State v. Rusk

OPINION BY: MURPHY

Edward Rusk was found guilty by a jury in the Criminal Court of Baltimore of second degree rape in violation of Maryland Code Art. 27, § 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 insufficient evidence of Rusk's guilt had been adduced at the trial to permit the case to go to the jury. 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 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 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?' 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."

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.

Hammett testified that Pat was sober, and she was taken to City Hospital for an examination. The examination disclosed that seminal fluid and spermatazoa were detected in Pat's vagina, on her underpants, and on the bed sheets recovered from Rusk's bed.

At the close of the State's case-in-chief, Rusk moved for a judgment of acquittal. In denying the motion, the trial court said:



"There is evidence that there is a taking of automobile keys forcibly, a request that the prosecuting witness accompany the Defendant to the upstairs apartment. She described a look in his eye which put her in fear.

"Now, you are absolutely correct that there was no weapon, no physical threatening testified to. However, while she was seated on a chair next to the bed, the Defendant excused himself, and came back in five minutes; and then she testifies, he pulled her on to the bed by reaching over and grabbing her wrists, and/or had her or requested, that she disrobe, and assist him in disrobing.

"Again, she said she was scared, and then she testified to something to the effect that she said to him, she was begging him to let her leave. She was scared. She started to cry. He started to strangle her softly she said. She asked the Defendant, that if she'd submit, would he not kill her, at which point he indicated that he would not; and she performed oral sex on him, and then had intercourse."

Rusk and two of his friends, Michael Trimp and David Carroll, testified on his behalf. According to Trimp, they went in Carroll's car to Buggs' bar to dance, drink and "tr[y] to pick up some ladies." Rusk stayed at the bar, while the others went to get something to eat.

Trimp and Carroll next saw Rusk walking down the street arm-in-arm with a lady whom Trimp was unable to identify. Trimp asked Rusk if he needed a ride home. Rusk responded that the woman he was with was going to drive him home. Trimp testified that at about 2:00 -- 2:30 a.m. he returned to the room he rented with Rusk on Guilford Avenue and found Rusk to be the only person present. Trimp said that as many as twelve people lived in the entire building and that the room he rented with Rusk was referred to as their "pit stop." Both Rusk and Trimp actually resided at places other than the Guilford Avenue room. Trimp testified that there was a telephone in the apartment.

Carroll's testimony corroborated Trimp's. He saw Rusk walking down the street arm-in-arm with a woman. He said "[s]he was kind of like, you know, snuggling up to him like. . . . She was hanging all over him then." Carroll was fairly certain that Pat was the woman who was with Rusk.

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 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;' 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 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."

Of course, due process requirements mandate that a criminal conviction not be obtained if the evidence does not reasonably support a finding of guilt beyond a reasonable doubt. However, as the Supreme Court made clear in Jackson v. Virginia the reviewing court does not ask itself whether it believes that the evidence established guilt beyond a reasonable doubt; rather, the applicable standard 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."

The vaginal intercourse once being established, the remaining elements of rape in the second degree under § 463 (a) (1) are, as in a prosecution for common law rape (1) force -- actual or constructive, and (2) lack of consent. The terms in § 463 (a) (1) -- "force," "threat of force," "against the will" and "without the consent" -- are not defined in the statute, but are to be afforded their "judicially determined meaning" as applied in cases involving common law rape. In this regard, it is well settled that the terms "against the will" and "without the consent" are synonymous in the law of rape.
Hazel, which was decided in 1960, long before the enactment of § 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." The evidence in that case disclosed that Hazel followed the prosecutrix into her home while she was unloading groceries from her car. He put his arm around her neck, said he had a gun, and threatened to shoot her baby if she moved. Although the prosecutrix never saw a gun, Hazel kept one hand in his pocket and repeatedly stated that he had a gun. He robbed the prosecutrix, tied her hands, gagged her, and took her into the cellar. The prosecutrix complied with Hazel's commands to lie on the floor and to raise her legs. Hazel proceeded to have intercourse with her while her hands were still tied. The victim testified that she did not struggle because she was afraid for her life. There was evidence that she told the police that Hazel did not use force at any time and was extremely gentle. Hazel claimed that the intercourse was consensual and that he never made any threats. The Court said that the issue before it was whether "the evidence was insufficient to sustain the conviction of rape because the conduct of the prosecutrix was such as to render her failure to resist consent in law." It was in the context of this evidentiary background that the Court set forth the principles of law which controlled the disposition of the case. It recognized that force and lack of consent are distinct elements of the crime of rape.

Hazel thus made it clear that lack of consent could be established through proof that the victim submitted as a result of fear of imminent death or serious bodily harm. In addition, if the actions and conduct of the defendant were reasonably calculated to induce this fear in the victim's mind, then the element of force is present. Hazel recognized, therefore, that the same kind of evidence may be used in establishing both force and nonconsent, particularly when a threat rather than actual force is involved.

The Court noted in Hazel that the judges who heard the evidence, and who sat as the trier of fact in Hazel's non-jury case, had concluded that, in light of the defendant's acts of violence and threats of serious harm, there existed a genuine and continuing fear of such harm on the victim's part, so that the ensuing act of sexual intercourse under this fear "'amounted to a felonious and forcible act of the defendant against the will and consent of the prosecuting witness.'" In finding the evidence sufficient to sustain the conviction, the Court observed that "[t]he issue of whether the intercourse was accomplished by force and against the will and consent of the victim was one of credibility, properly to be resolved by the trial court."

We think the reversal of Rusk's conviction by the Court of Special Appeals was in error for the fundamental reason so well expressed in the dissenting opinion by Judge Wilner when he observed that the majority had "trampled upon the first principle of appellate restraint . . . [because it had] substituted [its] own view of the evidence (and the inferences that may fairly be drawn from it) for that of the judge and jury . . . [and had thereby] improperly invaded the province allotted to those tribunals." In 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. The principle of these cases was applied in Giles v. State, a common law rape prosecution involving conflicting evidence as to the use of force and lack of consent, where the Court concluded that the question "whether the intercourse had been consented to or had been accomplished by force, was clearly one to be resolved by the trier of facts. 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 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 elements of second degree rape had been established and that Rusk was guilty of that offense beyond a reasonable doubt.

DISSENTBY: COLE

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.

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 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.

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.

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 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.

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.