James Alexander Mayes, appellant, was convicted at a bench trial in the Criminal Court of Baltimore of first degree rape. He was committed to the custody of the Division of Correction for thirty years. On appeal he contends: That the evidence was insufficient to sustain his conviction of first degree rape. At approximately 7:00 a. m., on 18 September 1978 the victim, a thirty-three year old mother of three children, was grabbed from behind by appellant while she was walking to work on Reisterstown Road. When the victim screamed, appellant smacked her in the face and told her to shut up. He then put his arm around her and dragged her to a wooded area where a discarded box spring was located. At this point appellant told the victim to take off her clothes. According to the victim: “Well, I didn’t take them off. He took them off. And, uhm, he pushed me down on the mattress and, uhm, he had intercourse, then he told me to get up and he said you’re coming with me, and when I stood up I saw a police officer and I screamed and he came over.” After cross-examination of the victim, the following colloquy occurred between the court and the victim regarding the offense:

THE COURT: Now, do I understand his way of making you submit to him was just using, grabbing you? Did he display any kind of weapon at any time?

1. No, he didn’t show a weapon.
2. THE COURT: Just using physical force?
3. THE WITNESS: Yes.
4. THE COURT: Were you injured in any way other than to be forced to have intercourse?
5. THE WITNESS: Uhm, I had, where he had smacked me in the face, I had a cut on my lip.
6. THE COURT: Did he remove all of your clothes?
7. THE WITNESS: No, just from the waist down.
8. THE COURT: What about his clothes?
9. THE WITNESS: He took them all off.
10. THE COURT: Everything?
11. THE WITNESS: Yes.
12. THE COURT: Was that the condition in which you and he were in when the officer arrived?
13. THE WITNESS: Yes.
14. THE COURT: He was totally naked and you were, had your clothes off from the waist down?
15. A. Yes.
16. THE COURT: What did he do when the officer arrived that you observed?
17. THE WITNESS: He didn’t do anything. The police officer told him to put his hands up and he didn’t move.
18. THE COURT: That’s what he did?
19. THE WITNESS: Yes.
20. THE COURT: Did he say anything?
21. THE WITNESS: I think he said it’s all right she’s my girlfriend or something.
22. THE COURT: Were you screaming the whole time?
23. THE WITNESS: No I wasn’t screaming the whole while.
24. THE COURT: You screamed when he first encountered you I believe?
25. THE WITNESS: Yes. THE COURT: How far from the street were you when he was attacking you?
26. THE WITNESS: It wasn’t very far, I don’t know exactly. I guess about as far from here over to that window.
27. THE COURT: Here to where?
28. THE WITNESS: To that window.
29. THE COURT: I guess that’s about twenty-five feet.

The statutory elements of first degree rape as set forth in Maryland Annotated Code Article 27, section 462, are as follows: A person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force or threat of force against the will and without the consent of the other person and: (1) Employs or displays a dangerous or deadly weapon or an article which the other person reasonably concludes is a dangerous or deadly weapon; or (2) Inflicts suffocation, strangulation, disfigurement, or serious physical injury upon the other person or upon anyone else in the course of committing the offense; or (3) Threatens or places the victim in fear that the victim or any person known to the victim will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping; or (4) The person commits the offense aided and abetted by one or more other persons.

The only sub-section of the first degree rape statute which is conceivably relevant to the facts in this case is sub- section 462(a)(3). Appellant concedes, as he must, that there was sufficient evidence to establish that the rape was accomplished by force against the will and without the consent of the victim. He argues, however, that in order to elevate a forceable rape to first degree rape one of the specific aggravating circumstances enumerated in section 462 must be established. Therefore, according to appellant: It is not enough to be merely apprehensive or fearful in general, for the statute specifies that the appellant must ‘place’ the victim in fear of ‘death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping….’ Section 462(a)(3) (emphasis added). Fear of a ‘smack’ in the face with the hand, or fear of a bloody lip would hardly suffice under the terms of the statute. The State, on the other hand, argues that appellant’s striking the victim, under the circumstances in which it occurred, was reasonably calculated to create in the victim’s mind a real apprehension of imminent and serious physical injury. Thus, according to the State, the evidence was sufficient to constitute rape in the first degree.[2] Under the statutory scheme of things the legislature divided the common law crime of rape into first and second degree. An accused is guilty of rape in the second degree if “he engages in vaginal intercourse with another person by force or threat of force against the will and without the consent of the other person.” . . . Maryland Annotated Code (1981 Cum.Supp.) Article 27, section 463(a)(1). Unlike second degree rape, in order to find an accused guilty of first degree rape not only must it be established that he had vaginal intercourse with the victim by force against her will and without her consent, it also must be established that he placed “the victim in fear that the victim … will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping….” where this Court, in holding that the evidence was sufficient to constitute first degree rape, said: “Appellant’s pointed and repeated reference to having a knife, under the circumstances in which it was made, was certainly calculated-reasonably calculated-to create in Susan’s mind a real apprehension of serious and imminent bodily injury if she did not comply with his wishes; and if she had that apprehension, as she said she did, then she was indeed threatened.” In this case our concern is not whether appellant had vaginal intercourse with the victim by force against her will and without her consent-that is conceded. Our concern is whether there were sufficient additional elements of aggravation in the commission of this offense to elevate it from an undisputed second degree rape to first degree rape. More specifically, was the evidence sufficient to show that appellant threatened or placed the victim in fear of serious physical injury within the meaning of the statute? Inexplicably, this question was given little, if any, consideration by the court or counsel below. Although appellant was charged in a six count indictment with first degree rape, second degree rape, and four other related counts, the only discussion in the record regarding the first count (first degree rape) vis-a-vis the other counts in the indictment, is as follows:

THE COURT: The Court finds that the State has sustained its burden of proof beyond a reasonable doubt, that at the time of the commission of the alleged act Mr. Mayes was responsible. Therefore, that he was sane. And the verdict will, therefore, be guilty.

MR. BERGER: If Your Honor please, as to the technicalities, the Court did find the defendant guilty, there are several counts of the indictment. Would that be as to the first count of the indictment?

THE COURT: Yes.

In determining whether appellant placed the victim in fear of serious physical injury, we consider not only the conduct of appellant, but the state of mind of the victim. As to the victim’s state of mind, in State v. Rusk, supra, the Court of Appeals, in discussing Hazel v. State, 221 Md. 464, 157 A.2d 922 (1964), observed: While Hazel made it clear that the victim’s fear had to be genuine, it did not pass upon whether a real but unreasonable fear of imminent death or serious bodily harm would suffice. The vast majority of jurisdictions have required that the victim’s fear be reasonably grounded in order to obviate the need for either proof of actual force on the part of the assailant or physical resistance on the part of the victim. We think that, generally, this is the correct standard.

Here, no inquiry was made of the victim regarding her state of mind, i.e., whether she was, in fact, in fear of serious physical injury. Moreover, appellant did not threaten the victim with serious physical injury. There was evidence, however, that appellant grabbed the victim on a public street in the daylight hours, smacked her in her face when she screamed, put his arm around her and dragged her into a wooded area about twenty-five feet from the street, and had intercourse with her. The critical question, as we view it, is whether this evidence, standing alone, was sufficient to constitute placing the victim in fear of serious physical injury as contemplated by the statute. We think not. The statute requires more than the placing of the victim in fear of physical injury generally. It specifically requires the victim to be placed in fear of serious physical injury which, in the context of the statute, means being placed in fear of physical injury analogous to “death, suffocation, strangulation or disfigurement.” This was not the case here. For the reasons herein stated we conclude that the evidence was insufficient to sustain appellant’s conviction of rape in the first degree. There was sufficient evidence, however, to justify appellant’s conviction of the lesser included offense of rape in the second degree. In finding appellant guilty of rape in the first degree, the trial court implicitly found and appellant conceded his guilt of rape in the second degree. Therefore, we remand this case to the trial court with instructions to enter a judgment of conviction for rape in the second degree and to resentence appellant.

Court of Special Appeals of Maryland, Selections from “Mayes v. State, 440 A.2d 1093,” 1982.

The defendant raises on appeal the question whether the evidence of his guilt of second degree rape was sufficient to support his convictions of (that crime). For reasons discussed herein, we conclude the evidence was insufficient to support his conviction of either crime. The State’s evidence tended to show that at the time the incident occurred the defendant and the prosecuting witness in this case, Cottie Brown, had been involved for approximately six months in a consensual sexual relationship. During the six months the two had conflicts at times and Brown would leave the apartment she shared with the defendant to stay with her mother. She testified that she would return to the defendant and the apartment they shared when he called to tell her to return. Brown testified that she and the defendant had sexual relations throughout their relationship. Although she sometimes enjoyed their sexual relations, she often had sex with the defendant just to accommodate him. On those occasions, she would stand still and remain entirely passive while the defendant undressed her and had intercourse with her. Brown testified that at times their consensual sexual relations involved some violence. The defendant had struck her several times throughout the relationship when she refused to give him money or refused to do what he wanted. Around May 15, 1981, the defendant struck her after asking her for money that she refused to give him. Brown left the apartment she shared with the defendant and moved in with her mother. She did not have intercourse with the defendant after May 15 until the alleged rape on June 15. After Brown left the defendant, he called her several times and visited her at Durham Technical Institute where she was enrolled in classes. When he visited her they talked about their relationship. Brown testified that she did not tell him she wanted to break off their relationship because she was afraid he would be angry. On June 15, 1981, Brown arrived at Durham Technical Institute by taxicab to find the defendant standing close to the school door. The defendant blocked her path as she walked toward the door and asked her where she had moved. Brown refused to tell him, and the defendant grabbed her arm, saying that she was going with him. Brown testified that it would have taken some effort to pull away. The two walked toward the parking lot and Brown told the defendant she would walk with him if he let her go. The defendant then released her. She testified that she did not run away from him because she was afraid of him. She stated that other students were nearby. Brown stated that she and the defendant then began a casually paced walk in the neighborhood around the school. They walked, sometimes side by side, sometimes with Brown slightly behind the defendant. As they walked they talked about their relationship. Brown said the defendant did not hold her or help her along in any way as they walked. The defendant talked about Brown’s “dogging” him and making him seem a fool and about Brown’s mother’s interference in the relationship. When the defendant and Brown left the parking lot, the defendant threatened to “fix” her face so that her mother could see he was not playing. While they were walking out of the parking lot, Brown told the defendant she wanted to go to class. He replied that she was going to miss class that day. The two continued to walk away from the school. Brown testified that the defendant continually talked about their relationship as they walked, but that she paid little attention to what he said because she was preoccupied with her own thoughts.

The defendant then asked whether the relationship was over and Brown told him it was. He then said that since everyone could see her but him he had a right to make love to her again. Brown said nothing. The two turned around at that point and began walking towards a street they had walked down previously. The defendant did not hold or touch Brown as they walked. Brown testified that the defendant did not say where they were going but that, when he said he wanted to make love, she knew he was going to the house of a friend. She said they had gone to the house on prior occasions to have sex. . . . The defendant asked if Brown was “ready.” The evidence tended to show that she told him “no, that I wasn’t going to bed with him.” She testified that she did not want to have sex with the defendant and did not consent to do so at any time on June 15. After Brown finished her cigarette, the defendant began kissing her neck. He pulled her up from the chair in which she had been sitting and started undressing her. He told her to lay down on a bed which was in the living room. She complied and the defendant pushed apart her legs and had sexual intercourse with her. Brown testified that she did not try to push him away. She cried during the intercourse. Afterwards they talked. The defendant told her he wanted to make sure she was not lying about where she lived and that he would not let her up unless she told him. After they dressed they talked again about the man Brown had been seeing. They left the house and went to the defendant’s mother’s house.

Brown made a complaint to the police the same day. The defendant continued to call Brown after June 15, but she refused to see him. One evening he called from a telephone booth and told her he had to talk. When he got to her apartment he threatened to kick her door down and Brown let him inside. Once inside he said he had intended merely to talk to her but that he wanted to make love again after seeing her. Brown said she sat and looked at him, and that he began kissing her. She pulled away and he picked her up and carried her to the bedroom. He performed oral sex on her and she testified that she did not try to fight him off because she found she enjoyed it. The two stayed together until morning and had sexual intercourse several times that night. Brown did not disclose the incident to the police immediately because she said she was embarrassed. The defendant put on no evidence and moved at the close of the State’s evidence for dismissal of both charges based on insufficiency of evidence. The trial

In his second assignment of error the defendant contends there was no substantial evidence that the sexual intercourse between Brown and him was by force and against her will. He argues that the evidence was insufficient to allow the trial court to submit the issue of his guilt of second degree rape to the jury. After a review of the evidence, we find this argument to have merit. Second degree rape involves vaginal intercourse with the victim both by force and against the victim’s will. G.S. 14– 27.3. Consent by the victim is a complete defense, but consent which is induced by fear of violence is void and is no legal consent. This is so because consent to sexual intercourse freely given can be withdrawn at any time prior to penetration. If the particular act of intercourse for which the defendant is charged was both by force and against the victim’s will, the offense is rape without regard to the victim’s consent given to the defendant for prior acts of intercourse. Where as here the victim has engaged in a prior continuing consensual sexual relationship with the defendant, however, determining the victim’s state of mind at the time of the alleged rape obviously is made more difficult. Although inquiry in such cases still must be made into the victim’s state of mind at the time of the alleged rape, the State ordinarily will be able to show the victim’s lack of consent to the specific act charged only by evidence of statements or actions by the victim which were clearly communicated to the defendant and which expressly and unequivocally indicated the victim’s withdrawal of any prior consent and lack of consent to the particular act of intercourse. In the present case the State introduced such evidence. It is true, of course, that Brown gave no physical resistance to the defendant. Evidence of physical resistance is not necessary to prove lack of consent in a rape case in this jurisdiction.

Brown testified unequivocally that she did not consent to sexual intercourse with the defendant on June 15. She was equally unequivocal in testifying that she submitted to sexual intercourse with the defendant only because she was afraid of him. During their walk, she told the defendant that their relationship was at an end. When the defendant asked her if she was “ready” immediately prior to having sexual intercourse with her, she told him “no, that I wasn’t going to bed with him.” Even in the absence of physical resistance by Brown, such testimony by her provided substantial evidence that the act of sexual intercourse was against her will. See,

The State did not offer substantial evidence, however, of the element of force. As we have stated, actual physical force need not be shown in order to establish force sufficient to constitute an element of the crime of rape. Threats of serious bodily harm which reasonably induce fear thereof are sufficient. In the present case there was no substantial evidence of either actual or constructive force. The evidence in the present case tended to show that, shortly after the defendant met Brown at the school, they walked out of the parking lot with the defendant in front. He stopped and told Brown he was going to “fix” her face so that her mother could see he was not “playing.” This threat by the defendant and his act of grabbing Brown by the arm at the school, although they may have induced fear, appeared to have been unrelated to the act of sexual intercourse between Brown and the defendant. More important, the record is devoid of evidence that Brown was in any way intimidated into having sexual intercourse with the defendant by that threat or any other act of the defendant on June 15. Brown said she did not pay a lot of attention to what the defendant said because she was thinking about other things. She specifically stated that her fear of the defendant was based on an experience with him prior to June 15 and that on June 15 he did not hold her down or threaten her with what would happen if she refused to submit to him. The State failed to offer substantial evidence of force used or threatened by the defendant on June 15 which related to his desire to have sexual intercourse on that date and was sufficient to overcome the will of the victim. We note that the absence of an explicit threat is not determinative in considering whether there was sufficient force in whatever form to overcome the will of the victim. It is enough if the totality of the circumstances gives rise to a reasonable inference that the unspoken purpose of the threat was to force the victim to submit to unwanted sexual intercourse. The evidence introduced in the present case, however, gave rise to no such inference. Under the peculiar facts of this case, there was no substantial evidence that threats or force by the defendant on June 15 were sufficiently related to sexual conduct to cause Brown to believe that she had to submit to sexual intercourse with him or suffer harm. Although Brown’s general fear of the defendant may have been justified by his conduct on prior occasions, absent evidence that the defendant used force or threats to overcome the will of the victim to resist the sexual intercourse alleged to have been rape, such general fear was not sufficient to show that the defendant used the force required to support a conviction of rape. In summary, we think that the State’s evidence was sufficient to show that the act of sexual intercourse in question was against Brown’s will. It was not sufficient, however, to show that the act was accomplished by actual force or by a threat to use force unless she submitted to sexual intercourse. Since the State did not introduce substantial evidence of the element of force required to sustain a conviction of rape, the trial court erred in denying the defendant’s motion to dismiss the case against the defendant for second degree rape. For the foregoing reasons, we reverse the opinion of the Court of Appeals holding that there was no error in the defendant’s trial for kidnapping and second degree rape and remand this action to the Court of Appeals for its further remand to the Superior Court, Durham County, for the entry of directed verdicts in favor of the defendant.

Supreme Court of North Carolina, Selections from “State v. Alston, 310 N.C. 399,” 1984.