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Betwel Birari v. State of Indiana
State: Indiana
Court: Court of Appeals
Docket No: 49A02-1111-CR-1009
Case Date: 06/08/2012
Preview:FOR PUBLICATION

ATTORNEY FOR APPELLANT: DEBORAH MARKISOHN Marion County Public Defender Agency Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana NICOLE M. SCHUSTER Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

Jun 08 2012, 9:26 am

IN THE COURT OF APPEALS OF INDIANA
BETWEL BIRARI, Appellant-Defendant. vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 49A02-1111-CR-1009

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Kurt Eisgruber, Judge The Honorable Steven Rubick, Magistrate Cause No. 49G01-1107-FB-52231

June 8, 2012

OPINION - FOR PUBLICATION

BROWN, Judge

Betwel Birari appeals his conviction for attempted rape as a class B felony. Birari raises two issues which we revise and restate as: I. II. Whether the evidence is sufficient to sustain his conviction; and Whether the prosecutor committed prosecutorial misconduct that resulted in fundamental error.

We affirm. The relevant facts follow. Birari and A.J. both worked at a nursing home as certified nursing assistants and became friends. Birari told A.J. that he wanted to take their friendship to the "next level," and A.J. indicated that she just wanted to remain friends. Transcript at 30. At one point, Birari sent A.J. a text message that stated: "I pray that we get married one day." Id. at 42. Later, he sent A.J. a text message that stated: "To be honest with you, I like you much but you treat me like trash. Am sorry . . . ." Id. A.J. responded with a message that stated: "Well, I'm sorry you feel that way. I think you are immature. I told you from the beginning I only wanted to be friends. I do not have strong feelings for you and you can't understand that." Id. at 43. On July 22, 2011, A.J. finished her shift at work at 11:00 p.m. and went to her mother's house with Birari. A.J. and Birari then went to pick up A.J.'s two-year-old cousin. The three then went to A.J.'s apartment which she shared with a roommate. A.J. had not discussed the possibility of taking her relationship with Birari to another level nor touched Birari in a romantic way during the evening. It became late, and A.J. told Birari that he could stay over and that she would take him home in the morning. The apartment was not fully furnished and A.J. decided that Birari would sleep at the foot of the bed, A.J. would sleep in the middle, and her two2

year-old cousin would sleep at the top of the bed. A.J. was wearing sweatpants and a tank top when she went to bed, and Birari was wearing sweatpants and a shirt. Sometime after 4:00 a.m., A.J. went to sleep and later woke up and found Birari, who was wearing only boxer shorts, on top of her and "felt his penis near [her] vagina." Id. at 58-59. Specifically, A.J. felt his penis touching her bare skin and that "it seemed like he was trying to find" her vagina, but his penis did not enter her vagina. Id. at 83. A.J. realized that she was no longer wearing her sweatpants. A.J. asked Birari what he was doing and Birari attempted to put his arms around her and said, "[A.J.], no, no." Id. at 60. A.J. "got [Birari] off immediately," turned on the light, put her pants on, and started swinging her fists at him. Id. at 61. Birari said, "Just let me go, please. Just let me go." Id. at 63. A.J. screamed for help from her roommate who responded and "started swinging on [Birari] as well." Id. at 64. A.J. and her roommate were able to remove Birari from the apartment despite his attempts to resist. Once outside of the apartment, Birari, wearing only his boxer shorts, pushed back against the door. A.J. and her roommate were unable to close the door, and A.J. retrieved a knife to "try to get [Birari] away from the door." Id. at 66. A.J. chased Birari out of the building with the knife and she returned to the apartment. A.J.'s roommate called the police while A.J. was hyperventilating, and Birari yelled, "Please, don't call the police. Just kill me." Id. at 96. The police arrived and arrested him. On July 26, 2011, the State charged Birari with two counts of attempted rape as class B felonies. The State later filed a motion to dismiss the first count, and the court granted the motion. Specifically, the State charged Birari with attempting to: 3

knowingly have sexual intercourse with [A.J.], a member of the opposite sex, when [A.J.] was unaware that the sexual intercourse was occurring, by engaging in conduct that constituted a substantial step toward the commission of the crime of Rape, that is, [Birari], after removing [A.J.'s] pants, got on top of [A.J.] and rubbed his erect penis on [A.J.'s] bare vagina .... Appellant's Appendix at 40. During the trial, A.J. and her roommate testified to the foregoing facts. A.J. testified that she felt Birari's penis near her vagina, that she felt his penis touching her bare skin and that "it seemed like he was trying to find" her vagina. Transcript at 83. During cross-examination, A.J. testified that Birari's penis had not touched her vagina at the point that she started striking him. The following exchange then occurred during redirect examination of A.J.: Q [A.J.], I was hoping to avoid this. It will be awkward for everyone, but I think we need to talk about the female sex organ. I'm going to use a Kleenex box, if I might. The female sex organ: the labia majora, the labia minora, and the inner vagina. Please point
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