289 Md. 230, 424 A.2d 720
On the evening of September 21, 1977, the 21-year-old victim met her friend Terry at a bar in Fells Point, Baltimore, after attending a high school alumnae meeting.1 There, the victim encountered the 31-year-old defendant, Edward Salvatore Rusk, and the two conversed for approximately twenty-five minutes about their separations and children.2 The victim agreed to give Rusk a ride home in her car, and they left the bar between midnight and 12:20 a.m.
Upon arriving at Rusk's apartment building in the 3100 block of Guilford Avenue, an area unfamiliar to the victim, Rusk turned off the ignition and took her car keys after she refused his invitation to come inside. He then walked around the car, opened her door, and said, "Now, will you come up?"3 The victim accompanied him across the street into the dark building and up two flights of stairs to his one-room apartment because she was scared and did not know what else to do.4
Inside the apartment, Rusk turned off the light, pulled the victim by the arms onto the bed, and began undressing her.5 When she begged to leave and started to cry, Rusk placed his hands on her throat and lightly choked her. The victim asked if he would let her go without killing her if she complied, and after he indicated he would, she performed oral sex and engaged in vaginal intercourse with him.6
Immediately afterward, Rusk returned her car keys, walked her to her car, and she drove home.7 The victim initially hesitated to report the incident but later stopped at a gas station and found a police officer around 3:15 a.m. to file a complaint. She led police to Rusk's apartment, where he was arrested.8 At trial in the Criminal Court of Baltimore, Rusk was convicted by a jury of second degree rape under Maryland Code Art. 27, § 463(a)(1) and sentenced to ten years' imprisonment with five years suspended.9 The Court of Special Appeals, sitting en banc, reversed the conviction in an 8-5 decision, and the Court of Appeals of Maryland granted certiorari.10
Whether the evidence adduced at trial was sufficient to support the conviction of second degree rape?11
Under Maryland Code Art. 27, § 463(a)(1), a person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person by force or threat of force against the will and without the consent of the other person.12 As established in Hazel v. State, 221 Md. 464, 469, 157 A.2d 922, 925 (1960), force is an essential element of the crime of rape and must be found present before a conviction for rape may be sustained.13 No particular amount of force, either actual or constructive, is required to constitute rape.14 The amount of force is dependent upon the circumstances, such as the age, size and strength of the parties, and their relation to each other, and the place and conditions under which the act took place.15 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.16 Lack of consent may be established through proof of resistance or by proof that the victim failed to resist because of fear.17 The kind of fear which would render resistance by a woman unnecessary includes a fear of death or serious bodily harm, or a fear so extreme as to preclude resistance.18 The standard of review for sufficiency of the evidence 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, as set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979).19
Yes. The evidence presented at trial, when viewed in the light most favorable to the prosecution, permitted a rational jury to conclude beyond a reasonable doubt that the defendant engaged in vaginal intercourse with the victim by force or threat of force against her will and without her consent.20 The jury could have found that the defendant took the victim's car keys in an unfamiliar neighborhood late at night.21 This immobilized her and created a situation where she felt she had no choice but to accompany him to his apartment.22
The victim's testimony that she was scared because she did not know what to do and was in a place she did not know supports the conclusion that her submission resulted from fear.23 When the victim begged to leave and began to cry, the defendant pulled her to the bed and placed his hands on her throat, lightly choking her. The jury could have viewed this as conduct reasonably calculated to create a real apprehension of imminent bodily harm.24 The victim's question to the defendant about whether he would let her go without killing her if she complied further indicates her fear of serious harm.25
Under the principles from Hazel v. State, these facts establish both the element of force through constructive means and the lack of consent due to fear overcoming her will to resist.26 The jury, as the trier of fact, was entitled to credit the victim's testimony over the defendant's conflicting account and to draw reasonable inferences from the circumstances.27
The evidence adduced at trial was sufficient to support the conviction of second degree rape.28
Related opinions on this issue
Joined by Judges Smith And Cole
Judge Davidson dissented and agreed with the majority of the Court of Special Appeals that the evidence was not sufficient to support a conviction of rape.29 She applied the rule of law set forth in Hazel v. State and concluded that the application of this rule to the facts and circumstances of this case produced a different result.30 In her view, these facts are not sufficient to show that the victim's will was overcome by force or threat of force.31
The victim did not testify that she was afraid that she would be physically harmed if she did not submit to sexual intercourse.32 Under the circumstances here present, Judge Davidson was not convinced that a reasonable jury could have concluded that the victim's will was overcome by force or threat of force.33 She would have affirmed the judgment of the Court of Special Appeals.
Joined by Judges Smith And Digges
Judge Cole dissented and agreed with the Court of Special Appeals that the evidence adduced at the trial of Edward Salvatore Rusk was insufficient to convict him of rape.34 He applied the standard of appellate review from Jackson v. Virginia and concluded that the majority had skipped over the crucial issue of whether 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.35 In his view, there is no evidence to support the majority's conclusion that the prosecutrix was forced to submit to sexual intercourse, certainly not fellatio.36
Judge Cole emphasized that the victim never testified that she was afraid she would be physically harmed if she did not submit.37 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.38 He would have reversed the judgment of conviction because the State failed to prove the essential element of force beyond a reasonable doubt.39