J-S07040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 CRAIG LAVOY POUST                       :
                                         :
                   Appellant             :   No. 1302 MDA 2018

       Appeal from the Judgment of Sentence Entered March 5, 2018
    In the Court of Common Pleas of Snyder County Criminal Division at
                      No(s): CP-55-CR-0000019-2017

BEFORE:    OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

DISSENTING MEMORANDUM BY PELLEGRINI, J.: FILED: MAY 24, 2019

     Among other charges, Craig Lavoy Poust (Poust) was convicted of Rape,

Involuntary Deviate Sexual Intercourse, Aggravated Indecent Assault,

Indecent Assault, and Conspiracy to Commit Indecent Assault. To make out

those crimes, the Commonwealth was required to establish that Poust

“substantially impaired the complainant's power to appraise or control his or

her conduct by administering or employing, without the knowledge of the

complainant, drugs, intoxicants or other means for the purpose of preventing

resistance.” See 18 Pa.C.S.A. §§ 3121(a)(4), 3123(a)(4), 3125(a)(5), and

3126(a)(5).

     Just because a person lacks a moral center that does not excuse the

Commonwealth from presenting sufficient evidence that Poust committed the




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* Retired Senior Judge assigned to the Superior Court.
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crimes with which he was charged. Like the trial judge,1 I would hold that the

Commonwealth failed to present sufficient evidence that Poust engaged in

sexual activity with C.H. without her consent. Accordingly, I respectfully

dissent.

                                               I.

       At the trial in 2018, C.H. testified that she would go to the Pousts’ home

for parties in 2012 where they would give her alcohol and marijuana. She

would often play drinking games with the Pousts and another female, J.C.,

who was 18 years old at the time. C.H. testified that she would sometimes

pass out while partying with the Pousts. She testified that she had sexual

intercourse with Poust on multiple occasions. When she would get extremely

intoxicated, Poust would have vaginal and oral sex with her or Pamela Poust,

Poust’s wife, who would perform oral sex on her. C.H. believed that something

had been mixed into her alcohol or marijuana to lower her resistance. When

asked why she came to this belief, C.H. stated that she had drunk alcohol and

smoked marijuana before meeting the Pousts but felt different each time she

did it with them, stating that, “[w]hen I would drink or smoke with [the


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1 Because the trial court failed to address Poust’s post-trial motion in a timely
manner, the motion is deemed denied by operation of law. The clerk of courts
then enters an order denying the motion on behalf of the trial court. See
Pa.R.Crim.P. 720(B)(3)(c). However, in its Pa.R.A.P. 1925(a) opinion, the
trial court found that the Commonwealth did not present sufficient evidence
that Poust gave a drug or intoxicant to C.H. without her knowledge.
Additionally, the court found that there was an insufficient factual basis for
the Corruption of Minors convictions.

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Pousts], I would basically feel like I had no control over what I was doing. I

kind-of felt like a puppet.” N.T., 1/23/18, at 98.

       J.C. testified that she went to the Pousts’ home about three times in

2012. One time, she played a drinking game with the Pousts and C.H. During

the game, J.C. accepted a drink from Poust but did not remember anything

after drinking it. When she awoke the next morning, she was naked in bed

with Pamela Poust while C.H. and Poust were asleep on the floor. When asked

about the drink given to her, J.C. said it made her more intoxicated than it

should have based on what she had to drink that night and her prior

experiences being drunk.

       Pamela Poust also testified for the Commonwealth.2 She confirmed that

when C.H. and J.C. came to the house, both she and Poust gave them alcohol.

She admitted that Poust had Xanax in the house but never saw him put

anything in either C.H. or J.C.’s alcohol. Poust’s wife testified that she had

also blacked out after drinking with her husband and would not be surprised

if “he put something in [her] drink in addition to the other girls.”

       The majority finds “[t]his collective testimony was sufficient to prove

that Poust gave C.H. drugs, intoxicants, or other means for the purpose of

preventing her resistance.” Majority Slip Opinion at 4. I disagree because the


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2 Before trial, Pamela Poust pleaded guilty to Corruption of Minors and
Conspiracy (both reduced to first-degree misdemeanors) in exchange for
testifying against Poust.


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testimony is insufficient to establish that Poust gave C.H. any drugs without

her knowledge or that, even if he had, it was not established that she did not

consent to the sexual activity.

                                      II.

                                      A.

      To make out the claim that she was given drugs without her knowledge

that prevented her resistance or consent to have sex, a minimal foundation

was required to be laid that C.H. was familiar with the intoxicating effects of

alcohol and marijuana (rather than she had just tried them before) and why

her experiences at the parties were so radically different. Other than

establishing that she had experience with alcohol and marijuana, there was

no testimony about how much or how often she had previously used alcohol

or marijuana or her familiarity with their intoxicating effects, or the effect

when she consumed them in combination. Regarding what occurred at the

“parties,” there was no testimony about how much alcohol she drank; how

quickly it was ingested; what kind of alcohol it was (beer, liquor or mixed

drinks); what physical effects it produced; if Poust served it to her in an open

container or whether the marijuana she ingested was more potent than the

marijuana that she previously used.

      Instead, the Commonwealth relied on C.H.’s conclusory statements that

she sometimes felt her judgment was altered and she “felt” she had no control

of her actions. However, those conclusory statements would be consistent


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with her intoxication being caused by the alcohol, marijuana or a combination

of the two.

      The same analysis is equally applicable to J.C.’s testimony about the

night she blacked out. Both C.H. and J.C. testified to playing drinking games

with Poust and drinking alcohol given to them by him. However, whereas J.C.

testified to immediately losing consciousness, C.H. never testified to that

happening to her. Even when considering C.H.’s testimony together with that

of J.C., any conclusion that Poust drugged C.H. without her knowledge again

remains too speculative.

      The majority also finds that Pamela Poust’s testimony supports C.H.’s

belief about being drugged. Pamela Poust testified that Poust controlled the

drinks but never saw him put anything in them. The Commonwealth argues

that her never seeing Poust put anything in the drinks “is not evidence that

[Poust] didn’t do it.” Commonwealth Brief, at 13. Of course, it is also not

evidence that Poust did do it. Moreover, her testimony that she would not be

surprised if Poust put something in the drink is also not evidence that he did.

No attempt was made to explain the effects of Xanax, the only other drug she

testified was available.

      To make out that drugs were administered that altered C.H.’s judgment,

there needed to be evidence that her intoxication was caused by something

other than the alcohol and drugs she voluntarily sought and consumed.

Particularly apt here is the following principle that:


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       When two equally reasonable and mutually inconsistent inferences
       can be drawn from the same set of circumstances, a jury must not
       be permitted to guess which inference it will adopt, especially
       when one of the two guesses may result in depriving a defendant
       of his life or his liberty.

Commonwealth v. Hubbard, 372 A.2d 687, 692 (Pa. 1977) (quoting

Commonwealth v. Woong Knee New, 47 A.2d 450, 468 (Pa. 1946)).3 In

the absence of a foundation, C.H.’s opinion that they had been drugged was

conjecture and insufficient to allow the jury to infer that Poust gave her a drug

or other substance without her knowledge.

                                               B.

       Even if we assume that Poust placed something in her drink, to make

out the charged crimes it had to be established that C.H. was substantially

impaired so as not have control over her conduct. Ignoring that the effects

that she described may be inferred for the drugs and alcohol she admits that

she voluntarily consumed, C.H. testified that, even after she felt that her

judgment was altered, she still went back again and again to “party” –


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3 Our Supreme Court recently analyzed this principle and reaffirmed its
applicability to sufficiency review:

       [I]f the trial evidence of record viewed in the light most favorable
       to the Commonwealth and all reasonable inferences drawn from
       that evidence is only, at most, equally consistent with a
       defendant’s innocence as it is with his guilt, the Commonwealth
       has not sustained its burden of proving the defendant’s guilt
       beyond a reasonable doubt.

In the Interest of J.B., 189 A.3d 390, 415 (Pa. 2018).


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consuming alcohol, smoking marijuana, and to have sex. In such circumstance

because she went to “party” knowing full well that she was going engage in

sexual activity that makes that sex consensual.

       After reviewing the evidence in the light most favorable to the

Commonwealth, I am compelled to find that the jury invalidly concluded that

C.H. was drugged by Poust. In the words of Hubbard, a finding that (1) C.H.

was impaired by alcohol, marijuana or its combined effects, and/or (2) Poust

drugged C.H. without her knowledge are mutually inconsistent but equally

reasonable to infer. Moreover, given that she went back to party and have

sex after she felt that she was impaired, makes the sex consensual.

Accordingly, because I would discharge all the convictions where the consent

was at issue, I respectfully dissent.4



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4 In its count for Corruption of Minors in the criminal information, the
Commonwealth chose to simply track the statutory language of the offense
rather than specify what specific offenses or acts Poust committed in violation
of Chapter 31 of the Crimes Code. Consistent with the criminal information,
the trial court’s charge instructed the jury that in order to convict Poust of
Corruption of Minors, it would need to find that Poust corrupted or intended
to corrupt the morals of C.H. by committing the underlying offense of Rape,
IDSI, Aggravated Indecent Assault or Indecent Assault. See N.T., 1/23/18,
at 155. Because I would hold that there is insufficient evidence to make out
the sexual offenses, it follows that there was insufficient evidence for the
Corruption of Minors and Conspiracy convictions.

However, I would find that the evidence was sufficient to support a conviction
for the offense of Corruption of Minors (and Conspiracy) graded as a
misdemeanor under 18 Pa.C.S. § 6301(a)(1)(ii) because consent is immaterial
and there is no requirement of any underlying criminal activity.


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