Lane v. State

• Decision Date: 01 September 1996
• Docket Number: No. 130,130
• Citation: 348 Md. 272,703 A.2d 180
• Parties: Patrick T. LANE v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 272

348 Md. 272

703 A.2d 180

Patrick T. LANE v. STATE of Maryland.

No. 130, Sept. Term, 1996.

Court of Appeals of Maryland.

Dec. 15, 1997.

Michael R. Malloy, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for appellant.

Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellee.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER and WILNER, JJ., and ROBERT L. KARWACKI, J. (retired), Specially Assigned.

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 convictions 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.

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 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 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 (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...