MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2020 ME 11 Docket: Sag-19-176 Argued: January 8, 2020 Decided: January 28, 2020
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HUMPHREY, JJ.
STATE OF MAINE
v.
AHMED M. ASAAD
GORMAN, J.
[¶1] Ahmed M. Asaad appeals from a judgment of conviction of gross
sexual assault, 17-A M.R.S. § 253(2)(M) (2018),1 entered by the court
(Sagadahoc County, Billings, J.) after a jury-waived trial. Asaad argues that the
evidence was insufficient to support the trial court’s finding that he possessed
the requisite mens rea. We affirm the judgment.
I. BACKGROUND
[¶2] The trial court made the following findings of fact, which are
supported by competent record evidence. State v. Fournier, 2019 ME 28, ¶ 2,
203 A.3d 801.
1 Title 17-A M.R.S. § 253(2)(M) has recently been amended, though not in any way that affects this appeal. See P.L. 2019, ch. 438, § 2 (effective Sept. 19, 2019). 2
[¶3] Asaad and the victim met through an online dating site. On
November 29, 2017, Asaad went to the victim’s house and eventually they
began to engage in consensual sexual activity. When Asaad “inserted his penis
inside of [the victim],” she asked him to stop; despite the victim “saying no and
stop on several occasions,” Asaad “continued to penetrate her until he
ejaculated.”
[¶4] On April 11, 2018, Asaad was indicted on one count of gross sexual
assault, 17-A M.R.S. § 253(2)(M). He pleaded not guilty and waived his right to
a jury trial. See M.R.U. Crim. P. 23(a).
[¶5] After a two-day jury-waived trial, the court found Asaad guilty. On
May 9, 2019, the court entered a judgment of conviction and sentenced Asaad
to three years in prison, with all but nine months suspended. Asaad timely
appealed. See 15 M.R.S. § 2115 (2018); M.R. App. P. 2B(b)(1).
II. DISCUSSION
[¶6] Asaad’s argument boils down to two assertions: first, that despite
the lack of any expressed mens rea, 17-A M.R.S. § 253(2)(M) must be read to
require proof that the charged individual knew that the person with whom he
was engaging in a sexual act “ha[d] not expressly or impliedly acquiesced to the
sexual act”; and, second, that the evidence presented at trial was insufficient to 3
support a finding that he knew that the victim had not “expressly or impliedly
acquiesced” to the sexual activity. 17-A M.R.S. § 253(2)(M). We address those
assertions in reverse order.
A. Sufficiency of the Evidence
[¶7] For purposes of this appeal only, while recognizing that section
253(2)(M) does not expressly provide a mens rea, we will assume that
knowledge is the required mens rea and directly address Asaad’s argument that
the evidence was insufficient to support a finding that he acted knowingly.
[¶8] “When a defendant challenges the sufficiency of the evidence
supporting a conviction, we determine, viewing the evidence in the light most
favorable to the State, whether a trier of fact rationally could find beyond a
reasonable doubt every element of the offense charged.” State v. Dorweiler,
2016 ME 73, ¶ 6, 143 A.3d 114 (quotation marks omitted). The fact-finder may
“draw all reasonable inferences from the evidence, and decide the weight to be
given to the evidence and the credibility to be afforded to the witnesses.” State
v. McBreairty, 2016 ME 61, ¶ 14, 137 A.3d 1012 (quotation marks omitted).
[¶9] The finding that a defendant possessed the requisite mens rea need
not be proved by direct evidence; rather, the fact-finder “may look to the act
itself, the attendant circumstances, and any other evidence tending to prove the 4
defendant’s mental state,” State v. Graham, 2015 ME 35, ¶ 28, 113 A.3d 1102,
from which evidence, again, “all reasonable inferences” may be drawn,
McBreairty, 2016 ME 61, ¶ 14, 137 A.3d 1012.
[¶10] “A person acts knowingly with respect to attendant circumstances
when the person is aware that such circumstances exist.” 17-A M.R.S.
§ 35(2)(B) (2018). Here, there was ample evidence to support a finding,
beyond a reasonable doubt, that Asaad was “aware” that the victim had not
“expressly or impliedly acquiesced” to unprotected vaginal intercourse. Id.
§§ 35(2)(B), 253(2)(M). The victim, whom the trial court found credible,
testified that over the weeks preceding their date, she had repeatedly told
Asaad that if they had sex, they “had to use condoms.” She also testified that on
the night of the assault, as she and Asaad were beginning to engage in sexual
activity, she asked if he had brought a condom; the victim stated that, in
response to her question, Asaad “did the thing like people do when they go out
to dinner and they intentionally leave behind their wallet,” saying that he had
forgotten to bring condoms and acting disappointed. The victim testified that
after learning that Asaad had not brought a condom, she “rolled over and
looked at [her] phone.” 5
[¶11] It would be reasonable to infer from this testimony alone that, even
before he arrived at the victim’s home, Asaad was “aware” that the victim was
not willing to engage in unprotected vaginal intercourse. 17-A M.R.S.
§ 35(2)(B). In fact, we are hard-pressed to imagine a way in which the victim
could have made it clearer to Asaad that she was not willing to engage in vaginal
intercourse without a condom. Unprotected sex may carry risks for all
participants, and it hardly need be said that the consequences of unprotected
vaginal intercourse can be vastly different for a woman than for a man.
[¶12] Even without that testimony, however, the court’s determination
that Asaad engaged in unprotected vaginal intercourse with the victim after she
said “stop” was fully supported by the evidence. The victim testified that as she
was lying on her stomach looking at her phone after Asaad acknowledged that
he did not have a condom, Asaad “turned [the victim] over”—quickly enough
that she “dropped [her] phone”—got on top of her, and “inserted his penis
inside of [her].” The victim, who is considerably smaller than Asaad, began
hitting and slapping Asaad’s back, repeatedly saying “no” and “stop,” but he
continued to “thrust” for at least a few minutes until he ejaculated. Although
Asaad claimed that he stopped when the victim told him to stop, the trial court
explicitly rejected Asaad’s testimony on this point. 6
[¶13] In sum, the evidence was more than sufficient to support a finding
that Asaad engaged in a sexual act that he knew the victim had not “expressly
or impliedly acquiesced” to. 17-A M.R.S. § 253(2)(M). We therefore affirm the
conviction.2
B. Mens rea for 17-A M.R.S. § 253(2)(M)
[¶14] Because we conclude that the evidence was sufficient to support a
verdict to the mens rea standard for which Asaad argues, we do not answer the
question of precisely what state of mind section 253(2)(M) requires: criminal
negligence, recklessness, or knowledge. See 17-A M.R.S. § 35 (2018). We do,
however, reject the State’s contention that section 253(2)(M) is a strict liability
statute; the statute’s plain language precludes such an interpretation. See 17-A
M.R.S. § 34(1), (4) (2018). A conviction pursuant to section 253(2)(M) requires
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2020 ME 11 Docket: Sag-19-176 Argued: January 8, 2020 Decided: January 28, 2020
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HUMPHREY, JJ.
STATE OF MAINE
v.
AHMED M. ASAAD
GORMAN, J.
[¶1] Ahmed M. Asaad appeals from a judgment of conviction of gross
sexual assault, 17-A M.R.S. § 253(2)(M) (2018),1 entered by the court
(Sagadahoc County, Billings, J.) after a jury-waived trial. Asaad argues that the
evidence was insufficient to support the trial court’s finding that he possessed
the requisite mens rea. We affirm the judgment.
I. BACKGROUND
[¶2] The trial court made the following findings of fact, which are
supported by competent record evidence. State v. Fournier, 2019 ME 28, ¶ 2,
203 A.3d 801.
1 Title 17-A M.R.S. § 253(2)(M) has recently been amended, though not in any way that affects this appeal. See P.L. 2019, ch. 438, § 2 (effective Sept. 19, 2019). 2
[¶3] Asaad and the victim met through an online dating site. On
November 29, 2017, Asaad went to the victim’s house and eventually they
began to engage in consensual sexual activity. When Asaad “inserted his penis
inside of [the victim],” she asked him to stop; despite the victim “saying no and
stop on several occasions,” Asaad “continued to penetrate her until he
ejaculated.”
[¶4] On April 11, 2018, Asaad was indicted on one count of gross sexual
assault, 17-A M.R.S. § 253(2)(M). He pleaded not guilty and waived his right to
a jury trial. See M.R.U. Crim. P. 23(a).
[¶5] After a two-day jury-waived trial, the court found Asaad guilty. On
May 9, 2019, the court entered a judgment of conviction and sentenced Asaad
to three years in prison, with all but nine months suspended. Asaad timely
appealed. See 15 M.R.S. § 2115 (2018); M.R. App. P. 2B(b)(1).
II. DISCUSSION
[¶6] Asaad’s argument boils down to two assertions: first, that despite
the lack of any expressed mens rea, 17-A M.R.S. § 253(2)(M) must be read to
require proof that the charged individual knew that the person with whom he
was engaging in a sexual act “ha[d] not expressly or impliedly acquiesced to the
sexual act”; and, second, that the evidence presented at trial was insufficient to 3
support a finding that he knew that the victim had not “expressly or impliedly
acquiesced” to the sexual activity. 17-A M.R.S. § 253(2)(M). We address those
assertions in reverse order.
A. Sufficiency of the Evidence
[¶7] For purposes of this appeal only, while recognizing that section
253(2)(M) does not expressly provide a mens rea, we will assume that
knowledge is the required mens rea and directly address Asaad’s argument that
the evidence was insufficient to support a finding that he acted knowingly.
[¶8] “When a defendant challenges the sufficiency of the evidence
supporting a conviction, we determine, viewing the evidence in the light most
favorable to the State, whether a trier of fact rationally could find beyond a
reasonable doubt every element of the offense charged.” State v. Dorweiler,
2016 ME 73, ¶ 6, 143 A.3d 114 (quotation marks omitted). The fact-finder may
“draw all reasonable inferences from the evidence, and decide the weight to be
given to the evidence and the credibility to be afforded to the witnesses.” State
v. McBreairty, 2016 ME 61, ¶ 14, 137 A.3d 1012 (quotation marks omitted).
[¶9] The finding that a defendant possessed the requisite mens rea need
not be proved by direct evidence; rather, the fact-finder “may look to the act
itself, the attendant circumstances, and any other evidence tending to prove the 4
defendant’s mental state,” State v. Graham, 2015 ME 35, ¶ 28, 113 A.3d 1102,
from which evidence, again, “all reasonable inferences” may be drawn,
McBreairty, 2016 ME 61, ¶ 14, 137 A.3d 1012.
[¶10] “A person acts knowingly with respect to attendant circumstances
when the person is aware that such circumstances exist.” 17-A M.R.S.
§ 35(2)(B) (2018). Here, there was ample evidence to support a finding,
beyond a reasonable doubt, that Asaad was “aware” that the victim had not
“expressly or impliedly acquiesced” to unprotected vaginal intercourse. Id.
§§ 35(2)(B), 253(2)(M). The victim, whom the trial court found credible,
testified that over the weeks preceding their date, she had repeatedly told
Asaad that if they had sex, they “had to use condoms.” She also testified that on
the night of the assault, as she and Asaad were beginning to engage in sexual
activity, she asked if he had brought a condom; the victim stated that, in
response to her question, Asaad “did the thing like people do when they go out
to dinner and they intentionally leave behind their wallet,” saying that he had
forgotten to bring condoms and acting disappointed. The victim testified that
after learning that Asaad had not brought a condom, she “rolled over and
looked at [her] phone.” 5
[¶11] It would be reasonable to infer from this testimony alone that, even
before he arrived at the victim’s home, Asaad was “aware” that the victim was
not willing to engage in unprotected vaginal intercourse. 17-A M.R.S.
§ 35(2)(B). In fact, we are hard-pressed to imagine a way in which the victim
could have made it clearer to Asaad that she was not willing to engage in vaginal
intercourse without a condom. Unprotected sex may carry risks for all
participants, and it hardly need be said that the consequences of unprotected
vaginal intercourse can be vastly different for a woman than for a man.
[¶12] Even without that testimony, however, the court’s determination
that Asaad engaged in unprotected vaginal intercourse with the victim after she
said “stop” was fully supported by the evidence. The victim testified that as she
was lying on her stomach looking at her phone after Asaad acknowledged that
he did not have a condom, Asaad “turned [the victim] over”—quickly enough
that she “dropped [her] phone”—got on top of her, and “inserted his penis
inside of [her].” The victim, who is considerably smaller than Asaad, began
hitting and slapping Asaad’s back, repeatedly saying “no” and “stop,” but he
continued to “thrust” for at least a few minutes until he ejaculated. Although
Asaad claimed that he stopped when the victim told him to stop, the trial court
explicitly rejected Asaad’s testimony on this point. 6
[¶13] In sum, the evidence was more than sufficient to support a finding
that Asaad engaged in a sexual act that he knew the victim had not “expressly
or impliedly acquiesced” to. 17-A M.R.S. § 253(2)(M). We therefore affirm the
conviction.2
B. Mens rea for 17-A M.R.S. § 253(2)(M)
[¶14] Because we conclude that the evidence was sufficient to support a
verdict to the mens rea standard for which Asaad argues, we do not answer the
question of precisely what state of mind section 253(2)(M) requires: criminal
negligence, recklessness, or knowledge. See 17-A M.R.S. § 35 (2018). We do,
however, reject the State’s contention that section 253(2)(M) is a strict liability
statute; the statute’s plain language precludes such an interpretation. See 17-A
M.R.S. § 34(1), (4) (2018). A conviction pursuant to section 253(2)(M) requires
that the victim “has not expressly or impliedly acquiesced” to the sexual act,
2 Asaad also argues that the trial court’s failure to expressly state a finding as to mens rea invalidates the verdict. In support of his contention, Asaad relies on our cases holding that the failure to instruct a jury properly “on an essential element of the offense” constitutes error. State v. Hider, 649 A.2d 14, 16 (Me. 1994). Unlike with juries, we assume that judges know and apply the correct law, and nothing in the record suggests that the trial court erroneously believed 17-A M.R.S. § 253(2)(M) to be a strict liability crime. As indicated in its verdict, the court specifically noted that it believed Asaad’s testimony that he heard the victim say “stop”; what the court did not believe was that Asaad stopped as soon as he heard that. Furthermore, M.R.U. Crim. P. 23(c) provides that “[i]n a case tried before the court without a jury, the court shall make a general finding and shall in addition on request find the facts specially.” Because Asaad did not make such a request, we simply review the sufficiency of the evidence to support the verdict. See State v. Dodd, 503 A.2d 1302, 1306-07 (Me. 1986). 7
which means that the lack of acquiescence must be communicated in some
fashion, verbally or otherwise. See Acquiesce, Black’s Law Dictionary (11th ed.
2019) (“to give implied consent to [an act]”). After all, expression and
implication both involve a “target”—another person who heard, saw, or felt the
expression or implication. The State’s strict liability interpretation, which
would foreclose any inquiry into whether the defendant actually received (let
alone understood) the victim’s communication, ignores the plain language of
the statute.
[¶15] Nevertheless, we do not here resolve the question of whether a
defendant is liable pursuant to section 253(2)(M) only if he actually
understands the victim’s communication (that is, to the standard of
“knowingly”) or if, instead, he misunderstands the victim’s communication but
his misunderstanding is reckless or criminally negligent.3 See 17-A M.R.S. § 35.
In this complicated and nuanced area of human behavior in which norms—and,
nationally, legal standards—are varied and rapidly changing, courts must look
3 In this case, the trial court specifically noted Asaad’s testimony that he heard the victim say
“stop.” The court also noted that Asaad claimed he had “stopped” as soon as he heard that command. Asaad’s testimony that he stopped when she asked him to do so shows his knowledge that the victim was not acquiescing to vaginal intercourse. The court’s judgment is based on that admitted knowledge. 8
to the Legislature for broad-based policy judgments. See, e.g., Aya Gruber,
Consent Confusion, 38 Cardozo L. Rev. 415, 419, 425-30 (2016).
[¶16] Thus, we emphasize that, because we recognize that this issue
should be addressed by the Legislature, we are not here determining the mens
rea requirement for 17-A M.R.S. § 253(2)(M). There is a substantial difference
between imposing felony liability when a defendant knowingly violates a
victim’s desire not to have sex and imposing that liability when a defendant
recklessly or criminally negligently misunderstands that a victim does not
consent. Given the significance of this distinction, in this important and
unsettled area of law the standard of behavior should be determined by the
people’s elected representatives.
The entry is:
Judgment affirmed.
Lawrence C. Winger, Esq. (orally), Portland, for appellant Ahmed M. Asaad
Natasha C. Irving, District Attorney, Michael B. Dumas, Asst. Dist. Atty., and Alvah J. Chalifour, Jr., Asst. Dist. Atty. (orally), Prosecutorial District VI, Bath, for appellee State of Maine
Sagadahoc Unified Criminal Docket docket number CR-2018-340 FOR CLERK REFERENCE ONLY