State v. Mayers

BATTAGLIA, J. Jason Mayers, Respondent, was convicted by a jury in the Circuit Court for Somerset County of second degree sexual offense, second degree assault, and fourth degree sexual offense, involving an encounter with S.C., an eighteen-year-old sophomore at the University of Maryland—Eastern Shore (UMES), in which Mayers fondled S.C.’s breast and vagina and also performed oral sex or cunnilingus on S.C. against her will. On appeal, a divided panel of the Court of Special Appeals reversed Mayers’s conviction for the second degree sexual offense, 1 determining that there was insufficient evidence of “force or the threat of force,” under Section 3-306(a) of the Criminal Law Article, 2 to sustain a conviction. We ⁴⁵² granted certiorari, State v. Myers, 414 Md. 330 , 995 A.2d 296 (2010), to answer the following question, which we have rephrased for clarity: Was there sufficient evidence to sustain Mayers’s conviction for second degree sexual offense? We shall hold that there was sufficient evidence presented of “force or the threat of force,” from which a rational jury could conclude beyond a reasonable doubt that Mayers committed a second degree sexual offense when he performed cunnilingus on S.C. against her will.

Mayers was charged in a five count criminal information with offenses committed against S.C. in November of 2003, although only the fourth count, dealing with the second degree sexual offense related to the act of cunnilingus, is in issue in this appeal. At a one day trial, S.C., the prosecutrix, described that she was a student living in a residence hall suite at UMES during the Fall of 2003, along with five other female suite mates. She recounted that on Friday, November 14, 2003, her roommate (Roommate 1) informed S.C. that her boyfriend was visiting the campus with a male friend for the weekend. Roommate 1 did not disclose that Mayers was the male friend; S.C. and Mayers had engaged in consensual sexual intercourse on one occasion several months earlier, but had not been in touch since then.

S.C. testified that on the night of November 14, she had a headache and decided to stay home and rest in the lower berth of the bunk bed she shared with Roommate 1, rather than join her friends at a campus party. At about 6:45 a.m. the next morning, Mayers came to the suite, knocked on the door, and was admitted by one of S.C.’s other roommates, who permitted Mayers to go to S.C.’s bedroom to find his male friend. S.C. related the events that ensued: ⁴⁵³ [State’s Attorney]: Did you hear LMayers] come into your room that night—that morning? [S.C.]: That morning as I was facing the wall I did hear someone come up the steps and come in the room, but I did not acknowledge or look to see who it was at the time. [State’s Attorney]: Did you have any idea who was already in the room? [S.C.]: No, I did not. I knew [Roommate 1] was in the room, but I did not know that [her Boyfriend] was in the room because I was asleep. [State’s Attorney]: So you didn’t hear [her Boyfriend] come in either? [S.C.]: No. I really thought at the time it was [her Boyfriend] coming up the steps and coming in the room because he knew—he knew [Roommate 1] so of course he would come in the room. [State’s Attorney]: Okay.

Did you determine who had just come in the room? [S.C.]: I determined who came in the room when [Mayers] had tugged my shoulder and basically made me force [sic] the way that he was looking. And I looked at him and I shook my head no. And I turned back and faced the wall. S.C. further testified that Mayers smelled of alcohol and marijuana, and despite her protestations, he began fondling her breast and vagina and then climbed on top of her and performed cunnilingus: [State’s Attorney]: You said you heard someone come in the room? [S.C.]: Uh, huh. [State’s Attorney]: And then pull on your shoulder? [S.C.]: Right, [Mayers] pulled on my shoulder.

And the way the bed is laid out is that if I’m facing directly towards the wall, all the way going towards the wall there is a little bit of space left. He came in. He tugged on my shoulder. And once he tugged on my shoulder and I recognized him I told him, no.

He climbed in my bed. He took off his ⁴⁵⁴ shoes—it was boots because they were very heavy and he tugged on my shoulder again. And I looked at him and I said, no. And during the time I did smell alcohol on his breath as well as he was smoking.

It smelled like marijuana at the time. He approached me and he told me what is wrong ■with you. And I told him I have a headache and I’m not feeling well and I’m extremely tired. He proceeded to say, well, I have something to make that feel better.

When he said that he put his hand underneath my shirt and squeezed my left breast. I pushed his hand and I pulled my shirt down and I told him, no. Now, this is the third time me saying no. He looked at me and I turned back to my wall.

And he looked at me again and he said like he had like a look like what is wrong "with you again. And I said once again I have a headache and I don’t feel good. And right then and there he pulled me again and got on top of me and he pulled down my shorts and he performed oral sex on me. And by that time I had went [sic] into a state of shock.

I went completely numb, excuse me, because of the fact that I realized I was getting sexually assaulted and that I had said no about five times during this time frame. And of course I went into a state of shock and I froze and I did not say anything at all. And once he finished his oral sex he had sexual intercourse with me. He did not have a condom on at the time.

And after he finished doing what he did he ejaculated on my sheets. And he went over on his side and he went to sleep. S.C. recounted that she said “no” over and over again, to no avail, and pushed Mayers’s hands away when he began fondling her breast and vagina: [State’s Attorney]: During this you said that you said no? [S.C.]: Right. [State’s Attorney]: How many times? [S.C.]: The last time it was the fifth time that I said no. [State’s Attorney]: Did you push him? ⁴⁵⁵ [S.C.]: I had pushed his hand when he was squeezing my left breast. And I had pushed his hands when his hands was [sic] going into my vagina, yes.

And after that the whole thing basically like I said I went into a state of shock and I did not say anything. I didn’t move at all. [State’s Attorney]: You said he performed oral sex? [S.C.]: Yes, he performed oral sex on me. [State’s Attorney]: And you also had vaginal— [S.C.]: And he had sexual intercourse, yes. S.C. testified that she did not scream, because she “froze” and was “horrifically scared” that Mayers would force her to perform oral sex or fellatio on him and was also terrified by the prospect of contracting a sexually transmitted disease: [State’s Attorney]: Okay. You said you didn’t scream? [S.C.]: No, I did not. [State’s Attorney]: Okay.

Why not? [S.C.]: You know, I did not scream because like I said I was horrifically scared. Though I had [Roommate 1] there I did not scream because I was scared. I was horrified. I was really scared.

And like this—nothing like this had ever happened to me. So for this to happen and for me to say, no, over and over and over and over again it was the point as if like I froze. [State’s Attorney]: Why were you scared? [S.C.]: I was scared because like I said nothing like this had ever happened to me. I didn’t know what else was going to happen after the fact. I didn’t know what he might of [sic] had as far as STD or anything of that nature.

Plus, you know, I just froze and I didn’t say nothing [sic] at all. I didn’t say nothing [sic] at all until he got finished doing what he had did [sic] to me and I went across the hall and I brought in my roommate and my suite mates. [State’s Attorney]: What were you scared he was going to do? ⁴⁵⁶ [S.C.]: I was scared that he was going to continue to rape me but be more—he was going to do more than what he had performed doing [sic] to me, rather he was going to have me perform on him. [The Bench]: He was going to do what? [S.C.]: He was going to have me perform on him. S.C. testified that after Mayers “was done,” she pulled up her panties and shorts, climbed over Mayers who had fallen asleep, and went across the hall to another suite mate’s room, (Roommate 2): [State’s Attorney]: Now, you said that you went to your— what did [Mayers] do when he was done? [S.C.]: Once he was done he rolled over and went to sleep in my bed. I must have laid there.

I was crying. And I decided to get up out of my bed and inform my suite mates of what just happened. I pulled up my panties and I pulled up my shorts, climbed over top of him and went across the hall to my suite mate [Roommate 2]. I knocked on the door and I stood there and I—I was crying very loud and I was shaking, you know, very, very like shaking.

And she asked me what was wrong. And I told her I had a lot of broken up sentences so basically all my words was [sic] just didn’t make sense at the time but I was trying to explain to her what was going on. And I told her that boy, that boy, that boy across the room just sexually assaulted me. And she said, who.

And I said Jason Mayers.... [My other suite mates] came upstairs to my room where I resided and told [Mayers] to get dressed and get out. He lay there and he had a look of shock like why, why do I have to leave, what just happened. And then they went ahead and told him to leave now, get dressed and get out. And mind you I’m in a room across but I could hear everything.

So he got up and [Roommate l’s Boyfriend] told him to go downstairs into the car. And once that happened he went downstairs and he said, you looked at me as if you wanted it. He looked at me he said that to me. ⁴⁵⁷ Another roommate (Roommate 3), who occupied the bedroom on the first floor of the suite, also testified about Mayers’s arrival at the suite in the morning: [State’s Attorney]: I’m going to ask you to think about Saturday November 15th, 2003 around 7:00 a.m. Were you home at that time? [Roommate 3]: Yes. [State’s Attorney]: Who else was in the suite; do you know? [Roommate 3]: In the whole house everybody was home except for one roommate.... [State’s Attorney]: Okay.

Do you know whether [Roommate l’s Boyfriend] was present? [Roommate 3]: I didn’t know whether he was there or not. [State’s Attorney]: Now, did someone knock at your suite door at that time? [Roommate 3]: Yes. [State’s Attorney]: Did you answer the door? [Roommate 3]: Yes. [State’s Attorney]: Who was there? [Roommate 3]: [Mayers]. [State’s Attorney]: About what time was this? [Roommate 3]: It was probably around I’d say quarter to seven, 6:30, quarter to seven. [State’s Attorney]: In the morning? [Roommate 3]: Uh, huh. [State’s Attorney]: Did you have any conversation with [Mayers]? [Roommate 3]: Yes. [State’s Attorney]: What was that conversation? [Roommate 3]: He came to the door and asked was [Roommate l’s Boyfriend] there. And I told him that I wasn’t sure whether he was there or not. And he said that he knew that he was there and could he go to the door and get him. So since I knew he had been there before I let him go up and knock on the door. ⁴⁵⁸ [State’s Attorney]: What did you do? [Roommate 3]: After I heard him knock on the door I went back to my room and went back to bed. [State’s Attorney]: Okay. [Mayers] went upstairs; is that correct? [Roommate 3]: Yes. [State’s Attorney]: What’s the next thing that happened? [Roommate 3]: I think it was probably like maybe a half hour later [Roommate 2] came downstairs and she was banging on the door and she was yelling for [another roommate] to please come upstairs, hurry up and come upstairs.

And we didn’t know what was wrong. [ ] I followed her up there to see what was going on. And [S.C.] was in [Roommate 2’s] room just crying and crying like somebody had died.... [Roommate 3]: So that’s when we asked him to leave. [The Bench]: Him being? [Ms. Pinkney]: [Mayers]. Roommate 3 described S.C. as “really upset” and like no one she had ever seen, after the incident: [State’s Attorney]: What did [S.C.] look like? What was her behavior? [Roommate 3]: She was like she was crying, she was shaking.

Like I’ve never seen anybody look like that before. She was really upset. [State’s Attorney]: Okay. After [Mayers] left the apartment what did you do? [Roommate 3]: We called 911 and had the police come over. [State’s Attorney]: Did [S.C.] go to the hospital? [Roommate 3]: Yes. [State’s Attorney]: Okay. Did you go with her? [Roommate 3]: Yes, we all went. [State’s Attorney]: Okay.

How did [S.C.] act differently after that? ⁴⁵⁹ [Roommate 3]: Well, she’s always been a shy person but she was more quiet. She didn’t talk to anybody. She never wanted to do anything anymore. And it was like a piece of her died, like she was never the same.

Another roommate, (Roommate 4), described S.C. as “hysterical” after the attack: [State’s Attorney]: Now, I’m going to ask you to think back to November 15 of 2003, just prior to 7:00 a.m. Did you hear a knock at the door? [Roommate 4]: I didn’t hear a knock. I was asleep. [State’s Attorney]: When did you first become aware that something was going on? [Roommate 4]: About 7:20, 7:30 in the morning. [Roommate 2] came into my room and was hysteric. She said you need to hurry up and come [S.C.] needs you.

So I ran upstairs to check on [S.C.]. [State’s Attorney]: Where was [S.C.]? [Roommate 4]: In [Roommate 2’s] room. I looked in her room first, but she wasn’t in there. [State’s Attorney]: Who was in her room? You said you looked in there. [Roommate 4]: [Mayers] was laying in her bed. [State’s Attorney]: Was [Roommate 1] in her bed, her own bed? [Roommate 4]: Yes, and so was [Roommate l’s Boyfriend]. [State’s Attorney]: When you went and saw [S.C.] in [Roommate 2’s] room what was [S.C.] doing? [Roommate 4]: [S.C.] was crying. She was hysterical, crying.

And that’s when I asked her what’s wrong because everyone knows that I’m the person who takes care of people. So I asked what is wrong and she proceeded to tell me he raped me. So before I asked her like how did it happen I went to him and cussed him out. I was just hysterical because shocked [sic] that that was my friend you did that to.

And I just wanted him out. [State’s Attorney]: When you say him you mean [Mayers]? ⁴⁶⁰ [Roommate 4]: Yes. [State’s Attorney]: Did [Mayers] say anything to you? [Roommate 4]: He asked why do I have to get out. I said because you raped my friend, you raped [S.C.]. And he says how did I rape her she looked like she wanted it. And I said that’s it.

Pardon my language my exact words were get the fuck out. [State’s Attorney]: Did he get out? [Roommate 4]: He slowly put his clothes on and walked nonchalantly down the steps while my friend is in the other room crying her heart out because she told him that she don’t [sic] want to have sex with him. She had a headache that night. And he said I have something to make it feel better. If she’s saying over and over no I think no means no. [State’s Attorney]: What happened once [Mayers] left the suite? [Roommate 4]: I told [S.C.] we have to take you to the hospital because I want to make sure nothing is wrong with you.

He didn’t use a condom and I wanted to make sure that he didn’t have any STD’s or he didn’t get you pregnant. So I wanted to make sure that you’re all right. [State’s Attorney]: Okay. So you went to the hospital with her? [Roommate 4]: Yes. [State’s Attorney]: And she was examined at the hospital? [Roommate 4]: Yes. [State’s Attorney]: Do you remember how long she was there? [Roommate 4]: We were there about I know more than three, four hours. Roommate 4 described how S.C.’s encounter had changed S.C.: [State’s Attorney]: Did you notice any changes in [S.C.] after that incident? ⁴⁶¹ [Roommate 4]: Yes.

She became very depressed, withdrawn from us. One day I checked up on her, it had to be a couple days or a week after, she was slumped over her books and I got scared. I tried to pick her up and she was unresponsive. She tried to kill herself.... [State’s Attorney]: You said this was a few days after the assault? [Roommate 4]: Uh, huh. [State’s Attorney]: How else was [S.C.] different? [Roommate 4]: [S.C.] never wanted to go with us anymore.

She always stayed in her room. I was—just didn’t know [S.C.] anymore. She changed. Roommate 1 also offered testimony about S.C.’s encounter with Mayers: [State’s Attorney]: Now, [your Boyfriend] had visited you on November 14th and 15th; is that correct? [Roommate 1]: Correct. [State’s Attorney]: Okay.

And did [your Boyfriend] have a friend with him that weekend? [Roommate 1]: Yes, he did. [State’s Attorney]: Who was that? [Roommate 1]: [Mayers]. [State’s Attorney]: Did you know [Mayers]? [Roommate 1]: I believe I met him previously at another time, but after that, you know, that was the second time that I saw him. [State’s Attorney]: Okay. Now, the night of November 14th of 2003, you slept in [your] room; is that right? [Roommate 1]: [My Boyfriend] you’re saying? [State’s Attorney]: You slept in your bed? [Roommate 1]: Yes, I did. [State’s Attorney]: Okay. And [your Boyfriend] was there as well? [Roommate 1]: Correct. ⁴⁶² [State’s Attorney]: Now, you and [S.C.] had bunk beds; right? [Roommate 1]: Correct. [State’s Attorney]: And which bunk were you? [Roommate 1]: I was on the top. [State’s Attorney]: Okay. Now, was [S.C.] in bed on the night of the 14th until the morning of the 15th of November? [Roommate 1]: Correct.

We were—we had to go to a party the night before. She had a headache so she stayed home. And, yes, she was there from that night until the next morning. Roommate 1 described herself as a “heavy sleeper” and testified that she did not “hear anything happen” between Mayers and S.C.: [State’s Attorney]: Okay.

So when you came home she was in bed? [Roommate 1]: Correct. [State’s Attorney]: Did you hear anybody come in the morning of the 15th? [Roommate 1]: No, I did not. I didn’t wake up until [Roommate 2 and Roommate 4] came in yelling telling [Mayers] to leave. [State’s Attorney]: So you didn’t hear [Mayers] come into the room? [Roommate 1]: No, I did not. [State’s Attorney]: Did you hear anything happen between [Mayers] and [S.C.]? [Roommate 1]: No, I did not. [State’s Attorney]: What kind of sleeper are you? [Roommate 1]: I’m a heavy sleeper. I have a throat condition that—well, I breathe very, very heavily my breathing pattern so I sleep very heavy. And usually I ⁴⁶³ don’t hear anything unless like somebody literally shakes me. [State’s Attorney]: Okay.

And when you woke up where was [S.C.]? [Roommate 1]: [S.C.] was in [Roommate 2’s] room [across the hall] crying on the bottom bunk ... looking through the doorway. Roommate 1 described S.C. as “distraught” after the incident with Mayers: [State’s Attorney]: How would you say she was behaving? [Roommate 1]: She was terrified, crying, upset, you know, she was just in distraught [sic]. [State’s Attorney]: Did she say anything that you heard? [Roommate 1]: Just the fact that she said, well, he forced himself on me. I said, no. And to that extent, but I can’t remember the complete words that she had mentioned. [State’s Attorney]: How did [Mayers] react? [Roommate 1]: I thought she wanted it.

When—as soon as they came into the room I told [my Boyfriend] to tell him he had to go, get up, get your stuff and leave. He immediately left.... He went downstairs and he went to go sit in [my Boyfriend’s] car because I believe [my Boyfriend] drove that night. He sat in the car. [My Boyfriend] stayed in the room tried to calm [S.C.] down.

We as a group collectively said that we were going to go to the hospital with [S.C.] to the emergency room. [State’s Attorney]: Okay. Where did [your Boyfriend] go? [Roommate 1]: [My Boyfriend] after—I can’t remember, but I know he left out [sic] with us, but I believe he went to the car and we went to the hospital ourselves in [Roommate 4’s] car. [Roommate 4] drove. [State’s Attorney]: And you took [S.C.]? [Roommate 1]: Yes. Roommate 1 further testified that S.C. attempted to commit suicide after the incident: ⁴⁶⁴ [State’s Attorney]: Okay. Was [S.C.] different after that? [Roommate 1]: Yes.

After that that whole semester—that was a whole big deal for her. The next day she tried to— attempted to overdose on pills so she was not at a healthy state. We immediately took her to the hospital then as well. She was just—we had an ambulance come pick her up.

All the rest of the semester she had a tough time. [State’s Attorney]: How was her behavior different? [Roommate 1]: Well, she wasn’t herself after that. So that’s something you just can’t get over, overnight. So to me she was a different person. Even that next semester we came back she just—and I don’t think until this day she wasn’t really the same person.

Like usually we would joke around but it’s like that little barrier in between. So I don’t think the fact that she never did have closure I don’t think she’s the same person as she was before then. Mayers testified that S.C. “seemed a little distant” when he first came in her room and sat on her bottom bunk bed, but, after he apologized for not calling, they began kissing and engaged in consensual sex: [Mayers]: At that time I kissed her, she kissed me back. Then I proceeded to perform oral sex on her.

It was nothing about—there was no stop, no nothing like that. It was nothing like that. Mayers moved for judgment of acquittal at the close of the State’s case, 3 arguing that “force or the threat of force” under Section 3-306(a), which defines a second degree sexual of ⁴⁶⁵ fense, had not been proven. Specifically, Mayers asserted that there was no evidence of verbal threats or that S.C. had sustained any physical injury.

Judge Daniel M. Long denied the Motion. After less than a half hour of deliberation, the jury found Mayers guilty of second degree assault, second degree sex offense, and fourth degree sex offense. Thereafter, Mayers filed a “Motion to Set Aside Jury Verdict,” arguing that the second degree sexual offense conviction was in error, because “[t]he facts of the case provided the jury with no evidence that force or the threat of force was used by [Mayers]” in order to perform oral sex on S.C. Judge Long again denied the Motion and sentenced Mayers to ten years’ imprisonment, with all but four years suspended, followed by eighteen months of probation. On appeal, when faced with the sufficiency of the evidence of Mayers’s use of “force or the threat of force” in order to perform cunnilingus, a majority of the panel of the Court of Special Appeals determined that there was insufficient evidence that Mayers employed force, either actual force or the threat of force.

The dissent, authored by Judge Deborah S. Eyler, opined that a rational jury could conclude that Mayers applied force to overcome S.C.’s resistance, because S.C. said “no” over and over again, and attempted to push Mayers’s hands away when he tried to touch her breast and when he tried to penetrate her digitally, and also reasoned, regarding threats of force, that whether S.C.’s fear that Mayers would force her to perform fellatio was reasonable, was a jury question. The State before us argues that a reasonable jury could certainly conclude that Mayers employed force or the threat of force to perpetrate the act of cunnilingus, because S.C. had repeatedly said “no” and had pushed Mayers’s hands away multiple times, and also testified that she was “horrifically scared” that Mayers would “continue to rape her,” that she would contract a sexually transmitted disease, and that he would force her to perform fellatio on him. Mayers counters ⁴⁶⁶ that there was insufficient evidence that he applied force or threats of force to accomplish the act of cunnilingus, because there was no evidence that S.C. sustained any physical injury or that Mayers threatened serious bodily harm. In this case, as in any other, any discussion of evidentiary sufficiency must be placed in the context of the standard of review.

We examine the record solely to determine whether “any rational trier of fact could have found the essential elements of the crime[ ] beyond a reasonable doubt.” Moye v. State, 369 Md. 2, 12 , 796 A.2d 821, 827 (2002); accord Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560, 573 (1979) (“[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction ... is 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.”); see Hackley v. State, 389 Md. 387, 389 , 885 A.2d 816, 817 (2005). In so doing, “[i]t