MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 May 31 2018, 9:35 am

court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Mark S. Lenyo                                           Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General of Indiana

                                                        Angela N. Sanchez
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Andrew Biggs,                                           May 31, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A05-1709-CR-2128
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Jane Woodward
Appellee-Plaintiff                                      Miller, Judge
                                                        Trial Court Cause No.
                                                        71D01-1610-FB-1



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2128 | May 31, 2018                Page 1 of 7
[1]   Andrew Biggs appeals his conviction of Class B felony rape. 1 Biggs asserts the

      State’s evidence was insufficient to prove: (1) sexual intercourse occurred; and

      (2) A.B. had been unaware that intercourse was occurring. We affirm.



                                Facts and Procedural History
[2]   On December 14, 2013, A.B. met friends at a bar. She had a number of drinks

      and then rode with friends to another bar, where she continued drinking.

      Friends drove A.B. back to the original bar, where her car was parked, between

      2:00 and 3:00 in the morning of December 15. Biggs, who was drinking and

      riding along with the same group of friends, offered A.B. a ride. A.B. did not

      want to go with Biggs because he had been pressuring A.B. to have sex with

      him, but she knew she was too intoxicated to drive. The last thing A.B.

      remembers is getting into Biggs’ car.


[3]   When A.B. woke up, she was in Biggs’ bed, her “underwear was kind of wet[,]

      and [she] had like a little bit of pain . . . in [her] vagina area.” (Tr. Vol. 2 at 37.)

      A.B. thought the wetness “was probably semen” because she was familiar with

      how that felt. (Id. at 38.) A.B. woke Biggs so that he could drive her back to

      her car at the bar. A.B. then went to the house of a friend, who convinced her

      to report the possible crime and go to the hospital.




      1
          Ind. Code § 35-42-4-1(a)(2) (1998).


      Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2128 | May 31, 2018   Page 2 of 7
[4]   Hospital staff used a rape kit to collect samples from A.B.’s external and

      internal genitalia. Laboratory testing identified the presence of sperm in both

      samples. The sperm from both samples matched one another and the known

      standard provided by Biggs at all fifteen of the genetic locations compared. The

      analyst testified the chance of that happening was only one in eight trillion

      unrelated persons. A doctor who treated A.B. on December 15, 2013,

      explained the only way for sperm to be found in the internal sample is for the

      sperm to be deposited inside the vagina.


[5]   On October 12, 2016, the State charged Biggs with Class B felony rape. A jury

      found Biggs guilty as charged. The trial court imposed a ten-year sentence,

      with five years suspended and three years of reporting probation.



                                Discussion and Decision
[6]   Biggs asserts the evidence is insufficient to support his conviction.


              For sufficiency challenges, we neither reweigh evidence nor
              judge witness credibility. We consider only the evidence most
              favorable to the judgment together with all reasonable inferences
              that may be drawn from the evidence. We will affirm the
              judgment if it is supported by substantial evidence, even if the
              evidence is conflicting.


      McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (internal citations omitted).


[7]   As charged against Biggs, Class B felony rape occurs when a person

      “knowingly or intentionally has sexual intercourse with a member of the


      Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2128 | May 31, 2018   Page 3 of 7
      opposite sex when . . . the other person is unaware that the sexual intercourse is

      occurring . . . .” Ind. Code § 35-42-4-1(a)(2) (1998). For purposes of that

      statute, “sexual intercourse” is defined as “an act that includes any penetration

      of the female sex organ by the male sex organ.” Ind. Code § 35-31.5-2-302

      (2012). Biggs argues the State failed to prove two of those elements: (1) that his

      penis penetrated A.B.; and (2) that A.B. was unaware intercourse was

      occurring. We address each argument separately.


                                                 Penetration

[8]   Biggs argues there is no proof he penetrated A.B. The “penetration of the

      female sex organ” required for conviction of rape does not require penetration

      of the vagina; penetration of the external genitalia, or vulva, is sufficient.

      Mastin v. State, 966 N.E.2d 197, 202 (Ind. Ct. App. 2012), trans. denied.

      Penetration can be “inferred from circumstantial evidence such as the physical

      condition of the victim soon after the incident.” Atteberry v. State, 911 N.E.2d

      601, 609 (Ind. Ct. App. 2009).


[9]   A.B. testified that, when she woke up in Biggs’ bed, her “underwear was kind

      of wet and [she] had like a little bit of pain . . . in [her] vagina area.” (Tr. Vol. 2

      at 37.) A.B. thought the wetness “was probably semen” because she was

      familiar with how that felt. (Id. at 38.) The friend who drove Biggs and A.B.

      from one bar to the other on the night in question testified that, when he talked

      to Biggs about what happened with A.B., Biggs gave him the impression that

      Biggs and A.B. had intercourse. (See id. at 81.)


      Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2128 | May 31, 2018   Page 4 of 7
[10]   Biggs denies having intercourse with A.B., and he testified he prematurely

       ejaculated onto A.B. without ever penetrating her. However, the fact that a

       record contains conflicting evidence is “beside the point,” McCallister, 91

       N.E.3d at 558, and such “arguments misapprehend our limited role as a

       reviewing court.” Id. We do not “ask whether the jury might have reached a

       different result based on the evidence it heard. Our inquiry, rather, is whether

       record evidence supports the jury’s verdict.” Id. at 559.


[11]   Furthermore, the record contains other evidence that contradicts Biggs’

       explanation of the events. A laboratory technician testified the sample collected

       from A.B.’s cervix contained sperm that matched Biggs’ DNA at all fifteen of

       the genetic locations compared, and the emergency room doctor who evaluated

       A.B. explained that sperm released on the outside of a woman’s body cannot

       travel to the cervix. The only way for sperm to reach the cervix is for it to be

       deposited inside the vagina. That evidence, seen in the light most favorable to

       the judgment, demonstrates Biggs penetrated A.B.’s sex organ with his sex

       organ. See Pasco v. State, 563 N.E.2d 587, 590 (Ind. 1990) (evidence supported

       inference of rape where victim’s body was found naked with legs spread,

       defendant’s handprint was on thigh, and sperm was found inside vagina).


                                                   Awareness

[12]   Biggs next asserts the State failed to prove A.B. was “unaware that the sexual

       intercourse [was] occurring,” as is required for a conviction of rape under

       Indiana Code section 35-42-4-1(a)(2). We have previously explained “the

       victim does not need to be unconscious for the sexual intercourse to constitute
       Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2128 | May 31, 2018   Page 5 of 7
       rape.” Filice v. State, 886 N.E.2d 24, 36 (Ind. Ct. App. 2008) (emphasis added),

       trans. denied. Rather, the victim need only be “unaware” that intercourse is

       occurring. Glover v. State, 760 N.E.2d 1120, 1124 (Ind. Ct. App. 2002), trans.

       denied. “Unaware” means “not aware: lacking knowledge or acquaintance.”

       Id. (quoting Becker v. State, 703 N.E.2d 696, 698 (Ind. Ct. App. 1998)).


[13]   In Glover, J.B., a woman who was drinking alcohol at an apartment party with

       friends, “passed out” in the kitchen. Id. at 1125. The apartment’s resident

       carried J.B. to the bedroom, with her feet dragging on the floor, because J.B.

       was unable to stand unassisted. Id. Multiple party guests described her as

       “mumbling” incoherently. Id. Glover entered the bedroom and had sex with

       J.B. Id. at 1123. Soon thereafter, J.B. was so unresponsive that she was taken

       to a hospital, where a doctor described her as “unconscious due to severe

       intoxication.” Id. at 1125. Glover claimed he and J.B. had consensual sexual

       relations. The Court held the evidence of J.B.’s condition was sufficient for a

       jury to determine J.B. had been unaware she was having intercourse with

       Glover, such that his conviction of rape was valid. Id. The court also held “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.” Id. at 1124.


[14]   Here, A.B. testified the last thing she remembered from that night of drinking

       was fighting with Biggs in the parking lot because she did not want to get in his

       car with him. Biggs admitted he and A.B. argued about her being too drunk to

       drive, and he confirmed A.B. “passed out” in his car on the way to his house.
       Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2128 | May 31, 2018   Page 6 of 7
       (Tr. Vol. 3 at 158.) He also testified that, when they arrived at his house, A.B.

       “stumbled her way inside and followed me downstairs and laid herself on the

       bed.” (Id. at 140.) To get down the stairs, A.B. held onto both the handrail and

       Biggs. When they were in his bedroom, A.B. was unable to give Biggs the

       passcode for her phone. The next thing A.B. remembers is the morning, when

       she woke in Biggs’ bed covered in vomit. While A.B. was not as intoxicated as

       the woman in Glover, this evidence was sufficient for the jury to determine A.B.

       had been “unaware” when sexual intercourse occurred. See, e.g., Filice, 886

       N.E.2d at 36 (victim needed to be “unaware,” not “unconscious,” such that

       jury could find woman impaired by Rohypnol had been unaware that

       intercourse was occurring).



                                               Conclusion
[15]   The State presented sufficient evidence to demonstrate that Biggs penetrated

       A.B.’s sex organ with his sex organ and that A.B. was unaware that the sexual

       intercourse was occurring when it occurred. We accordingly affirm Biggs’

       conviction of Class B felony rape.


[16]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1709-CR-2128 | May 31, 2018   Page 7 of 7
