Blotkamp v. State

Wilner, J., delivered the opinion of the Court. Susan worked the night shift (11:00 p.m. to 7:00 a.m.) at an Amy Joy Donut Shop in Essex. On the evening of June 4, ⁶⁵ 1978, she was alone in the store when, about 11:30 p.m., a man entered. The man, whom she identified in court as appellant, sat down at the counter, asked for, and received, a cup of coffee.

While he drank the coffee, Susan cleaned some shelves and then walked through a connecting door into the kitchen area. She heard a sound, looked around, and saw appellant standing in the kitchen doorway. He said that he wanted money. Susan was frightened.

There was no escape route. The only way out was where he was standing. Her fear was by no means assuaged when appellant told her to remove her clothes "so that I wouldn’t be able to call the police.” She hesitated, told him that she would not call the police and just wanted to be left alone; "but then he said he had a knife.” Susan never actually saw a knife, but, being frightened, she took off her clothes. Appellant ran back to the cash register at the counter, got the money in it, and then returned.

He said "that he could just take the money and go, but he wasn’t going to make it that easy.” He told Susan to lie down on the floor. She did — "[b]ecause I was too scared to do anything else.” Appellant pulled his pants down, got on top of her, and proceeded to have sexual intercourse. Susan was crying. She did not offer resistance; "I was too scared,” she said.

Until then, Susan was a virgin. Just as appellant finished his nefarious business, a customer came into the store. Appellant got up, pulled his pants up, and went out to wait on the customer. He told Susan to get dressed.

Appellant then came back, told her to wait five minutes before calling anyone, or he would return with his knife, and then left through the front door. Scott McCarter and Tony Mullins were the customers Susan heard. They both stated that they went to the Amy Joy shop at about 11:30 p.m. on June 4,1978. No one was behind the counter.

When McCarter called out if anyone was there, appellant, whom he knew slightly, came out and waited on them. Both McCarter and Mullins identified appellant. When appellant (and the customers) left, Susan called her "boss,” who, in turn, called the police. She was promptly ⁶⁶ taken to Franklin Square hospital and examined.

Two red marks, considered as recent trauma by the examining physician, were noted on her back, and a "Recent Blue Bruise” was observed on her left arm. There was also noted (1) "Laceration (Recent) on midline of Forschette [1] at 6 O’clock position (sutured 4 stitches)”; (2) "fresh-recentLacerátion of Hymen”; (3) "Whitish material on pubic hair,” later identified as semen; and (4) "Blood clots on ext. genitalia.” Scott McCarter learned that night about the robbery, and advised the police of his presence at the shop. A few weeks later, he saw appellant on the street and immediately notified the police. This led to appellant’s arrest.

Appellant denied ever being at the shop on the evening of June 4, and also, of course, denied raping Susan. A jury in the Circuit Court for Baltimore County didn’t believe him. It found him guilty of first and second degree rape, assault with intent to rape, assault, and robbery, upon which appellant was given concurrent sentences totalling 20 years. 2 In this appeal, he argues: (1) insufficiency of the evidence, and (2) error in refusing to give a requested instruction. (1) Sufficiency of the Evidence Appellant’s complaint here is really a dual one.

His principal defense was that he was nowhere near the Amy Joy shop on June 4, but was home in bed sick. He denied ever being in Susan’s presence or having anything to do with what occurred. One of his claims here is that, based upon that defense, the evidence was insufficient to establish his "criminal agency.” This, of course, is nonsense. Three witnesses placed him at the scene, and one, Susan, positively identified him as her attacker. ⁶⁷ Seeking succor from the recent decisions of this Court in Rusk v. State, 43 Md. App. 476 (1979), and Goldberg v. State, 41 Md. App. 58 (1979), appellant alternatively contends that the evidence failed to establish the requisite force or threat of force necessary to make what happened to Susan rape in the first or second degree.

Again, we disagree. Md. Ann. Code art. 27, § 462 (a), defines first degree rape as follows: "... A person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force against the will and without the consent of the other person and: (1) Employs or displays a dangerous or deadly weapon or an article which the other person reasonably concludes is a dangerous or deadly weapon; or (2) Inflicts suffocation, strangulation, disfigurement, or serious physical injury upon the other person or upon anyone else in the course of committing the offense; or (3) Threatens or places the victim in fear that the victim or any person known to the victim will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping; or (4) The person commits the offense aided and abetted by one or more other persons.” There was clearly enough evidence to prove that appellant had vaginal intercourse with Susan, and that such act was against her will and without her consent. On the other hand, there was no evidence that enumerated circumstances (1), (2), or (4) were involved.

The questions posed by appellant are whether there was sufficient evidence (1) of "force” in connection with the intercourse, as required by the first part of § 462 (a), or (2) that appellant "threatened] or place[d] the victim in fear that [she] will be imminently subjected to death [or] serious physical injury...,” i.e., the third enumerated ⁶⁸ aggravating circumstance. These questions involve overlapping, but somewhat different, concepts. As we pointed out in Goldberg v. State, 41 Md. App. 58 (1979), prior to 1976, rape was a common law crime in Maryland without a statutory definition. The Code (art. 27, § 461) did no more than impose a penalty for a convicted rapist and provide that "penetration shall be evidence of rape, without proof of emission.” Rape was commonly defined in judicial decisions as "the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without her consent and against the will of the victim.” (Emphasis supplied.) See Hazel v. State, 221 Md. 464, 469 (1960).

Force, as the Hazel Court made clear, was "an essential element of the crime.” (Id., at 469); but "force” itself was an undefined term. What kind of "force” was necessary? This, too, was addressed in Hazel . The Court said, also at 469: "But no particular amount of force, either actual or constructive, is required to constitute rape.

Necessarily that fact must depend upon the prevailing circumstances. As in this case force 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.” (Emphasis supplied.) The assailant in Hazel broke into the victim’s home apparently intent on robbery. He threatened to shoot her child and he assaulted her in a variety of ways, all quite independently of any attempt at or suggestion of intercourse; he held her by the neck, tied her hands, and at one point choked her.

The two acts of intercourse that subsequently occurred were accomplished without further violence, or brutality, or physical resistance. Hazel directed her what to do, and, out of fear, she complied. In this regard — in terms of the sexual assault — it was the ever-present threats made by ⁶⁹ the assailant, and his apparent ability to carry them out, that sufficed as the equivalent of "force.” The threat of serious