Com. v. Baik, J.

J-A14021-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOON WOO’JASON BAIK : No. 1165 WDA 2019
Appeal from the Order Entered July 22, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0014919-2018
BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 28, 2021
The Commonwealth of Pennsylvania appeals from the Order granting
the Motion for a judgment of acquittal filed by Joon Woo’Jason Baik (“Baik”).
We affirm.
The trial court summarized the factual history underlying the instant
appeal as follows:
On September 21, 2018, [Baik] and [Z.W.] (hereinafter
referred to as “Complainant”) made plans to meet up and go to a
local bar together. On her way to meeting [Baik], Complainant
realized that she did not have her identification with her[,] so
[Baik] and Complainant agreed to go to a liquor store and
purchase vodka and whisk[e]y[,] and agreed to take the alcohol
back to [Baik’s] dorm room to consume. [Baik] and Complainant
subsequently drank the vodka and whiskey and watched a movie
in [Baik’s] dorm room. At some point in the night, [Baik] and
Complainant began having sexual intercourse. [Baik] took an
audio recording of [Baik] and Complainant engaging in sexual
intercourse on his cell phone. Throughout the audio recording,
Complainant can be heard saying[,] “Please put it in me—Put it in
me[.]” “Please fuck me—Please-Please fuck me” and “Just put
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in—G[o]—Go—Just put it in.” [Baik] can also be heard repeatedly
asking for Complainant’s consent to sexual intercourse. At the
end of the audio, Complainant is heard screaming “stop” and “I
have to go home[,”] and the sexual intercourse stopped. The
Complainant was subsequently found outside of [Baik’s] dorm
building naked. Police and paramedics were called to the scene[,]
and Complainant was taken to the hospital. Police and paramedics
indicated that Complainant was intoxicated and upset[,] but
coherent and provided one-word answers to their questions. At
the hospital, Complainant was upset and crying and indicated to
police and hospital staff that she had consensual sex with [Baik].
Police interviewed Complainant at the hospital and a police report
was subsequently drafted based upon the interview[,] and the
report indicated that Complainant, based upon her answers to
police questioning, engaged in consensual intercourse with [Baik].
At various times that evening, [Baik] called 911 to inquire about
Complainant.
On the following day, Complainant contacted [Baik] to ask
what happened and asked [Baik] to go to the university health
center with her. [Baik] agreed to accompany Complainant.
However, the health center was closed at that time. Complainant
then spoke with a friend about the prior evening. Complainant’s
friend encouraged Complainant to call the police. Complainant
alleges that she cannot remember the night prior and/or engaging
in sexual intercourse with [Baik]. Complainant then called the
police to report that she had been sexually assaulted the previous
night by [Baik]. Following an investigation, [Baik] was charged
with rape of an unconscious victim, sexual assault, simple assault,
and false imprisonment. [See 18 Pa.C.S.A. §§ 3121(a)(3),
3124.1, 2701(a)(1), 2903(a).]
Trial Court Opinion, 11/14/19, at 1-2 (some capitalization omitted).
A jury subsequently found Baik guilty of sexual assault, but not guilty of
the remaining charges. Baik filed a Motion for a judgment of acquittal. In his
Motion, Baik argued that the evidence established the Complainant’s consent
to engage in sexual intercourse. Motion for Judgment of Acquittal, 7/12/19,
at ¶ 18. Further, Baik argued, the Commonwealth failed to prove that Baik
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“knew the victim was unable to make a reasonable judgment as to the nature
or harmfulness of the conduct.” Id.
On August 20, 2019, the trial court granted Baik’s Motion. Thereafter,
the Commonwealth filed the instant timely appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
The Commonwealth presents the following claim for our review:
“Whether the trial court erred in granting [Baik’s] Motion for Judgment of
Acquittal/Extraordinary Relief?” Commonwealth’s Brief at 4.
The Commonwealth argues that Baik’s Motion challenged the sufficiency
of the evidence. Id. at 18. However, the Commonwealth argues, the trial
court failed to apply the appropriate standard for determining such a claim.1
Id. According to the Commonwealth, the trial court erred by “failing to
acknowledge the legitimate inferences the jury was permitted to make,
ignoring the circumstantial evidence, and making improper findings of
credibility as a result of its disagreement with how the jury interpreted the
testimony and physical evidence.” Id. at 18. The Commonwealth focuses
upon the earlier recorded statements of the Complainant, wherein the
Complainant told Baik, “Don’t do this[,]” and “Don’t you understand? I don’t
want to fuck.” Id. at 25 (citation omitted). The Commonwealth further directs
our attention to the Complainant’s statement to Baik, “stop doing that[,]”
____________________________________________
1 The Commonwealth points out that the defense of intoxication was not
available to Baik. Commonwealth’s Brief at 18.
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immediately before she climaxed. Id. According to the Commonwealth, “[a]
long period of time passes and at 1:09:50 [a.m.,] [C]omplainant began to
scream that she ‘hates’ [Baik] and wants him to ‘go away,’ and appeared to
say that she is ‘going to die.’” Id. at 26. The Commonwealth asserts that
there was sufficient evidence for a jury to find that Complainant “was
extremely intoxicated and incapable of consent.” Id. at 30. The
Commonwealth further directs our attention to evidence of the Complainant’s
intoxication. Id. at 31-34. The Commonwealth argues that, given the
statements by the Complainant “don’t do this” and “I don’t want to fuck[,]”
there is no support for the trial court’s determination that Baik stopped the
encounter when the Complainant told him to stop. Id. at 35-36.
The Commonwealth also directs our attention to the Complainant’s
testimony, wherein she explained that she did not initially report the sexual
assault because she “didn’t understand what happened[.]” Id. at 38. Finally,
the Commonwealth quoted the Complainant’s testimony wherein she stated
that she did not remember what happened. Id. at 38-40. The Commonwealth
directs our attention to Commonwealth v. Emey, 698 A.2d 56 (Pa. 1997),
as holding that a victim may be “unconscious” for purposes of the assault
despite having intermittent periods of awareness and consciousness. Id. at
43. The Commonwealth argues that “there is no doubt that the [Complainant]
was extremely intoxicated.” Id. at 50. The Commonwealth contends that the
trial court ignored evidence that the Complainant was extremely intoxicated
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after the incident, and that “[i]t is not an improper inference to assume that
she had been much, much more inebriated earlier in the evening.” Id.
As this Court has recognized,
A motion for judgment of acquittal challenges the sufficiency
of the evidence to sustain a conviction on a particular charge, and
is granted only in cases in which the Commonwealth has failed to
carry its burden regarding that charge.
The standard we apply in reviewing the sufficiency of the
evidence is whether[,] viewing all the evidence admitted at trial
in the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part[,] or none of the evidence.
Commonwealth v. Fitzpatrick, 159 A.3d 562, 567 (Pa. Super. 2017)
(citation omitted).
The Crimes Code defines the crime of sexual assault as follows: “Except
as provided in [18 Pa.C.S.A. §] 3121 (relating to rape) or [18 Pa.C.S.A. §]
3123 (relating to involuntary deviate sexual intercourse), a person commits a
felony of the second degree when that person engages in sexual intercourse
… with a complainant without the complainant’s consent.” 18 Pa.C.S.A.
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§ 3124.1. Thus, the Commonwealth must prove the lack of consent beyond
a reasonable doubt. See id. Crimes Code section 311(c)(2) provides that
consent is not effective if, because of intoxication, the person giving it is
“manifestly unable or known by the actor to be unable to make a reasonable
judgment as to the nature or harmfulness of the conduct that constituted the
offense.” Id. § 311(c)(2).
In Emey, our Supreme Court was asked to interpret 18 Pa.C.S.A.
§ 3121(a)(3) (Rape), and the term “unconscious,” as used in that statute.
The appellant argued that the statute only protects victims who were
“completely unaware of the event throughout the duration of the sexual
assault upon them.” Emey, 698 A.2d at 59. Our Supreme Court, in rejecting
appellant’s claim and finding the evidence sufficient, stated the following:
When the assault began, [the victim] displayed no awareness of
external events. As the crime progressed, she believed that she
was shouting for appellant to stop, but was completely unable to
perceive how she was communicating—i.e., that she was merely
mumbling. She offered no response when [] questioned [] during
the assault. Additionally [the victim] had no knowledge of what
ultimately brought an end to appellant’s actions[.] … Her
complete lack of awareness of the duration of the assault further
indicates that she was not conscious throughout its
entirety. Thus, despite her ability to perceive some aspects of the
incident, her lack of knowledge of much of what occurred supports
the finding that she was unconscious during portions of the assault
and was, therefore, unable to consent to sexual intercourse.
Because there was ample evidence from which the jury could
properly find that the victim, during at least portions of the
assault, lacked knowledge or awareness of both her own
sensations and external events, and was not in the normal waking
state, the evidence was sufficient to support the finding that she
was unconscious within the meaning of the statute.
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Id. The Supreme Court concluded that “the evidence support[ed] the findings
that the victim was intermittently unconscious throughout the assault and was
at all relevant times in such impaired physical and mental condition so as to
be unable to knowingly consent, [therefore] her submission to intercourse was
involuntary.” Id.; see also Commonwealth v. Diaz, 152 A.3d 1040, 1044-
45 (Pa. Super. 2016) (interpreting the term “unconscious,” for purposes of
sections 3121(a)(3) and 3126(a)(4), and finding sufficient evidence of
unconsciousness where victim testified she was so intoxicated she was
“blacking in and out”; victim remembered some events preceding and during
assault, but not all; and victim could not communicate, and felt paralyzed,
during assault).
Here, the jury acquitted Baik of the charge of rape of an unconscious
person. The trial court further determined that the Commonwealth had failed
to establish the lack of consent, beyond a reasonable doubt, based upon the
Complainant’s intoxication. Trial Court Opinion, 11/14/19, at 9-10. As the
trial court sets forth in its Opinion, Baik made an audio recording of the sexual
encounter. Id. at 4. In that recording, as quoted by the trial court, the
following could be heard:
Complainant: Please put it in—please put it in me.
[Baik]: You want that
Complainant: Yeah. Just want it.
[Baik]: My dick
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Complainant: I’m Sorry—
[Baik]: Come back up—Come back up
Complainant: Sorry
[Baik]: Fuck me—Fuck me [name omitted]
Complainant: Don’t call me [name omitted]
[Baik]: Fuck me
Complainant: Please-Please-Please
Complainant: Please don’t—Please don’t do this
[Baik]: Don’t do what?
Complainant: Don’t do this—Don’t do this
[Baik]: [name omitted twice]
Complainant: I don’t want to fuck—I don’t want to fuck
[Baik]: Ok
Complainant: I don’t want to fuck
[Baik]: Ok
Complainant: Do you understand what I mean
[Baik]: Ok
Complainant: I don’t want to fuck
[Baik]: Ok
Complainant: But I do want to have sex
[Baik]: [Name omitted]-you are so sexy-you are so sexy
Complainant: I do want to have sex with you but I don’t want to
be in a relationship—do you know what I mean
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[Baik] Ok, [name omitted]-you are so sexy[, name omitted]
Complainant: Do you want to be in a relationship with me?
[Baik]: You don’t want to be in a relationship with me—do you-
huh[.]
Complainant: Oh please—
[Baik]: What—Please what
Complainant: Please be in a relationship with me. I want to be
in a relationship with somebody, but I don’t want to be in a
relationship with you
[Baik]: [Name omitted]-fuck me-fuck me
Complainant: Get it up
[Baik]: Wait-I don’t have a condom
Complainant: Just get a condom
[Baik] Do you want to suck my dick
Complainant: No-I just want to-I just want to
[Baik]: I will get a condom first
Complainant: I just want a condom
[Baik]: You still want to fuck me—right
Complainant: Yeah
[…]
[Baik]: [Name omitted]-wait I need to put my condom on[.]
Want to fuck me
Complainant: Please fuck me-please-please fuck me
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[Baik]: [Name omitted]-wait-let’s have my condom on-ok-[name
omitted] breath[e]
Complainant: Is it on
[Baik]: No-it is not. [Name omitted] do you want to suck my
dick[?] Did you say yes or no
Complainant: I said no
[Baik]: You don’t want to suck my dick. Ok
Complainant: No[.] Please put it in
[Baik]: Get my condom
Complainant: Please[.] Sorry-I am sorry
[Baik]: Let’s take a little break—ok
Complainant: Ok—I am sorry
[…]
Complainant: Just put in-Go-go-Just put it in[.] Do you want to
fuck me
[Baik]: Yes
Trial Court Opinion, 11/14/19, at 4-7.
Following the above recitation, the trial court stated the following:
As can be heard on the audio recording of the sexual encounter
between [Baik] and Complainant, [Baik] initially asks for
Complainant’s consent and continues to ask for her consent
throughout the recording. [Complainant] provides her consent
throughout, both explicitly and implicitly. [The trial court]
believes the Commonwealth failed to present sufficient evidence
showing that Complainant’s intoxication made her “manifestly
unable” to make “a reasonable judgment as to the nature or
harmfulness” of sexual intercourse with [Baik]. While it is
undisputed that [Baik] and Complainant were drinking the evening
of the alleged assault, drinking alcohol, nor intoxication alone does
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not equate to invalid consent under Section 311 of the
Pennsylvania Crimes Code. [The trial court] was unable to find
any published Pennsylvania decisions interpreting Section 311
with respect to mental capacity to consent[,] and its relationship
to intoxication[,] outside of the realm of Rape of an Unconscious
Victim—where the jury found [Baik] Not Guilty.
* * *
Additionally, the initial police reports following
Complainant’s first hospital visit indicated that Complainant and
[Baik] had consensual intercourse based on the answers that the
Complainant herself provided the police. The police who
interviewed Complainant that evening did not feel as though
Complainant was too intoxicated that she was unable to be
interviewed, nor did the police indicate that Complainant’s
intoxication made the initial police report and Complainant’s
account of the evening unreliable. To the contrary, Complainant
was interviewed[,] and a report was prepared indicating that
Complainant and [Baik] had sexual intercourse and that it was
consensual. It was not until the following day (and only after a
telephone conversation with a friend) that Complainant alleged
that the sexual intercourse between herself and [Baik] was not
consensual due to an inability to remember the evening. Notably,
at trial, Complainant did not testify that she did not consent to
having sex with [Baik], she testified that she cannot remember
the evening.
Trial Court Opinion, 11/14/19, at 7, 9 (footnote omitted). The trial court’s
findings are supported by the record.
Here, the Complainant displayed awareness of external events. The
Complainant responded to questions asked by Baik throughout the encounter.
At trial, Pittsburgh Police Sergeant Timothy Werner (“Sgt. Werner”) testified
that he spoke with the Complainant when he arrived at the hospital. N.T.,
4/30/19, at 44. According to Sgt. Werner, the Complainant affirmed that she
had consensual sexual intercourse with Baik, and her account of the evening
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matched that of Baik. Id. at 52. Thus, after the event, after being transported
to the hospital, the Complainant recollected what had happened, and
represented that the sexual intercourse was consensual. See id. Further, as
quoted at length by the trial court, the Complainant was able to refuse her
consent to oral sex, immediately before requesting and engaging in sexual
intercourse. See id. While the Complainant now does not now recall the
events, the Commonwealth’s evidence does not contradict her statements,
after the event, that the encounter was consensual, let alone prove, beyond
a reasonable doubt, the lack of consent.
Thus, we agree with the trial court’s conclusion that a determination as
to the Complainant’s consent could only be speculated upon, and not
ascertained, beyond a reasonable doubt. For this reason, we affirm the Order
of the trial court.
Order affirmed.
Judge Shogan joins the memorandum.
Judge McLaughlin files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/2021
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