Rusk v. State

406 A.2d 624, 43 Md. App. 476, 1979 Md. App. LEXIS 398

• Court: Court of Special Appeals of Maryland
• Decided: October 10, 1979
• Docket: 1249, September Term, 1978
• Status: Published

Opinions

Thompson, J.,

delivered the opinion of the Court. Wilner, J., files a dissenting opinion, in which Morton, Moylan, Moore and MacDaniel, JJ., join, at page 484 infra.

We are called upon to review the sufficiency of the evidence to convict for rape. Whatever the law may have been before, it is now clear that our standard must be: Is the evidence sufficient for a finder of fact to conclude that the accused was guilty beyond a reasonable doubt? Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). We hold that the evidence was not sufficient. In making this review we must look at the evidence in the light most favorable to the prosecution. Jackson v. Virginia, supra; Brown v. State, 29 Md. App. 1, 21, 349 A.2d 359, 371 (1975).

Edward Salvatore Rusk, the appellant, was convicted in the Criminal Court of Baltimore of rape in the second degree and of assault. He was sentenced to concurrent terms of ten years for the rape and five years for the assault. The appellant does not challenge the conviction for assault but only for the rape. We will, therefore, affirm the assault conviction.

The prosecutrix was a twenty-one year old mother of a two-year old son. She was separated from her husband but not yet divorced. Leaving her son with her mother, she attended a high school reunion after which she and a female friend, Terry, went bar hopping in the Fells Point area of Baltimore. They drove in separate cars. At the third bar the prosecutrix met appellant.

“Terry and I were standing against the wall, and she was talking to some guy that I don’t know who he was; and Eddie Rusk walked up. I didn’t know who he was, at the time, and he said, hi to Terry; and Terry said, hi, Eddie; and Terry went back to her conversation, and he stood there talking to me.”

They had a five or ten minute conversation in the bar; at the end of which the prosecutrix said she was ready to leave. Appellant requested a ride home and she agreed. When they arrived at appellant’s home, the prosecutrix parked at the curb on the side of the street opposite his rooming house but did not turn off the ignition. She put the car in park and appellant asked her to come up to his apartment. She refused. He continued to ask her to comé up, and she testified she then became afraid. While trying to convince him that she didn’t want to go to his apartment she mentioned that she was .separated and if she did, it might cause her marital problems particularly if she were being followed by a detective. The appellant then took the keys out of the car and walked over to her side of the car, opened the door- and said, “Now will you come up?” The prosecutrix then told him she would. She stated:

“At that point, because I was scared, because he had my car keys. I didn’t know what to do. I was someplace I didn’t even know where I was. It was in the city. I didn’t know whether to run. I really didn’t think, at that point, what to do. Now, I know that I should have blown the horn. I should have run. There were a million things I could have done. I was scared, at that point, and I didn’t do any of them.”

The prosecutrix followed appellant into the rowhouse, up the stairs, and into the apartment. When they got into appellant’s room, he said that he had to go to the bathroom and left the room for a few minutes. The prosecutrix made no attempt to leave. When appellant came back, he sat on the bed while she sat on the chair next to the bed. He turned the light off and asked her to get on the bed with him. He started to pull her onto the bed and also began to remove her blouse. She stated she took off her slacks and removed his clothing because “he asked [her] to do it.” After they both undressed, prosecutrix stated:

“I was still begging him to please let, you know, let me leave. I said, ‘you can get a lot of other girls down there, for what you want,’ and he just kept saying, ‘no,’ and then I was really scared, because I can’t describe, you know, what was said. It was more the look in his eyes; and I said, at that point — I didn’t know what to say; and I said, Tf I do what you want, will you let me go without killing me?’ Because I didn’t know, at that point, what he was going to do; and I started to cry; and when I did, he put his hands on my throat, and started lightly to choke me; and I said, ‘If I do what you want, will you let me go?’ And he said, yes, and at that time, I proceeded to do what he wanted me to.”

She stated that she performed oral sex and they then had sexual intercourse.¹

The appellant testified as did two of his friends who were at the bar in which the parties met. Their testimony painted the episode in a manner more favorable to the accused, but there is no need for us to recite that testimony because, as we have stated earlier, we are obligated to view the evidence in the light most favorable to the prosecution.

The Court of Appeals of Maryland last spoke on the amount of force required to support a rape conviction in Hazel v. State, 221 Md. 464, 469, 157 A.2d 922, 925 (1960), when the Court said:

"Force is an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety.” ²

In all of the victim’s testimony we have been unable to see any resistance on her part to the sex acts and certainly can we see no fear as would overcome her attempt to resist or escape as required by Hazel. Possession of the keys by the accused may have deterred her vehicular escape but hardly a departure seeking help in the rooming house or in the street. We must say that “the way he looked” fails utterly to support the fear required by Hazel.

This Court has reviewed the question in a number of decisions since 1967, the most recent being Goldberg v. State, 41 Md. App. 58, 395 A.2d 1213, cert. dismissed as improvidently granted, September 18, 1979, in which we applied the Hazel rule and referred to our earlier cases applying the same rule:

“As we said in Winegan v. State, 10 Md. App. 196, 200, 201, 268 A.2d 585 (1970):

‘... [Wjhere' the victim’s story could not be corroborated by wounds, bruises or disordered clothing, the lack of consent could be shown by fear based upon reasonable apprehension. The rule requiring the apprehension be reasonable was first enunciated in Maryland in Hazel v. State, 221 Md. 464, 469, 157 A. 2d 922:

“If the acts and threats of the defendant were reasonably calculated to create in the mind of the victim — having regard to the circumstances in which she was placed — a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force.”

'The rule of reason, as we shall call it, was reiterated, either expressly or impliedly, by us in Walter v. State, supra, [9 Md. App. 385, 264 A.2d 882 (1970)] and Rice v. State, supra, [9 Md. App. 552, 267 A.2d 261 (1970)]. It is expressly supported by several cases throughout the country. [Citations omitted]’.” 41 Md. App. at 68-9.

Appellee argues first that the issue as to whether or not intercourse was accompanied by force or threats of force is one of credibility to be resolved by the triers of the fact. We cannot follow the argument. As we understand the law, the trial judge in ruling on a motion to acquit must first determine that there is legally sufficient evidence for the jury to find the victim was reasonably in fear. That is the rule set forth in Hazel and in each of our cases cited above. Contrary to the State’s argument, there is no issue of credibility before us, because we accept the testimony that is most damaging to the accused before applying the rule. The State argues further that the evidence that the accused “started lightly to choke me” as well as the circumstances of being in a somewhat strange part of town late at night were sufficient to overcome the will of a normal twenty-one year old married woman. We are not impressed with the argument. When at oral argument it was pointed out to the State that the cases require that the fear must be reasonable, the appellee answered first that the cases so requiring were wrong and should be overruled and secondly, that a rapist took his victim as he found her. Thus, the argument goes, even though the victim was unreasonable in being afraid, that was the chance a man took in having intercourse with someone not his wife. In other words, in any situation where the victim testified that she consented because she was afraid, the verdict of the jury would be conclusive and all such cases should be submitted to the jury for consideration. Whatever appeal this argument might have in other cases, it has none here where there is nothing whatsoever to indicate that the victim was anything but a normal, intelligent, twenty-one year old, vigorous female.

Cases from other jurisdictions have followed the rule that the victim’s fear which overcomes her will to resist must be a reasonable fear. In Farrar v. United States, 275 F.2d 868 (D.C. Cir. 1959), rehearing denied 1960, the court found that the witness rested her claim of fear upon her belief appellant had a knife, yet she never saw the knife. The court stated:

“As I understand the law of rape, if no force is used and the girl in fact acquiesces, the acquiescence may nevertheless be deemed to be non-consent if it is induced by fear; but the fear, to be sufficient for this purpose, must be based upon something of substance; and furthermore the fear must be of death or severe bodily harm. A girl cannot simply say, ‘I was scared,’ and thus transform an apparent consent into a legal non-consent which makes the man’s act a capital offense. She must have a reasonable apprehension, as I understand the law, of something real; her fear must be not fanciful but substantial.” (footnotes omitted). 275 F.2d at 876.

The rule that the apprehension must be reasonable was also recognized in Gonzales v. State, 516 P.2d 592 (Wyo. 1973). The facts in Gonzales are similar, but stronger than, the facts in the instant case. There, the defendant met the victim at the bar where she was working. He asked her for a ride home and she refused. When she got into the driver’s side of her car, he got in the other side, but she did not protest. After driving for awhile, he told her to turn off on a side road, telling her that his mother lived there. He asked her to stop, and then took the keys out of the ignition. He got out of the car to go to the bathroom. She stayed in the car and made no attempt to leave or to blow her horn. He said he was going to rape her and he put his fist in her face and said, “I’m going to do it. You can’t have it one way or the other.” She took off part of her own clothes. When someone she knew passed by in a car, she made no attempt to stop him. The trial judge found the defendant guilty of rape.

The Wyoming Supreme Court reversed, stating that the trial judge applied the wrong standard in reaching the verdict. The Court quoted the above passage from Farrar v. United States, supra, and held that the trial court omitted the necessary element of reasonable apprehension. See also Tryon v. Wyoming, 567 P.2d 290 (Wyo. 1977), in which the Wyoming Court found the evidence sufficient where a twelve year old girl was involved.

Other cases have also recognized the reasonable apprehension rule. See, People v. Harris, 108 Cal. App. 2d 84, 238 P.2d 158 (1951); State v. Dill, 3 Terry 533, 42 Del. 533, 40 A.2d 443 (Court of Oyer and Terminer, 1944); Rush v. State, 301 So. 2d 297 (Miss. 1974); Cascio v. State, 25 N.W.2d 897 (Neb. Sup. Ct. 1947); and State v. Verdone, 114 R.I. 613, 337 A.2d 804 (1975), reargument denied, 114 R.I. 961. Still other cases apply the rule without discussing the reasonableness of the fear. Nelson v. Arkansas, 262 Ark. 391, 557 S.W.2d 191 (1977); People v. Taylor, 48 Ill. 2d 91, 268 N.E.2d 865 (1971); and O’Bryan v. Florida, 324 So. 2d 713 (Fla. App. 1976). Indeed, we have found no case which did not expressly or impliedly recognize the doctrine that in the absence of force, the fear of the victim must be reasonable to support a rape conviction, except perhaps Salsman v. Kentucky, 565 S.W.2d 638 (Ky. App. 1978). In that case the court stated the fear should be judged on a subjective standard when the victim was retarded. The same result, however, could have been reached by applying the objective standard. It is not necessary to apply a subjective standard in order to give weight to the mental condition or the age of the victim.

Applying this reasoning to the record before us, we find the evidence legally insufficient to warrant a conclusion that appellant’s words or actions created in the mind of the victim a reasonable fear that if she resisted, he would have harmed her, or that faced with such resistance, he would have used force to overcome it. The prosecutrix stated that she was afraid, and submitted because of “the look in his eyes.” After both were undressed and in the bed, and she pleaded to him that she wanted to leave, he started to lightly choke her. At oral argument it was brought out that the “lightly choking” could have been a heavy caress. We do not believe that “lightly choking” along with all the facts and circumstances in the case, were sufficient to cause a reasonable fear which overcame her ability to resist. In the absence of any other evidence showing force used by appellant, we find that the evidence was insufficient to convict appellant of rape.

Judgment on the rape conviction reversed.

Judgment on the assault conviction affirmed.

Appellant and the Mayor and City Council of Baltimore to divide the costs.

1 . If we could say at this point that there is .enough evidence for a reasonable fact finder to say such threat of force is solely that which overcame her will to resist, the conduct of both following intercourse would belie that conclusion:

“Q. All right. Now, after the sexual intercourse came to a conclusion, wnat is the very next thing that took place?

A. I asked him if I could leave now, and he said, ‘Yes;’ and I got up and got dressed; and he got up and got dressed; and he walked me to my car, and asked if he could see me again; and I said, ‘Yes;’ and he asked me for my telephone number; and I said, ‘No, I’ll see you down Fell’s Point sometime,’ just so I could leave.

Q. What is the reason that you said that you would meet him the next day?

A. I didn't say the next day, and I just said I would see him down there only so I could leave. I didn’t know what else to say. I had no intention of meeting him again.”

After arriving home she said:

“I sat in the car, thinking about it a while, and I thought I wondered what would happen if I hadn’t of done what he wanted me to do.

So I thought the right thing to do was to go report it, and I went from there to Hillendale to find a police car.”

If, in quiet contemplation after the act, she had to wonder what would have happened, her submission on the side of prudence seems hardly justified. Indeed, if she had to wonder afterward, now can a fact finder reasonably conclude that she was justifiably in fear sufficient to overcome her will to resist, at the time.

2 . Since Hazel, the Maryland Legislature has codified extensively the law pertaining to sexual offenses providing in Md. Code, Art. 27, § 463 as follows:

“(a) What constitutes. — A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:

(1) By force or threat of force against the will and without the consent of the other person....”

The statute has made no change in the force as required by Hazel.