Johnson v. State

613 A.2d 450, 93 Md. App. 522, 1992 Md. App. LEXIS 185
Court of Special Appeals of Maryland·Decided October 2, 1992·No. No. 1695·Published·Cited by 1 cases

Opinion

DAVIS, Judge.

Donald Warren Johnson, appellant, was convicted by a jury in the Circuit Court for Anne Arundel County, the Honorable Martin A. Wolff presiding, of first degree rape, first degree sexual offense, and lesser included offenses. He was sentenced on November 8,1991 to a term of twelve years imprisonment for first degree rape and to a concurrent twelve year term for first degree sexual offense. In this appeal, he asks:

[524]*5241. Did the trial court err in excluding evidence that the prosecutrix “freaked” for crack cocaine?
2. Is the evidence insufficient to sustain the convictions of first and second degree rape, first and second degree sexual offense, and battery?[1]

FACTUAL BACKGROUND

In the early morning hours of March 9,1991, according to the 23-year-old prosecutrix, she was raped by appellant and co-defendant Robert Galloway. She had known Galloway and appellant from high school. According to her testimony, she purchased crack cocaine from one of the “regular drug dealers” in Pioneer City on three occasions between the hours of 7 p.m. to midnight on the day in question. She had received $200 in wages from her job at Hardee’s Restaurant and had paid her mother $50, using the remaining $150 to purchase crack cocaine. The victim testified that she and her friends drove to Meade Village to obtain more crack cocaine after she had consumed the cocaine purchased earlier in the evening.

After purchasing a “twenty” from Robert Galloway, they drove to a trailer in the country, smoking the cocaine en route to the trailer, and smoking more of the cocaine from the time they arrived until approximately 3:00 a.m.

The victim was driven to the home of a friend, Jack Dailey, in Pioneer City sometime after 3:00 a.m. She obtained $19 from Dailey to obtain more crack cocaine, and he drove her to Meade Village where the victim met a tall, light-skinned man and asked if he knew “where anything was.” The victim followed the light-skinned man first to an apartment building, where he knocked on the door to an apartment, and then to the building next door where they met Galloway outside. The victim advised that she wanted [525]*525a “twenty” and followed the tall, light-skinned man and Galloway upstairs to a vacant apartment.

The victim testified that, once in the apartment, she was forced into the bedroom by the light-skinned man and told by Galloway to get down “on all fours.” She objected that she was not there to “freak” for the crack and had money to pay for it. Galloway “snatched” her pants from her when she objected, then squeezed her wrist until she was forced to her knees. The victim was then forced to perform fellatio on the tall, light-skinned male, while Galloway had vaginal intercourse with her from behind. The two men then switched their positions.

The prosecutrix then testified that she heard a lot of laughing and smelled fumes from the drugs as a third, unidentified man penetrated her vagina while she continued to perform fellatio on Galloway. During these sexual acts, appellant entered the room, pushed Galloway out of the way, and placed his penis in her mouth. Shortly thereafter, he penetrated her vagina from the rear position. As Galloway left the apartment, he offered the victim a bag of crack cocaine that was on the floor and told her that if she went to the police they would tell the police that she was “freaking for crack.”

The victim retreated to a nearby laundromat, where she was discovered by Barbara Jackson, the leasing manager of a Pioneer City town house development. Jackson telephoned 911, and the victim was examined that morning at North Arundel Hospital, where no evidence of general or gynecological trauma was found. The hospital records further revealed that her clothing was not found to be damaged, and her emotional state was described as calm. Appellant gave the police a statement as follows:

I was walking past the building and this guy comes out the building and tells me this girl is freaking. I went in the building and she was naked. She was having sex and I watched and waited for my turn that was it. The first thing she did was she had oral sex with me and while she [526]*526was doing that another party was having sex with her. Then I had sex with her and then I left. Her and this guy were fussing about something. She asked me about some drugs and I let her know that I don’t [know] what kind of deal they made but I didn’t tell her I was going to give her anything. They were discussing it and I left.
Q. Was [the victim] being forced to have sex with anyone?
A. No.
Q. Did [the victim] receive any drugs from you or anyone else?
A. She didn’t get none from me I don’t know about anyone else.
Q. If she came in the room late how do you know she wasn’t being forced?
A. Because about what she had said about taking care of all of us. She gave me a can to put some holes in it to smoke some crack but I told her I don’t get high I told her I was going to leave.
Q. Did you at any time threaten [the victim] or use force to have sex with her?
A. No.
Q. Why is she saying you raped her?
A. I figure because the other guy didn’t give her, her rock.

Galloway told the police:

I was up the street in Meade Village I was walking home and I went the back way I seen this fellow. He and [the victim] were on a step in the back of the house and she was giving him head. He called to me and said hey man where you going and I said I was going home they jumped and stopped doing what they were doing. I kept on going down the street and they followed me. I asked him what she was doing and he said she was trying to do something. I said what she want to do something with I don’t got nothing he said don’t worry about it I got it. [527]*527We went down towards the apartments and went in the apartment and she just started giving head and taking her clothes off nobody forced her. Then she just started freaking. The reason she started freaking was because she thought she had something coming. First it was both of us backthere [sic]. It went on for a little while about five or ten minutes. Then she said where is her peice [sic] at. The guy said don’t worry about it I got it and she said ok. She said about five more minutes I’m going to stop bevcause [sic] I want mine. She wasn't really doing nothing for me so I said I was finished. I left and then this dude was out side he asked me what was going on and I said this girl was freaking. I left and went home.

Q. Whey [sic] is [the victim] saying you raped her?
A. The only thing I can say is the reason why is because we didn’t give her something.
Q. What was she looking for?
A. She said she was going to freak for some caine.
Q. Have you ever had sex with [the victim] before?
A. No.
Q. Did you force [the victim] to perform fellatio on you?
A. No I didn’t.

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Johnson v. State, 613 A.2d 450, 93 Md. App. 522, 1992 Md. App. LEXIS 185 (Md. Ct. App. 1992).

613 A.2d 450 (Johnson v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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