Following a trial, a jury found defendant guilty of the two first degree counts but did not reach the third degree counts, pursuant to the court's instructions. We note at the outset that, although it may not have been so intended, to the extent that this standard would relieve a defendant of criminal liability simply because he is, in fact, incapable of making good on his threats, it must be rejected. The impossibility or improbability of the defendant's assertions may be relevant considerations for the fact finder in determining whether the victim was actually placed in fear or whether the defendant intended such an effect. But the fact that a court may, in hindsight, determine that the threats were incapable of being executed cannot transform the victim's submission to them into consent. We conclude that the trial evidence was sufficient to justify such an inference.
Defendant contends that the evidence failed to establish that there was a threat of immediate harm.
This characterization of the evidence, however, ignores several important aspects of the testimony. With the cell doors unlocked, as they were throughout the day, the inmates within the juvenile tier had immediate access to the victim. The evidence also established that at least two of those inmates, including one considered by the victim to be a friend, viewed the incident without offering the victim any assistance. The victim was only 16 years old and a novice to the world of incarceration. The defendant was more than twice his age, powerfully built, and had made it clear to the victim that he held a position of power in the oppressive and unfamiliar environment the victim had recently entered.