Appeal from the Superior Court of the District of Columbia; Hon. Gladys Kessler, Trial Judge
Newman, and Ferren, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Newman
Brown was convicted of (1) unarmed first degree burglary (D.C. Code § 22-1801 (a) (1981)), (2) armed assault with intent to commit rape of a 15-year-old girl (D.C. Cede § § 22-501, -3202 (1981)) and (3) carnal knowledge of the same girl (statutory rape) (D.C. Code § 22-2801 (1981)). For these crimes Brown was given three consecutive sentences of 10 to 30 years imprisonment. Brown contends that he may not be convicted of both carnal knowledge (statutory rape) and an assault with intent to commit rape for a single act upon a 15-year old girl. We hold that "carnal knowledge of a female forcibly and against her will", D.C. Code § 22-2801 (1981), and carnally know a female child under age 16 years of age," id., are but two different theories on which the jury might convict of the crime of rape under D.C. Code § 22-2801. It was a violation of the Double Jeopardy clause of the 5th Amendment of the U.S. Constitution to sentence appellant twice for the same crime. Thus we remand to the trial court with direction to vacate the assault with intent to commit rape while armed conviction The trial court may then resentence to effectuate its original sentencing intention. See Thorne v. United States, 471 A.2d 247 (D.C. 1983).
One night in May 1988, Brown, while armed, entered the apartment of Tarita, a 15-year-old girl. Tarita was asleep in her bed at the limb When she suddenly awoke, she found Brown kneeling over her with a knife in his hand. She jumped up and yelled for help. She was able to push Brown off her and run to the front door. Before she was able to escape, Brown pulled her back. Eventually he got Tarita into her mother's bedroom. There, Brown pulled his pants down and used his fingers to put his non-erect penis into her vagina.
Brown was indicted for first-degree burglary while armed, see D.C. Code §§ 22-1801 (a), -3202, rape while armed, see D.C. Code § § 22-2801, -2302, and carnal knowledge of a child under 16 years of age, see D.C. Code § 22-2801. After a jury trial, he was convicted of unarmed first degree burglary, armed assault with the intent to commit rape and carnal knowledge.
D.C. Code § 22-2801, the "Definition and penalty" provision of D.C. Code, ch. 28, "Rape", states:
Whoever has carnal knowledge of a female forcibly and against her will or whoever carnally knows and abuses a female child under 16 years of age, shall be imprisoned for any term of years or for life.
The government contends that this section of the Code establishes two separate crimes: (1) what has traditionally been known as common law rape, and (2) what is commonly referred to as statutory rape or carnal knowledge. We disagree with the government's contention.
In a recent decision, Scutchings v. United States, 570 A.2d 1197 (D.C. 1990), we held that common law rape and statutory rape (carnal knowledge) are not two separate crimes but that "or purposes of sentencing, . . . rape and carnal knowledge are to be treated the same." Id. at 1198. In another case that is binding on this court, Sanselo v. United States, 44 App. D.C. 508 (1916), the court reached the same Conclusion. Neither Scutchings nor Sanselo, however, explicitly addresses the question whether common law rape and statutory rape are the same for double jeopardy purposes, because neither case involved two convictions. Rather, both cases concerned the question whether the sentence for assault with intent to commit carnal knowledge is the same as the sentence for assault with intent to commit rape. Nonetheless, those cases dictate the result in the present case. As we have stated in another context, without a sentence there is no conviction See Langley v. United States, 515 A.2d 729, 733-35 (D.C. 1986) (defendant may not be impeached with prior guilty verdict unless and until there is judgment of conviction premised on sentence). It follows that if two crimes are the same for sentencing purposes, they are also the same for double jeopardy purposes. Indeed, Sanselo explains that the rape statute the Court considered in that case (which is virtually identical to the present statute set forth one crime, provable in two ways. Sanselo states that:
A reading [of the statute] discloses that whoever has carnal knowledge of a female forcibly and against her will, or carnally knows or abuses a female under the age of sixteen years, is guilty of the offense denounced; namely rape. . . . Whoever has carnal knowledge of a woman forcibly and against her will is guilty of one phase of the crime denounced. Whoever carnally knows or abuses a female child under the age stated is guilty of the other phase of that crime.
Sanselo, supra, 44 App. D.C. at 510 (emphasis in original). Thus, the crime of rape can be committed either by (1) carnal knowledge of a female forcibly and against her will or by (2) ...