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).
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      [¶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
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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
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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.”
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      [¶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).
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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.
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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
