Appellant William M. Blandon was tried by a jury in the Circuit Court for Baltimore City (Arabian, J.) and convicted of attempted rape in the second degree. He was sentenced to twenty-five years imprisonment without possibility of parole. Blandon contends, in this appeal, (a) that he is entitled to a new trial by reason of the prosecutor's commenting on his failure to testify, (b) that he could not be sentenced as a subsequent offender under the enhanced penalty statute, Md. Ann. Code art. 27, § 643B (Supp. 1984) because attempted rape in the second degree is not a "crime of violence" under that statute, (c) that his prior convictions predating the enactment of Section 643B cannot be used to enhance his sentence. We reject Blandon's contentions and affirm the judgment of the Circuit Court.
During the opening statements, defense counsel stated that Blandon would take the stand and described to the jury what he would say. At the close of the evidence, however, Blandon elected not to testify. The trial judge advised counsel that she would instruct the jury on the defendant's right to remain silent and that the opening statement should not be considered by the jury in any way. During the closing arguments, defense counsel stated that the defendant has a right to remain silent and that the jury is not to infer guilt from his election not to testify. In closing argument, counsel for the State said to the jury:
Defense counsel requested no further relief in the form of either a motion to strike, for mistrial, or other cautionary instructions. After closing arguments, the court instructed the jury that the defendant has a right not to testify and no inference is to be drawn because of the defendant's absence from the stand.
The State's initial comment on Blandon's failure to testify referred to appellant's opening statement indicating that "he is going to tell you a different story." Appellant's counsel then proceeded to outline the chronology of events that appellant would relate. In Eastman v. State, 47 Md.App. 162, 422 A.2d 41 (1980), we said:
The State's comment was a permissible neutral reference regarding the evidence that implicitly referred to appellant's silence. Eastman, supra; Hutchinson v. State, 41 Md.App. 569, 398 A.2d 451 (1979).
Appellant's objection to the State's second comment concerning appellant's not testifying was sustained by the trial court. Absent a motion to strike, a request for mistrial or a further cautionary instruction, there is nothing for us to review. Md.Rule 1085, Williams v. State, 4 Md.App. 558, 244 A.2d 476 (1968).
Blandon was sentenced as a repeat offender under Maryland's enhanced penalty statute, Md. Ann. Code art. 27, § 643B (Supp. 1984), which imposes a mandatory sentence of twenty-five years imprisonment for any person who is convicted a third time of a "crime of violence." Blandon argues that his conviction of attempted rape in the second degree is not a "crime of violence" as defined by Section 643B(a). The statute reads as follows:
Blandon argues that because the statute does not specifically list second degree rape as a "crime of violence," his conviction for attempted rape in the second degree cannot be used to invoke the mandatory sentence of Section 643B(c). We reject this argument and hold that second degree rape is a "crime of violence" within the meaning of Section 643B(a).
The original Section 643B became effective on July 1, 1975 and defined "crime of violence" as meaning "abduction; arson; kidnapping, manslaughter, except involuntary manslaughter; mayhem; rape; and robbery; or an attempt to commit any of these offenses." Laws of Maryland 1975 Ch. 253, effective July 1, 1975. At that time, the Maryland rape statute was primarily a sentencing law, fixing the penalties without actually defining the crime. Goldberg v. State, 41 Md.App. 58, 395 A.2d 1213 (1979). The common law crime of rape was generally defined 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." Hazel v. State, 221 Md. 464, 157 A.2d 922 (1960); Coward v. State, 10 Md.App. 127, 268 A.2d 508 (1970).
In 1976, the Maryland legislature enacted comprehensive legislation which codified and structured by degree rape and other sexual offenses. Md. Ann. Code art. 27, § 461, et seq. Section 462 of the Act, entitled First Degree Rape, codifies the common law definition of rape in non-gender specific terms. Md. Ann. Code art. 27, § 462; Note, "Rape and Other Sexual Offense Law Reform in Maryland 1976-1977," 7 U.Balt.L.Rev. 151, 159 (1977). The distinguishing feature of first degree rape is the presence of aggravating circumstances such as the use or display by the offender of a dangerous or deadly weapon. Section 462(a)(1); the infliction of suffocation, strangulation, disfigurement, or serious physical injury, Section 462(a)(2); the offender's threatening or placing the victim in fear that the victim or any person known to the victim will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping, Section 462(a)(3); or the offender's committing the offense aided or abetted by one or more persons. Section 462(a)(4).
Section 463 defines Second Degree Rape as follows:
When the legislature enacted the original enhanced penalty statute there was no need to specify that it applied to both degrees of rape for the simple reason that there was only one degree of rape at that time. Section 643B does, however, specify that a "crime of violence" includes both first and second degree sexual offense. The crimes of second degree rape, see supra, and second degree sexual offense, Md. Ann. Code art. 27, § 464A (1982), are identical, except that second degree rape refers to "vaginal intercourse" whereas second degree sexual offense refers to "sexual act." We cannot believe that the Maryland legislature would intend that a "crime of violence" under Section 643B include second degree sexual offense and not include second degree rape. The cardinal rule in the construction of statutes is to effectuate the real and actual intention of the legislature, State v. Fabritz, 276 Md. 416, 421, 348 A.2d 275 (1975). Therefore, we conclude that the term "rape" as employed in Section 643B(a) defining "crime of violence" includes both first and second degree rape.
Appellant's third contention is that his two prior convictions of crimes of violence under Section 643B cannot be used to enhance his sentence under that section because the prior convictions, occurring in 1966 and 1975, took place before the effective date of Section 643B. A similar argument was rejected by this Court in Hawkins v. State, 58 Md.App. 91, 472 A.2d 482, cert. granted 300 Md. 154, 476 A.2d 723 (1984).
In Hawkins, appellant was convicted of robbery with a dangerous weapon. He had two previous convictions, in 1977 and 1979, for daytime housebreaking, which were not "crimes of violence" under Section 643B(a) at the time of their commission.
JUDGMENT AFFIRMED. COSTS TO BE PAID BY APPELLANT.