C.A. 2nd;
B269153

The Second Appellate District affirmed a judgment of conviction. The court held that no supplemental instruction was required regarding the defendant's purported “reasonable belief” that a sodomy victim consented.

Andres Lujano was tried before a jury on charges of sodomy of an unconscious victim and sodomy of an intoxicated person. His defense was his purported belief that the victim in fact consented to their sexual act. The trial court instructed the jury on the elements of sodomy of an intoxicated person: “1. The defendant committed an act of sodomy with another person; 2. The effect of an intoxicating and/or controlled substance prevented the other person from resisting; and 3. The defendant knew or reasonably should have known that the effect of that substance prevented the other person from resisting.” The court further instructed that “a person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent.” The jury found Lujano guilty of sodomy of an intoxicated person.