State v. Mayers

• Decision Date: 22 December 2010
• Docket Number: No. 30, Sept. Term, 2010.,30, Sept. Term, 2010.
• Parties: STATE of Maryland v. Jason MAYERS.
• Court: Maryland Court of Appeals

10 A.3d 782
417 Md. 449

STATE of Maryland
v.
Jason MAYERS.

No. 30, Sept. Term, 2010.

Court of Appeals of Maryland.

Dec. 22, 2010.

10 A.3d 783

Cathleen C. Brockmeyer, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for petitioner.

David P. Kennedy, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

BATTAGLIA, J.

417 Md. 451

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

417 Md. 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

10 A.3d 784

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:

417 Md. 453

[State's Attorney]: Did you hear [Mayers] 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

417 Md. 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

10 A.3d 785

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?

417 Md. 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?

10 A.3d 786, 417 Md. 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

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