People v. Dunlevy CA3

BACKGROUND

Shelby H. and her friend, A.S., visited Shelby’s boyfriend, A.M., at a home he shared with three roommates, including defendant. After Shelby, A.S., and A.M. returned from drinking at a bar, defendant and another man joined the group for more drinking and dancing in A.M.’s room. Although Shelby did not drink at A.M.’s house, she felt intoxicated from the drinks she had earlier at the bar. A. Shelby’s testimony A.S. fell asleep on an upright futon in A.M.’s room with her legs on defendant’s lap. A.M. went to sleep in his own bed as he had to work in the morning. Shelby then smoked marijuana and felt “just kind of a little stoned.” As Shelby sat on A.M.’s bed, she saw defendant on the futon stroking A.S.’s thighs as she slept, which made Shelby uncomfortable. Shelby shared her marijuana with defendant, hoping he would fall asleep, but he did not. After smoking together, Shelby asked defendant to help her lower the futon into its flat, “laid down position.” Shelby then hopped on the futon next to A.S. to prevent defendant from touching A.S. while she slept. Shelby told defendant to lay on A.M.’s bed, and he did. Shelby then fell asleep sometime after 2:00 a.m. Shelby…