Douglas v. State

• Decision Date: 07 March 2000
• Docket Number: No. 6930,6930
• Citation: 130 Md. App. 666,747 A.2d 752
• Parties: William Sylvester DOUGLAS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

747 A.2d 752

130 Md. App. 666

William Sylvester DOUGLAS v. STATE of Maryland.

No. 6930, Sept. Term, 1998.

Court of Special Appeals of Maryland.

March 7, 2000.

Margaret L. Lanier, Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Kathryn Grill Graeff, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Walter B. Dorsey, State's Attorney for St. Mary's County, Leonardtown, on the brief), for appellee.

Argued before HOLLANDER, EYLER and THIEME, JJ.

EYLER, Judge.

William Sylvester Douglas, appellant, was convicted by a jury in the Circuit Court for St. Mary's County of second degree assault.¹ The circuit court sentenced appellant to a ten-year term of incarceration, suspending all but five years, and in addition, imposed a five-year term of supervised probation. Appellant presents three questions on appeal:

I. Must the commitment record be corrected to reflect the sentence of the trial court?

II. Did the trial court impose an illegal condition of probation?

III. Did the trial court impose an excessive sentence?

We agree that the commitment record must be corrected to reflect the sentence imposed by the circuit court. In all other respects, we affirm the judgment of the Circuit Court.

FACTS

Ms. Fox testified that on June 24, 1998, she lived alone at 21706 Coral Place, and that she had lived there for approximately one month. She stated that she and appellant had a romantic relationship which lasted six or seven months. According to Ms. Fox, the relationship ended three weeks prior to June 24, 1998, the date of the relevant events. Ms. Fox stated that on June 24, 1998, she was six months pregnant.

Ms. Fox testified to the following: On June 24, 1998, her mother, sister, and "a young fellow" visited her at the Coral Place house. She was wearing a nightgown, with nothing underneath. The visitors left at approximately 10:20 that night. When they left, she went outside to see them off. When she returned to the house, she saw appellant behind her. Appellant asked if he could come in, but Ms. Fox told him no, because he was intoxicated.

Ms. Fox further testified:

He yanked the door from me and the next thing I know he had pushed me and I had fell onto the floor and I hit my back, I hit my head. I got up and then he pushed me onto the couch. I had food on the couch. And then he came up to me and he said, "after all I did for you, you mean to tell me I can't stay here?" And he hit me with a closed fist in my left eye, and my glasses embedded in my eye, and then my first reaction was to grab him by his shoulder and to ask him to sit down beside me and to talk to me and tell me what was wrong.

Ms. Fox stated that appellant sat beside her and "jumped back up and he looked at [her] in [her] face" and said, "[W]ell, I have already done this. I might as well finish you off." She stated that appellant began walking around in circles, holding his head, and that his eyes were "doing funny stuff." According to Ms. Fox, appellant then told her that she could call the police, and that he was not going to do anything to her. She stated that she told him that she was not going to call the police. According to Ms. Fox, appellant then told her he wanted to go to bed, and she told him that she did not want to go to bed. According to Ms. Fox, "[H]e got in my face and started flinching at me like he was going to hit me again."

Ms. Fox got up to go to the bathroom. Appellant then said to her, "[W]here are you going? You are going to call the police and you called the police on me the last two times. If I go to jail this time I am going to have something to go to jail for." Ms. Fox went to the bathroom and closed the door. Appellant kicked in the bathroom door. When Ms. Fox left the bathroom, she walked toward the living room, but appellant blocked her by "using his chest to push up against [her] chest." Appellant then asked her again if she was going to call the police, and she again told him that she was not. Ms. Fox then went into the bedroom. At that point, according to Ms. Fox,

he said if he was in his right mind, he put his finger up to my head, I ought to blow your mother F-ing head off right now. He talked about he knew where some buddies of his from D.C. that [sic] could finish me off.

Ms. Fox testified that she was "fearful."

Appellant again asked Ms. Fox to go to bed with him and she refused. According to Ms. Fox, appellant told her "if I was his brother's girlfriend, I would be dead right now. He would kill me."

Appellant again asked Ms. Fox to have sex with him, and she again refused. Appellant said, "[Y]ou don't want me to get stupid around here." He "started walking around in circles again, holding his head." He asked Ms. Fox again to have sex and again she refused. According to Ms. Fox, appellant "took his knee and I [sic] put it up against my chest and he pressed me down on the bed and he had his hands pressed down on my shoulders." Ms. Fox told him to get off her because she could not breathe. Appellant got up and began to laugh at Ms. Fox. He "kept talking about some guns he knew about."

According to Ms. Fox, appellant asked her to have sex a couple more times, and she refused each time. She testified that appellant then raped her.² Ms. Fox further testified that, after the rape, appellant told Ms. Fox to stay on the bed near the wall. She stated that he lay down next to her, and both went to sleep.

The next morning, Ms. Fox drove appellant to work. Ms. Fox then went to her grandmother's house and told her family about the assault, but not the rape. Ms. Fox's aunt encouraged her to call the police. Ms. Fox called the sheriff's department, and a male deputy came to her grandmother's house. She told him about the assault, but not the rape. After speaking to the deputy, she went to the District Court Commissioner and told her about both the assault and the rape. She told her aunt about the rape after she had told the Commissioner. After she told her aunt, she again spoke to the deputy and told him about the rape. Ms. Fox stated that she had not told the deputy about the rape at first because she was embarrassed, and because she was afraid of appellant.

On cross-examination Ms. Fox stated that appellant had initially lived with her at the Coral Place address and that both his name and her name were on the lease. She stated that she had taken his name off the lease, but she did not specify when she had done so. Ms. Fox further testified that the rape occurred 30 to 45 minutes after appellant had pressed her against the bed.

Appellant's version of the incident was different from Ms. Fox's. According to appellant, on June 24, 1998, he was living with Ms. Fox at the Coral Place address. He was in and out of the house that day because he had been laid off. Appellant stated that there was no one other than Ms. Fox at the house that day.

Appellant testified to the following: At one point in the evening, he went to his mother's house, then returned a little while later. Shortly afterward, he decided to go outside. He and Ms. Fox argued because she thought that he was going to see another woman. He wanted to leave to end the argument, but Ms. Fox would not let him. Ms. Fox was standing in front of the door, and "kept smacking" him on the head. Appellant testified that he "just reacted" and that he hit her in the right eye with his open fist. He stated that he had not meant to hurt her.

According to appellant, after he hit Ms. Fox, they both sat on the couch and he apologized to her. Appellant stated that, after that, they went to bed. Appellant stated that they had had consensual sex on the morning of June 24th but that they did not have sex when they went to bed that night. According to appellant, the next morning, Ms. Fox drove him to work.³

DISCUSSION

I.

Appellant's first contention is that the record must be corrected to reflect the sentence imposed by the circuit court. We agree.

At the sentencing hearing, counsel told the circuit court that appellant had been incarcerated since July 3, 1998. In addition, the docket entry for February 16, 1999, the date of sentencing, states that appellant's sentence is to begin on July 3, 1998.⁴ The circuit court ordered that appellant's sentence begin on that date. However, the commitment record states that appellant's sentence is to run "[c]oncurrent w/any other outstanding or unserved sentence and begin on July 23, 1998."

When there is a conflict between the transcript and the commitment record, unless it is shown that the transcript is in error, the transcript prevails. See Dedo v. State, 105 Md.App. 438, 461, 660 A.2d 959 (1995), rev'd on other grounds, 343 Md. 2, 680 A.2d 464 (1996). In the present case, the transcript and the docket entry both reflect the date of July 3, 1998 as the starting date for appellant's sentence. The commitment record should be amended to reflect the starting date of July 3, 1998.

II.

Appellant's next contention is that the circuit court imposed an illegal condition of probation. The court sentenced appellant to a term of ten years' incarceration, with all but five years suspended. The court also placed appellant on supervised probation for a term of five years after his release from incarceration and ordered, as a condition of that probation, that appellant have no contact with Ms. Fox. Appellant signed a probation agreement, which stated that he understood the terms of his probation and that he agreed to them.

Ms. Fox testified that she was six months pregnant on June 24, 1998. At the sentencing hearing, the circuit court noted that Ms. Fox had delivered the child.

Appellant now contends that the condition of probation is improper for two reasons. First, he contends that "contact" is vague. Second, he contends that the "no contact" provision impacts upon custody and visitation of his child and that it was beyond the jurisdiction of the...