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Travis v. State

Court of Special Appeals of Maryland

August 26, 2014


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[Copyrighted Material Omitted]

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Appeal from the Circuit Court for Worcester County. Thomas C. Groton, Judge.

Submitted by: Mark Colvin (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD for Appellant.

Submitted by: Sarah P. Pritzlaff (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD for Appellee.

Nazarian, Reed, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.


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[218 Md.App. 415] Moylan, J.

Lack of consent on the part of the victim is an indispensable element of the crime of rape and of the various degrees of sexual offense. Proof of lack of consent will routinely consist of a negative response, either explicit or implicit, on the part of the victim. The key issue on this appeal arises, however, from the fact that the lack of consent may, under certain circumstances, be proved simply by showing a non-response. The negative response and the non-response may have the same effect but they are proved in very different ways. It is that difference in proof that gives rise to this appeal.

The appellant, James Lee Travis, was convicted in the Circuit Court for Worcester County by Judge Thomas C. Groton, III, sitting without a jury, of second-degree rape, a second-degree sexual offense, a third-degree sexual offense, [218 Md.App. 416] and second-degree assault. For the second-degree rape, the appellant was sentenced to a term of imprisonment of 20 years with all but 10 years suspended to be followed by two years of probation. For sentencing purposes, the remaining convictions merged into that for second-degree rape. On appeal, the appellant raises three contentions, claiming

1. that the State's evidence was not legally sufficient to support his convictions;
2. that the verdicts of guilty were inconsistent with his acquittal on the charge of a fourth-degree sexual offense; and
3. that Judge Groton erroneously found him guilty of a second-degree sexual offense after earlier having announced that his verdict on that charge was " not guilty."

Legal Sufficiency of the Evidence

Although there were convictions for other peripheral sexual offenses, it will be convenient narratively to focus primarily on the conviction for rape. Rape was the core issue at the appellant's trial and it is for rape that he is serving an effective sentence of ten years imprisonment.

What began as a convivial social evening among four acquaintances ultimately, after several hours of reasonably heavy drinking, turned criminal. The situs where the evening's activities both began and concluded was the small efficiency apartment of Kelly Belay in Ocean City. On the evening of May 23, 2013, the rape victim, a young woman who had been a friend of Ms. Belay since high school, went to her friend's apartment to celebrate the victim's birthday. The two young women initially " hung out, sat on the balcony, [and] had a couple beers."

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They were joined in the course of the evening by two young men, the appellant and one Kwamaine Fisher, a friend of Ms. Belay. There had been no prior romantic relationship between the victim and the appellant, but she had seen him " socially" " quite a few times." The foursome sat on the balcony for " 45 minutes to an hour." They then all walked [218 Md.App. 417] across the street to a bar called Pit-N-Pub and stayed there for " maybe about an hour and a half." While at the pub, the victim consumed " one shot and maybe two beers." The victim could not recall what the appellant had to drink at the pub, but she did remember that all four of them had " a shot" at midnight. All four of them left the Pit-N-Pub at about 1:00 a.m., went across the street to get some food at a 7-Eleven, and then went back to Ms. Belay's apartment. The group " sat around" for another hour or more.

The victim decided to go to bed at approximately 2:00 or 2:30 a.m. She went to bed before everyone else because she had to be at work the following morning at 8:00 a.m. She went to bed in the interior room of the efficiency apartment, while the other three remained outside on the balcony. The victim went to sleep on a " Murphy bed," " a bed that pulls down out of the wall." She testified that as she was going to bed, she felt tired and " a little bit" intoxicated. She went to bed in her clothes, the same clothes that she had worn to work that day, black pants and a black shirt. Significantly, she went to bed alone and she went to sleep.

In her testimony, Ms. Belay added that throughout the course of the evening, the victim and the appellant were not together as a couple. She confirmed that she did not believe that anything flirtatious was going on between them. She further testified that it was her impression, before she herself fell asleep, that Kwamaine Fisher and the appellant were not intending to spend the night at her apartment. The appellant specifically told Ms. Belay that he was going to drive home because he was not intoxicated.

Approximately two hours after she went to sleep, the victim awoke in the process of being raped. She remembered " waking up and James was having sex with me." She was on her back in the bed and her pants had been pulled down to her knees. Her shirt was still on. Her testimony was that the appellant was on top of her, " his penis was in [her] vagina," and he was " thrusting, like if you were having sex." When she " woke up and realized ... what he was doing," she " put [218 Md.App. 418] [her] hand on his chest to try to push him off." When he did not stop, she told him either, " No, I can't do this," or " No, this can't happen." When she spoke those words, the appellant " stopped," got up, pulled up his pants, and walked out of the apartment without saying a word. She looked at her cell phone and saw that the time was 4:42 a.m. The victim immediately " got [her] belongings," tried unsuccessfully to wake Fisher, who was " passed out" on the floor, and left the apartment in her car.

At this point, we note that there is no dispute about the occurrence of the act of sexual intercourse per se. The appellant, in his statement to the police which he does not challenge, acknowledged that he had sexual intercourse with the victim. His defense was that the intercourse was consensual. He now argues, somewhat self-righteously, that he stopped immediately upon being told to stop by the victim. When asked by the police, however, if the victim had been awake when he first penetrated her, " he advised [the police] that he wasn't sure if she was awake or not at the time because he hadn't looked at her eyes to see if they were open." The appellant also told the police that he did not

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think he had ejaculated when he hurriedly dressed and left the apartment, prompting the police comment, " which I found unusual."

Saving for the moment our discussion of the consent issue on the rape charge, there is no dispute about the proof of the actus reus of second-degree rape or the actus reus of the necessarily lesser included simple assault. It is only with respect to the proof of the second-degree sexual offense and the third-degree sexual offense that we turn to the victim's testimony about her semi-conscious memory of what occurred before she came fully awake in the process of being raped. Judge Groton expressly found the victim to be completely credible. He accepted, as was his factfinding prerogative, not only her fully conscious memory but also her hazier quasi-conscious memory. The victim testified:

A. I remember falling asleep on my right side, and I don't remember him getting in bed. I don't -- I remember him pulling on my left shoulder to turn me over. And I [218 Md.App. 419] remember him -- I remember him kissing me on the mouth. I remember him putting his hands under my shirt. I remember him -- I remember rolling -- trying to roll back over. And I remember him pulling my pants down while I was on my right side. He was behind me. I remember him trying to have anal sex with me. I remember him pulling on my shoulder a few times hard enough where I had a bruise on my shoulder. And when I woke up was when -- I mean, I remember -- I remember him trying to put his penis in my mouth.
Q. Can you describe how that happened?
A. I had rolled over on my left side. So we would have been facing each other. And I remember him like moving towards the top of the bed so he was -- he was lying above me.
THE COURT: At what point did these things occur?
THE WITNESS: Before -- before I woke up and tried to push him off.
THE COURT: Immediately before? Some time before?
THE WITNESS: I felt like it was right before. I mean, between when I went to bed at 2:00, around 2:00, and then when I woke up.
THE WITNESS: I don't -- I don't know the time -- the time frame.
[PROSECUTOR]: Did you fully wake up during any of this?
A. No.
Q. Okay. So --
A. I remember -- I remember -- I remember it happening. I -- it's hard to -- it's hard to explain. It almost felt like a dream.
Q. Okay.
A. I think that's why I kept trying to roll over.
Q. Did you realize what was happening?
A. No.
[218 Md.App. 420] Q. So when you say you remember him trying to put his penis [in] your mouth, what exactly do you recall happening? You said -- you began to describe that he went to -- he scooted up the bed.
A. Right.
Q. Can you describe what you remember happening?
A. I remember him -- my mouth was closed. I remember him trying to force his penis into my mouth. And I assume it was because I was so tired and

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I had been drinking, but I didn't have the strength -- all I could do was try and keep my mouth closed, my teeth closed, so that's what I did.
Q. And at this time, is this when you described that you were face to face?
A. Yes.
Q. And when you say him trying to put his penis in your mouth, was there any contact between his penis and your mouth?
A. It touched my teeth.
Q. And what did you do at that time?
A. I remember rolling over.
Q. Do you recall if you went back to sleep after that?
A. I don't recall. I don't know if I fell back asleep. I don't know.
Q. And the next thing -- is the next thing you remember happening after that waking up to him having sex with you?
A. I -- I don't remember the order of how everything happened. When -- when he was -- the last thing that happened was him on top of me, having sex with me. I don't remember what happened before that.

(Emphasis supplied).

In terms of the legal sufficiency of the proof of a second-degree sexual offense, fellatio qualifies as a " sexual act," which is the gravamen of the crime. For the appellant to place his penis inside the lips and in contact with the teeth of [218 Md.App. 421] the victim qualifies as oral-genital contact within the contemplation of the term " fellatio." Thomas v. State, 301 Md. 294, 321-22, 483 A.2d 6 (1984). The appellant does not claim that the act of fellatio never occurred or that it was consensual.

In terms of the legal sufficiency of the proof of a third-degree sexual offense, the required " sexual contact" for that offense is defined as " an intentional touching of the victim's or actor's genital, anal, or other intimate area for sexual arousal or gratification, or for the abuse of either party."

Just as the rape necessarily included a second-degree or simple assault, so too, of course, did the second-degree sexual offense and so too did the third-degree sexual offense. The second-degree assault, an act of offensive touching, was proved three times over.

Although the appellant seeks to characterize the victim's failure to report the rape to the police for a week as exculpatory, a fair reading of the victim's post-rape behavior could just as readily, if not more readily, be deemed strong evidence that the sexual intercourse had, indeed, been non-consensual. To get up suddenly within two hours of having gone to bed and to drive home at 5:00 a.m. is not a routine reaction for one who is comfortably content with the events of the preceding evening. The victim testified that she was reluctant to go to the police because she was not at all sure whether the appellant's contact with her, because of her having been asleep and because of her antecedent drinking, even constituted a crime. She was uncomfortably aware that her own behavior may have placed her in a compromised position. She recounted what had happened to her that very day, however, to Kelly Belay. She also promptly reported what had happened to Kwamaine Fisher.

Very persuasive evidence of her state of mind, moreover, was what happened five days after the attack. She was out with friends at a bar when she unexpectedly saw the appellant. He walked by, turned and looked at her, and kept walking. Feeling as if she were going to have a panic attack, she went outside. An employee of the bar, Mike Bowling, [218 Md.App. 422] noticed the strange interaction between the two. When he went outside to smoke a cigarette,

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he saw the victim " completely distraught" and crying. He spoke to her for 20 to 25 minutes and the victim recounted to him what had happened five days earlier. He went back inside and told the appellant to leave the bar. It was Bowling, moreover, who persuaded the victim to report the incident to the police the next day. She did.

The day after her report to the police, the victim was seen by a forensic nurse examiner who conducted an external examination of her based on her complaint of pain in her genital area. The nurse observed redness to the posterior fourchette area of her genitals.

Factfinding Is Not Our Job

Before turning to the legal issue of what constitutes proof of non-consent, a comment is in order about the pertinence of certain standard defense arguments we invariably receive on the issue of the legal sufficiency of the evidence in cases of this sort. In arguing legal sufficiency here, the appellant observes:

At the conclusion of direct examination [the victim] testified that she did not consent to any of the sexual contact that occurred between herself and Appellant. Her actions, however, tell a different story.

(Emphasis supplied).

The appellant goes on to put a decidedly puritanical spin on the behavior of the victim, including such misogynistic, if not indeed mid-Victorian, insinuations as the revelation that she was not wearing any underwear and the disapproving observation that she had been drinking all evening. For shame! Even accepting, arguendo, such characterizations, however, what difference should it make to us that her actions tell a different story? Is the appellant trying to persuade us of facts as if we were the factfinders? Virtually every crime testified to by multiple witnesses could give rise to half a dozen conceivable scenarios or different stories. That is why [218 Md.App. 423] we have factfinders. We, on the other hand, are not concerned with those other possible stories, because we are not factfinders. The factfinding job has already been done by someone else. All that matters at this juncture is that the factfinding judge believed the victim's story. Unless clearly erroneous (a rare phenomenon, indeed), Judge Groton's findings of fact are the only facts in the case as far as we are concerned. There are no other stories. No other facts or factual scenarios even exist and it is pointless, therefore, to bring them up. In assessing legal sufficiency, we are required to take that version of the evidence most favorable to the prevailing party. What then is the appellant seeking to do by beguiling us with " different stories" which are immaterial to the only legal issue before us? An appraisal of legal sufficiency is not a proper venue for jury argument. Appellate concern is not with what should be believed, but only with what could be believed.

The Absence of Consent

The appellant's core argument on the issue of lack of consent is too clever by half. Maryland Code, Criminal Law Article, § 3-304(a) describes at least three (and perhaps five) modalities by which one might commit the crime of second-degree rape.

(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

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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.

[218 Md.App. 424] Regardless of which particular modality is employed on a particular occasion, second-degree rape is a single crime with a single penalty provision. Notwithstanding the variation in modalities, the critical denominator is the act of engaging in sexual intercourse with a woman without her consent. The modalities simply represent different ways in which that consent may be found to have been lacking. Consent may, of course, be lacking because it was expressly denied. Consent may also be lacking because it was implicitly denied, the denial being evidenced by either some degree of resistance or by a rational fear of resisting. By way of significant contrast, consent may also be lacking because the victim, for a variety of reasons, may have been incapable of giving any consent at all or incompetent to give legally cognizable consent. All of these absences of consent, however, are simply variations on a common theme. In this case, the charging document simply alleged, with respect to the rape, a violation of § 3-304(a). It did not particularize which precise modality or combination of modalities the appellant employed.

Indeed, until the 1976 and 1977 legislative sessions codifying the various sexual offenses in Maryland, the crime of rape in Maryland was the common law felony of that name. The statutory codification was essentially for the purpose of graduating the possible penalties for different circumstances under which the rape or other sexual offen se was committed. It was well explained by " Rape and Other Sexual Offense Law Reform in Maryland, 1976-1977," 7 U. Balt. L. Rev. 151, 152 (1977):

Prior to the 1976 session of the Maryland Legislature, the Maryland rape statute was primarily a sentencing law, fixing the penalties without actually defining the crime. Therefore, in order to discern what constituted the crime of rape, an examination of the common law was necessary. ...
Common law rape was often defined as " the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim." However, other courts have defined the [218 Md.App. 425] crime in more general terms as " unlawful carnal knowledge of a woman without her consent." Other typically required elements for common law rape were force, absence of the victim's consent, and penetration.

(Emphasis supplied).

In Goldberg v. State, 41 Md.App. 58, 64, 395 A.2d 1213 (1979), this Court spoke to the same effect.

Prior to 1976, the Maryland rape statute was primarily a sentencing law, fixing the penalties without actually defining the crime. The common law definition of rape that has been applied in Maryland is: " the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim."

(Emphasis supplied). See also State v. Rusk, 289 Md. 230, 424 A.2d 720 (1981).

Basically, the underlying crimes, particularly rape, were substantively unchanged by the codification. The new statutes, to be sure, provided some precise definitions, a process which at the earlier common law would have been left to judicial interpretation. Section 3-301, providing a number

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of definitions, however, did not undertake to define the word " consent" or the phrase " without the consent of the other." What is pertinent in such a case of non-statutory definition is § 3-302, which provides:

In this subtitle an undefined word or phrase that describes an element of common-law rape retains its judicially determined meaning, except to the extent it is expressly or impliedly changed in this subtitle.

(Emphasis supplied).

The appellant's specific contention is that his conviction for rape was necessarily erroneous because of " the trial judge's erroneous belief that lack of consent was not a required element of these offenses in this case." That is a bold charge and we do not remotely find any merit in it. It may nonetheless be a profitable exercise to figure out precisely how the appellant could have arrived at such a conclusion.

[218 Md.App. 426] In the course of closing argument in this non-jury trial, Judge Groton, in various exchanges with counsel, made it unmistakably clear that his specific finding was that the victim was " physically helpless" by virtue of " being asleep." " She was asleep when he began." " I'm basing my decision on the fact that she was asleep." " [W]hen the sexual intercourse occurred ... when it started, she was asleep." The judge and both of the lawyers were walking through the reviewing process together, looking at all of the statutory provisions and opining as to which modalities fit the case and which did not.

In one exchange, during closing argument, between defense counsel and Judge Groton, the discussion focused in on which of § 3-304's (the second-degree rape statute) five modalities for establishing non-consent would best fit the facts of this case. Subsection (a)(3) could immediately be eliminated as inapplicable, dealing with a victim " under the age of 14 years." The first of subsection (a)(2)'s three victim characterizations -- that of being a " mentally defective individual" -- was also, by definition, eliminated. Three plausibly eligible modalities remained:

[1.] (a)(1) by force, or the threat of force, without the consent of the other;
[2.] (a)(2) if the victim is ... a mentally incapacitated individual;
[3.] (a)(2) if the victim is ... a physically helpless individual[.]

The discussion involved a comparison of those three closely related situations, all producing a functionally similar result, to wit, the absence of consent. We note again that these are not three different crimes. They are simply three different but closely related modalities for committing the same crime. The court was discussing the statutory definition of second-degree rape. Specifically, the court was contrasting (a)(1) with the special conditions or statuses of a victim dealt with in (a)(2).

[Section] 3-304 is rape in the second degree: A person may not engage in vaginal intercourse with another, number [218 Md.App. 427] one -- a, number one, by force, or threat of force, without the consent of the other.
Then you go on to number two: If the victim is mentally -- 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 mentally defective, which we don't have, mentally incapacitated or physically helpless.
And what I'm saying is, as to subsection 2, mentally incapacitated or physically helpless, if, in fact -- my interpretation is that sleep would cause a person to be mentally incapacitated or physically

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helpless, and, therefore, he's in violation of (a)(2), having nothing to do with consent.

(Emphasis supplied).

" ... having nothing to do with consent." Those are, alas, six unfortunate words -- but unfortunate only in the sense that they have generated such perplexing appellate mischief. There was nothing wrong with the verdict. Judge Groton found, with solid support in the evidence, that the victim was asleep when the appellant engaged in sexual intercourse with her. As will be discussed infra, to be asleep is ipso facto to be " physically helpless." In assessing sexual intercourse with a physically helpless individual, the absence of consent is automatic, as a matter of law, and does not have to be redundantly proved a second time over. The appellant does not challenge the efficacy of the evidence to support the verdict. The evidence established that the appellant engaged in sexual intercourse with the victim without her consent. That is what the judge found the appellant guilty of having done. The appellant complains only about the words the judge used in discussing the crime. Due process requires that the element of lack of consent actually be proved. It is not concerned with how the process of proving it is articulated. The appellant essentially is complaining that the judge did not articulate his reasoning more artfully.

When a judge renders a verdict in a bench trial, it is not like taking a guilty plea or taking a waiver of a jury trial. [218 Md.App. 428] There are no prescribed drills that the judge must perform on the face of the record. On review, we are concerned with what the judge actually did. We are not obsessed with the words he used to describe what he did. Due process requires that the element of lack of consent actually be proved by legally sufficient evidence. It is not concerned with how the process of proving it is articulated.

Even in terms of the words used, moreover, the appellant's argument collapses once we take a healthy step back and look at the totality of the context in which the words were uttered. The appellant has grabbed six words out of a larger context and has ignored the context. The context was a discussion between court and counsel that had nothing to do with whether the victim had somehow consented to sexual intercourse with the appellant. The discussion concerned only the academic problem of selecting the most apt of the three possible modalities. Judge Groton specifically was contrasting subsection (a)(1) with subsection (a)(2).

Subsection (a)(1) -- " by force, or the threat of force, without consent of the other" -- deals with an act of sexual intercourse committed on a victim who is both conscious and competent. Such a victim must make a choice: " Yes, I will" or " No, I won't." The very reason that the elements of " force" or " threat of force" are a part of (a)(1), but not a part of (a)(2) or (a)(3), is that in the case of a conscious and competent victim, mere passivity on the victim's part will not establish the absence of consent. The law looks for express negation or implicit negation as evidenced by some degree of physical resistance or an explanation of why the will to resist was overcome by force or fear of harm. That is the lesson of such cases as Hazel v. State, 221 Md. 464, 157 A.2d 922 (1960), and State v. Rusk, 289 Md. 230, 424 A.2d 720 (1981). The entire factual controversy over degree of resistance is something that arises under (a)(1) but that the court does not have to bother with under (a)(2).

When (a)(2) or (a)(3) deal with legally incompetent or unconscious victims, on the other hand, the lack of consent [218 Md.App. 429] does not have to be established independently

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by showing either resistance or fear of resistance but is automatically established, as a matter of law, by the status of the victim. This is a significant evidentiary difference when the prosecutor sets out to prove a case of rape. Must the lack of consent be proved independently or has it already been proved automatically by virtue of the State's having proved something else which is the equivalent of lack of consent?

Under (a)(2), in contrast to (a)(1), a victim who is " mentally defective," " mentally incapacitated," or " physically helpless" need not establish the lack of consent by resisting. To that not insignificant extent, (a)(2), indeed, has " nothing to do with consent." The proof of lack of consent has not been obviated; it has rather been finessed. This is all that Judge Groton was talking about with his six-word observation. He was referring to independent proof of lack of consent required under (a)(1) but not required under (a)(2). Under (a)(2), one does not have to prove the absence of consent independently because it has already been proved automatically. The three classes of victim dealt with in (a)(2) are incapable of consenting. They, therefore, do not have to resist. Under (a)(1) the proof of lack of consent must be factually ad hoc; under (a)(2) it is categorical. That is a significant difference. The State is relieved from having to prove directly what it has already proved indirectly. Unlike the appellant, we do not look at the six-word phrase he obsesses over in a vacuum. We look at the obvious intendment of those words in full context. We hold that the Due Process Clause has not been undermined and the convictions need not be reversed because of any failure of proof of the lack of consent.

A Reflection

As we emerge from what seems to have been more of a Platonic dialogue than a measurement of legal sufficiency, it occurs to us that we have been presiding over a furious battle over nothing but the choice of words. Appellant's counsel and the trial court at times used the same words, but in different ways, and they ended up talking across each other. The [218 Md.App. 430] problem was with how they talked about the " lack of consent." In its simplest conceptualization, it is a binary or dualistic choice between " Yes, I will" or " No, I won't." The proof of such a simple choice is subject to the normal vicissitudes of production and persuasion. The complicating factor, of course, is that the lack of consent embraces not only the obvious negative choice but the more elusive and less obvious failure to choose, in the case of rape, because of the inability or incompetence to choose. This latter aspect of lack of consent is proved in a very different way, automatically by virtue of having proved something else.

When the judge said that subsection (a)(2) did not involve the lack of consent, he meant only that proof under (a)(2) did not involve a factual issue of the victim making a binary choice between " Yes, I will" and " No, I won't." Lack of consent may mean not only a negative response but also a non-response, and the two are proved in different ways. Under (a)(2) consent does not have to be proved independently because it is implicit in the (a)(2) conditions.

Defense counsel now argues, however, that the judge erroneously ruled that the crime of rape does not have as one of its elements the absence of consent. In reality, the two were simply using the same words to mean different things, one of them referring to the very existence of non-consent while the other was referring only to the method of proving nonconsent. It confirms our long-standing belief that a

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large percentage of legal problems are simply linguistic problems.

Extending the Rationale

The appellant has actually raised this contention charging that the trial judge erroneously failed to appreciate the need for a finding of lack of consent and, therefore, erroneously failed to find the lack of consent with respect to the second-degree sexual offense and the third-degree sexual offense as well as with respect to the second-degree rape. Our answer to the contention in these broader applications, as well as our analysis arriving at our answer, is exactly the same in the cases of a second-degree sexual offense and a third-degree sexual offense as it is in the case of second-degree rape.

[218 Md.App. 431] Just as second-degree rape distinguishes between the conscious and competent victim in § 3-304(a)(1), where lack of consent had to be established as a matter of fact, and the unconscious or legally incompetent victim in § 3-304(a)(2), where proof of the very status of the victim establishes lack of consent as a matter of law, a second-degree sexual offense makes the same verbatim distinction as it distinguishes § 3-306(a)(1) from § 3-306(a)(2). The only distinction between the two crimes is the distinction between a " sexual act" and " vaginal intercourse." Their respective modalities for finding non-consent are the same.

In not quite so verbatim terms, a third-degree sexual offense distinguishes between the conscious and competent victim in § 3-307(a)(1) and the unconscious or legally incompetent victim in § 3-307(a)(2). Only in the first case must the lack of consent be directly proved as a matter of fact. In the second case, lack of consent is once again necessarily implicit in the very status of the victim. It does not have to be proved directly not because it is not required but only because it is implicit in the victim's condition.

A Sleeping Victim Is A Non-Consenting Victim

As the best explanation of why a sleeping victim is necessarily a rape victim, Judge Groton settled on § 3-304(a)(2) and, within that subsection, on a " physically helpless individual." Section 3-301(d) defines such a victim.

(d) Physically helpless individual. -- " Physically helpless individual" means an individual who:
(1) is unconscious; or
(2)(i) does not consent to vaginal intercourse, a sexual act, or sexual contact; and
(ii) is physically unable to resist, or communicate unwillingness to submit to, vaginal intercourse, a ...

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