Travis v. State

218 Md.App. 410

98 A.3d 281

James Lee TRAVIS

v.STATE of Maryland.

No. 1774, Sept. Term, 2013.

Court of Special Appeals of Maryland.

Aug. 26, 2014.

Mark Colvin (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Sarah P. Pritzlaff (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

NAZARIAN, REED, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

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, 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.”

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 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 [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 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 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 COURT: Okay.

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.

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 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...