Dr. Koo was convicted of the charge of rape and was sentenced to the maximum term of 20 years in prison. His conviction was affirmed on appeal. See Koo v. State, 640 N.E.2d 95 (Ind.Ct.App. 1994). The Supreme Court of Indiana denied review.

Baird v. Norwest Bank, 255 Mont. 317, 843 P.2d 327 (1992)...........6-7 Koo v. State, 640 N.E.2d 95 (Ind. App. 1994)............................ 9-10 Potter v. District Court of Sixteenth Judicial District, 266 Mont. 384, 880 P.2d 1319(1994).............................................................7-9, 13

In some circumstances mistake can also arise in the context of the victim's mistake when the defendant presents specific evidence to support a theory that the victim was mistaken about what happened, say because the victim was hallucinating or, as here, was experiencing phantom touches associated with a Reiki treatment so that she only imagined what she felt. See, e.g., Koo v. State, 640 N.E.2d 95, 100-02 (Ind.Ct.App. 1994) (holding evidence from two former patients that physician drugged and raped them during medical exam admissible, under newly enacted Indiana Rule of Evidence 404(b), to rebut defendant's claim victim hallucinated the claimed sexual encounter); State v. Lough, 889 P.2d 487, 495 (Wash. 1995) (en banc) ("[E]vidence of prior druggings and rapes [by the defendant] was relevant to the specific issue of whether the conduct on which the charge was based actually occurred or was, as the Defendant contended, a fabrication or mistake by the victim."). In this context, evidence of the defendant's prior actions is not relevant to a mistake that goes the defendant's intent but is relevant to rebut a specific-defense theory of mistake by the victim.

Thus, the general rule being that a party may exercise a peremptory challenge to remove a juror for no reason whatsoever, see Bond v. State (1980), 273 Ind. 233, 403 N.E.2d 812, 816, reh'g denied, we recognize an exception to this general rule when a party attempts to remove a juror based solely upon race or gender. See Koo v. State (1994), Ind. App., 640 N.E.2d 95, reh'g denied, trans. denied; Currin v. State (1994), Ind. App., 638 N.E.2d 1319.

We interpret Batson as suggesting that either remedy may be appropriate depending on the particular circumstances at trial"). Commonwealth v. Fruchtman, 418 Mass. 8, 633 N.E.2d 369, 373 (1994), cert. denied, Fruchtman v. Massachusetts, ___ U.S. ___, 115 S.Ct. 366, 130 L.Ed.2d 319 (1994) ("Choice of remedy was . . . the prerogative of the judge"); Haschke v. Uniflow Manufacturing Co., 268 Ill. App.3d 1045, 206 Ill.Dec. 387, 391, 645 N.E.2d 392, 396 (1994); Friedman v. State, 654 So.2d 50, 52 (Ala. Crim. App. 1994), cert. denied, No. 1940189 (Ala. 1995); Koo v. State, 640 N.E.2d 95, 100 (Ind.Ct.App. 1994) ("Clearly, the remedy which a particular trial court employs upon a finding of purposeful discrimination is a matter left to the court's discretion."); State ex rel. Curry v. Bowman, 885 S.W.2d 421, 425 (Tex.Crim.App. 1993), cert. denied, Texas v. Bowman, ___ U.S. ___, 115 S.Ct. 184, 130 L.Ed.2d 118 (1994) ("[W]here a Batson claim is sustained the court may fashion a remedy in its discretion. . . ."); Jefferson v. State, 595 So.2d 38, 41 (Fla. 1992) ("[I]t is within the trial judge's discretion to fashion the appropriate remedy under the particular facts of each case. . . ."); People v. Irizarry, 165 A.D.2d 715, 560 N.Y.S.2d 279, 281 (1990); State v. Walker, 154 Wis.2d 158, 453 N.W.2d 127, 135 n. 12 (1990) cert. denied 498 U.S. 962, 111 S.Ct. 397, 112 L.Ed.2d 406 (1990); U.S. v. Forbes, 816 F.2d 1006, 1011 (5th Cir. 1987). Texas has a statute, Tex. Code Crim. Proc. Ann. art. 35.261 (West 1989), that, by its express terms, requires the dismissal of the entire venire and the calling of

As we have noted regarding Rule 3.5 as it existed at the time of Grund's first trial, “the prohibition against ex parte communication with a “juror” or “prospective juror” does not extend to a person who previously served as a juror.” Koo v. State, 640 N.E.2d 95, 104 n. 6 (Ind . Ct.App.1994), trans. denied. “It is axiomatic that once a person has been excused from jury duty, he or she is no longer a juror or prospective juror as those terms are used in the Rules.”

The State contends that the evidence of prior misconduct with Villacin was not introduced as proof of intent, but instead to rebut the specific factual claims raised by Udarbe, namely that Baclao was a problem employee and that she was upset because Udarbe rejected her advances. In support of this contention, the State relies upon Koo v. State, 640 N.E.2d 95, 101-02 (Ind.Ct.App. 1994), trans. denied (1995), in which a panel of this court held that prior bad act evidence may be admitted by the State to rebut a specific factual claim raised by the defendant.

In Koo v. State, 640 N.E.2d 95 (Ind. Ct. App. 1994), trans. denied, we held that the trial court acted within its discretion in refusing to allow discovery concerning whether the victim made allegations of rape against other persons. The victim denied ever making a false allegation and also denied that a rape ever occurred.

Id. We examined the impact of defendant opening the door in terms of Ind.Evidence Rule 404(b) in Koo v. State, 640 N.E.2d 95 (Ind. Ct. App. 1994) trans. denied. Relying upon U.S. v. McAnderson, 914 F.2d 934 (7th Cir. 1990), and U.S. v. Beltempo, 675 F.2d 472 (2nd Cir. 1982), cert. denied 457 U.S. 1135 102 S.Ct. 2963, 73 L.Ed.2d 1353, we determined that prior misconduct may be admitted to rebut a specific factual claim raised by the defense.

The regular judge will be considered absent where the record is silent as to whether the regular judge actually returned, or where the record shows that the regular judge had returned, but had not engaged in court business on the date in question. Young Soo Koo v. State, (1994), Ind. App., 640 N.E.2d 95, 98. The facts of the instant case fall squarely within the facts of Boushehry.