Betwel Birari v. State of Indiana
968 N.E.2d 827
| Ind. Ct. App. | 2012Background
- Birari was convicted of attempted rape as a class B felony after an incident with A.J., a nursing-home coworker who only wanted to remain friends.
- The State charged two counts of attempted rape; one count was dismissed before trial.
- A.J. testified that Birari moved to a sexual level while she slept, with his penis near her vagina but not necessarily inside.
- Birari removed A.J.’s sweatpants and clothes; A.J. awoke to Birari on top of her, and she and her roommate restrained him.
- There was a two-year-old cousin sleeping in the bed; Birari yelled for the police to kill him when confronted.
- Birari argued variances between the charging information and trial proof, asserted lack of intent, and challenged A.J.’s alleged unawareness; the trial court denied relief and the jury convicted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for attempted rape | Birari asserts lack of substantial step and intent | Birari contends no proof of touching vagina; variance defective | Evidence supports substantial step and intent; sufficient for conviction |
| Prosecutorial misconduct and fundamental error | Birari alleges improper comments urging truth of the victim | State argues comments were improper but not fatal | No fundamental error; misconduct not reversible error under standard |
Key Cases Cited
- Jordan v. State, 656 N.E.2d 816 (Ind. 1995) (standard for sufficiency of evidence; no reweighing of witnesses)
- Ferrell v. State, 565 N.E.2d 1070 (Ind. 1991) (uncorroborated testimony of a victim can sustain conviction)
- Hughes v. State, 600 N.E.2d 130 (Ind. Ct. App. 1992) (substantial step is an overt act beyond mere preparation)
- Mitchem v. State, 685 N.E.2d 671 (Ind. 1997) (variance test; two-part inquiry re prejudice and double jeopardy protection)
- Rupert v. State, 717 N.E.2d 1209 (Ind. Ct. App. 1999) (variance not necessarily fatal if defendant was not prejudiced and defense was aware)
- Glover v. State, 760 N.E.2d 1120 (Ind. Ct. App. 2002) (unaware defined as asleep/unconscious; rape while asleep sufficient)
- Graham v. State, 736 N.E.2d 822 (Ind. Ct. App. 2000) (sufficiency where victim asleep and unaware)
- Becker v. State, 703 N.E.2d 696 (Ind. Ct. App. 1998) (definition of unconscious/awareness in sexual offense)
- Madison v. State, 234 Ind. 517, 130 N.E.2d 35 (Ind. 1955) (noting variance analyses in historical context)