State v. Lisasuain

Armando Lisasuain (defendant) sexually assaulted a 14-year-old female victim. The victim was lying on the couch when she was approached by Lisasuain, who was temporarily staying in her home. The victim moved her feet so that Lisasuain could sit. Lisasuain asked if he could rub the victim’s feet, and she consented. Lisasuain asked the victim if she had ever had her toes sucked, and then began to suck her toes. Lisasuain commented on her attractiveness and then said “he was going to tear [her] up.” Lisasuain positioned himself next to the victim’s head and asked if he “could go lower.” The victim did not respond. Lisasuain removed the victim’s pants and underwear, moved her legs around his shoulders and both performed cunnilingus on her and digitally penetrated her. The victim neither assisted nor spoke to Lisasuain. Lisasuain was charged with multiple offenses, including aggravated felonious sexual assault. After the jury returned a guilty verdict, Lisasuain moved for judgment notwithstanding the verdict (JNOV), challenging the sufficiency of the evidence as to the element of lack of consent. Lisasuain argued that the victim’s failure to affirmatively express that she did not consent to the sexual act meant that no reasonable jury could find him guilty. The trial court denied Lisasuain’s motion for JNOV. Lisasuain appealed, asserting that the trial court’s ruling was inconsistent with the plain language of the relevant statute, which required a lack of consent by the victim through “words or conduct.”