Funkhouser v. State

Orth, J., delivered the opinion of the Court. I. About five years ago the General Assembly enacted comprehensive legislation with respect to sexual offenses in which it recognized that there were gradations of severity in the perpetration of the common law crime of rape. Maryland Code (1957, 1976 Repl. Vol., 1981 Cum.

Supp.) Art. 27, §§ 462 and 463. 1 It classified rape and other sexual offenses by degrees with penalties of varying harshness and spelled out what constituted the crimes it created. §§ 462-464C. It prescribed that a person is guilty of the felony of rape in the first degree ¹⁸ "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 . . .,” provided any one of four certain aggravating circumstances was present. § 462 (a). One of such circumstances is that "[t]he person commits the offense aided and abetted by one or more other persons.” § 462 (a) (4). The statute is silent about the culpability of the person who aids and abets the actual perpetrator of the rape.

Therefore, his status is determined under the common law. Lutz v. State, 167 Md. 12, 15 , 172 A. 354 (1934); Hooper v. Baltimore, 12 Md. 464, 475 (1859); Gray v. State, 43 Md. App. 238, 241-243 , 403 A.2d 853 , cert. denied, 286 Md. 747 (1979), and cases therein cited. Under common law, a person who commits a crime as a perpetrating actor, either by his own hand or the hand of an innocent agent, is a principal in the first degree. A person present, actually or constructively, aiding and abetting the commission of the crime, but not himself committing it, is a principal in the second degree, provided there is a guilty principal in the first degree. 2 Agresti v. State, 2 Md. App. 278, 280 , 234 A.2d 284 (1967).

"[A]s a matter of common law the distinction between principals in the first degree and those in the second degree is one of fact rather than of legal consequence. Their guilt is exactly the same. . . .” R. M. Perkins, Criminal Law, 657-658 (2d ed. 1969). The Court of Appeals noted in Vincent v. State, 220 Md. 232, 239, n. 1 , 151 A.2d 898 (1959): "In Maryland, as in many other states, there is little practical difference between a principal in the first and second degree, and the defendant claims no benefit from such a shadowy distinction.” Thus, a principal in the second degree is charged with the substantive offense and may be found guilty of it and be subject to the penalty authorized for it just as if he ¹⁹ were the principal in the first degree. See Camphor v. State, 233 Md. 203 , 196 A.2d 75 (1963).

Glenn Owen Funkhouser was jointly indicted with Robert Scott Weatherbee but separately tried before a jury in the Circuit Court for Prince George’s County. After the court disposed of motions for judgment of acquittal, four charges remained for the determination of the jury: rape in the first degree (2d count), assault and battery (4th count), kidnapping (5th count), and false imprisonment (6th count). The second count presented that Funkhouser and Weatherbee "did commit rape in the first degree in that they unlawfully engaged in vaginal intercourse with [a certain named person], by force and threat of force, against the will and without [her] consent . .. [and] were aided and abetted by one another, in violation of Article 27, Section 462 of the Annotated Code of Maryland, 1957 edition, as amended, and against the peace, government and dignity of the State.” Under this charge, which was properly drawn, Funkhouser was to be found guilty of rape in the first degree upon legally sufficient evidence that he was either a principal in the first degree or a principal in the second degree, in the commission of that crime. The evidence placed before the jury was sufficient to prove beyond a reasonable doubt the corpus delicti of first degree rape, the criminal agency of Weatherbee as the actual perpetrator of the crime and the criminal agency of Funkhouser as being present and aiding and abetting Weatherbee’s criminal act. 3 4 Upon the acceptance by the jury of this evidence, a proper verdict as to Funkhouser would be guilty of rape in the first degree.

The rendering of the verdicts is set out in the transcript of the trial as follows: "(Whereupon, at 8:00 p.m., the jury returned to the jury box and rendered the following verdicts: Aiding and abetting in first degree rape, 'Guilty’,[ 3 ] ²⁰ Assault and Battery, 'Guilty’, Kidnapping, 'Not Guilty’, False imprisonment, 'Guilty’. The jury was duly hearkened to its verdicts).” Defense counsel requested that the roll be called. The transcript reads: "(Whereupon, the jury was duly polled, each juror answering 'Yes’ to the question 'Is the foreman’s verdict your verdict?’)”. After a brief bench conference not concerning the return of the verdicts, the jury was discharged from any further consideration of the case.

There was no timely objection to the verdict rendered on the rape charge. But, of course, a person cannot be punished in a criminal proceeding upon a finding that he committed an act which was not a crime. Taking the words of the verdict literally, there is no such crime as "aiding and abetting a first degree rape.” As we have seen, one who so aids and abets is not guilty of the aiding and abetting as an offense, but is guilty of the rape by reason of his aiding and abetting. Furthermore, "it is elementary that a defendant may not be found guilty of a crime of which he was not charged in the indictment.” Turner v. State, 242 Md. 408, 414 , 219 A.2d 39 (1966).

"[A] judgment based on a jury’s verdict of guilty of a crime for which the prisoner was never accused is invalid.” Barber v. State, 16 Md. App. 235, 241 , 295 A.2d 814 (1972). It is self-evident that neither of these defects could be waived by a lack of timely objection so as to permit the judgment to stand. It follows that unless the verdict of the jury here may be deemed as a determination by it that Funkhouser was guilty of first degree rape as charged in the second count of the indictment and as entered on the docket, the judgment entered thereon must be reversed. We observe that in rendering the verdict as it did, the jury was guided by the court.

With the approval of defense counsel and the prosecutor, the court submitted to the jury before it began its deliberations a document entitled "Possible Verdicts.” The four charges the jury was to decide were set ²¹ out, and the jury was to indicate opposite each one whether the verdict was "not guilty” or "guilty.” The first "possible verdict” was designated as "Aiding and Abetting in First Degree Rape.” 5 Although the judge referred in her charge to the jury to the second count as "the count of aiding and abetting in first degree rape,” we believe that she fairly set out the correct law. She gave "the legal definition of first degree rape” and then "the concept of aiding and abetting, so that you will put them together in your mind.” She defined rape "as an act of vaginal intercourse with a woman accomplished by force or threats of force against her will and without her consent.” 6 She correctly explained the meaning of "vaginal intercourse,” force and threats, consent, and aiding and abetting. With reference to the last she said: "A person who aids or abets the principal offender may be guilty of the principal offense even though he did not personally commit each of the acts constituting the offense itself. Under the common law, persons who are present either actively or constructively and who aid and abet the commission of a crime, but do not themselves commit it, are principals in the second degree.” She made clear that an aider and abettor was guilty as a principal. 7 ²² It is readily apparent why the term "aiding and abetting” was so heavily emphasized.

The determination whether Funkhouser aided and abetted the commission of the rape was essential both to the proof of the corpus delicti of rape in the first degree under Art. 27, § 462, as charged in count two of the indictment, and to the proof of the criminal agency of Funkhouser under the common law. In other words, if the jury was convinced beyond a reasonable doubt that Weatherbee had vaginal intercourse with the complainant by force, against her will and without her consent, the rape, on the evidence adduced, would be in the first degree only if he was aided and abetted by another person, and Funkhouser would be guilty of that offense only if he were that other person. In this light, the verdict as rendered validly reflected a finding of guilty on the charge presented by the second count. The verdict clearly showed findings of the jury on the elements necessary for the conviction of Funkhouser under the charge — the commission of a rape in the first degree and his criminal agency as aider and abettor.

In other words, it accurately indicated "The finding of the Jury... pertaining to the merits of the offense charged.” Md. Rule 702g. Although the possible verdict under the second count could have been better stated, it is established that ²³ "[w]here the meaning of the verdict is so unmistakable, mere artificiality in its form will not be sufficient to defeat justice by a nullification of a verdict which plainly declared the intent of the jury to convict [on the charge]. Under these circumstances, it is the duty of the court to enforce the rule that every intendment is made in support of the finding of the jury, which was responsive, certain and complete, within the comprehension of laymen, and, so, of the court.” Simmons v. State, 165 Md. 155, 169-170 , 167 A. 60 (1933), citing Hechter v. State, 94 Md. 429, 439-443 , 50 A. 1041 (1902). The Court in Simmons quoted with approval Bishop’s New Criminal Procedure, § 1005 a(1), which included the assertion: "Whatever conveys the idea to the common understanding will suffice.” 165 Md. at 170 .

See Mayne v. State, 45 Md. App. 483, 487 , 414 A.2d 1 , cert. denied, 288 Md. 739 (1980), cert. denied, 450 U.S. 910 (1981). In Barber v. State, supra, we upheld the verdict where the charge was attempted robbery with a deadly weapon, and the verdict was rendered as "guilty of armed robbery with a deadly weapon” and hearkened as "guilty of armed robbery.” We said: "The very purpose of language is to express ideas; when the language used unmistakably expresses a conclusion, technicalities in the form of the verdict cannot be used to invalidate that verdict.” 16 Md. App. at 242 . Here, the docket entry as recorded, " 'Guilty’ as to Count 2 — First Degree Rape,” correctly reflects the jury’s verdict.

II

The State filed a motion in limine seeking to preclude the defense from introducing evidence with respect to the prosecuting witness’s chastity and past sexual conduct. The matter was heard prior to trial. Funkhouser claims that the court erred in granting the motion over his objection. A motion in limine is not a ruling on evidence; it adds a procedural step prior to the offer of evidence.

It serves the ²⁴ useful purpose of raising and pointing out before trial, certain evidentiary rulings that the court may be called upon to make. Under this rationale and citing substantial authority in support, we have held that the denial of a motion in limine cannot of and in itself constitute reversible error. Offutt v. State, 44 Md. App. 670, 677-678 , 410 A.2d 611 (1980); Lapelosa v. Cruze, 44 Md. App. 202, 206-209 , 407 A.2d 786 (1979), cert. denied, 287 Md. 754 (1980); Ory v. Libersky, 40 Md. App. 151, 163-165 , 389 A.2d 922 , cert. denied, 283 Md. 737 (1978). The authorities relied upon in reaching that holding are to the effect that the same rule applies to the grant of a motion in limine.

See Lapelosa at 208; Offutt at 677 . We now hold that the grant of a motion in limine cannot in and of itself constitute reversible error. Funkhouser would have us test the constitutionality of Md. Code (1957, 1976 Repl. Vol., 1981 Cum.

Supp.) Art. 27, § 461 A, which bans reputation and opinion evidence relating to the victim’s chastity, except in certain categories after an in camera hearing to determine whether particular evidence is admissible. The question is not properly before us. We gather from a comment of the court at the pre-trial hearing on the motion in limine that there had been a chambers conference earlier that morning on the matter, but if those proceedings were reported, the record submitted to us does not include a transcript of them. At the pre-trial hearing defense counsel objected to grant of the motion on the ground of the constitutionality of the statute, but he made no proffer of the evidence he sought to introduce except the vague comment that it was "about [the victim’s] sexual background in New Jersey.” More important, he made no attempt whatsoever to introduce the evidence at the trial by way of proffer out of the hearing of the jury, or otherwise.

Maryland Rule 1085 requires that, normally, on appeal we not decide "any point or question which does not plainly appear by the record to have been tried and decided by the lower court....” As we have indicated, the grant of the motion in limine did not preserve error, if error there were, and there was nothing relative to the evidence the defense ²⁵ desired to introduce presented to the court for a ruling at trial. We said in Lapelosa v. Cruze, supra, at 207: "There is no exception to the ... rule, which requires the recording of an objection in the trial below, where the question of admissibility of evidence has previously been raised in a pre-trial motion in limine.” We adhere to that view.

III

Funkhouser alleges that the court erred in denying his motion for judgment of acquittal as to the second count charging rape in the first degree. The basis of his claim is that he did not have vaginal intercourse with the victim, and, he asserts, such intercourse is a necessary element of the offense by mandate of the statute. The argument completely disregards the law concerning principals in the second degree, which we have set out fully in part I of this opinion. Of course, vaginal intercourse is a necessary element of rape in the first degree, but here, as we have indicated, that element was supplied by Weatherbee.

Again we point out that there was evidence, which, if believed, showed that Weatherbee engaged in vaginal intercourse with the victim by force, against her will and without her consent, aided and abetted by Funkhouser. This was enough for Funkhouser to be guilty of rape in the first degree. His participation as aider and abettor was all that was required to make him as responsible as was the actual perpetrator of the crime, there being no practical distinction between Weatherbee as a principal in the first degree and Funkhouser as a principal in the second degree. Nor was it necessary that Funkhouser be specifically charged as a principal in the second degree. 8 ²⁶ The denial of the motion for judgment of acquittal as to the second count was not erroneous.

IV

The court did not abuse its discretion in refusing the request