People v. Giardino

The victim, a 16-year-old friend of Mark Giardino’s (defendant) stepdaughter, spent the night at Giardino’s house. The victim consumed two drinks of bourbon and subsequently became giggly, had slurred speech, and fell several times. However, the victim seemed aware of her actions. Giardino and another man, Thomas Lyles, took the victim to a motel and helped the victim climb upstairs. Once in a room, the victim started to take a shower. When Giardino called to the victim and she entered the bedroom, both men were naked. The victim claimed she walked toward the door and asked if they were going home. Giardino and Lyles claimed that the victim encouraged sexual relations. Giardino instructed the victim to have intercourse with Lyles and to have oral copulation, or sexual intercourse, with Giardino. Giardino and Lyles then engaged in various forms of intercourse with the victim. The victim claimed she was only partially conscious during these activities and was merely responding to instructions from Giardino. Giardino attempted to apply a sexually stimulating drug to the victim’s face using a cloth, but the victim held her breath and pushed the cloth away. The victim then dressed and walked down the stairs unassisted, and the group drove back to Giardino’s house. The victim stayed overnight and into the next day without any objections. Giardino was charged and convicted of rape by intoxication, oral copulation by intoxication, oral copulation with a minor, and unlawful sexual intercourse. Giardino appealed the rape and oral-copulation-by-intoxication convictions on the grounds that the trial court erred by failing to: (1) include lack of consent as an element in the offenses and (2) provide an adequate instruction regarding the prevented-from-resisting element of the offenses.