Casey v. StateCasey v. State
- Reporters:
- , ,
- Before:
- Holcomb, Keller, Meyers, Womack, Johnson, Keasler, Hervey, Cochran, Price
Holcomb, J., delivered the opinion of the Court, in which, Keller, P.J., Meyers, Womack, Johnson, Keasler, Hervey, and Cochran, JJ., joined. Price, J., dissented.
O P I N I O N
Appellant David Wayne Casey was charged with aggravated sexual assault
I.
Relevant Facts
Appellant and one of his friends, Scott Cаnnon, were tried jointly for drugging and sexually assaulting K.T., the complainant. Cannon was acquitted, appellant was convicted, and the jury sentenced him to a twenty-year prison term.
K.T. met appellant at a party a couple of months prior to the offense. Chris Nunn, K.T.‘s then-boyfriend and appellant‘s friend, introduced K.T. to appellant at the party. By the time of the offense, K.T. was no longer dating Nunn.
On the night of the offense, K.T. was working as a waitress at topless bar.1 She called appellant on her cell phone to see what he was doing. K.T. got another call and told appellant that she would call him back, but appellant and Cannon arrived at the bar a short time later to see K.T. K.T. then conversed with appellant and Cannon and had at least one drink with them.2 Appellant and Cannon invited K.T. to appellant‘s house “to hаng out,” and she accepted.
K.T. followed Cannon and appellant to his house in her own car. After arriving at appellant‘s house, the three were joined by appellant‘s roommate, Jessie Diaz, and his female companion, Brandy. Appellant, Diaz, and Cannon went into the kitchen and prepared some vodka “shots” for everyone. When the men returned to the living room, the shots were passed around to everyone; Diaz handed K.T. a shot. K.T. testified that she drank only part of the shot because she did not like the taste and she generally did not drink much. However, K.T. was encouraged3 to drink the rest of it, and she did.
K.T. testified that she felt extremely intoxicated about one minute after drinking the vodka shot and lost consciousness, although she had brief intervals of partial lucidity throughout the rest of the evening. K.T. described these intervals as follows: “[I felt] weak and nauseous mostly, most of all nauseous. And I mean I could see, but it was just like I would see double. Like I would see for a second then I would see it double, and then I would throw up and then I would pass back out.” K.T. further testified that these moments of partial coherence lasted approximately a minute or less.
K.T. remembered first being dragged from the living room and into a hallway.
K.T. testified that she felt “helpless” and explained that she tried to tell them to stop, “but I really couldn‘t move my mouth or my arms or anything. I was trying to but I was very weak. The first time I tried to say something I was kind of crying . . . I was just saying, ‘No.’ But it wasn‘t very loud. I noticed I was really weak. I couldn‘t really do anything.” K.T. testified that when she awoke the next morning, she was naked and lying on the floor in appellant‘s bedroom. Appellant told her that she had gotten “so f____d up last night,” and that he had had to wash her clothes. Although still impaired, K.T. got dressed and drove to Nunn‘s house. Nunn drove her to a hospital for a rape exam. Police questioned K.T. about the offense while she was at the hospital.
K.T. testified that she had drunk very little alcohol prior to going to appellant‘s house, and once she was there, she drank only a sip of one beer and then the vodka shot. K.T. explained that she was not a heavy drinker, generally, and there was only one time in her life that she could recall drinking as much or more than she drank that night; but she further testified that that amount only made her feel “buzzed,” and she did not pass out, vomit, or become incontinent on that occasion.
Defense counsel vigorously cross-examined K.T. about how much alcohol she had drunk, and suggested that K.T. voluntarily drank herself into the incoherent state she was in that evening. Appellant also offered evidence that K.T. had personal reasons to testify falsely about the incident. Specifically, defense counsel questioned K.T.‘s motives, implying that K.T. had actually consented to sex with appellant, but later decided to lie so that her on-again, off-again boyfriend, Nunn, would not be angry with her and would “take her back.”4
Results from the rape exam indicated that appellant was the contributor of semen recovered from K.T.‘s vagina. Cannon was ruled out as a contributor. The results of a urinalysis test for gamma hydroxybutyrate (GHB), commonly known as a date-rape drug, was negative. However, at trial, the State offered the testimony of a toxicologist who explained that GHB has a half-life in the body of only twenty minutes to an hour.
Appellant‘s house was searched, and police recovered the following items: a plastic coke bottle containing GHB; two exposed but undeveloped rolls of film from Diaz‘s bedroom; one Polaroid photograph depicting K.T. passed-out, unclothed, and lying in the hallway; and three Polaroid close-up shots of her vagina.5
The second group of photos, State‘s exhibits 77 and 82 through 97, depict various people in and around appellant‘s housе. One photograph, State‘s exhibit 95, shows Cannon and two other participants willingly engaging in a sex act and posing for the camera. This photograph, along with State‘s exhibits 96 & 97, is one in a series of photographs depicting Cannon, another woman (who is clearly conscious), and another man. State‘s exhibit 95 depicts the naked woman lying on a bed between Cannon and the other man. She has her legs spread for the camera while Cannon and the other man are kissing her neck and face. State‘s exhibit 96 depicts the same woman and Cannon. Her legs are spread wider, she is smiling at the camera, and she is spreading her labia open with the fingers of one hand. State‘s exhibit 97 is a close-up shot of the same woman‘s vagina. In this photo, she is spreading her labia with both hands. Cannon‘s knee and the other man‘s hand are also visible in the background of the photo.
Also within this second group of photos is a photograph of Diaz, which was admitted as State‘s exhibit 77. He is shown having what appears to be consensual intercourse with an unidentified woman in his bedroom.
Another series of photographs from this second group depicts appellant, Cannon, and Diaz in and outside of appellant‘s house. Several photographs show Cannon intoxicated, sitting or lying on the ground. In one photograph, he is vomiting on the ground. In another photograph, appellant is “flashing” a gang sign in the kitchen of the house, and in another photograph, he is urinating on the side of the house.
In sum, the State argued primarily that all of the photographs were admissible to connect appellant and Cannon as parties to the instant offense, to show motive, and to rebut appellаnt‘s defensive theories that it was K.T. who brought the GHB, voluntarily became intoxicated, and consented to the sexual acts.
The trial judge conducted extensive hearings outside the jury‘s presence on the admissibility of these photographs. She examined all of the photographs, articulated their relevance and probative value on the record,7 and allowed the parties to
She initially ruled that only some of the photographs were admissible, but toward the end of testimony the next day, the State reoffered the rest9 and the trial judge admitted them. She noted, inter alia, that they tended to show the knowledge and participation of all three men-appellant, Cannon, and Diaz-in this incident as well as the other two incidents.
Holdings of the Court of Appeals
The court of appeals reversed the trial court‘s judgment, holding that admission of the photographs from the undeveloped rolls of film violated Rules of Evidence 401, or 404(b), and 403, and that their improper admission was harmful. Specifically, the court of appeals concluded that the trial court erred in admitting the two sets of photographs because “the events
Standard of Review
When reviewing a trial court‘s ruling on the admission of evidence, an appellate court applies an abuse of discretion standard of review. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh‘g). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 101-102 (Tex. Crim. App. 1996).
Applicable Law
Evidence that does not have relevance apart from character conformity is inadmissible.
Once a trial court rules that uncharged misconduct evidence is not barred under
The term “probative value” refers to the inherent probative force of an item of evidence-that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation-coupled with the proponent‘s need for that item of evidence. Gigliobianco v. State, PD-1878-05, Slip op. *5 (Tex. Crim. App. 2006). When conducting the balancing test under
“Unfair prejudice” refers to a tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. Gigliobianco, PD-1878-05, slip op. *5 (citing Montgomery v. State, 810 S.W.2d at 389). Evidence might be unfairly prejudicial if, for example, it arоuses the jury‘s hostility or sympathy for one side without regard to the logical probative force of the evidence. Id. at *5-6.
“Confusion of the issues,” refers to a tendency to confuse or distract the jury from the main issues in the case. Id. at *6. Evidence that consumes an inordinate amount of time to present or answer, for example, might tend to confuse or distract the jury from the main issues. “Misleading the jury,” refers to a tendency of an item of evidence to be given undue weight by the jury on other than emotional grounds. For example, “scientific” evidence might mislead a jury that is not properly equipped to judge the probative force of the evidence. Id. “Undue delay” and “needless presentation of cumulative evidence” concern the efficiency of the trial proceeding rather than the threat of an inaccurate decisiоn. Id.
In sum, a trial court must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent‘s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or repeat evidence already admitted. Id. at * 6-7.
Analysis and Holdings
State‘s Exhibits 71 through 76 & 78 and 95 through 97
Exhibits 71 through 76 and 78 are photographs depicting an unidentified woman (or possibly two different women), who is naked and unconscious. Exhibits 95 through 97 depict another unidentified woman who is naked and clearly conscious.
Rule of Evidence 404(b)
We hold that these photographs were not inadmissible under
We have held that when the defensive theory of consent is raised in a prosecution for sexual assault, the defendant necessarily disputes his intent to engage in the alleged conduct without the complainant‘s consent and places his intent to commit sexual assault at issue. Rubio v. State, 607 S.W.2d 498, 501 (Tex. Crim. App. 1980).
We have also stated that “evidence of a defendant‘s particular modus operandi is a recognized exception to the general rule precluding extraneous offense evidence, if the modus operandi evidence tends to prove a material fact at issue, other than propensity.” Owens v. State, 827 S.W.2d 911, 915 (Tex. Crim. App. 1992). In the context of extraneous offenses,
The State‘s theory of relevance for offering the photographs of the other unconscious woman was that, because the defense had attacked K.T.‘s character and argued that the evening‘s activities were her idea and that she provided the GHB, it was entitled to show that this was not an isolated event. Instead, “[t]he photographs of the extraneous sexual assault on an apparently unconscious woman in the [appellant‘s] residence are illustrative of a motive to engage in nonconsensual sexual activity for the purpose of photographing the activity.” State‘s Brief at 13. Although the defensive theory of K.T.‘s bad character and her willing participation in this type of sexual encounter and photography might appear plausible on its face, its plausibility diminishes if the same scenario is repeated with other women on other occasions.
Before admitting the photographs, the trial judge noted numerous similarities between the charged incident and that depicted in the photographs of the unconscious woman:
1) the events occurred in the same bedroom on the same bedding in appellant‘s home;
2) the photographs depicted an unconscious woman being sexually abused;
3) the photographs showed a group of men, one of whom was having sex with the unconscious woman while others are present;
4) the photographs depict a “positioned” unconscious naked wоman whose legs have been spread apart;
4) one of the men took photographs of the incident.
K.T. had testified that both appellant and Cannon sexually assaulted her and that both of them took photographs of the assaults. The Polaroid photographs show her “positioned” in the same manner as the other unconscious woman. The trial court used the term “spectator sport” in noting the similarities between the Polaroids of K.T., the photographs of the unconscious woman, and the photographs of the conscious woman who appeared to be enjoying the activities. Two of the women did not appear to be consenting to the activities, while the third-as a contrast-did. Consent versus nonconsent. Drugged versus not drugged. Sexual abuse versus sexual participation. We conclude that the trial judge did not abuse her discretion in finding that the photographs of bоth the unconscious woman and the conscious woman were relevant for the non-propensity purpose of rebutting the defensive theories that “the stripper” K.T. brought the GHB, initiated the sexual activity, and consented to the photographic depiction of it. See Martin v. State, 173 S.W.3d at 466-67; Gipson v. State, 619 S.W.2d 169, 170 (Tex. Crim. App. 1981); 1 Edward J. Imwinkelried, § 5:3 (Rev. ed. 2003).;
Rule of Evidence 403
We further hold that the probative value of the photographs of the unconscious female (or females) and of the conscious female was not substantially outweighed by the danger of unfair prejudice under
Whether K.T. consented was the ultimate issue to be established by the parties in the litigation. See, e.g., Martin, 173 S.W.3d at 466; Boutwell v. State, 719 S.W.2d 164, 179 (Tex. Crim. App. 1985) (a successful conviction for sexual offense often depends primarily on whether the jury believes the complainant). Appellant sought to show through extensive argument and testimony that K.T. was a willing participant in the sex act, and thus, no sexual assault could have occurred. Appellant and Cannon offered evidence that K.T. initiated the sexual activity with appellant; that she brought the GHB with her; that she could not remember precisely the events of the evening due to her voluntаry intoxication, and if she could remember, she was lying to the jury; that she was a stripper, and therefore, she naturally consented; and that her desire to win back the affections of Nunn drove her to falsely accuse appellant and Cannon of non-consensual sex.
State‘s exhibits 71-76 & 78‘s probative force centers in their inherent ability to show that it was unlikely that K.T. and at least one other woman were consenting to the sexual activity. See Johnson v. State, 68 S.W.3d 644, 651-52 (Tex. Crim. App. 2002); Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002); Albrecht v. State, 486 S.W.2d at 100 (before evidence of collateral crimes is admissible, a relationship between such evidence and the evidence necessary to prove that the accused committed the crime for which he stands charged must be shown). Moreover, the record reflects that it was obvious to the trial court that the woman in State‘s exhibits 71-76 was unconscious and not participating because she was in the same position from frame to frame with her mouth agape, despite having large objects inserted into her vagina and having cunnilingus performed on her. The trial court, thus, explicitly reasoned that these photographs were supportive of a significant fact of consequence--that K.T., like the other woman, was unconscious and did not consent. We conclude that the photographs of the other unconscious woman (or women) were strong evidence that K.T. did not consent on the night in question. We couple this strong probative force with the State‘s need for the evidence.
K.T. was largely incoherent throughout the evening, and at trial, both appellant and Cannon vigorously challenged her ability to remember the events as they unfolded. For example, in opening argument, Cannon‘s attorney chided that “the only evidence of sexual contact will come from [K.T.],” “who will tell you in her
The inherent probative valuе and the State‘s need for the evidence are then balanced against the
Appellant complained that these photographs were unfairly prejudicial.12 Therefore, we shall determine whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. See
Unfair prejudice refers not to an adverse or detrimental effect of evidence but to an undue tendency to suggest a decision on an improрer basis, commonly an emotional one. See Old Chief v. United States, 519 U.S. 172 (1997). Unfair prejudice does not arise from the mere fact that evidence injures a party‘s case. Virtually all evidence that a party offers will be prejudicial to the opponent‘s case, or the party would not offer it. Cohen v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993). Evidence is unfairly prejudicial only when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justifies its admission into evidence. United States v. Figueroa, 618 F.2d 934 (2d Cir. 1980). The prejudicial effect may be created by the tendency of the evidence to prove some adverse fact not properly in issue or unfairly to excite emotions against the defendant. See id.
The photographs of the naked unconscious woman (or women) having sex acts performed upon them were certainly prejudicial. And it is undisputed that the photographs would generate an emotional response. See Wheeler, 67 S.W.3d at 889 (evidence of an extraneous sexual offense will always carry emotional weight and the danger of impressing the jury in an irrational and indelible way). However, the trial judge did not abuse her discretion in declining to find that the risk of unfair prejudice from admission of the photographs substantially outweighed their probative value.
First, these photographs are circumstantial evidence that K.T. did not consent in the instant offense. See Cohn, 849 S.W.2d at 820. The photographic evidence showing both an unconscious woman and a contrasting conscious woman tends to corroborate K.T.‘s testimony that she, like the other unconscious woman, did not consent to either the sex or the photography. See id. Like all corroborating evidence, because
Second, the evidence demonstrated a modus operandi of group sex, drugs, and phоtography and rebutted the defensive theory that K.T. brought the drugs, initiated the sex, and consented to the photography. Although this evidence might have been inadmissible under
In Montgomery v. State, we explained that “[w]hen the proponent has other compelling or undisputed evidence to establish the proposition or fact that the evidence goes to prove, the [probative value of thе evidence] will weigh far less than it otherwise might in the probative-versus-prejudicial balance.” 810 S.W.2d at 390. Here, the four Polaroid photographs of K.T. depicting her naked and unconscious, including the close-up shots of her vagina, were not very compelling, standing alone, to show her lack of consent.13 Likewise, without the benefit of the photographs of the other women, K.T.‘s testimony could have been easily discounted by the jury due to her intoxication and intermittent recollection of the events. The trial judge, who was present in the courtroom, was better able to gauge the tone and tenor of K.T.‘s testimony and of the defense cross-examination than are we. As noted above, the trial judge conducted extensive hearings outside the jury‘s presence concerning the admission of this evidence. Hers was not a hasty or unreflеctive ruling. Accordingly, we conclude that she did not abuse her discretion in deciding that the probative value of these photographs was not substantially outweighed by the risk of unfair prejudice.
State‘s exhibits 77 and 82 through 94
On the other hand, we agree with the court of appeals’ ultimate conclusion that State‘s exhibit 77 (Diaz having sex with an unnamed female) and State‘s exhibits 82 through 94 (various photographs of Cannon, who appears to be very intoxicated, and two of appellant-one wherein he is urinating on the side of a building, and in another, he is flashing a gang sign) were inadmissible, as they were not supportive of a fact of consequence to the proceedings. See
After examining the record of appellant‘s trial as a whole, we have fair assurance that the error did not have a substantial and injurious effеct or influence in determining the jury‘s verdict. First, the photographs of Cannon, appellant, and Diaz “partying” were not scandalous or shocking, but, were innocuous in comparison to both the photographs of K.T. and those of the other women. Second, except for one comment during closing argument, the State did not emphasize the evidence. There was no mention of gang affiliation or alcohol addiction; instead, the State‘s sole comment was directed at showing that appellant and Cannon acted together, a strategy that obviously failed, as the jury acquitted Cannon. Third, there was very little contemporaneous testimony concerning the photographs when they were admitted into evidence. Fourth, this jury was manifestly able to consider the probative evidence and separate it from marginally relevant evidence because it did acquit Cannon and convicted appellant of the lesser-included offense of sexual assault rather than the charged offense of aggravated sexual assault. We therefore conclude that the erroneous admission of State‘s exhibits 77 and 82 through 94 was harmless error under
II.
The court of appeals further held that the use of the word “victim“in the jury charge constituted an impermissible and harmful comment on the weight of the evidence. Casey v. State, 160 S.W.3d at 230. Defense counsel objected to the use of the word “victim” in the charge. The conference on the charge proceeded, in pertinent part, as follows:
Counsel: Judge, I‘ve got an objection to the Charge. .... [T]he use of the word victim, I think is a misapplication.
******
The Court: That‘s what the Code says. The victim of the offense is something they will have to deсide.
Co-counsel: I think there‘s case law, I‘m not sure exactly what it is. I‘m not - that‘s an impermissible comment on the evidence.
Counsel: On Page 3. Judge, 3, says to the victim of the offense.
The Court: Which is what the Indictment says.
Counsel: That specifically is calling her a victim. I think that‘s an impermissible comment to the Jury.
The Court: Now, if you find from the evidence beyond a reasonable doubt, that‘s something they have to find. David Casey, alone or as a party knowing, knowingly or intentionally - okay. 2201 aggravated sexual assault uses the word victim of the offense. On page 1, that‘s all that‘s doing is
Cоunsel: Judge, just to make sure I‘ve got the objection stated right, on Page 3 where it says [K.T.] is the victim of the offense, by designating her as a victim it is our position the Court is instructing the Jury as a matter of law that she is a victim and impermissibly commenting on the weight and we object to the use of that terminology.
The Court: That - this is the application paragraph that we are talking about on page 3 and of course - and it will be the same in the other charge, I believe. Now, if you find from the evidence beyond a reasonable doubt, and it‘s followed by unless you so find beyond a reasonable doubt or if you have a reasonable doubt thereof you will acquit the Defendant of aggravated sexual assault and next consider the lesser included offense of sexual assault. That being the application paragraph, that being the allegation which does traсk the statute that is set out by the State in the Indictment, the Court - well, I can‘t change the wording of the Indictment.
Counsel: And it is our position that you can simply put [K.T.] with intent of facilitating without designating her and identifying her.
The Court: The law says you have to prove she is the victim of the offense. And so the State‘s got to prove that. I can‘t remove an element of proof.
Co-Counsel: Can we put in the alleged victim, include the word alleged?
The Court: No, because the whole wording of the paragraph says that that‘s what the State‘s got to prove. I would be amending - no, I can‘t do that. That‘s got - the application paragraph has got to track the Indictment.
The application portion of the jury charge read as follows:
Now if you find from the evidence beyond a reasonable doubt that . . . [appellant], acting alone or as a party, did . . . knowingly or intentionally cause penetration of the female sexual оrgan of [K.T.], without the consent of [K.T.], by . . . the sexual organ of [appellant], and [appellant], acting alone or as a party, did administer or provide a drug, namely: [GHB] to [K. T.], the victim of the offense, with the intent of facilitating the commission of the offense, then you will find the defendant guilty of aggravated sexual assault, as charged in the indictment.
Article 36.14 of the Code of Criminal Procedure requires that a trial court provide a jury charge “distinctly setting forth the law applicable to the case.”
Because the jury charge tracked the language of the statute, the trial court did not abuse its discretion by including the word “victim” in the charge. See Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App. 2004). We decline appellant‘s invitation to act as a super-legislature and rewrite this section of the Penal Code.
III.
We reverse the judgment of the court of appeals. We remand the cause to the court of appeals to address appellant‘s remaining points of error.
DELIVERED FEBRUARY 28, 2007
PUBLISH
Notes
Well, it appears in some of these photographs that there are a couple of photographs of a female-there‘s one photograph whеre you can‘t tell who the girl is because she‘s covered up with pillows. There are two photographs, three photographs of a female where it appears she is clearly conscious . . . In another one she appears to be smiling in the picture, and appears to be doing various [sex] acts. So in those I don‘t believe the girl is unconscious. They are very different from these where in some of these photographs the position of the arms, which appear to be limp, are in exactly the same position. Where it appears that she‘s got a Coke or beer can shoved up her vagina . . . . And [she is] also exactly in the same position at another time that a male appears to be having oral sex with her. This appears to be a girl who is unconscious. . . . They are very different from the оther photographs.
Once the trial judge separated these pictures into two categories-one unconscious woman (or perhaps two such women) unaware that she was being photographed while having sex acts performed upon her and a second, conscious woman who appeared to enjoy the sex acts and was aware of being photographed-she noted,
The defensive theory that appears to have been raised in this case through questions that were asked and statements that were made to the complainant on the stand, isn‘t it a fact that you took the GHB in there. Isn‘t it a fact you consented to these sexual acts. . . . . From the context of all these photographs there‘s an appearance that these are some sort of spectator sport, where one person is having sex and other people are around, at least one other person taking the photographs. . . . [I]t appears in the photographs that the-of the two different girls, that the location of the sexual acts that are taking place with both girls appear to be on the same bed. The bedding is the same. . . . There are multiple people involved in these situations. At least three different males.
The trial judge then explained that “there is great relevance to at least some of the photographs” which showed “an unconscious girl being sexually abused” in a manner that was very similar to that shown in the Polaroid photographs of the present incident and other photographs which showed another similar incident except that the girl in those pictures appeared to be conscious and consensually participating in the sex acts. The trial judge noted that Jesse Diaz appeared in the photographs of the unconscious woman and “[t]here‘s testimony that Jesse Diaz is the one who actually delivered the drug to complainant in this case.” She noted that “[t]here are photographs of all three people that were present during this offense, according to the complainant, in this roll of film. And they tend to show the nature of their relationship, a preoccupation or an interest or amusement in seeing people intoxicated or passed out . . . which to me is relevant to this.”
Defense counsel: The truth is that the only reasons you can recognize that those foggy photos of someone‘s - between someone‘s legs is because you posed for them and y‘all laughed and joked about them, isn‘t that right?
K.T.: No.
Defense counsel: They were lousy photographs, weren‘t they?
K.T.: [non-responsive answer]
Defense counsel: Unless of course you were consenting and laughing and joking about it, right?