In Re JAMES R.

THIEME, J. 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)(l) 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 ¹³⁴ finding that the act was committed with force and without consent. We disagree and shall affirm the adjudication in all respects. Background 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 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 a hold of’ her ¹³⁵ 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 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: ¹³⁶ 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. ¹³⁷ 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.

Discussion 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 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). See Smith v. State, 415 Md. 174, 184 , 999 A.2d 986 (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 , 99 S.Ct. 2781 . Accord, Allen v. State, 402 Md. 59, 71 , 935 A.2d 421 (2007).

This inquiry is one of law, so that our review of this legal determination is plenary. See Hudson v. State, 152 Md.App. 488, 523 , 832 A.2d 834 , cert. denied, 378 Md. 618 , 837 A.2d 928 (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 ¹³⁸ re Timothy F., 343 Md. 371, 380 , 681 A.2d 501 (1996) (citation omitted). Cf Branch v. State, 305 Md. 177, 182 , 502 A.2d 496 (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 , 702 A.2d 466 (1997), aff'd on other grounds, 351 Md. 698 , 720 A.2d 306 (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 (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 Appellant directs our attention to this Court’s decision in Goldberg v. State, 41 Md.App. 58 , 395 A.2d 1213 , cert. granted, ¹³⁹ 284 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 ¹⁴⁰ model.” Id. at 59, 395 A.2d 1213 . Goldberg took the complainant to a temporary “studio.” Soon after arriving, he ushered the complainant into a bedroom and started unbuttoning 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 , 395 A.2d 1213 . 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 , 395 A.2d 1213 . 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 , 395 A.2d 1213 . 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. Goldberg, 41 Md.App. at 66 , 395 A.2d 1213 . This Court recognized that “actual physical force is not an indispensable element of the crime of rape.” Id.

This Court ¹⁴¹ then quoted from the Court of Appeals’ decision in Hazel v. State, 221 Md. 464 , 157 A.2d 922 (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,