H.L.B. H.L.B. said, " 'I'm sorry.' " (R. 492.) M.B. further testified that she screamed, cried, and ran into the bathroom and sat in the bathroom with the door locked, crying. H.L.B. knocked on the door and said, " 'I'm sorry. Come here.' " (R. 496.) M.B. stated that she stayed in *26the bathroom and after she heard H.L.B. walk away, that she went outside, got into the family's van, and fell asleep in the front seat.
The State presented evidence indicating that M.B. was H'.L.B.'s daughter, that M.B. and H.L.B. had a close relationship, and that H.L.B. had had custody of M.B., but was on a visitation schedule at the time of the incident. However, because evidence was presented indicating that at the time H.L.B. placed his penis inside M.B., that M.B. was asleep and unable to resist H.L.B., M.B. was unconscious within the meaning of § 13A-6-60(7). Therefore, M.B. was unable to resist H.L.B. within the meaning of § 13A-6-60(8).
There was no evidence presented indicating that there was an interval of time between the time that M.B. awoke and before she went to the bathroom where she either struggled with or acquiesced to H.L.B. Due to her unconsciousness, M.B. would have been unable to communicate her unwillingness to have sexual intercourse with H.L.B.; therefore, this act was a rape under § 13A-6-61 (a)(2) and not (a)(1). This is not a situation where the victim was aware of H.L.B.'s intent to have intercourse and acquiesced because of the parent-child relationship.
Because I believe that there is insufficient evidence to convict H.L.B. of rape under § 13A-6-61(a)(l), Ala.Code 1975, I respectfully dissent.