Lane v. State

WILNER, Judge. Appellant was convicted in the Circuit Court for Wicomico County of attempted second degree rape, a second degree sexual offense, an unnatural and perverted practice, and assault and battery. After merging the assault and battery conviction, the court imposed consecutive sentences of seven years each for the attempted second degree rape and the second degree sexual offense and a concurrent two-year sentence for the unnatural and perverted practice. The victim of this conduct was appellant’s wife, with whom he was then living in the marital home.

Three questions are presented in this appeal which, on our own initiative, we have elected to hear in lieu of proceedings in the Court of Special Appeals: (1) whether a man may be convicted of attempted second degree rape when the victim is his wife, with whom he is living at the time of the conduct; (2) whether the evidence sufficed to support the various convic ²⁷⁵ tions; and (3) whether the court erred in failing to merge the unnatural and perverted practice conviction into the conviction for second degree sexual offense. The State has conceded the third issue, and, as a result, we shall vacate the two-year sentence entered on that conviction. Otherwise, we shall affirm the judgments entered below. I. FACTUAL BACKGROUND Appellant and his wife, Tammi, were married in 1991; in October, 1995, they resided together in their marital home in Salisbury; and on the evening of October 25-26, 1995, they engaged in some form of sexual activity and had an altercation that caused Ms. Lane to call 911 for assistance.

Those facts are not in dispute. Virtually everything else was; appellant and his wife gave very different testimony regarding the state of their marriage, their living arrangements, and what occurred on that October evening. According to appellant, he and his wife had a good marriage. They shared the same bedroom, had recently vacationed together, and engaged in intimate sexual relations.

Ms. Lane, who traveled a lot in her job, returned home around 11:30 p.m. on October 25; they talked for a while, and she then went to bed. In an effort to be helpful, appellant retrieved her suitcase from her car in order to wash her clothes. In the course of unpacking the suitcase, he said, he discovered a diary in which she had recorded in some detail an affair she was having. Feeling the need to discuss the matter with her, appellant went to the bedroom, put his arm around her, and awakened her.

He said that he confronted her with the knowledge gained from reading the diary in an attempt to salvage their marriage, that she initially denied there was a diary but then demanded its return, and that she offered, commenced, and engaged in sexual favors to induce him to return the diary. The altercation leading her to call the police, he claimed, broke out later, when he discovered her “daytimer” in her car, which he also refused to return. Even as to that, however, he portrayed her as the aggressor, to the point of threatening him with a gun. ²⁷⁶ Had the court, in this non-jury trial, accepted appellant’s version, it no doubt would have acquitted him of the charges brought against him. The court did not accept that version, however, but chose to give greater credence to Ms. Lane’s version.

According to Ms. Lane, the marriage was not a happy one. They had talked about separating on a number of occasions; they occupied separate bedrooms—she slept in an upstairs bedroom and he remained downstairs on the couch; and they had not had sexual relations for more than a year. She was a supervisor for Food Lion—a grocery chain—and was responsible for stores in the Virginia Beach area and on the Eastern Shore of Maryland. ■ That, she said, required considerable travel. On October 25, she returned home between 7:30 and 8:00 p.m. from Virginia Beach, where she had been for three days.

Upon her return, appellant began to complain about her being away so much, and, after an hour or more of argument, she went upstairs to go to bed. At some point, Ms. Lane said, she was awakened to find appellant on top of her, jumping on her. She was lying on her back, clad in her underwear and a tee shirt, and appellant was essentially sitting on her hips, straddling her legs. He was screaming that he had found out about her boyfriend and was going to ruin her and that he would henceforth do what he wanted with her, sexually.

She said he grabbed her wrists with one of his hands and held them over her head and, with his other hand, penetrated her vagina. Somehow, he also managed to remove her tee shirt and underwear, expose his penis, slap her face from side to side with it, and attempt to insert it into her mouth. Ms. Lane added that “[h]e tried to have intercourse with me in between, when he didn’t have his fingers inside of me.” When asked to describe that effort more particularly, she said that he “kept pushing my legs apart further than they were at that point” but that “he never was able to.” Suddenly, Ms. Lane said, he stopped, resigned that she was not going to perform fellatio, and she was able, momentarily, ²⁷⁷ to jump out of bed and begin putting on her jeans. Appellant pushed her back on the bed, however, removed her jeans, and again placed his fingers in her vagina, slapped her face with his penis, and, at some point, succeeded in placing his penis in her mouth.

All of this, she said, was without her consent. She attempted to resist with her legs. Once again, he “just stopped” and went downstairs. She dressed and went down as well.

In the kitchen, they had an altercation over her “daytimer,” which appellant had found and refused to return. Rebuffing her effort to retrieve it, he threw her against the kitchen wall, and, when she picked up a portable telephone to call the police, he grabbed it from her, pulled her hair, and threw her to the ground. Twice more she attempted to call the police, finally succeeding on her third try. When the police arrived, they found her waiting outside the home, at the end of the driveway, hysterical.

Evidence showed that she had a number of bruises on her thighs, arms, and finger.

II

ATTEMPTED RAPE A. Preservation of Issue Count Two of the indictment returned against appellant charged him with unlawfully attempting to violate the provisions of Article 27, Section 463 of the Annotated Code of Maryland by “attempting to commit a rape in the second degree upon Tammi Lane.... ” No motion challenging the sufficiency of that count was ever made; nor did appellant, at any time in the circuit court, seek a judgment of acquittal on, or a dismissal of, that count on the ground that it failed to charge a crime. His only argument with respect to the attempted rape charge dealt with the sufficiency of the State’s evidence. At the conclusion of the State’s case, he argued that there was insufficient testimony “that there was actually attempted vaginal intercourse” and that the State had not demonstrated that “there was an attempt that was committed by force without the consent.” At the end of the entire case, he renewed his motion for judgment on the grounds raised ²⁷⁸ earlier—i.e., that the evidence was insufficient to show an attempted vaginal intercourse by force and without consent. In this appeal, although continuing to press the argument of evidentiary insufficiency, appellant has added the separate claim that attempted rape of a spouse is not a crime in Maryland.

That issue was clearly not raised in or considered by the circuit court, although it was implicitly decided in the entry of the conviction. Ordinarily, we would not address an issue not raised in or expressly decided by the trial court. It has long been the law, however, which is now articulated in Maryland Rule 8-131(a), that a challenge to the trial court’s subject matter jurisdiction may be raised on appeal even if not raised in or decided by the trial court. This exception to the general rule of preservation is based on the premise that a judgment entered on a matter over which the court had no subject matter jurisdiction is a nullity and, when the jurisdictional deficiency comes to light in either an appeal or a collateral attack on the judgment, ought to be declared so.

Thomas v. Hardisty, 217 Md. 523, 536, 143 A.2d 618, 625 (1958); also State v. Ambrose, 191 Md. 353, 369 , 62 A.2d 359, 367 (1948); Cook v. Alexandria Nat’l Bank, 263 Md. 147 , 282 A.2d 97 (1971); Ford v. State, 330 Md. 682, 696 , 625 A.2d 984, 990-91 (1993). In this regard, it has now become recognized that a court may not validly enter a conviction on a charge that does not constitute a crime and that the deficiency in any such judgment is jurisdictional in nature. In Williams v. State, 302 Md. 787, 791-92 , 490 A.2d 1277, 1279 (1985), we declared it “fundamental that a court is without power to render a verdict or impose a sentence under a charging document which does not charge an offense within its jurisdiction prescribed by common law or by statute” and that “where no cognizable crime is charged, the court lacks fundamental subject matter jurisdiction to render a judgment of conviction, i.e., it is powerless in such circumstances to inquire into the facts, to apply the law, and to declare the punishment for an offense.” See also Townes v. State, 314 Md. 71, 74 , 548 A.2d 832 , 833 ²⁷⁹ (1988). The argument that attempted rape by a husband of his wife is not a crime goes to the jurisdictional sufficiency of that part of the indictment and therefore of the conviction, and, accordingly, it is an argument that is properly before us.

B. Analysis (1) Common Law Rape and Attempted Rape In Hazel v. State, 221 Md. 464, 468-69 , 157 A.2d 922, 924 (1960), this Court defined the crime of common law rape as “the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim.” In conformance with that definition, we observed that “consent to the act at any time prior to penetration deprives the subsequent intercourse of its criminal character.” Id. at 469 , 157 A.2d at 925 . See also Simms v. State, 52 Md.App. 448, 453, 449 A.2d 1196, 1198 (1982); Coward v. State, 10 Md.App. 127 , 268 A.2d 508 (1970). Although this Court never had occasion to rule on the matter, it was an accepted part of the common law that there was, within that broad definition of the crime, an unwritten, implicit marital “exemption”—that a man could not be convicted of common law rape for having sexual intercourse with his lawful-wedded wife, even if the act was committed by force, without the wife’s consent, and against her will. Although there exists an historical basis for it in earlier writings and practice, the “exemption,” as pointed out in State v. Smith, 85 N.J. 193, 426 A.2d 38 (1981), is commonly attributed to the brief statement by Sir Matthew Hale in his History of the Pleas of the Crown that “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” 1 Sir Matthew Hale, Historia Placitorüm Coronas 628 (1st Amer.

Ed. 1847). Hale himself gave no further explanation of that statement, but his proposition seems to be that (1) there is implicit in the marriage contract an irrevocable consent of the wife to sexual intercourse with her husband, ²⁸⁰ (2) because such intercourse occurring during the marriage is thus, by law, consented to, it is not unlawful, and (3) because it is not unlawful, it cannot constitute rape. East, citing Hale, iterates that “a husband cannot by law be guilty of ravishing his wife, on account of the matrimonial consent which she cannot retract,” (Edward Hyde East, A Treatise on the Pleas of the Crown 446 (1806)). Neither Blackstone nor Hawkins nor Coke expressly mention such a proposition, one way or the other, in their works. 1 It did, ²⁸¹ however, find its way into American judicial opinions and commentary. 2 ²⁸² Whatever the rationale chosen to support the “exemption,” generally the commentators accepted the proposition that, at common law, a husband could not be convicted of raping his wife through his own act of sexual intercourse, and, as we have indicated, that view also found recognition in court decisions. 3 See, for example, 3 Wharton’s Criminal Law § 279 (15th ed.1995); Rollin M. Perkins, Criminal Law 156 (2d ed.1969); Clark and Marshall, A Treatise on the Law of Crimes § 11.01 (7th ed.1967); Hyman Ginsberg and Isadore Ginsberg, Maryland Criminal Law and Procedure 258 (1940); 65 Am.Jur.2d Rape, § 39 (1972); Frazier v. State, 48 Tex.

Crim. 142 , 86 S.W. 754 (App.1905); State v. Haines, 25 So. 372 ²⁸³ (La.1899); State v. Huffman, 141 W.Va. 55 , 87 S.E.2d 541 (1955); State v. Dowell, 106 N.C. 722 , 11 S.E. 525 (1890). It was not uncommon, moreover, for early statutes codifying the crime of rape to include the marital “exemption” and to define the crime in terms of a man having unlawful sexual intercourse with a woman “not his wife.” See, for example, West’s Ann. Cal. PemCode § 261 (1918); Burns’ Stats. Ann. (Ind.) § 10^201 (1956); M.S.A.

(Minn.) § 617.01 (1965); Vernon’s Ann. P.C. (Tex.) art. 1183 (1963). Presumably because of that recognition, we could find no appellate decisions reporting the successful prosecution of a husband for raping his wife. Until 1976, rape was entirely a common law crime in Maryland.

The penalty for it was provided by statute— ranging from 18 months to life imprisonment—but not the definition of the crime. Nonetheless, the General Assembly accepted the general belief that a marital “exemption” did exist. We may infer that, in part, from the fact that, when, in 1898, it created the statutory crime of carnal knowledge of a female between 14 and 16 years of age—i.e., of an age at which it was then lawful, under certain circumstances, for a woman to marry—the Legislature made it unlawful for a person to carnally know “any female not his wife, between the ages of fourteen and sixteen years.” (Emphasis added.) 1898 Md. Laws, ch. 218; Maryland Code (1957, 1971 Repl.Vol.) § 464 of Article 27. Note, by comparison, former § 462 of Article 27, prohibiting carnal knowledge of a child under 14, for which there was no such “exemption.” More direct and substantial evidence of the Legislature’s view appears in the history of legislation enacted in 1976 and 1989, which we shall shortly discuss in detail.

By Maryland common law, the attempt to commit a crime is, itself, a separate crime—a misdemeanor. 4 As we pointed out in Cox v. State, 311 Md. 326, 330-31 , 534 A.2d 1333 , 1335 ²⁸⁴ (1988), attempt “is an adjunct crime, it cannot exist by itself,' but only in connection with another crime,” and it thus “expands and contracts and is redefined commensurately with the substantive offense.” See also Hardy v. State, 301 Md. 124 , 482 A.2d 474 (1984). Subject to some exceptions, common law attempt has been held applicable to common law crimes and to a number of statutory offenses. Bruce v. State, 317 Md. 642, 645 , 566 A.2d 103, 104 (1989). There are, however, at least two categories of substantive crimes, to which criminal attempt has been held inapplicable.

The first consists of crimes that do not require at least a general criminal intent. Cox v. State, supra, 311 Md. at 331 , 534 A.2d at 1335 : “There is an exception, however, to the general rule that attempt applies to all offenses. Crimes that do not involve intent to do a criminal act generally fall outside the scope of the crime of attempt. If there is no intent to do a wrongful act, then usually there is no crime of attempt.” The second category consists of substantive crimes that are, themselves, in the nature of attempts.

Simple assault is often cited as an example. Although we need not decide the matter here, there may be other crimes as well that may not be suitable for serving as the basis of a criminal attempt. Rape, however, is not a crime that would fall into any of those categories. Attempted rape was clearly a common law crime.

Mitchell v. State, 82 Md. 527 , 34 A. 246 (1896); Walker v. State, 53 Md.App. 171 , 452 A.2d 1234 (1982); Gray v. State, 43 Md.App. 238 , 403 A.2d 853 (1979). A person is guilty of a criminal attempt when “with intent to commit a crime, he [or she] engages in conduct which constitutes a substantial step toward the commission of that crime, whether or not his [or her] intention is accomplished.” Townes v. State, supra, 314 Md. at 75 , 548 A.2d at 834 ; Grill v. State, 337 Md. 91, 94 , 651 A.2d 856, 857 (1995); Cox v. State, supra, 311 Md. 326 , 534 A.2d 1333 ; Gray v. State, 43 Md.App. 238 , 403 A.2d 853 (1979). The act in furtherance of the intent must go “beyond mere preparation.” Cox v. State, supra, 311 Md. at 330 , 534 A.2d at 1335 . ²⁸⁵ Although we expressly declined to decide the issue in Grill v. State, supra, 337 Md. 91 , 651 A.2d 856 , and need not do so in this case, we did note in Grill the widely held view that a person could not lawfully be convicted of attempting to commit a crime if, under the circumstances, it would have been legally impossible for him to be convicted of the substantive crime had his intended acts been completed. Id. at 95 , 651 A.2d at 857-58 .

We described the defense of legal impossibility as articulated in United States v. Berrigan, 482 F.2d 171, 188 (3d Cir.1973): “Legal impossibility is said to occur where the intended acts, even if completed, would not amount to a crime. Thus, legal impossibility would apply to those circumstances where (1) the motive, desire and expectation is to perform an act in violation of the law; (2) there is intention to perform a physical act; (3) there is a performance of the intended physical act; and (4) the consequence resulting from the intended act does not amount to a crime.” See also Waters v. State, 2 Md.App. 216, 226, 234 A.2d 147, 154 (1967), where the Court of Special Appeals stated, in dicta, that “[ljegal impossibility to commit the intended crime may be a valid defense and where the impossibility arises by operation of law the accused cannot be convicted of an attempt” and that, as a result, “at common law a boy under 14 years of age cannot commit the crime of rape and thus cannot be convicted of attempted rape.” See also In re Appeal No. 568 September Term 1974, 25 Md.App. 218, 333 A.2d 649 (1975). Under that view, if the proposition were accepted that a man could not lawfully have been convicted of raping his wife, by virtue of his own completed act of sexual intercourse with her, it would also have been the case that he could not lawfully have been convicted of attempting to rape her by virtue of attempting to have sexual intercourse with her. Whether that was, in fact, the common law in Maryland prior to 1976 is an open question.

(2) 1976 and 1989 Legislation The relevant 1976 legislation originated with Senate Bill 358, which was the product of a legislatively created Special ²⁸⁶ Committee on Rape and Related Offenses. As introduced, the bill would have repealed the common law of rape and, through new sections 462 through 464C of Article 27 of the Maryland Code, included the conduct constituting that crime in one or more new statutory sexual offenses. A major thrust of the bill, in that regard, was to treat unlawful vaginal intercourse more or less the same as other unlawful kinds of sexual assault. It also provided, in its initial form, that a person could not be prosecuted under the new subtitle “if the complainant is the person’s legal spouse unless the parties are living separate and apart, pursuant to court order.” In supporting that limited provision, the then-extant Governor’s Commission to Study Implementation of the Equal Rights Amendment (which amendment had been added to the Maryland Constitution in 1972) noted as one of the problems with the existing law that “[t]he word ‘unlawful’ in the common law definition of rape has been interpreted by the Maryland courts to mean that a person cannot rape his spouse even if the couple is living separate and apart.” 5 Ultimately, as the result of extensive amendments made to the bill by the House of Delegates, the crime of rape was retained as a statutorily defined offense but was split into two degrees, and four degrees of other sexual offenses were created.

Under the law, as enacted, first degree rape (§ 462) is defined as vaginal intercourse by force or threat of force against the will and without the consent of the other person, accompanied by (1) the use or display of a dangerous weapon, (2) suffocation, strangulation, disfigurement, or other serious physical injury, (3) placing the victim in fear that the victim or a person known to the victim will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnaping, or (4) the perpetrator being aided or abetted by one or more other persons. Second degree rape (§ 463) consists of vaginal intercourse (1) by force or threat of ²⁸⁷ force against the will and without the consent of the victim, or (2) with a person who is mentally defective, mentally incapacitated, or physically helpless and the perpetrator knows or should know that the victim has that condition. The four degrees of other sexual offenses, defined in §§ 464 through 464C, are principally based on a “sexual contact” or a “sexual act” other than vaginal intercourse, accompanied by varying forms of aggravation. “Sexual contact” is defined as “the intentional touching of any part of the victim’s or actor’s anal or genital areas or other intimate parts for purposes of sexual arousal or gratification or for abuse of either party,” including the penetration by any part of a person’s body, other than the penis, mouth or tongue, into the genital or anal opening, if that penetration can be reasonably construed as being for the purpose of sexual arousal or gratification, or for the abuse of either party. § 461(f). A “sexual act” is defined to exclude vaginal intercourse but to include cunnilingus, fellatio, analingus, anal intercourse, and the penetration by any object into the genital or anal opening of another person’s body. § 461(e).

First and second degree sexual offenses are essentially parallels to first and second degree rape. A first degree sexual offense (§ 464) consists of engaging in a sexual act with another person under the same conditions that, if the act were vaginal intercourse, would constitute first degree rape; a second degree sexual offense (§ 464A) consists of engaging in a sexual act with another person under circumstances that, if the act were vaginal intercourse, would constitute second degree rape. 6 A third degree sexual offense (§ 464B) consisted of (1) a sexual contact against the will and without the consent of the other person accompanied by any of the other aggravating factors included as elements of first or second degree rape or first or second degree sexual offense; (2) sexual contact with a person who is mentally defective, mentally incapacitated, or ²⁸⁸ physically helpless; (3) sexual contact with another person under the age of 14 if the perpetrator is four or more years older than the victim; or (4) a sexual act or vaginal intercourse with another person 14 or 15 years old if the perpetrator is at least 21 years of age. A fourth degree sexual offense (§ 464C) was defined as (1) a sexual contact against the will and without the consent of the victim, or (2) a sexual act or vaginal intercourse with a person 14 or 15 years old by a person at least four years older than the victim but not yet 21 years of age. 7 Having established and defined those substantive offenses, the General Assembly turned its attention to the marital “exemption.” In § 464D, it provided that “a person may not be prosecuted under Sections 462 [first degree rape], 463 [second degree rape], 464B [third degree sexual offense], and 464C [fourth degree sexual offense] if the victim is the person’s legal spouse at the time of the commission of the alleged rape or sexual offense unless the parties are living separate and apart pursuant to a decree of divorce a mensa et thoro.” With this formulation, the Legislature, on the one hand, expressly recognized and confirmed a general marital “exemption” for those offenses but, as to those offenses, chose to treat parties who were living apart pursuant to a decree of limited divorce as though they were not married at all and were, in effect, legal strangers to one another. In that limited Circumstance, a husband was made subject to the same liability for engaging in the proscribed conduct against his wife as he would be if he committed it against any other woman. 8 There is nothing in the legislative history of the 1976 legislation to indicate that the General Assembly, in creating ²⁸⁹ the new statutory offenses, in codifying a general marital “exemption” with respect to first and second degree rape and third and fourth degree sexual offenses, and in making that “exemption” inapplicable in the limited circumstance noted, gave any thought, one way or the other, to the separate common law crime of attempt.

There is nothing to suggest that it ever accepted or rejected the doctrine of legal impossibility as discussed, but not adopted, by the Court of Special Appeals in Waters v. State, supra, 2 Md.App. 216 , 234 A.2d 147 , and In re Appeal No. 568, Term 1971, supra, 25 Md.App. 218, 333 A.2d 649 . To the extent that the doctrine of legal impossibility, as applied to the common law crime of attempt, ever was a part of Maryland common law, subjection of persons to liability for a completed first or second degree rape or third or fourth degree sexual offense committed against the person’s estranged spouse (living apart pursuant to a decree of limited divorce) abrogated the legal impossibility and thus removed the foundational underpinning of the legal impossibility doctrine. With that underpinning removed, there was no basis for exempting the perpetrator from prosecution for conduct constituting an attempt to commit those offenses. Indeed, in the limited circumstance in which prosecution for the completed offense was permitted, there is no reason to suppose that the General Assembly did not intend that result.

As we indicated, at least with respect to those offenses, it effectively chose to treat a married couple living apart pursuant to a limited divorce decree as though they were not really married. Certainly, in that circumstance, there could be no greater expectation of an implied consent to sexual intimacy or to what otherwise would be legally inappropriate touchings than there would be if the marriage had, in fact, been dissolved and the parties were legal strangers to one another. That is not, of course, the situation now before us, but it is relevant as a backdrop to what the Legislature did in 1989. In 1989, the General Assembly reconsidered the “exemption” it had provided in the 1976 legislation.

The impetus for that effort was a significant and growing concern over violent ²⁹⁰ sexual assaults both within the marital home and during periods of separation not sanctioned by a limited divorce. 9 House Bill 399, enacted as 1989 Md. Laws, ch. 189, amended § 464D to (1) extend the circumstances under which a person may be prosecuted for sexual offenses against his or her estranged spouse, and (2) permit a person to be prosecuted for a more limited range of sexual offenses committed against the person’s spouse, even if the parties were still living together. With respect to offenses against an estranged spouse, the law kept in place, as new § 464D(d), the 1976 law allowing the