Is evidence that a complainant does not remember giving consent, and states that she awoke from sleep during the sexual encounter, legally sufficient to show that she was 'an incapacitated person?'

QUESTIONS PRESENTED FOR REVIEW Mr. Campbell was convicted of rape of a person who was “an incapacitated person because of a temporary physical condition in which K.K.! was unconscious.” K.K. testified that she was asleep after drinking heavily and awoke to find Mr. Campbell engaging in sexual intercourse. Mr. Campbell testified that he spoke with K.K. at the beginning of the encounter, and she invited him into bed and consented to his actions. In final argument the prosecutor told the jury, over objection, that “To find [Mr. Campbell] not guilty, you would really have to believe that K.K. made all of this up... .” Tr. p. 2475. The case therefore presents the following questions. 1. Is evidence that a complainant does not remember giving consent, and states that she awoke from sleep during the sexual encounter, legally sufficient to show that she was “an incapacitated person?” 2. Did the state’s argument misstate the burden of proof? 1 As state court rules required, petitioner has redacted the name of the alleged victim and substituted her initials. During trial, the victim’s name was used. i