This section contains the nature of the case and procedural background.

D had sex with K.M. at a Massage Envy studio, where D was employed as a massage therapist and K.M. was a client. K.M. had received one previous massage from D at the studio. K.M. had not requested D as her therapist. K.M. removed all of her clothing for the massage. During the massage, she was covered only by a sheet and blanket. In D's version, K.M. became aroused and initiated sexual contact by humping the table and grabbing D's crotch. The two then began having sex, in which K.M. showed active engagement by giving him oral sex, rolling over on the table, and playing with her breasts. K.M. told the jury that she was receiving a massage when D unexpectedly started massaging her inner thigh. She testified that she felt 'very uncomfortable' because she had never had a massage therapist do that in previous massages, and she 'didn't know how to respond.' Then, 'before [she] knew it,' D pulled her to the end of the table, dropped his pants, and penetrated her vagina with his penis. K.M. testified that 'everything happened very fast' and that D may have touched or penetrated her vagina with his finger, but that she wasn't sure. She testified that D went from rubbing her thigh to penetrating her vagina within 'a matter of seconds.' K.M. testified that she had not 'flirted' with D, and did not say or do anything to suggest that she wanted to have sex with him. She did not physically resist or verbally tell D 'no'; she said nothing at all. She said she felt fearful because she was alone and because the only other person in the massage parlor was a male receptionist. She repeatedly stressed that 'everything happened very fast.' D made an alarmed (and profane) exclamation, and then K.M. saw him looking at semen in his hand. Then he told her, 'This concludes your massage,' and left the room. K.M. got up as 'quickly as [she] could,' wiped herself with a towel, and got dressed. She testified that her main concern was 'getting out of Massage Envy' as quickly as she could. Barela met her in the hallway, where he offered her water, which she accepted. She 'checked out as normal,' told the receptionist the massage was 'fine,' paid her bill (including a tip), and took a mint. K.M. returned to her partner, who then took her to the hospital. K.M. was examined by a nurse trained in examining sexual assault victims. The nurse found semen in K.M.'s vagina, which was identified as D's through DNA testing. K.M.'s condition was 'consistent with consensual sex,' as there was no genital injury. Of course, only twenty to thirty percent of assault victims display genital injuries. D's theory was that K.M. had consensual sex with D, worried that she had conceived and that the baby would resemble D (a light-skinned Hispanic), and that a 'serious problem' would ensue when Trista realized that the baby did not resemble their African American donor. D also asserted that K.M.'s actions after the sexual encounter were inconsistent with rape. She had accepted water from D and checked out of the massage studio as normal and left a tip, without appearing (to the receptionist) to be upset. K.M. had told Trista that she didn't know if she was raped because she didn't resist, a point arguably consistent with a statement she made to a police detective-that she didn't 'necessarily . . . even care if he's convicted of a crime.' Counsel also reminded the jury that there was no evidence of vaginal trauma. And the defense argued that if the rape occurred quickly, as K.M. had indicated, it would stand to reason that she would have suffered genital injury. The jury was instructed in part under Instruction 13, which identified four elements of rape: '1. D, 2. Intentionally or knowingly; 3. Had sexual intercourse with K.M.; 4. That said act of intercourse was without the consent of K.M.' D was found guilty. D filed a motion for a new trial, which the court rejected. D appealed.

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