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,
Free access — add to your briefcase to read the full text and ask questions with AI
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