-CR-926 | November 20, 2017                Page 4 of 17
      EMTs also came into H.D.’s room and tried to treat her, but she screamed

      whenever they tried to get near her.


[7]   Because law enforcement suspected a possible rape had occurred, they

      contacted sexual assault nurse examiner Shawn Callahan (“Callahan”) by

      phone. Callahan heard the commotion of H.D. on the phone and, believing

      H.D. was “basically incoherent,” Callahan told police she could not accept

      H.D. as a patient until she sobered up because the exam required consent and

      based on what she was hearing, she did not believe H.D. had the capacity to

      consent to the exam. Id. at 113. The next morning, H.D.’s father took H.D. to

      the sexual assault treatment center to be examined by Callahan, who conducted

      a full body exam and took swab samples from H.D.’s breast, external and

      internal vagina, anal folds, perineum, vaginal wash, bilateral inner thighs, and

      buttocks. Id. at 124. She also collected H.D.’s pajama pants. The swabs and

      pants were sent to the Indiana State Police (“ISP”) crime laboratory for testing.


[8]   In April 2016, the State charged Small with three counts of Level 3 felony rape,

      alleging rape by force or imminent threat of force, rape when H.D. was

      unaware that sexual intercourse was occurring, and rape when H.D. was so

      mentally disabled or deficient that she could not give consent to sexual

      intercourse. Appellant’s App. Vol. II at 15, 17, 19. The State also charged Small

      with one count of Class A misdemeanor battery. Id. at 21. In August 2016, the

      State filed an amended charging information to add a fifth count, Class B

      misdemeanor furnishing alcohol to a minor. Id. at 23, 32-34.



      Court of Appeals of Indiana | Memorandum Decision 02A05-1704-CR-926 | November 20, 2017   Page 5 of 17
[9]   At the two-day February 2017 jury trial, the State presented the testimony of a

      number of witnesses, including H.D., H.S., and K.D., as well as Callahan,

      various law enforcement and emergency responders, and a forensic analyst

      from the ISP crime lab. In her testimony, H.D. recalled that she had

      approximately eight shots of vodka, Jagermeister, or whiskey. Tr. Vol. I at 227.

      H.D. remembered telling Small not to touch her breast again, but then she

      began to not remember things. Her next recollection was of being in the yard

      on her back with Small trying to “shove” his penis in her face. Id. at 216. She

      recalled that her clothes were still on at that time. She “blacked out” again and

      woke to find her pants at her knees, and Small was walking back into the house.

      Id. at 217. H.D. made her way to her bedroom and described that she was

      “scared” and was crying. Id. at 218. H.D. heard her mother yelling in the

      living room, and “there were two cops at my door” and later “EMTs and

      Firefighters and Cops all in the room with me[,] looking at me.” Id. at 219.

      H.D. said that she vomited “everywhere, on the floor, on my bed, on myself.”

      Id. at 220. She recalled them asking her questions, but explained that she

      “wasn’t able” to answer and, instead, kept repeating phrases such as “I’m

      sorry[,]” “She’s my sister[,]” and “I kept telling him no.” Id. at 239, 244. On

      direct examination, counsel for the State asked H.D., “[A]t any point that night

      did you consent or agree to have sex with the Defendant?” and she replied,

      “No.” Id. at 228. On cross-examination, H.D. affirmed that she did not

      remember how she got out to the yard and that it is possible that she went there

      willingly. Id. at 238. After agreeing that she did not recall having intercourse,


      Court of Appeals of Indiana | Memorandum Decision 02A05-1704-CR-926 | November 20, 2017   Page 6 of 17
       defense counsel asked, “So you don’t recall whether or not you consented

       either, correct?” and H.D. replied, “Correct.” Id. at 237.


[10]   H.S. testified that she left the bonfire and went to bed early, but was awakened

       when Small got into bed. At her request, he moved to the living room to sleep,

       and she brought blankets and a fan to him. As H.S. was returning to bed, she

       encountered H.D. in the hallway and noticed that H.D. was stumbling. H.S.

       tried to speak to H.D. by saying her name, but H.D. “just walked right past

       [her].” Tr. Vol. II at 192. H.S. reached out to grab H.D.’s arm, but H.S.

       described that H.D. “walked right by me like I wasn’t even there,” “kind of

       stumbled into the wall,” and went into her room. Id. at 193. H.S. followed

       H.D. into her bedroom and asked if she had been drinking, but H.S. stated that

       H.D. “couldn’t really respond . . . it was mostly just like mumbles and moans, it

       wasn’t really sentences.” Id. at 194. H.S. then went into K.D.’s room and

       woke her up to help H.D., who H.S. described as being “extremely impaired.”

       Id. at 210. K.D. and H.S. went to H.D.’s room, and H.D. vomited on the floor

       and began crying. H.S. went to the living room to talk to Small, and when she

       went back into H.D.’s room, she heard H.D. keep saying “bad Latham.” Id. at

       195, 211. H.S. described that K.D. thereafter confronted Small, who got angry,

       and H.S. tried to calm him, but could not, so she called 911.


[11]   H.D.’s mother, K.D., testified that H.D. was “out of it” when she and H.S.

       went into H.D.’s room, but that H.D. was repeating the phrases “bad Latham”

       and “that is my sister.” Id. at 34-35. After hearing this, K.D. and H.S. went

       into the living room and confronted Small, who initially denied that anything

       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-CR-926 | November 20, 2017   Page 7 of 17
       happened, but eventually said “all I tried to do was kiss her.” Id. at 35. Small

       told K.D., “I didn’t do anything to your daughter,” and, thereafter, a physical

       altercation ensued between K.D. and Small, during which Small grabbed K.D.

       and shoved her against the fireplace. H.S. called 911, and K.D. described that

       she “went hysterical,” called her husband, and sat in a car in the garage. Id. at

       37.


[12]   Officer Keefer encountered a “hysterical” K.D. in the garage when he arrived.

       Id. at 59. Officer Keefer saw Small and spoke to him. Small told Officer Keefer

       that he and H.D. drank alcohol out in the backyard and that “at one point he

       tried to kiss her, and she said no, and that was the end of it.” Id. at 63. During

       this time, Officer Keefer heard a “chilling scream” from the back bedroom and

       sent Officer Schmieman to see what was going on. Officer Schmieman

       reported back to Officer Keefer, and based on what was said, Officer Keefer

       contacted a detective for a rape investigation. Officer Keefer then went to the

       bedroom and found H.D. under the covers and crying, and he saw vomit on the

       floor. When he tried to get information from H.D., “the only thing I could get

       out of her was that she said bad things happened.” Id. at 66. He left the room,

       but came back after medical personnel had worked with her, and Officer Keefer

       stated that H.D. told him that Small grabbed her breast and he tackled her to

       the ground and began trying to remove her pants and “after that she said she

       kind of blacked out and could not remember anymore.” Id. at 68. She told

       Officer Keefer that she did not know if they had sexual intercourse. Id. at 69,

       71.


       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-CR-926 | November 20, 2017   Page 8 of 17
[13]   Officer Schmieman testified that when he attempted to talk to H.D. and ask her

       questions about the night, she at first could not provide any information as to

       what happened to her, but then stated that she told him that she may have been

       raped. Id. at 85-86.


[14]   Captain Jacob Knudson and firefighter and medic Chris Wolf (“Wolf”) of the

       Huntertown Fire Department testified that H.D. appeared intoxicated and

       “wasn’t making sense,” and they had a difficult time assessing her because she

       was “screaming and repeating herself,” appeared very scared, and would not let

       them get near her to check her vitals such as blood pressure or pulse. Id. at 9-

       10, 20-21. Wolf testified that H.D. repeated several times, “[H]e just kept

       giving me drinks” and “I’m sorry, I’m sorry he raped me.” Id. at 21-22, 26.

       When asked if she was able to answer them coherently, Wolf replied, “No.” Id.

       at 22. Wolf believed H.D. should be transported to the hospital for at least

       observation, but H.D.’s father, who was also a medic, arrived home, so they

       agreed not to transport her.


[15]   Lori James (“James”), a forensic DNA analyst for ISP, testified to her findings

       from her testing the swabs and pajama pants. According to James, a sperm

       fraction profile developed from H.D.’s vaginal wash was consistent with Small

       and had a statistical weight of one in 8 trillion unrelated individuals. Id. at 168-

       69; State’s Ex. 25. Additionally, James tested H.D.’s vaginal/cervical swabs,

       anal swabs, external genital swabs, perineum swabs, internal genital swabs,

       bilateral buttocks swabs, bilateral inner thigh swabs, and H.D.’s pajama pants.

       James’s determined that serological testing showed the possible presence of

       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-CR-926 | November 20, 2017   Page 9 of 17
       seminal material consistent with Small with a statistical weight of one in 8

       trillion unrelated individuals. Id. at 165-81; State’s Ex. 25. Furthermore, the

       nonsperm fraction of these swabs was consistent with a mixture of two

       individuals, and after assuming that H.D. was a contributor, the remainder was

       consistent with the DNA profile of Small. Id.


[16]   The jury found Small guilty of: (1) Count II, rape by knowingly or intentionally

       having intercourse with H.D. when H.D. was unaware that sexual intercourse

       was occurring; (2) Count III, rape by knowingly or intentionally having sexual

       intercourse with H.D. when she was so mentally disabled or deficient that she

       could not give consent; (3) Count IV, battery, and (4) Count V, furnishing

       alcohol to a minor.6 The trial court sentenced Small to twelve years in the

       Department of Correction for each of the rape convictions, with three years

       suspended to probation, one year for the battery conviction, and sixty days for

       furnishing alcohol to a minor. The trial court ordered that the two rape

       convictions and the conviction for furnishing alcohol to a minor be served

       concurrent with each other, but consecutive to the one-year battery conviction,

       for an aggregate sentence of thirteen years. Tr. Sent. Vol. at 32-33; Appellant’s

       App. Vol. II at 128-29. In deciding not to impose consecutive sentences for the

       two rape convictions, the trial court stated:




       6
        The jury found Small not guilty of Count I, rape by force or imminent threat of force. Tr. Vol. III at 32;
       Appellant’s App. Vol. II at 95.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-CR-926 | November 20, 2017           Page 10 of 17
               I would first note that Count 2, Rape, a Level 3 felony; and
               Count 3, Rape, a level 3 felony are – there is one act, a single act,
               although defined separately, and so it is certainly not appropriate
               to impose consecutive sentences. I even have some concerns
               about merging, although I will leave that to others to make that
               decision.


       Tr. Sent. Vol. at 30. Small now appeals.


                                      Discussion and Decision

                                          I. Double Jeopardy
[17]   Article 1 Section 14 of the Indiana Constitution provides in relevant part: “No

       person shall be put in jeopardy twice for the same offense.” Our Supreme

       Court has explained that “two and or more offenses are the ‘same offense’ in

       violation of Article 1, Section 14 of the Indiana Constitution, if, with respect to

       either the statutory elements of the challenged crimes or the actual evidence used

       to convict, the essential elements of one challenged offense also establish the

       essential elements of another challenged offense.” Richardson v. State, 717

       N.E.2d 32, 49 (Ind. 1999) (emphasis in original). When using the actual

       evidence test to determine if there is a double jeopardy violation, a defendant

       “must demonstrate a reasonable possibility that the evidentiary facts used by the

       fact-finder to establish the essential elements of one offense may also have been

       used to establish the essential elements of a second challenged offense.” Id. at

       53.


[18]   Small contends, and the State concedes, that one of the two rape convictions

       must be vacated because the two convictions were based on the same actual
       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-CR-926 | November 20, 2017   Page 11 of 17
       evidence, namely a single act of intercourse. We agree that the convictions

       violated Indiana’s actual evidence test and that one of the two convictions must

       be vacated. See Gale v. State, 882 N.E.2d 808, 820 (Ind. Ct. App. 2008) (sua

       sponte vacating one of defendant’s two convictions for rape, which were based

       on one act of sexual intercourse, because trial court’s merger after judgment of

       conviction did not cure double jeopardy violation). We now turn to Small’s

       two rape convictions to determine if the evidence is sufficient to sustain either

       of them.


                                              II. Sufficiency
[19]   Small contends that the evidence was not sufficient to convict him of either of

       the two counts of rape. In reviewing a claim of insufficiency of the evidence,

       we neither reweigh the evidence nor judge witness credibility. Gale, 882 N.E.2d

       at 816-17; Glover v. State, 760 N.E.2d 1120, 1124 (Ind. Ct. App. 2002), trans.

       denied. Rather, we examine only the evidence most favorable to the State,

       along with all reasonable inferences to be drawn therefrom. Glover, 760 N.E.2d

       at 1124. If there is substantial evidence of probative value from which a jury

       could find guilt beyond a reasonable doubt, we will affirm. Id. at 1124-25. The

       evidence need not be so overwhelming as to overcome every reasonable

       hypothesis of innocence. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).

       Circumstantial evidence alone may be sufficient to support a rape conviction.

       Jones v. State, 780 N.E.2d 373, 376 (Ind. 2002). Further, the uncorroborated

       testimony of the victim may be sufficient to sustain a conviction. Birari v. State,

       968 N.E.2d 827, 832 (Ind. Ct. App. 2012), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-CR-926 | November 20, 2017   Page 12 of 17
[20]   To convict Small as charged in Count II, the State was required to prove that he

       knowingly or intentionally had intercourse with H.D. while H.D. was unaware

       that sexual intercourse was occurring. Appellant’s App. Vol. II at 17; Ind. Code §

       35-42-4-1(a)(2). To convict Small as to Count III, the State was required to

       prove that H.D. was so mentally disabled or deficient that she could not give

       her consent. Appellant’s App. Vol. II at 19; Ind. Code § 35-42-4-1(a)(3). We first

       address Small’s sufficiency argument as to Count II, in which Small contends

       that the State presented insufficient evidence that H.D. was unaware that

       intercourse was occurring.


[21]   Although our legislature has not defined the term “unaware,” we have held that

       “unaware” means “not aware: lacking knowledge or acquaintance;

       Unconscious.” Glover, 760 N.E.2d at 1124 (discussing criminal deviate conduct

       case of Becker v. State, 703 N.E.2d 696, 698 (Ind. Ct. App. 1998) and adopting

       Becker definition of “unaware” to corresponding provision of rape statute); see

       also Bell v. State, 29 N.E.3d 137, 142 n.2 (Ind. Ct. App. 2015) (recognizing Glover

       court’s adoption of definition), trans. denied. The Glover court stated that the

       language of the rape statute was adequate to inform a person of ordinary

       intelligence that “sexual intercourse with an individual who has lost

       consciousness due to inebriation is proscribed.” 760 N.E.2d at 1124. However,

       this court has clarified that “[t]he victim does not need to be unconscious for

       the sexual intercourse to constitute rape. Instead, . . . Indiana Code section 35-

       42-4-1(a)(2) ‘requires the victim be ‘unaware’ that the sexual act is occurring.’”

       Filice v. State, 886 N.E.2d 24, 36 (Ind. Ct. App. 2008), trans. denied. “[O]ur


       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-CR-926 | November 20, 2017   Page 13 of 17
       focus in addressing whether a victim was “unaware” involves looking to the

       facts to determine whether the victim was capable of voluntarily giving consent

       to the actor.” Nolan v. State, 863 N.E.2d 398, 403 (Ind. Ct. App. 2007), trans.

       denied (addressing unawareness clause of criminal deviate conduct statute,

       Indiana Code section 35-42-4-2(a)(2)).7


[22]   On appeal, Small does not dispute that the DNA evidence established that he

       and H.D. had sexual intercourse. Appellant’s Br. at 11 (acknowledging that

       “H.D. and Small apparently had sex, which was established by DNA

       evidence[.]”). Small’s challenge to the evidence is that the State presented no

       evidence of H.D.’s condition at the time of the intercourse, noting that there

       was no evidence that H.D. was administered a breathalyzer test or that her

       blood alcohol concentration was measured at or around the time of the

       incident. He argues, “[T]here was no evidence that H.D. was physically

       incapacitated at the time the sex occurred, was unconscious, or was otherwise

       unresponsive. Rather, there was only evidence that she could not recall having

       sex or consenting to sex with her brother-in-law.” Id. at 12. We disagree with

       Small’s characterization of the evidence and the conclusion that he argues must

       be drawn from it.




       7
         We explained, “Although consent is not a per se element of [Indiana Code section 35-42-4-2(a)(2)],
       evidence of consent is relevant to the purported victim’s awareness. Similarly, lack of consent may be
       relevant to the purported victim’s unawareness.” Nolan v. State, 863 N.E.2d 398, 403 (Ind. Ct. App. 2007),
       trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-CR-926 | November 20, 2017        Page 14 of 17
[23]   Here, H.D. testified that she drank eight shots of alcohol and that, at some

       point after Small touched her breast and she told him not to do it again, she

       could not remember what exactly happened, but found herself on her back in

       the yard and saw Small putting his penis in her face. H.D. said that she

       “blacked out [] again” and did not remember what happened after that, until

       she woke to find her pants pulled down to her knees, and she saw Small

       walking into the house. Tr. Vol. I at 217. When H.D. made her way back into

       the house, she said she was dizzy and felt nauseous. She stumbled past, but did

       not respond to, H.S. who tried to talk to H.D. and tried to grab H.D.’s arm.

       H.D. threw up, was crying, and law enforcement and emergency personnel

       could not communicate with H.D. because she was distraught, hysterical, and

       incoherent, although she did repeat phrases such as “bad Latham.” Tr. Vol. II

       at 34-35, 195, 211. H.D. stated that she was not sure whether intercourse had

       occurred, but told Officer Keefer that she believed that it had. Id. at 69. We

       find that the State presented evidence that permitted the jury to infer that H.D.

       was unaware that the act of intercourse was occurring. See Gale, 882 N.E.2d at

       813, 818 (evidence sufficient where victim was intoxicated, had a .308 blood

       alcohol level, and did not remember anything other than “being outside at the

       bar in the parking lot with police cars around, throwing up, crying and

       screaming that he raped me”).


[24]   Small’s argument that there was no evidence presented of her condition at the

       exact time of intercourse is, more precisely, a claim that there is no direct

       evidence of her condition at the time, and it “ignores the substantial amount of


       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-CR-926 | November 20, 2017   Page 15 of 17
       circumstantial evidence that [the victim] was unconscious during the sexual

       intercourse.” Id. at 817-18. Small’s suggestion that H.D. may have been aware

       and may have consented is a request for us to reweigh evidence, which we

       cannot do. See Filice, 886 N.E.2d at 36 (defendant’s argument that victim, who

       had consumed date rape drug that causes one to experience lucid and non-lucid

       states, may have been lucid and aware at time of sexual encounter was request

       to reweigh evidence, where victim remembered only “snap[shots or]

       flashbacks,” including of defendant putting his penis in her mouth, and

       evidence showed that victim was impaired throughout evening and was

       observed before encounter with defendant as being “unresponsive,” “limp,” and

       not “present”).


[25]   Small contends that “H.D.’s intoxication and inability to remember does not

       equate to her being unaware or unconscious during sex.” Reply Br. at 4.

       However, the issue is not whether one equates to, or is the equivalent of, the

       other. Rather, the question is whether the State presented sufficient evidence,

       including testimony of the victim and others concerning her actions before and

       after the sex occurred, from which a reasonable jury could infer that H.D. was

       not aware at the time that intercourse was occurring. Indeed, we look only to

       the probative evidence supporting the verdict and the reasonable inferences that

       may be drawn from that evidence to determine whether a reasonable trier of

       fact could conclude the defendant was guilty beyond a reasonable doubt.

       Nolan, 863 N.E.2d at 402 (facts supported jury’s finding that victim was

       unaware of defendant’s act of sexual deviate conduct where victim testified that


       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-CR-926 | November 20, 2017   Page 16 of 17
       she “was dreaming” and “halfway asleep” when she woke to find defendant’s

       penis against her vagina). In this case, we find that the State presented

       sufficient evidence of probative value from which a reasonable jury could have

       found that H.D. was unaware of the sexual intercourse as it was occurring.


[26]   Here, the evidence was sufficient to convict Small of the act alleged in Count II.

       Having already determined it necessary to vacate one of the two rape

       convictions, we need not reach the issue of whether the evidence was also

       sufficient to convict Small of Count III. Thus, we affirm the conviction on

       Count II, we vacate the conviction on Count III, and remand to the trial court

       with instructions to amend its order.


[27]   Affirmed in part, vacated in part, and remanded with instructions.


[28]   Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1704-CR-926 | November 20, 2017   Page 17 of 17
