STATE of Maryland

Edward Salvatore RUSK
Court of Appeals of Maryland
289 Md. 230,  424 A.2d 720 (1981)

 MURPHY, Chief Judge.

 Edward Rusk was found guilty by a jury in the Criminal *232 Court of Baltimore (Karwacki, J. presiding) of second degree rape in violation of Maryland Code (1957, 1976 Repl.Vol., 1980 Cum.Supp.), Art. 27, s 463(a)(1), which provides in pertinent part:

"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; ...."

 On appeal, the Court of Special Appeals, sitting en banc, reversed the conviction; it concluded by an 8-5 majority that in view of the prevailing law as set forth in Hazel v. State, 221 Md. 464, 157 A.2d 922 (1960), insufficient evidence of Rusk's guilt had been adduced at the trial to permit the case to go to the jury.  Rusk v. State, 43 Md.App. 476, 406 A.2d 624 (1979).  We granted certiorari to consider whether the Court of Special Appeals properly applied the principles of Hazel in determining that insufficient evidence had been produced to support Rusk's conviction.

 At the trial, the 21-year-old prosecuting witness, Pat, testified that on the evening of September 21, 1977, she attended a high school alumnae meeting where she met a girl friend, Terry.  After the meeting, Terry and Pat agreed to drive in their respective cars to Fells Point to have a few drinks.  On the way, Pat stopped to telephone her mother, who was baby sitting for Pat's two-year-old son; she told her mother that she was going with Terry to Fells Point and would not be late in arriving home.

 The women arrived in Fells Point about 9:45 p. m.  They went to a bar where each had one drink.  After staying approximately one hour, Pat and Terry walked several blocks to a second bar, where each of them had another drink.  After about thirty minutes, they walked two blocks to a third bar known as E. J. Buggs.  The bar was crowded and a band was playing in the back.  Pat ordered another drink and as she and Terry were leaning against the wall, Rusk approached and said "hello" to Terry.  Terry, who was then conversing with another individual, momentarily [p. 233] interrupted her conversation and said "Hi, Eddie."  Rusk then began talking with Pat and during their conversation both of them acknowledged being separated from their respective spouses and having a child.  Pat told Rusk that she had to go home because it was a week- night and she had to wake up with her baby early in the morning.

 Rusk asked Pat the direction in which she was driving and after she responded, Rusk requested a ride to his apartment.  Although Pat did not know Rusk, she thought that Terry knew him.  She thereafter agreed to give him a ride.  Pat cautioned Rusk on the way to the car that " 'I'm just giving a ride home, you know, as a friend, not anything to be, you know, thought of other than a ride; ' " and he said, " 'Oh, okay.' " They left the bar between 12:00 and 12:20 a. m.

 Pat testified that on the way to Rusk's apartment, they continued the general conversation that they had started in the bar.  After a twenty-minute drive, they arrived at Rusk's apartment in the 3100 block of Guilford Avenue.  Pat testified that she was totally unfamiliar with the neighborhood.  She parked the car at the curb on the opposite side of the street from Rusk's apartment but left the engine running.  Rusk asked Pat to come in, but she refused.  He invited her again, and she again declined.  She told Rusk that she could not go into his apartment even if she wanted to because she was separated from her husband and a detective could be observing her movements.  Pat said that Rusk was fully aware that she did not want to accompany him to his room. Notwithstanding her repeated refusals, Pat testified that Rusk reached over and turned off the ignition to her car and took her car keys.  He got out of the car, walked over to her side, opened the door and said, " 'Now, will you come up?' " Pat explained her subsequent actions:
"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 [p. 234] could have done.  I was scared, at that point, and I didn't do any of them."
 Pat testified that at this moment she feared that Rusk would rape her.  She said: "(I)t was the way he looked at me, and said 'Come on up, come on up; ' and when he took the keys, I knew that was wrong."

 It was then about 1 a. m.  Pat accompanied Rusk across the street into a totally dark house.  She followed him up two flights of stairs.  She neither saw nor heard anyone in the building.  Once they ascended the stairs, Rusk unlocked the door to his one-room apartment, and turned on the light. According to Pat, he told her to sit down.  She sat in a chair beside the bed. Rusk sat on the bed.  After Rusk talked for a few minutes, he left the room for about one to five minutes.  Pat remained seated in the chair.  She made no noise and did not attempt to leave.  She said that she did not notice a telephone in the room.  When Rusk returned, he turned off the light and sat down on the bed.  Pat asked if she could leave; she told him that she wanted to go home and "didn't want to come up."  She said, " 'Now, (that) I came up, can I go?' " Rusk, who was still in possession of her car keys, said he wanted her to stay.

 Rusk then asked Pat to get on the bed with him.  He pulled her by the arms to the bed and began to undress her, removing her blouse and bra.  He unzipped her slacks and she took them off after he told her to do so.  Pat removed the rest of her clothing, and then removed Rusk's pants because "he asked me to do it." After they were both undressed Rusk started kissing Pat as she was lying on her back.  Pat explained what happened next:
"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, 'If I do what you want, will you let me go without killing me?'  [p. 235] 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."
 Pat testified that Rusk made her perform oral sex and then vaginal intercourse.

 Immediately after the intercourse, Pat asked if she could leave.  She testified that Rusk said, " 'Yes,' " after which she got up and got dressed and Rusk returned her car keys.  She said that Rusk then "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 Fells Point sometime,' just so I could leave."  Pat testified that she "had no intention of meeting him again."  She asked him for directions out of the neighborhood and left.

 On her way home, Pat stopped at a gas station, went to the ladies room, and then drove "pretty much straight home and pulled up and parked the car."  At first she was not going to say anything about the incident.  She explained her initial reaction not to report the incident: "I didn't want to go through what I'm going through now (at the trial)."  As she sat in her car reflecting on the incident, Pat said she began to "wonder 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."  She reported the incident to the police at about 3:15 a. m.  Subsequently, Pat took the police to Rusk's apartment, which she located without any great difficulty.

 Pat's girlfriend Terry corroborated her testimony concerning the events which occurred up to the time that Pat left the bar with Rusk.  Questioned about Pat's alcohol consumption, Terry said she was drinking screwdrivers that night but normally did not finish a drink.  Terry testified about her acquaintanceship with Rusk: "I knew his face, and his first name, but I honestly couldn't tell you apparently I ran into him sometime before.  I couldn't tell you how I know him.  I don't know him very well at all."

 [p. 236] Officer Hammett of the Baltimore City Police Department acknowledged receiving Pat's rape complaint at 3:15 a. m. on September 22, 1977.  He accompanied her to the 3100 block of Guilford Avenue where it took Pat several minutes to locate Rusk's apartment.  Officer Hammett entered Rusk's multi- dwelling apartment house, which contained at least six apartments, and arrested Rusk in a room on the second floor.

* * *

 Rusk, the 31-year-old defendant, testified that he was in the Buggs Tavern for about thirty minutes when he noticed Pat standing at the bar.  Rusk said: "She looked at me, and she smiled.  I walked over and said, hi, and started talking to her."  He did not remember either knowing or speaking to Terry.  When Pat mentioned that she was about to leave, Rusk asked her if she wanted to go home with him.  In response, Pat said that she would like to, but could not because she had her car.  Rusk then suggested that they take her car.  Pat agreed and they left the bar arm-in-arm.

 Rusk testified that during the drive to her apartment, he discussed with Pat their similar marital situations and talked about their children.  He said that Pat asked him if he was going to rape her.  When he inquired why she was asking, Pat said that she had been raped once before.  Rusk expressed his sympathy for her.  Pat then asked him if he [p. 238] planned to beat her.  He inquired why she was asking and Pat explained that her husband used to beat her.  Rusk again expressed his sympathy.  He testified that at no time did Pat express a fear that she was being followed by her separated husband.

 According to Rusk, when they arrived in front of his apartment Pat parked the car and turned the engine off.  They sat for several minutes "petting each other."  Rusk denied switching off the ignition and removing the keys.  He said that they walked to the apartment house and proceeded up the stairs to his room.  Rusk testified that Pat came willingly to his room and that at no time did he make threatening facial expressions.  Once inside his room, Rusk left Pat alone for several minutes while he used the bathroom down the hall.  Upon his return, he switched the light on but immediately turned it off because Pat, who was seated in the dark in a chair next to the bed, complained it was too bright.  Rusk said that he sat on the bed across from Pat and reached out
"and started to put my arms around her, and started kissing her; and we fell back into the bed, and she we were petting, kissing, and she stuck her hand down in my pants and started playing with me; and I undid her blouse, and took off her bra; and then I sat up and I said 'Let's take our clothes off; ' and she said, 'Okay; ' and I took my clothes off, and she took her clothes off; and then we proceeded to have intercourse."
 Rusk explained that after the intercourse, Pat "got uptight."
"Well, she started to cry.  She said that she said, 'You guys are all alike,' she says, 'just out for,' you know, 'one thing.'
"She started talking about I don't know, she was crying and all.  I tried to calm her down and all; and I said, 'What's the matter?'  And she said, that she just wanted to leave; and I said, 'Well, okay; ' [p. 239] and she walked out to the car.  I walked out to the car.  She got in the car and left."
 Rusk denied placing his hands on Pat's throat or attempting to strangle her.  He also denied using force or threats of force to get Pat to have intercourse with him.

 In reversing Rusk's second degree rape conviction, the Court of Special Appeals, quoting from Hazel, 221 Md. at 469, 157 A.2d 922, noted that:
"Force is an essential element of the crime (of rape) 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."
 Writing for the majority, Judge Thompson said:
"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."  43 Md.App. at 480, 406 A.2d 624.

 The Court of Special Appeals interpreted Hazel as requiring a showing of a reasonable apprehension of fear in instances where the prosecutrix did not resist. . . .

* * *

 Hazel, which was decided in 1960, long before the enactment of s 463(a)(1), involved a prosecution for common law rape, there defined as "the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim." . . . . It recognized that force and lack of consent are distinct elements of the crime of rape.  It 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.  But no particular amount of force, either actual or constructive, is required to constitute rape.  Necessarily, that fact must depend upon the prevailing circumstances.  As in this case force may exist without violence.  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."  Id. at 469, 157 A.2d 922.

 As to the element of lack of consent, the Court said in Hazel :
"(I)t is true, of course, that however reluctantly given, consent to the act at any time prior to penetration deprives the subsequent intercourse of its criminal character.  There is, however, a wide difference between consent and a submission to the act.  Consent may involve submission, but submission does not necessarily imply consent.  Furthermore, submission to a compelling force, or as a result of being put in fear, is not consent."  Id.

* * *

 Hazel did not expressly determine whether the victim's fear must be "reasonable."  Its only reference to reasonableness related to whether "the acts and threats of the defendant were reasonably calculated to create in the mind of the victim ... a real apprehension, due to fear, of imminent bodily harm ...." 221 Md. at 469, 157 A.2d 922.  Manifestly, the Court was there referring to the calculations of the accused, not to the fear of the victim. While Hazel made it clear that the victim's fear had to be genuine, it did not pass upon whether a real but unreasonable fear of imminent death or serious [p. 244] bodily harm would suffice.  The vast majority of jurisdictions have required that the victim's fear be reasonably grounded in order to obviate the need for either proof of actual force on the part of the assailant or physical resistance on the part of the victim. We think that, generally, this is the correct standard.

 As earlier indicated, the Court of Special Appeals held that a showing of a reasonable apprehension of fear was essential under Hazel to establish the elements of the offense where the victim did not resist.  The Court did not believe, however, that the evidence was legally sufficient to demonstrate the existence of "a reasonable fear" which overcame Pat's ability to resist.  In support of the Court's conclusion, Rusk maintains that the evidence showed that Pat voluntarily entered his apartment without being subjected to a "single threat nor a scintilla of force"; that she made no effort to run away nor did she scream for help; that she never exhibited a will to resist; and that her subjective reaction of fear to the situation in which she had voluntarily placed herself was unreasonable and exaggerated.  Rusk claims that his acts were not reasonably calculated to overcome a will to resist; that Pat's verbal resistance was not resistance within the contemplation of Hazel ; that his alleged menacing look did not constitute a threat of force; and that even had he pulled Pat to the bed, and lightly choked her, as she claimed, [p. 245] these actions, viewed in the context of the entire incident no prior threats having been made would be insufficient to constitute force or a threat of force or render the intercourse non-consensual.

. . . . Applying the constitutional standard of review articulated in Jackson v. Virginia, [443 U.S. 307 (1979)], i. e. whether after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt it is readily apparent to us that the trier of fact could rationally find that the elements of force and non-consent had been established and that Rusk was guilty of the offense beyond a reasonable doubt. Of course, it was for the jury to observe the witnesses and their demeanor, and to judge their credibility and weigh their testimony.  Quite obviously, the jury [p. 246] disbelieved Rusk and believed Pat's testimony.  From her testimony, the jury could have reasonably concluded that the taking of her car keys was intended by Rusk to immobilize her alone, late at night, in a neighborhood with which she was not familiar; that after Pat had repeatedly refused to enter his apartment, Rusk commanded in firm tones that she do so; that Pat was badly frightened and feared that Rusk intended to rape her; that unable to think clearly and believing that she had no other choice in the circumstances, Pat entered Rusk's apartment; that once inside Pat asked permission to leave but Rusk told her to stay; that he then pulled Pat by the arms to the bed and undressed her; that Pat was afraid that Rusk would kill her unless she submitted; that she began to cry and Rusk then put his hands on her throat and began " 'lightly to choke' " her; that Pat asked him if he would let her go without killing her if she complied with his demands; that Rusk gave an affirmative response, after which she finally submitted.

 Just where persuasion ends and force begins in cases like the present is essentially a factual issue, to be resolved in light of the controlling legal precepts.  That threats of force need not be made in any particular manner in order to put a person in fear of bodily harm is well established. . . . Indeed, conduct, rather than words, may convey the threat. . . . That a victim did not scream out for help or attempt to escape, while bearing on the question of consent, is unnecessary where she is restrained by fear of violence. . . .

 Considering all of the evidence in the case, with particular focus upon the actual force applied by Rusk to Pat's neck, we conclude that the jury could rationally find that the essential [p. 247] elements of second degree rape had been established and that Rusk was guilty of that offense beyond a reasonable doubt.

* * *

 COLE, Judge, dissenting.

 I agree with the Court of Special Appeals that the evidence adduced at the trial of Edward Salvatore Rusk was insufficient to convict him of rape.  I, therefore, respectfully dissent.

 The standard of appellate review in deciding a question of sufficiency, as the majority correctly notes, is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."  Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980).  However, it is equally well settled that when one of the essential elements of a crime is not sustained by the evidence, the conviction of the defendant cannot stand as a matter of law.

 The majority, in applying this standard, concludes that "(i)n view of the evidence adduced at the trial, the reasonableness of Pat's apprehension of fear was plainly a question of fact for the jury to determine."  In so concluding, the majority has skipped over the crucial issue.  It seems to me that whether the prosecutrix's fear is reasonable becomes a question only after the court determines that the defendant's conduct under the circumstances was reasonably calculated to give rise to a fear on her part to the extent that she was unable to resist.  In other words, the fear must stem from his articulable conduct, and equally, if not more importantly, [p. 248] cannot be inconsistent with her own contemporaneous reaction to that conduct.  The conduct of the defendant, in and of itself, must clearly indicate force or the threat of force such as to overpower the prosecutrix's ability to resist or will to resist.  In my view, there is no evidence to support the majority's conclusion that the prosecutrix was forced to submit to sexual intercourse, certainly not fellatio.

* * *

 While courts no longer require a female to resist to the utmost or to resist where resistance would be foolhardy, they do require her acquiescence in the act of intercourse to stem from fear generated by something of substance.  She may not simply say, "I was really scared," and thereby transform consent or mere unwillingness into submission by force.  These words do not transform a seducer into a rapist.  She must follow the natural instinct of every proud female to resist, by more than mere words, the violation of her person by a stranger or an unwelcomed friend.  She must make it plain that she regards such sexual acts as abhorrent and repugnant to her natural sense of pride.  She must resist unless the defendant has objectively manifested his intent to use physical force to accomplish his purpose.  The law [p. 256] regards rape as a crime of violence.  The majority today attenuates this proposition.  It declares the innocence of an at best distraught young woman.  It does not demonstrate the defendant's guilt of the crime of rape.

 My examination of the evidence in a light most favorable to the State reveals no conduct by the defendant reasonably calculated to cause the prosecutrix to be so fearful that she should fail to resist and thus, the element of force is lacking in the State's proof.

 Here we have a full grown married woman who meets the defendant in a bar under friendly circumstances.  They drink and talk together.  She agrees to give him a ride home in her car.  When they arrive at his house, located in an area with which she was unfamiliar but which was certainly not isolated, he invites her to come up to his apartment and she refuses.  According to her testimony he takes her keys, walks around to her side of the car, and says "Now will you come up?"  She answers, "yes."  The majority suggests that "from her testimony the jury could have reasonably concluded that the taking of her keys was intended by Rusk to immobilize her alone, late at night, in a neighborhood with which she was unfamiliar...." But on what facts does the majority so conclude? There is no evidence descriptive of the tone of his voice; her testimony indicates only the bare statement quoted above.  How can the majority extract from this conduct a threat reasonably calculated to create a fear of imminent bodily harm?  There was no weapon, no threat to inflict physical injury.

 She also testified that she was afraid of "the way he looked," and afraid of his statement, "come on up, come on up."  But what can the majority conclude from this statement coupled with a "look" that remained undescribed?  There is no evidence whatsoever to suggest that this was anything other than a pattern of conduct consistent with the ordinary seduction of a female acquaintance who at first suggests her disinclination.

 After reaching the room she described what occurred as follows:
[p. 257] 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, "If 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.

 The majority relies on the trial court's statement that the defendant responded affirmatively to her question "If I do what you want, will you let me go without killing me?"  The majority further suggests that the jury could infer the defendant's affirmative response.  The facts belie such inference since by the prosecutrix's own testimony the defendant made no response.  He said nothing!

 She then testified that she started to cry and he "started lightly to choke" her, whatever that means.  Obviously, the choking was not of any persuasive significance.  During this "choking" she was able to talk.  She said "If I do what you want will you let me go?"  It was at this point that the defendant said yes.

 I find it incredible for the majority to conclude that on these facts, without more, a woman was forced to commit oral sex upon the defendant and then to engage in vaginal intercourse.  In the absence of any verbal threat to do her grievous bodily harm or the display of any weapon and threat to use it, I find it difficult to understand how a victim could participate in these sexual activities and not be willing.

 What was the nature and extent of her fear anyhow?  She herself testified she was "fearful that maybe I had someone following me."  She was afraid because she didn't know him [p. 258] and she was afraid he was going to "rape" her.  But there are no acts or conduct on the part of the defendant to suggest that these fears were created by the defendant or that he made any objective, identifiable threats to her which would give rise to this woman's failure to flee, summon help, scream, or make physical resistance.

* * *

 The record does not disclose the basis for this young woman's misgivings about her experience with the defendant.  The only substantive fear she had was that she would be late arriving home.  The objective facts make it inherently improbable that the defendant's conduct generated any fear for her physical well-being.

 In my judgment the State failed to prove the essential element of force beyond a reasonable doubt and, therefore, the judgment of conviction should be reversed.