Does evidence that a defendant took the victim's car keys, commanded her to come to his apartment, pulled her to the bed, and lightly choked her while she begged to leave suffice for a rational jury to find force or threat of force and lack of consent for second degree rape under Maryland Code Art. 27, § 463(a)(1)?

Pat, a 21-year-old woman, met Edward Rusk at a Baltimore bar after drinking with a friend. After Pat said she had to go home, Rusk asked for a ride to his apartment, and she agreed after cautioning that it was only a ride as a friend. Outside Rusk's apartment, in an unfamiliar neighborhood after midnight, Rusk twice asked Pat to come in and she twice refused. Rusk then reached over, turned off her ignition, took her car keys, walked to her side, opened her door, and asked, "Now, will you come up?" Pat testified she was scared and followed him into a dark house and up two flights of stairs to his one-room apartment. Once inside, she asked to leave, but Rusk kept her keys and said he wanted her to stay. He pulled her to the bed by the arms and undressed her. Pat begged to leave and asked whether he would let her go without killing her if she complied. When she began to cry, Rusk put his hands on her throat and lightly choked her. She submitted to oral sex and vaginal intercourse after he said he would let her go. Rusk returned her keys, and she reported the incident to police. Rusk testified that the intercourse was consensual.

A jury in the Criminal Court of Baltimore (Karwacki, J.) found Rusk guilty of second degree rape under Maryland Code Art. 27, § 463(a)(1). At the close of the State's case, the trial court denied his motion for judgment of acquittal. On appeal, the Court of Special Appeals, sitting en banc, reversed the conviction by an 8-5 vote, holding the evidence legally insufficient under Hazel v. State to submit the case to the jury. The Maryland Court of Appeals granted certiorari to determine whether the Court of Special Appeals properly applied Hazel.

(Murphy, C.J.)

Yes. The evidence was sufficient for a rational jury to find force or threat of force and lack of consent, so the Court of Special Appeals erred in reversing the conviction.

The applicable standard comes from Jackson v. Virginia, 443 U.S. 307 (1979): a reviewing court asks whether, 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 appellate court does not ask whether it personally believes guilt was proven. The Court of Special Appeals substituted its own view of the evidence for that of the judge and jury, violating the principle of appellate restraint.

Under Hazel v. State, 221 Md. 464 (1960), force is an essential element. It is established where the victim resisted and was overcome by force, or was prevented from resisting by threats to her safety. Acts and threats reasonably calculated to create a real apprehension of imminent bodily harm, serious enough to impair or overcome the will to resist, are the equivalent of force. Submission induced by fear is not consent. Generally, the victim's fear must be reasonably grounded, and whether it was reasonable is a question of fact for the jury. Threats need not be made in any particular manner, and conduct may convey the threat. A victim's failure to scream or flee is unnecessary to show nonconsent where she is restrained by fear of violence.

The jury could rationally have found that taking the keys was meant to immobilize Pat alone, late at night, in an unfamiliar neighborhood. It could also find that Rusk commanded her to come upstairs after repeated refusals, kept the keys when she asked to leave, pulled her to the bed, and choked her when she cried. The actual force applied to her neck supports a finding of force and nonconsent. The jury was entitled to believe Pat and disbelieve Rusk. The judgment of the Court of Special Appeals is reversed and the case remanded with directions to affirm the conviction.

Dissent (Cole, J.) The evidence is insufficient because the State failed to prove force beyond a reasonable doubt. Before the reasonableness of the victim's fear becomes a jury question, the court must determine that the defendant's articulable conduct was reasonably calculated to create fear sufficient to overcome her will to resist, and that the fear is consistent with her own contemporaneous reaction. Hazel and the post-Hazel Maryland rape cases involved physical violence or specific threatening words or conduct, such as weapons, beatings, or threats to kill. Here there was no weapon, no verbal threat, and no injury. The taking of keys and the undescribed look were consistent with ordinary seduction. The "light choking" was not disabling, and Pat could speak during it. Pat voluntarily left the car, walked up the stairs, waited alone in a lit room, undressed, and later arranged to see Rusk again. Her conclusory statement that she was scared cannot transform consent or mere unwillingness into submission by force. The majority departs from Hazel's requirement of clear evidence of force or threat of force and treats the victim's subjective fear as sufficient. Judges Smith and Digges concur.