A jury in the Circuit Court for Montgomery County convicted appellant James Henry Watson of first degree rape, second degree rape, assault with intent to rape, and battery. The court sentenced appellant to life imprisonment on the first degree rape count and reserved sentencing as to the other counts. Appellant raises the following issue:
Did the trial court err in allowing evidence of appellant’s prior attempted rape conviction to be admitted for impeachment purposes? 1
Pretrial, appellant sought a ruling on the admissibility, for impeachment purposes, of his 1982 conviction in Virginia for attempted rape. The trial judge ruled that rape was an infamous crime, and that since he had no discretion to rule otherwise, the attempted rape conviction was admissible under Md.Cts. & Jud.Proc.Code Ann., *171 § 10-905. 2 The trial judge emphatically stated that if he had discretion in the matter he would not have admitted the prior attempted rape conviction because the prejudicial impact of the evidence would outweigh its probative value. During trial, at the close of the direct examination of appellant, consistent with his pretrial ruling, the trial judge ruled that the attempted rape conviction was admissible for impeachment purposes. In his cross-examination of appellant, the prosecutor did elicit the fact of the Virginia conviction. 3
Appellant argues that attempted rape is not an infamous crime and therefore not admissible under § 10-905, and that even if it is an infamous crime, the trial court could have invoked its discretion to exclude the evidence. In
Duckett v. State,
1. The credibility of a witness is always a relevant issue in any case, civil or criminal;
2. When a defendant in a criminal case elects to testify in his own defense, he subjects himself to the same *172 rules of cross-examination that govern other witnesses;
3. Evidence of a witness’ prior conviction of an infamous crime is always admissible to impeach his credibility regardless of the age of that conviction. Md. Code (1974, 1984 Repl.Vol.), § 10-905 of the Courts and Judicial Proceedings Article;
4. The admissibility of evidence of a witness’ prior conviction of a non-infamous crime is left to the sound discretion of the trial judge who must consider the nature of the crime and length of time since it occurred in determining the relevance of the conviction to the witness’ credibility. 4
*173 Here, we are concerned only with the category of offenses which is defined as infamous crimes. In Cason we stated:
While evidence of a prior conviction for an infamous crime is always admissible to impeach credibility, [Rick etts]291 Md. at 706 [436 A.2d 906 ]; Md. Courts and Judicial Proceedings Code Ann. § 10-905, “[t]he admissibility of evidence of a witness’ prior conviction of a non-infamous crime is left to the sound discretion of the trial judge who must consider the nature of the crime and length of the time since it occurred in determining the relevance of the conviction to the witness’ credibility.” 5
This Court has recognized the trend in other jurisdictions restricting prior conviction evidence used to impeach criminal defendants.
See Duckett,
The issue which remains to be resolved is whether appellant’s Virginia attempted rape conviction constitutes an
*174
“infamous” crime under § 10-905. This Court has had occasion to analyze the effect of foreign convictions in applying Maryland statutory provisions in the context of the enhanced punishment statute. The enhanced punishment statute, Md.Ann.Code, art. 27, § 643B, allows imposition of a mandatory life sentence upon a third conviction of a “crime of violence” as defined by the statute. In evaluating whether foreign convictions are “crimes of violence” as required by the statute, a two step process has evolved. First, we determine whether the Maryland counterpart to the foreign crime is one of those classified in the statute as a “crime of violence.”
See DiBartolomeo v. State,
Section 10-905 allows, for purposes of impeachment, the admission into evidence of “infamous” crimes as defined by Maryland law. First, we must determine what Maryland offense is counterpart to the Virginia crime of attempted rape. Second, we shall decide whether the counterpart Maryland offense is an infamous crime. If the counterpart Maryland offense is an infamous crime, then we must examine the Virginia offense to determine if its elements are sufficiently limited to those elements by which the crime is established in this State. If so, the foreign offense is an infamous crime for purposes of applying § 10-905.
*175
The Maryland crimes of attempted rape and assault with intent to rape could be embodied within the crime of attempted rape in Virginia. In Maryland, attempted rape, a common law misdemeanor, requires an intent to rape and any step towards completion of the offense.
See Hines v. State,
In Virginia, attempted rape requires an intent to commit rape and a “direct, ineffectual act” done towards its commission which must “reach far enough towards accomplishment of the desired result to amount to the commencement of consummation.”
Chittum v. Commonwealth,
Virginia case law, however, does indicate that assaultive behavior is not a necessary element of attempted rape in Virginia, and therefore, as in Maryland, threats alone could sustain a conviction of attempted rape.
6
Ingram,
Here to determine whether the Maryland offense of attempted rape is an infamous crime, we must apply the definition of “infamous crimes” as developed by Maryland case law. Ricketts quoted two definitions from prior case law:
In 1884 this Court explained in State v. Bixler,62 Md. 354 , 360 (1884) that at common law “[a]n ‘infamous crime’ is such crime as involved moral turpitude, or such as rendered the offender incompetent as a witness in court, upon the theory that a person would not commit so heinous a crime unless he was so depraved as to be unworthy of credit.” In Garitee v. Bond,102 Md. 379 , 383,62 A.2d 631 [62 A. 631 ] (1905) we further elaborated:
The crimes which the common law regarded as infamous because of their moral turpitude were treason, felony, perjury, forgery and those other offenses, classified generally as crimen falsi, which impressed upon their perpetrator such a moral taint that to permit him to testify in legal proceedings would injuriously affect the public administration of justice.
The point we stress is that an indecent exposure conviction, without more, says little about the conduct for which the person was convicted. Because the offense requires only a general intent, the gamut of offenses and circumstances that fall within the ambit of the crime are so widely varied that, while one person may indeed have shown a moral depravity sufficient to impact upon his credibility, another may have committed a very minor infraction indicative of nothing more than momentary poor judgment perhaps dictated by necessity. The intent *178 required for the crime does not require the accused to have performed a flagrant act damnable as an affront to decency and social norms but encompasses acts committed where the accused was unaware that his or her lack of apparel would be noticed.
It is this vagueness or uncertainty in the nature of the offense that makes it difficult to classify indecent exposure as infamous or something less. As we have noted, the crimes that are normally associated with the term “infamous because of their moral turpitude [are] treason, felony, perjury, forgery and those other offenses, classified generally as crimen falsi, ” Garitee v. Bond, supra,102 Md. at 383 [62 A. 631 ]. They leave no doubt as to the type of conduct committed and condemned. The courts, legislature, and society have made the determination that such crimes, because they show such a lack of regard for societal norms and values, are relevant in assessing the credibility of one who has been convicted of those offenses. It is our view that the wide spectrum of conduct and degrees of depravity associated with indecent exposure make it clear that it does not conform with those offenses regarded as infamous. We, therefore, conclude that whatever else it may be, indecent exposure is not an infamous crime.
To facilitate application of the definition of infamous crimes, we shall analyze
Bixler, Garitee
and
Ricketts
and restate the definition. The effect of a conviction of an infamous crime at common law was to disqualify the offender from testifying.
See
21 AmJur. § 25 (1981); 22 C J.S. § 3 (1961). Today, except in the case of perjury, the offender may still testify, but infamous crimes may be used to impeach that testimony. Three major categories of crimes existed at common law: treason, felonies and misdemeanors.
See
21 AmJur. § 29 (1981); 22 C.J.S. § 5 (1961). Hence, the
Garitee
definition breaks down the definition of infamous crimes into these three categories, and states that treason and all felonies are infamous. We recently indi
*179
cated in
Gorman v. State,
Garitee, Bixler and Ricketts go on to define what misdemeanors are considered infamous crimes. The Garitee definition includes perjury and forgery, because these were misdemeanors at common law, see, Clark & Marshall Crimes, 7th Ed. § 2.02 at 113-114 (1967), as well as all other misdemeanors classified as “crimen falsi” in the definition of infamous crimes. It is in the defining of misdemeanors that qualify as infamous crimes that courts must struggle to the greatest degree with the case law standard.
Therefore, “infamous crimes” as derived from the case law are:
1. All Felonies.
2. Misdemeanors,
(a) Involving moral turpitude 8 because the offenses encompass such depraved behavior that it necessarily impacts upon credibility, or,
(b) Categorized as “crimen falsi” 9 because the offense involves deceit or dishonesty.
*180
Rape, generally defined as forced sexual intercourse,
10
see
Md.Ann.Code art. 27, §§ 462 and 463 (1982), is a felony and therefore necessarily an infamous crime. Here, however, we are concerned with attempted rape, which while a felony in Virginia, is not a felony in Maryland. Further, unlike assault with intent to commit rape, attempted rape in Maryland may be established by proving only threats.
We think it clear from an examination of the elements of assault with intent to rape and attempted rape that, while the purpose to engage in illicit coitus is attendant in each offense, the crimes are different. If an attempt to commit a rape proceeds to a degree where it is tantamount to an assault upon the victim, the offense becomes the felony of assault with intent to rape, but if the attempt to rape falls short of an assault, the offense remains a common law misdemeanor. Burton v. State,8 Ala.App. 295 ,62 So. 394 (1913). See also Taff v. State,69 Tex.Crim. 528 ,155 S.W. 214 (1913).
Attempted rape, however, does require that the defendant form the intent to commit rape and take a step toward completion of the offense. Forming an intent to commit such a heinous crime, which involves the violation of another human being’s person, combined with some act in furtherance of completion of the crime, constitutes a gross violation of societal norms. We hold that since the Mary *181 land offense of attempted rape embodies behavior so depraved that it casts a moral taint on the individual sufficient to impact upon his credibility it is an infamous crime. 11 Further, since the Virginia offense of attempted rape minimally requires behavior identical to the Maryland offense, the Virginia offense here at issue qualifies as an infamous crime. The trial court therefore did not err in admitting the attempted rape conviction as an infamous crime under Md. Cts. & Jud.Proc.Code § 10-905.
JUDGMENT AFFIRMED;
COSTS TO BE PAID BY APPELLANT.
Notes
. At oral argument, appellant withdrew the sentencing issue presented in his brief.
. Section 10-905 states in pertinent part:
(a) In general. Evidence is admissible to prove the interest of a witness in any proceeding, or the fact of his conviction of an infamous crime. Evidence of conviction is not admissible if an appeal is pending, or the time for an appeal has not expired, or the conviction has been reversed, and there has been no retrial or reconviction.
. Although there was no objection when appellant was actually asked about the prior attempted rape conviction, in view of the extensive arguments, both pretrial and at the end of the direct examination of appellee, and the proximity of the latter to the asking of the question, we shall treat the point as preserved.
See Standifur v. State, 64
Md.App. 570, 580-81,
. Beyond
Ricketts,
this statement is subject to various exceptions based upon statutory provisions or cases which provide that certain crimes are not admissible, based upon either their relative insignificance in assessing credibility,
see e.g., Lowery v. State,
. This statement must be read considering the limitations set out in Ricketts and Duckett and in note 4, supra.
. If assaultive behavior were an element of the crime of attempted rape in Virginia, the Maryland equivalent would seem to be assault with intent to rape.
. This includes the felony of manslaughter, even involuntary manslaughter, which clearly appears not to fit the definition of infamous crime and the inclusion of which strains the rationale for the classification of all felonies as infamous crimes.
. Black’s Law Dictionary, 5th Ed. (1979) defines "moral turpitude” as follows:
The act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general, contrary to accepted and customary rule of right and duty between man and man.
. Black’s Law Dictionary, 5th Ed. (1979) defines "crimen falsi” as follows:
Term generally refers to crimes in the nature of perjury or subornation of perjury, false statement, criminal fraud, embezzlement, false pretense, or any other offense which involves some element of deceitfulness, untruthfulness, or falsification bearing on witness’ propensity to testify truthfully.
. In Virginia, where appellant’s prior offense occurred, rape is statutorily defined as follows:
Rape.—If any person has sexual intercourse with a female or causes a female to engage in sexual intercourse with any person and such act is accomplished (i) against her will, by force, threat or intimidation, or (ii) through the use of the female's mental incapacity or physical helplessness, or (iii) with a female child under age thirteen as the victim, he or she shall, in the discretion of the court or jury, be punished with confinement in the penitentiary for life or for any term not less than five years.
Va.Code, § 18.2-61 (1982).
. Appellant relies on
Dutton v. State,