A state appeals panel has affirmed the conviction of a man who was found to have raped a woman after putting the drug MDMA in her drink, holding that the evidence against the man outweighed the fact that the trial court improperly allowed some testimony about the man’s conduct on earlier, unrelated occasions.

The unanimous Appellate Division, First Department, decision in People v. Blackwood, 1816/08, handed down yesterday, also held that the lower court properly allowed expert testimony suggesting that the victim may have been given GHB, a date rape drug that was not mentioned in the indictment.

The decision was written by Justice David Saxe (See Profile), who was joined by Justices Richard Andrias (See Profile), Karla Moskowitz (See Profile) and Sallie Manzanet-Daniels (See Profile).

The defendant, Horacio Blackwood, was convicted of second-degree rape and facilitating a sex offense with a controlled substance in April 2009 before Manhattan Supreme Court Justice Bonnie Wittner (See Profile) following a jury trial.

The complainant testified that she first met Blackwood at a talent expo in Texas in 2006, when she was a high school senior. Blackwood represented himself as a Los Angeles-based "talent agent" and said he could help the complainant start a career in entertainment.

In fall 2007, the complainant enrolled at the New York Conservatory of Dramatic Arts, an acting school in Chelsea. Blackwood, who had remained in contact with her, suggested that she meet him for dinner at Tao, a midtown restaurant, while he was visiting Manhattan that September.

The complainant agreed, and met Blackwood at his hotel room at 5 p.m., where he served her a drink. Blackwood then took the complainant shopping for a new dress, after which they returned to his hotel room, where Blackwell served her another drink some time between 7:40 p.m. and 8:15 p.m.

The two then went to the restaurant, where the complainant noticed her vision had become blurry. She also testified that she was "a little bit light-headed," "a lot more relaxed" and "happy." She had another drink, and two of her acting school classmates joined the pair. The classmates testified that the complainant was acting unusually "touchy-feely" at the restaurant, and one of them testified that she appeared to be intoxicated.

The complainant testified that she has no memory of the night after that point.

Her two classmates testified that the complainant had three or four more drinks during dinner and that her behavior became unusual, rocking back and forth, repeating her words and leaning on Blackwood. One of them testified that the complainant’s behavior seemed to go "beyond just being intoxicated."

All four then went to Marquee, a nightclub, where, according to the classmates, the complainant’s behavior became more unusual, and where she consumed at least three more drinks.

Blackwood and the complainant left Marquee around 1 a.m. and went back to the hotel. She woke up around 8:30, with no memory of most of the night, lying in Blackwood’s bed with no clothes on. Blackwood gave her $20 for cab fare to her school and said he would call her later.

That evening, the complainant, still unable to remember most of the previous night, went to Long Island College Hospital in Brooklyn, where a doctor concluded that she may have been drugged and raped. Rape kits revealed semen in the complainant’s vagina and on her underwear, and MDMA, commonly known as Ecstasy, in her blood. The complainant said she had never knowingly taken Ecstasy.

She was also tested for the date rape drug GHB, which causes memory loss, but none was detected. GHB is metabolized rapidly and is not expected to show up in a blood test more than 12 hours after it is ingested.

The complainant went to the police, and the following day, while at the precinct, she called Blackwood and asked him to tell her what happened. He told her that she had passed out, and that during the night she had tried to have sex with him, but he had refused because he did not have a condom.

A few days later, Blackwood voluntarily went to the precinct for questioning and voluntarily gave a cheek swab for a DNA test. His DNA matched the semen from the rape kit. He was charged soon after.

At trial, the prosecution presented expert witnesses who testified that the complainant’s experience was consistent with having been given Ecstasy with her first glass of wine, at the hotel room, and GHB later, since Ecstasy does not typically cause memory loss.

Separate Encounters

The prosecution also offered testimony from two women who had separate encounters with Blackwood.

One of them, Christine C., was one of the women who met Blackwood and the complainant at Tao. She testified that she had met Blackwood a month earlier, when she had met him in a hotel room, gone to dinner at Tao and to a bar, and returned to a hotel room, where they talked about her career plans. She testified that Blackwood then began rubbing her feet and calves. When she asked him to stop because her legs weren’t shaved, he got a razor and began shaving them. She testified that she again stopped him, and that Blackwood asked her not to tell anyone what had happened.

The second woman, Brittney E., encountered Blackwood in 2008, after his encounter with the complainant. She testified that he acted out scenes with her, including an unwanted kiss, and that he gave her Ecstasy pills, which she did not take.

In appealing his conviction, Blackwood claimed that the evidence was not sufficient to support the conviction. He argued that the two women’s testimony about separate encounters should not have been allowed. He also argued that the expert testimony on GHB should not have been allowed because the indictment only mentioned Ecstasy.

The First Department panel rejected each of those arguments.

"The complainant’s testimony regarding her blackout alone provides a basis for a rational person to find beyond a reasonable doubt that the complainant was incapable of appraising or controlling her conduct at the time she and defendant had sex," Saxe wrote. "Moreover, the testimony of her classmates describing her unusual behavior that night, and the tests confirming the presence of Ecstasy in her bloodstream, combined with her denial of voluntarily ingesting the drug, was enough to permit the inference that her incapacitation throughout that night was involuntary, due to the administration to her of narcotic or intoxicating substances without her consent."

Saxe wrote that the prosecution had proven its charge that Blackwood administered Ecstasy to the complainant, but that it was "not limited by the indictment to asserting that when defendant had sexual intercourse with the complainant, it was Ecstasy alone" that rendered her incapacitated.

The judge further said that, "even leaving aside the testimony regarding GHB," there was "overwhelming justification for the jury’s verdict of guilty of rape in the second degree."

Saxe wrote that Christine C.’s testimony that Blackwood asked her not to tell anyone the details of their encounter should not have been admitted, but that its prejudicial impact was minimal.

He said that Brittney E. was properly allowed to testify that Blackwood gave her Ecstasy, and that the rest of her testimony was background to that fact.

Its value as background, he said, "outweighed the potential prejudicial impact of its echoing the complainant’s portrayal of defendant as a sleazy predator who obtained intimacies from ambitious young women by purporting to offer them career assistance and connections."

"We’re obviously disappointed in the result," said David Crow, associate appellate counsel at The Legal Aid Society, who represents Blackwood. "We think the state did not prove the element of surreptitious administration."

Crow said he would seek leave to appeal.

Blackwood is also represented by Robert Trisotto, an associate at Quinn Emanuel Urquhart & Sullivan, and Will Page and Daniel Isaacs, associates at Cahill Gordon & Reindell. They could not be reached for comment.

Manhattan Assistant District Attorneys Susan Gliner and Grace Vee handled the appeal for the prosecution. A spokeswoman for the district attorney’s office declined to comment.