How have courts treated the absence of evidence of consent in a sexual assault trial?

Here, the prosecutor's comments on the absence of any evidence of consent came in response to defense counsel's argument that Ana C. had consensual sex with appellant sometime earlier that night and lied about a sexual assault. In rebuttal, the prosecutor argued that the defense claim of consent required the jury to speculate that Ana C. agreed to have sex with appellant, without any evidence to support such a scenario. Rather than speculate about what might have happened "at another place or time," for which there was no evidence, the prosecutor urged the jury to consider what the evidence showed happened in Amy's bedroom. The prosecutor also pointed out the absence of any evidence to support the defense theory of a tryst between appellant and Ana C. earlier in the evening. The argument, which neither directly nor indirectly referred to appellant's failure to testify, plainly constituted permissible comment on the state of the evidence and " ' "the failure of the defense to introduce material evidence or to call logical witnesses." ' " (People v. Lewis (2009) 46 Cal.4th 1255, 1304 ["Had defendant testified, he might have contradicted [the

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prosecution witness's] recollection, but this possibility does not transform the prosecutor's observations into a veiled comment upon defendant's decision not to testify"]; People v. Brady (2010) 50 Cal.4th 547, 566.)