People v. Smith

A jury found defendant Larry Steven Smith guilty of rape of an intoxicated woman (count I), rape of an unconscious woman (count II), and misdemeanor sexual battery. The trial court sentenced defendant to prison for eight years.

On appeal, defendant contends (1) the trial court gave misleading and incomplete instructions on rape of an intoxicated woman that require reversal of both rape convictions; and (2) because there is no crime of sexual battery of an intoxicated or unconscious woman, his conviction for sexual battery must be reversed. We shall affirm the judgment.

During the afternoon of November 11, 2008, the victim, a 40-year-old woman, went shopping in the town of Jackson. Prior to noon she had taken medication for polymyositis, a disease which causes her immune system to attack her muscles, and included one milligram of Ativan, 10 milligrams of hydrocodone, 325 milligrams of acetaminophen, and 60 milligrams of Cymbalta.

Between 3:00 and 4:00 p.m., the victim went into a bar, the Fargo, and ordered a drink that contained one-half-ounce shots of vodka, rum, gin, and tequila. She ordered two more of the same, but drank only about one-half to one-third of the…