             REPORTED

IN THE COURT OF SPECIAL APPEALS

           OF MARYLAND




               No. 1751

        September Term, 2013




           IN RE: JAMES R.




   Graeff,
   Leahy,
   Thieme, Raymond, G., Jr.
          (Retired, Specially Assigned),

                   JJ.


         Opinion by Thieme, J.




       Filed: October 30, 2014
       In this juvenile delinquency case, James R., appellant, asks this Court to review the

adjudication of delinquency rendered by the Circuit Court for Cecil County. Following

an adjudicatory hearing on September 25, 2013, the court determined that James was

involved in the commission of an act that, if committed by an adult, would constitute

second degree rape in violation of Md. Code (2002, 2012 Repl. Vol.), § 3-304(a)(1) of the

Criminal Law Article. (“Crim. Law”). Following a disposition hearing on October 23,

the court ordered “commitment to the Department of Juvenile Services for appropriate

placement.”

       In his timely appeal from the adjudication of delinquency and disposition,

appellant maintains that the evidence is insufficient to sustain the court’s finding of rape,

specifically the finding that the act was committed with force and without consent. We

disagree and shall affirm the adjudication in all respects.

                                       B ACKGROUND

       The State’s case against appellant was based primarily on the testimony of the

complainant, D.1 At the time of the incident in question, D was 14 years old and

appellant was 13. The two had “dated” for a short time when they had both attended sixth

grade, and continued to be friends and confidants.

       Because the two had not seen each other “in a while,” they “wanted to catch up.”

Accordingly, D’s mother drove her to appellant’s house at about 5:00 p.m. on the day in


       1
       We shall refer to the complainant as “D.” Cf. generally, Muthukumarana v.
Montgomery County, 370 Md. 447, 458 n.2 (2002) (first name and first initial of last
name).
question. D arrived, and greeted James’s parents. After this, the two went downstairs to

appellant’s room in the basement to watch a movie.

       It was dark in the basement when appellant kissed D. The girl did not think much

about this at first:

               [PROSECUTOR:] Okay. So you go down to the basement
               to his room. What happens?

               A. We go down. We set down on his bed. We talk. We
               watch a movie. And then he kissed me, and I was just like,
               oh, it’s just a kiss, nothing; and then it –

               Q. This is upsetting to you to have to talk about it?

               A. Yes.

       The two continued to watch the movie when they “laid down.” Appellant then told

D that he was a “monster” and whispered in D’s ear that she was “going to get fucked.”

In the wake of these comments, D “was in shock” and she “froze.” She then testified that

she got raped. D said that appellant got on top of her and “penetrated” her; that he “stuck

his penis inside [her].” Appellant “had ahold of” her arms. When asked by defense

counsel whether she had been struggling with appellant, D recounted that she was

“squirming” as appellant was removing her pants. During the intercourse, D “said no”

and then “started to cry[.]” At this, appellant got off of her. D did not consent to the

sexual intercourse.

       After this incident, appellant apologized, and admitted that “he’s a monster.” D

was “upset and scared.” After the police became involved, an investigating officer asked

                                              2
her to call appellant. Their conversation was recorded, and appellant apologized during

this call. Appellant also sent text messages to D, in which he again apologized.

       On cross-examination, D testified that while she did not scream, and did not alert

the adults who were just upstairs, she was crying. She acknowledged that she was getting

“flashbacks,” which the defense apparently sought to show were the true reasons for D’s

distress.2 D would not tell her mother about the incident until much later, after she spoke

with friends who urged her to come forward.

       Her mother, RM, testified next, and recalled that on the date in question she came

to appellant’s house to pick up and bring D home. RM recounted that D would not make

eye contact with her, and that her daughter acted a “little bit shaky.” D was “very

reserved” over the following week or two, and eventually revealed the details of the

incident.

       The State rested after RM’s testimony, and appellant testified in his defense. He

presented a conflicting version of the facts, and insisted that D consented to the

intercourse.

       Following testimony and argument, the court found that appellant was involved in

the commission of rape. The court articulated its ruling as follows:




       2
         Appellant testified that after he touched D on her backside following the
intercourse, D became upset and explained that the incident brought about “flashbacks
and memories of a before time where something ha[d] happened to her.”

                                              3
THE COURT: Not an easy case to decide because the
testimony of the victim and the testimony of the accused is
diametrically opposed in what actually transpired on June 5th.
Therefore, the court has to look through the testimony and
evaluate reasonable and rational inferences that you can draw
to ascribe credibility or detract credibility to one version or
the other.

       According to the victim he either – the accused either
ripped her pants off or pulled them off. She immediately said
no. Thereafter, he stuck – according to her, quote, stuck his
penis in me, unquote. At that point she testified she went into
shock, and she described what shock meant to her, and she
began crying. Prior to the incident he had said that he was
sorry he was a monster, said the same thing thereafter.

          To summarize the testimony of the accused, the events
of June 5th were consensual in nature. However, several
things lead to credence of the testimony of the victim. First of
all . . . the event took place in the basement while his entire
family, mother, father and sister were upstairs. I have a hard
time accepting the fact that two individuals would engage in
consensual sex with a family upstairs, the mother at one time
coming downstairs. How do you explain it? Well, I – going
beyond the realm of testimony I think I’m at liberty to say
from life’s experience that there come times when men
especially lose all sense of rationale and become overcome by
– by emotion; and it appears to me that this is what happened
here.

       The other factor that concerns me from the defense’s
position is that the events of June 5 were consensual. If that’s
the case why did the victim talk about it weeks thereafter,
eventually going to her mother? If it was consensual, it was
consensual; it was over and done with. That position lends
credence to her testimony as well.

      And the long lasting affects thereafter, according to the
mother she was quiet, shaky, reserved, no appetite, slept a lot.



                               4
                     And, of course, the last thing is the recording that was
              played before the court; wherein, the respondent apologized
              several times and said he was sorry.

                     The court is convinced beyond a reasonable doubt for
              reasons stated that the non-consensual act took place
              amounting to second degree rape. There is a finding of
              delinquency in fact beyond a reasonable doubt, and such a
              finding of court is enrolled.

                                        D ISCUSSION

       The parties to this appeal dispute the sufficiency of the evidence. Appellant insists

that D consented to the intercourse, and that the record is insufficient to support an

inference of the employment of force to compel D to engage in intercourse. He maintains

that the circumstances of this case certainly do not show any reasonable fear on the part

of the complainant. The State urges that we affirm, and points to the fact that appellant

“used actual force when performing vaginal intercourse on the victim[,]” and that the

complainant’s resistance can be demonstrated by the fact that she “verbally resisted his

advances,” and that she “squirm[ed]” while appellant was removing her pants.

       When faced with a challenge to the sufficiency of the evidence, Maryland courts

have applied the test set forth in Jackson v. Virginia, 443 U.S. 307 (1979). See Smith v.

State, 415 Md. 174, 184 (2010). We must determine “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. at 319. Accord, Allen v. State, 402 Md. 59, 71 (2007). This inquiry is



                                              5
one of law, so that our review of this legal determination is plenary. See Hudson v. State,

152 Md. App. 488, 523, cert. denied, 378 Md. 618 (2003).

       “This same standard of review applies in juvenile delinquency cases. In such

cases, the delinquent act, like the criminal act, must be proven beyond a reasonable

doubt.” In re Timothy F., 343 Md. 371, 380 (1996) (citation omitted). Cf. Branch v.

State, 305 Md. 177, 182 (1986) (criteria for review of sufficiency same whether verdict

rendered by jury or court). “Absent clear error, an appellate court will not set aside the

judgment of the trial court.” Matter of Tyrek S., 118 Md. App. 270, 273 (1997), aff’d on

other grounds, 351 Md. 698 (1998).

       On this record, we disagree with appellant’s claim that the State’s case falls far

short of demonstrating the requisite “force or threat of force.” At the time of the events

that drove the instant prosecution, the relevant statutory provision, Crim. Law § 3-304(a)

read as follows:

              § 3-304. Rape in the second degree.

              (a) Prohibited. – A person may not engage in vaginal
              intercourse with another:

              (1) by force, or the threat of force, without the consent of the
              other;

              (2) if the victim is a mentally defective individual, a mentally
              incapacitated individual, or a physically helpless individual,
              and the person performing the act knows or reasonably should
              know that the victim is a mentally defective individual, a
              mentally incapacitated individual, or a physically helpless
              individual; or

                                              6
               (3) if the victim is under the age of 14 years, and the person
               performing the act is at least 4 years older than the victim.

Only the first of the above three modalities is at issue here. This has been a traditional

means by which rape has been defined.3



       3
           As noted by one commentator:

               While some statutes invite a more restrictive application than
               others, there is no “model statute” solution to rape law,
               because the problem has never been the words of the statutes
               as much as our interpretation of them. A typical statute of the
               1890’s-punishing a man who engages in sexual intercourse
               “by force” and “against the will and without the consent” of
               the woman-may not be all that different from the “model”
               statute we will enforce in the 1990’s. The difference must
               come in our understanding of “consent” and “will” and
               “force.”

Susan Estrich, Rape, 95 Yale L. J. 1087, 1093 (1986) (footnote omitted). Our Court of
Appeals has noted that “[w]hile Maryland currently possesses a statutory definition of the
offense of rape, before 1976, rape was defined at common law.” State v. Baby, 404 Md.
220, 247 n.12 (2008). “In 1976, the General Assembly enacted a new gender-neutral
statutory scheme recognizing various degrees of sexual crimes[.]” State v. Mayers, 417
Md. 449, 467 (2010) (footnote omitted). “Since the creation of the statutory definition,
[Maryland Courts] have still been called upon to look to the common law to interpret
terms or elements which are not defined by statute.” State v. Baby, 404 Md. at 247 n.12.

       Of course, the common law approach to rape has become a fulcrum around which
divergent views of rape turn:

               According to critics, the traditional and still dominant
               common law definition of rape – which requires proof of
               “force or threat of force” and which excuses a “reasonably
               mistaken” belief in consent – is founded on antiquated
               expectations of male sexual aggression and female
               submission. Defenders of the common law reply that the
                                                                                 (continued...)

                                              7
      Appellant directs our attention to this Court’s decision in Goldberg v. State, 41

Md. App. 58, cert. granted, 284 Md. 744, cert. dism’d (1979), in which this Court

reversed a rape conviction.4 The complainant in that case was persuaded to accompany

Goldberg to his home by the latter’s claim that she was “an excellent prospect to become

a successful model.” Id. at 59. Goldberg took the complainant to a temporary “studio.”

Soon after arriving, he ushered the complainant into a bedroom and started unbuttoning


      3
          (...continued)
                 traditional definition of rape sensibly accommodates
                 contemporary practices and understandings – not only of men
                 but of many women as well. The statement “no,” they argue,
                 does not invariably mean “no” but rather sometimes means
                 “yes” or at least “maybe.”

Dan M. Kahan, Culture, Cognition, and Consent: Who Perceives What, and Why, in
Acquaintance-Rape Cases, 158 U. Pa. L.Rev. 729, 731 (2010) (footnote omitted).
Professor Kahan also noted with respect to the element of force, that

                [u]nder the still-dominant common law definition of rape,
                proof that a man engaged in vaginal intercourse with a woman
                without her consent is legally necessary but not sufficient for
                conviction. The prosecution must show in addition that the
                man overcame the will of the victim by “force or threat of
                force.”

Id. at 745 (footnote omitted). See State v. Baby, 404 Md. at 260 (“force or the threat of
force” essential element of crime of rape). The element of “force” or the “threat of
force,” however, has not been clearly defined, and courts “have often struggled to
distinguish what kind of conduct satisfies the element[.]” Daphne Edwards, Comment,
Acquaintance Rape & the “Force” Element: When “No” is Not Enough, 26 Golden Gate
U. L.Rev. 241, 259 (1996) (footnotes omitted).
      4
         The dismissal of certiorari in Goldberg v. State, 41 Md. App. 58 (1979) is noted
by this Court in Rusk v. State, 43 Md. App. 476, 480 (1979) (en banc), rev’d, 289 Md.
230 (1981).

                                               8
her blouse. She demurred, and began to realize that she was not auditioning to be a

model. Goldberg tried to assure her that he would not hurt her, and continued to try to

convince her that this was a modeling job. Id. at 60. The complainant disrobed because

“she ‘was really scared of him,’” and claimed that there was “nothing [she] could do.” Id.

Goldberg “pushed” her down on the bed, and the complainant protested, saying she did

not “want to do it” and that she wanted to go home, and implored Goldberg to leave her

alone. Id. at 61. Goldberg performed intercourse on the complainant and eventually

drove her home.

       This Court reversed Goldberg’s conviction, concluding that the evidence was

legally insufficient to prove the “requisite element of ‘force or threat of force.’” 41 Md.

App. at 65-66. This Court first explained that the complainant’s testimony negated the

presence of a “threat of force.” This Court also determined that the record did not

establish actual force:

              There was certainly no “threat of force”. On the contrary, the
              prosecuting witness on numerous occasions in her testimony
              negated that element. As to actual force, the only arguable
              evidence is the prosecuting witness’ testimony that after she
              herself had removed all her clothes, the appellant put his
              hands on her shoulders and “pushed” her down on the bed.
              This is negated, however, by her further testimony on
              cross-examination that “he didn’t push but guided (her) on the
              bed”. She admitted that she was not “injured or anything” by
              the encounter. This, of course, is consistent with the findings
              of the physician who subsequently examined her. Those
              findings so far as they relate to the use of any actual force
              were completely negative.



                                              9
Goldberg, 41 Md. App. at 66.

      This Court recognized that “actual physical force is not an indispensable element

of the crime of rape.” Id. This Court then quoted from the Court of Appeals’ decision in

Hazel v. State, 221 Md. 464 (1960), in which the Court of Appeals instructed:

                      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. . . .
             [F]orce 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.

                     With respect to the presence or absence of the element
             of consent, it 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.

                                           ***

                     The kind of fear which would render resistance by a
             woman unnecessary to support a conviction of rape includes,
             but is not necessarily limited to, a fear of death or serious
             bodily harm, or a fear so extreme as to preclude resistance, or
             a fear which would well nigh render her mind incapable of



                                            10
              continuing to resist, or a fear that so overpowers her that she
              does not dare resist.

Goldberg v. State, 41 Md. App. at 66-67 (quoting Hazel v. State, 221 Md. at 469-70)

(citations omitted).

       In Goldberg, this Court found that the record did not establish that Goldberg’s

“words or actions ‘were reasonably calculated to create in the mind of the victim’ a

reasonable fear that if she had resisted he would have harmed her[.]” Id. at 69. This

Court then concluded:

              Without proof of force, actual or constructive, evidenced by
              words or conduct of the defendant or those acting in consort
              with him, sexual intercourse is not rape. This is so even
              though the intercourse may have occurred without the actual
              consent and against the actual will of the alleged victim. Thus
              it is that in the absence of actual force, unreasonable
              subjective fear of resisting cannot convert the conduct of the
              defendant from that which is non-criminal to that which is
              criminal.

Id. (footnote omitted). As we shall explain below, we consider Goldberg to be

inapposite.

       In State v. Mayers, 417 Md. 449 (2010), the defendant Mayers was convicted of

second degree sexual offense, second degree assault and fourth degree sexual offense. At

trial, Mayers had argued that there was “no evidence of verbal threats or that [the victim]

had sustained any physical injury.” Mayers, 417 Md. at 465. His arguments were

rejected, and he appealed the resulting conviction.




                                             11
       A divided panel of this Court reversed, concluding that the State presented

insufficient evidence of the requisite “force or the threat of force.” The Court of Appeals

disagreed, and held that there was indeed sufficient evidence of “force or the threat of

force” to enable a rational jury to conclude that Mayers committed a second degree sexual

offense. The Court rejected Mayers’s assertion that the “statutory standard (for force or

the threat of force) may only be met by physical violence[.]” Mayers, 417 Md. at 475.

       In reaching its conclusion, the Mayers Court surveyed Maryland cases that are

pertinent to the question of force and constructive force. The Court observed that

Maryland cases have “recognize[d] the notion of force as coextensive with resistence on

the part of the victim and also emphasize[d] that resistance is relative and should be

measured by the fact-finder.” Id. at 468. Indeed, “[f]orce,” the Court understood, had

been “recognized as essentially a subjective element as measured, in part, by the victim’s

resistence, because ‘it cannot be said that all women would use the same amount of

resistence , or that every woman would act in the same way at all times.” Id. at 469

(quoting Hill v. State, 143 Md. 358, 367 (1923)). “Force” can be a nuanced and fact-

bound concept, however. As noted by the Mayers Court:

              [O]ur jurisprudence recognizes that the measure of an
              assailant’s use of force or the threat of force is within the
              province of the trier-of-fact; it is not our role to retry the case
              or circumvent the fact-finder just because in other cases we,
              or our colleagues on the intermediate appellate court, were
              presented with physical violence perpetrated against the
              victim.



                                               12
417 Md. at 475. In Martin v. State, 113 Md. App. 190, 246-47 (1996) (citation omitted),

this Court instructed that

              [t]o constitute a rape or a sexual offense . . . the conduct need
              not always be so blatantly “forceful.” Rather, the
              perpetrator’s creation of certain conditions may, depending on
              the circumstances, obviate the need for such outward
              expressions of force. . . .

                      The law is clear that “no particular amount of force,
              either actual or constructive, is required to constitute rape.
              Necessarily, that fact must depend upon the prevailing
              circumstances. In light of the myriad of circumstances that
              can arise, the reasonableness of a victim’s nonresistance is
              usually best left to the fact finder.

       The defendant in Mayers also sought to persuade the Court of Appeals by citing to

this Court’s decision in Goldberg. Writing for Court of Appeals, Judge Battaglia rejected

the strength of that authority on the record before the Mayers Court:

              [In Goldberg] there was nothing in the record demonstrating
              that the victim offered any resistance and the prosecuting
              witness testified that the defendant did not threaten her in any
              way. In contrast, however, in the present case, [the
              complainant] resisted both verbally, by saying “no” over and
              over again, and also physically, by pushing Mayers’s hands
              away from her breast and vagina, while experiencing fear that
              Mayers would force her to perform fellatio on him or that she
              would contract a sexually transmitted disease in the absence
              of a condom.

                     In the present case, we conclude that a reasonable jury
              could have determined that Mayers employed force or the
              threat of force to perpetrate the act of cunnilingus on [the
              complainant]. In terms of force, [the complainant] verbally
              resisted Mayers's advances, saying “no” over and over again.
              When Mayers would not relent, [the complainant] also

                                             13
              physically resisted, pushing his hands away from her breast
              and vagina. [The complainant] further testified that Mayers
              took off her shorts by “getting on top of her,” evidence of the
              application of force beyond that which is part of the sexual act
              itself.

                      Furthermore, [the complainant] testified regarding her
              fear of Mayers. [The complainant] recounted that she was
              awakened from sleep, having complained of being ill, and
              also that Mayers smelled of alcohol and marijuana. [The
              complainant] further testified that she repeatedly said “no,”
              but that Mayers would not relent, and also physically resisted,
              to no avail, such that she feared that Mayers would use her for
              his own sexual gratification regardless of her unwillingness.
              Finally, [the complainant] recounted that she was “horrifically
              scared” and paralyzed by the fear of contracting a sexually
              transmitted disease or being forced to perform fellatio on him.
              Based upon all of these circumstances, a rational jury
              certainly could conclude that Mayers perpetrated the act of
              cunnilingus on [the complainant] by force or threats of force.
              Therefore, Mayers's conviction must stand.

417 Md. at 475-76.

       Although the complainant’s resistance was not as strenuous as was the victim’s in

Mayers, and the instant case presents a closer factual scenario than does the record in

Mayers, we nevertheless conclude that the evidence in the case before us is sufficient to

permit the court, sitting as the trier-of-fact, to find that appellant exercised “force, or the

threat of force,” and that D did not consent to the intercourse. Appellant claimed that he

was a “monster,” and told D that she would be “fucked.” His initial statements were met

with shock. Appellant exercised actual force and held D’s arms as he got on top of her.




                                               14
She “squirm[ed]”as appellant pulled off her pants. Appellant apologized to D after the

act, and reiterated his apology during a conversation with D.

       The “creation of certain conditions may, depending on the circumstances, make

unnecessary the need for outward expressions of force.” Robinson v. State, 151 Md. App.

384, 398-99, cert. denied, 377 Md. 276 (2003). We believe that the conditions and

appellant’s words and actions present in the case before us present a mosaic of facts that

are sufficient to sustain the court’s findings.

                                            JUDGMENT AFFIRMED.

                                            APPELLANT TO PAY COSTS.




                                                  15
