State v. Jones

Moore, J., delivered the opinion of the Court. The appellee’s motion to dismiss a charge of first degree rape was granted by the Circuit Court for Montgomery County (Fairbanks, J.) because of lack of jurisdiction. On appeal, the State argues first, that Art. 27, § 465, Md. Ann. Code (1982 Repl. Vol.) (Jurisdiction where victim transported.) confers subject matter jurisdiction because the victim had been abducted by force in Maryland and driven to the District of Columbia where vaginal intercourse occurred.

Alternatively, the State contends, common law confers jurisdiction because essential elements of the statutory offense took place in Maryland. We agree with the court below that § 465 pertains to venue, not jurisdiction, but we agree with the State, for the reasons stated herein, that Maryland had jurisdiction under the common law to try the appellee for first degree rape. Accordingly, we reverse and remand. I The assistant State’s Attorney and defense counsel stipulated to the following facts: Appellee Johnny Clayton Jones ³²³ came upon the victim on the morning of April 4,1980, as she alighted from her car in a parking lot in Chevy Chase, Maryland, on her way to work at a restaurant nearby.

Appellee forced the victim back into her car, struck her, pushed her head down on the car floor, tied her arms behind her back with a sweater, and drove off. About 10 minutes later, he stopped the car at a bus stop. At that time, he picked up an ice scraper and warned the victim, "you know what damage I can do with this ...” Appellee then drove around for about half an hour and stopped at some park within the District of Columbia where he took the victim out of the car and forced her to submit to vaginal intercourse. Afterward, appellee drove the victim back into Maryland and left her car near the area where he had abducted her.

The victim went to work and the police were called. Subsequently, appellee was apprehended and charged with first-degree rape, kidnapping, robbery, and assault and battery. Following the court’s dismissal of the rape charge on May 4,1981, appellee pled guilty to the other charges and was sentenced to ten years for kidnapping and eight years each on the robbery and assault and battery charges, all concurrent to a sentence he was then serving in Virginia. II Criminal jurisdiction has been defined "as the power and authority constitutionally conferred on a court, judge, or magistrate to take cognizance of an offense....” 21 C.J.S. Courts, § 19.

The courts of one state cannot take cognizance of a crime committed against the laws of a neighboring state. Bowen v. State, 206 Md. 368, 378 , 111 A.2d 844 (1955). Venue, on the other hand, is the place of the trial, the "county in which a court of appropriate jurisdiction may properly hear and determine the case....” Stewart v. State, 21 Md. App. 346, 348 , 319 A.2d 621 (1974). Venue presupposes proper jurisdiction, 1 Wharton’s Criminal Procedure § 36 at 103 (12th ed. 1974), for without it, a court’s judgment is void.

Brown v. State, 37 N.E.2d 73 (Ind. ³²⁴ 1941). However, both jurisdiction and venue are founded in locality — the place where the crime occurred. Id. at 78 . See United States v. Cores, 356 U.S. 405 (1958).

This common factor has led to the use of the term "territorial jurisdiction,” Urciolo v. State, 272 Md. 607 , 325 A.2d 878 (1974). Some confusion has resulted in other states from using the terms, venue and jurisdiction, interchangeably. See McBurney v. State, 280 Md. 21, 31, n.7 , 371 A.2d 129 (1977). Whatever the state of confusion elsewhere, this State respects the distinction.

In sum, jurisdiction is the power to hear and determine a case; venue signifies the place of trial. Guarnera v. State, 23 Md. App. 525 , 328 A.2d 327 (1974). The statute at issue in the State’s first argument, Art. 27, § 465, is reproduced below: § 465. Jurisdiction where victim transported.

If a person is transported by any means, with the intent to violate this subheading and the intent is followed by actual violation of this subheading, the defendant may be tried in the appropriate court within whose jurisdiction the county lies where the transportation was offered, solicited, begun, continued or ended. We note that the term "jurisdiction” is used twice, although in a territorial sense. The statutory language plainly relates to venue between the counties in Maryland. 1 The circuit court of a county is the proper place to try a defendant accused of a sex offense when his transportation of the victim ³²⁵ "was offered, solicited, begun, continued or ended” in that county. Thus, a defendant may be tried for rape in one county even though vaginal intercourse may have occurred in an adjoining county.

See Deinhardt v. State, 29 Md. App. 391, 398 , 348 A.2d 286 (1975), cert. denied, 277 Md. 736 (1976). 2 The transportation of the victim, i.e., the actual movement in, through, or to a county, establishes venue. Jurisdiction over the crime itself flows from the general power granted in Md. Cts. & Jud. Proc. Code Ann. § 1-501 (1980 Repl.

Vol.). Section 465 does not apply to a defendant who has transported his victim across state lines. The fact that the legislature used the word "county” and not "state” is clearly controlling. 3 Where the legislature intended to confer jurisdiction, it has done so. For example, Art. 27, § 337 (1982 Repl.

Vol.) permits the prosecution for kidnapping of any person who transports his victim "out of or within” the State. Hunt v. State, 12 Md. App. 286 , 278 A.2d 637 (1971). Section 465 has no extra-territorial effect — it is simply a venue statute, as the lower court found. We turn now to the question of whether the court had jurisdiction to try the defendant for first-degree rape under the common law.

Ill One state cannot punish a defendant for a crime committed in another state. Breeding v. State, 220 Md. 193 , ³²⁶ 151 A.2d 743 (1959). Specifically, Maryland has no legal right to prosecute a person for a crime committed in the District of Columbia. Regie v. State, 9 Md. App. 346, 357 , 264 A.2d 119 (1970).

It is indisputable that Maryland has jurisdiction only of a crime committed in Maryland. The essential query is what is meant by "a crime committed in Maryland.” Must every element of a crime occur within the geographical confines of the State? 4 Maryland has addressed this question in the context of multi-element crimes, 5 but there is no prior case involving a statutory rape with extrastate elements. "All the American states preserve the theory of territorial jurisdiction 6 over local offenses by insisting upon the presence of some local element as a condition to prosecution of crimes which also have extrastate elements.” Leflar, American Conflicts Law, § 111 at 224 (3d ed. 1977). 7 "In many cases, the requisite elements of the crime may be committed in different jurisdictions, and in such cases any ³²⁷ state in which an essential part of the crime is committed may take jurisdiction. It is necessary to discriminate carefully between those acts essential to the crime and those acts merely incidental to the crime.” 21 Am.Jur.2d Criminal Law, § 345 (1981).

Acts done in one State as a preliminary to completion of a crime in a second State may be, and sometimes are, punished as crimes in the first State. Thomas v. State, 553 S.W.2d 32, 33 (Ark. 1977). The later results give criminal meaning to the earlier acts. Leflar, supra, § 115 at 232. 8 Thus, Leflar reasons, "[i]f the forum has a substantial concern with the criminal act, and can reasonably apply its statutory definition to the local part of the act, it ought to prosecute.” Id., § 113 at 228.

Sexual offenses in Maryland have been codified and structured by degree in Art. 27, § 461 et seq. Prior to the enactment of the subtitle in 1976, the crime of rape existed only at common law in Maryland and was not divided into degrees. Sydnor v. State, 39 Md. App. 459 , 387 A.2d 297 (1978). What now constitutes first degree rape is as follows: § 462.

First degree rape. (a) What constitutes. — 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 ³²⁸ 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. (b) Penalty. — Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for no more than the period of bis natural life. (Emphasis added.) The primary difference between this statute and common law rape is the inclusion of four aggravating circumstances.

The purpose of the statute was to close "the gap which formerly existed between the common law misdemeanor of assault and the felony of rape... .” Note, Rape and Other Sexual Offense Law Reform in Maryland, 1976-1977, 7 U.Balt.L.Rev. 151, 163 (1977). In so doing, the legislature added elements to the traditional trilogy of common law rape, thus requiring proof of a fourth factor to convict a person of first degree rape. The legislature also broadened the language of common law rape by including "threat of force,” specified the conduct as "vaginal intercourse,” retained the conditions "against the will and without the consent,” and eliminated gender. Based upon the stipulations in this case, we can isolate five elements: 1) vaginal intercourse, 2) force, 3) lack of consent and against the will, 4) display of article reasonably believed to be dangerous, 5) placement of victim in imminent fear of kidnapping.

The first three plus No. 4 or No. 5 would have to be proved to sustain the charge of first degree rape. Each is therefore integral to the charge. Here, vaginal intercourse occurred in ³²⁹ the District of Columbia, force was applied in the initial abduction of the victim in Maryland, and consent was withheld and will overborne in Maryland. That the victim was placed in imminent fear of kidnapping in this State, see Moore v. State, 23 Md. App. 540 (1974), 329 A.2d 48 , cert. denied, 274 Md. 730 (1975) may be inferred from the record which relates that the appellee pushed her head down on the floor of the car, obviously to conceal her while driving the vehicle away from the parking lot in Maryland.

See Art. 27, § 337. The display of the dangerous article — the ice scraper — may be fairly inferred to have occurred in either Maryland or the District, depending on the location of the bus stop. The victim was unable to tell. Thus, at least three and, inferentially, four, of the elements of first degree rape present in this case were initiated in the State of Maryland.

Like certain other crimes such as robbery, larceny, kidnapping, conspiracy, and murder, the elements of first degree rape may occur over a period of time and in more than one jurisdiction. 9 This reality was recognized by the Fifth Circuit in a case that is strikingly apposite to our own, Leonard v. United States, 500 F.2d 673 (5th Cir. 1974). There, the defendant accosted a woman on an Air Force Base in Alabama, threatened her with a screwdriver, and forced her into his car. They then drove to a motel off base where criminal intercourse occurred. On appeal, the defendant claimed that the federal district court lacked jurisdiction to try him under 18 U.S.C. § 2031 .

(Penalty for rape committed within the special maritime and territorial jurisdiction of the United States). The Fifth Circuit’s per curiam opinion stated in language appropriate to the instant case: A sovereign has jurisdiction to try an offense where only a part of that offense has been committed within its boundaries. Ford v. United States, 273 U.S. 593 ³³⁰ (1927); Rivard v. United States, 375 F.2d 882 (5th Cir. 1967), cert. denied, Groleau v. United States, 389 U.S. 884 (1967). Therefore, if appellant committed a part of the crime on federal lands, the federal court had jurisdiction.

" 'The federal crime of rape carries with it the requirement of proof of the use of force by the offender and of an absence of consent by the victim.’ Williams v. United States, 327 U.S. 711, 715 (1946). "in this case the element of force employed by appellant to achieve his purpose began on federal lands and continued to the consummation of the crime at a site off the Air Force Base. We conclude that the trial court had jurisdiction and the judgment of conviction is affirmed.” (Citations omitted.) (Emphasis added.) Closer to home, Adair v. United States, 391 A.2d 288 (D.C.C.A. 1978), held that the District of Columbia had jurisdiction to convict the defendant of mayhem and assault with a dangerous weapon even though the actual attack and malicious disfigurement occurred in Maryland. The victim in Adair was accosted in the District, driven to a tourist home in Maryland, attacked and cut in Maryland, driven back to the District, and there robbed.

The court stated: "Even if we accept as true appellant’s contention that the altercation took place solely in Maryland, he would still be answerable under the laws of the District of Columbia: 'A crime may be a single act and immediate in all its consequences and the locality where it was committed is its "vicinage.” On the other hand, a crime may be the result of a series of acts or the result of a single act. The direct consequences may be made to occur at various times and in different localities. The criminal act, the notice of the perpetrator, the cause, and the effect, are but parts of the complete transaction. Wherever any part is done, ³³¹ that becomes the locality of the crime as much as where it may have culminated.’” Id. at 290.

(Emphasis added.) (Citation omitted.) Thus, the defendant’s continuing interaction with the victim in the District and Maryland was sufficient to confer jurisdiction over all the crimes committed during the episode. 10 Jordan v. United States, 350 A.2d 735 (D.C.C.A. 1976), cited in Adair , held that even though the forcible taking had occurred in Virginia, the defendant could be convicted of robbery in the District because the robbery was not completed until the defendant had escaped with the money. In that case, the defendant and two fellow convicts commandeered a car in Virginia, robbed one of the two occupants at knifepoint and then dropped them off in the District. Chief Judge Reilly stated: "Under the law of this jurisdiction, robbery takes on the characteristics of a continuing offense when there is a lapse of time between the taking and the safe escape of the robber with the proceeds.” Id. at 738. Both Adair and Jordan found no jurisdictional limitations imposed by the District of Columbia statute granting general criminal jurisdiction to the court. 11 States that have relied on common law jurisdiction to try defendants whose crimes crossed state lines include: ³³² Arizona (State v. Scofield, 438 P.2d 776, 1968 ): The court found jurisdiction on the basis that one of the elements of embezzlement — failure to return the leased car — "negatively occurred” in Arizona.

Id. at 784 . The court did not consider where the intent to embezzle was formed, instead relying on the principle enunciated in 21 Am.Jur.2d, § 345, supra. Arkansas (Thomas v. State, 553 S.W.2d 32, 1977 ): The defendant argued that the court’s refusal to direct a verdict of acquittal on an aggravated robbery charge was error because no element of that crime occurred in Arkansas — all criminal activity was in Oklahoma. The court found that one continuous threat of force was applied by the appellant, beginning when he commandeered the victim’s car in Arkansas and culminating in the actual taking of the property.

"The force was initiated in Arkansas and extension of the acts into Oklahoma does not defeat Arkansas jurisdiction.” Id. at 33 . Indiana (Conrad v. State, 317 N.E.2d 789, 1974 ): Defendant was tried in Indiana for a murder in which the fatal blows were inflicted in Ohio. The court instructed that the jury had to find the killing "part of one continuous plan, design and intent” that originated in Indiana with the kidnapping and assault of the victim. Id. at 791 .

The Supreme Court of Indiana affirmed, finding that the assault and abduction provided "an adequate jurisdictional base” for appellant’s conviction of murder....” Id. at 792 . Michigan (People v. Kirby, 201 N.W.2d 355, 1972 ): One of the elements of unlawfully driving away an automobile is the driving away, which, the court held, was continuous in nature, thus extending from Indiana, where all the other ³³³ elements occurred, into Michigan. The court found that Michigan had jurisdiction to try the offense because part of it occurred within the State. Id. at 356-7 and cases cited therein.

New Jersey (State v. Reldan, 400 A.2d 138, 1979 ): The court, relying on "the well-established principle that a sovereign has jurisdiction to try an offense where only part of that offense has been committed within its boundaries,” concluded that some sort of criminal contact transpired in New Jersey. Id. at 141 . Both murder victims had been abducted from their homes in New Jersey. Their bodies were found in upstate New York.

Ignoring the general presumption that death occurs where the body is found, see Batdorf, infra, the court found enough circumstantial evidence to support a reasonable inference that the victims were murdered in New Jersey, and their bodies transported to New York "in an effort to escape this State’s jurisdiction.” Id. at 142 . North Carolina (State v. Batdorf, 238 S.E.2d 497, 1977 ): The defendant was convicted of murder but claimed lack of jurisdiction because the killing occurred in some place other than North Carolina on a trip that began in Ohio. The court held that a prima facie showing of jurisdiction — based on the fact that the body and murder weapon were found in North Carolina — was sufficient to take the question to the jury, and adopted the majority rule that the State must prove jurisdiction beyond a reasonable doubt. Id. at 502-3 .

A number of states have codified the common law rule that the occurrence of essential elements of a crime within the ³³⁴ physical territory of a state is sufficient to give the state jurisdiction. The California Penal Code 12 provides, first, that all persons who commit, in whole or in part, any crime within the state are liable to punishment under the laws of the state, § 27, Subd. 1 and, second, that: "Whenever a person, with intent to commit a