Nature of the Case
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Facts
D saw his estranged wife, Janet, at a bowling alley. She was part of a group of three males and three females. She was cordial to D. Her group decided to leave the alley and take the party to another's apartment. Some of the group went four-wheeling. D, who left the bowling alley shortly after his estranged wife's group. D met some of the party who went four-wheeling. D did not see his wife and learned that she was back at the apartment of another. D went to the sixth-floor apartment. Janet looked through the peephole and recognized D, but neither opened the door nor acknowledged that she was inside. D beat on the door and tried the doorknob, but eventually, he stopped. Janet peeped through a window and saw him getting into his car. She thought he had left. D then returned and climbed up the outside of the building. D pounded on the sliding glass door. D opened the balcony door. D charged into the apartment, ran into the bedroom and leaped on top of Janet's companion, punching him and yelling that he had 'caught' them. D demanded that the other man 'step outside.' Janet ran to the kitchen to call the police, but D pursued her, ripped the phone from her hand, tore the cord from the phone, and shoved her away. D fought with the man and knocked Janet down. D continued to demand that the other man step outside. The other man finally agreed, but only to talk, not to fight. D then slammed the door on the man as he walked out. He tried to gain entry by knocking on the door got no response and heard nothing but screaming. D dragged Janet into the bedroom. She resisted, to no avail. She asked for water and when she was finished drinking D proceeded to have intercourse with her as she tried to fight him. Janet continued to scream and resist. The security guard opened the door, and Janet was found lying on the floor, at the foot of the bed, curled up in the fetal position with her pants and underpants down to her ankles. She had red marks on her back and was sobbing hysterically. D was observed buckling up his pants and sweating profusely. D admitted he tried to rape her. D and Janet were living separate and apart at the time of the attack. D was indicted and convicted of attempted rape. D moved to dismiss the indictment on the ground that pursuant to common law principles, a husband cannot be convicted of raping his wife. The trial court denied that motion during trial. D appealed his conviction.
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