State v. Gager

DISSENTING OPINION BY

MIZUHA, J.

At the request of the State, the lower court instructed the jury on two theories of law to negate the element of consent.

State’s Instruction No. 6 properly instructed the jury as to what was sufficient on the part of the complaining witness as far as the element of resistance was concerned.

State’s Instruction No. 8 was improper. It read:

“Where a female is intoxicated to the extent of being unable to resist, the act of sexual intercourse is without her consent and is rape; but the intoxication must actually render her incapable of resistance, and not merely be…