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State v. Maizeroi, sttorneys and footnotes

Attorneys for State:

Stephanie Anderson, District Attorney
Julia Sheridan, Asst. Dist. Atty., (orally)
142 Federal Street
Portland, ME 04101

Attorney for defendant:

Robert A. Levine, Esq., (orally)
17 South Street
Portland, ME 04101
FOOTNOTES******************************** {1} . The relevant sections read: § 253. Gross sexual assault 1. A person is guilty of gross sexual assault if that person engages in a sexual act with another person and: A. The other person submits as a result of compulsion, as defined in section 251, subsection 1, paragraph E; 17-A M.R.S.A. §253(1)(A) (1983 and Supp. 1999). § 251(1)(E). "Compulsion" "Compulsion" means the use of physical force, a threat to use physical force or a combination thereof that makes a person unable to physically repel the actor or produces in that person a reasonable fear that death, serious bodily injury or kidnapping might be imminently inflicted upon that person or another human being. "Compulsion" as defined in this paragraph places no duty upon the victim to resist the actor. 17-A M.R.S.A. §251(1)(E) (1983 and Supp. 1999). {2} . The relevant section reads: § 255 Unlawful sexual contact 1. A person is guilty of unlawful sexual contact if the person intentionally subjects another person to any sexual contact, and: H. The other person submits as a result of compulsion. 17-A M.R.S.A. § 255(1)(H)(1983 and Supp. 1999). {3} . Maizeroi was sentenced to five (5) years with all but 16 months suspended, and two years of probation. Lawrence Westbrook plead guilty to committing a sexual assault against the victim. {4} . In Robinson the court instructed the jury that "[i]f a couple consensually engages in sexual intercourse and one or the other changes his or her mind, and communicates the revocation or change of mind of the consent, and the other partner continues the sexual intercourse by compulsion of the party who changes his or her mind, then it would be rape. The critical element there is the continuation under compulsion." Robinson at 1069. {5} . During trial the following exchange occurred between the victim and the State: Q:When Lawrence was on top of you having intercourse with you did he say anything to you? A:I don't remember. Q:You remember telling the police in a statement that you gave Detective Boudreau that Lawrence had asked you if you liked it and that you answered him? A:Yeah, I did. Q:When Lawrence asked you, do you remember him asking you that? A:Slightly. Q:Okay. You remember telling the police about that? A:Yes. Q:Do you remember when Lawrence asked you if you liked it if you answered him back? A:No, not really. Q:Do you remember telling the police, Detective Boudreau specifically, that you did not answer back when he asked you if you like it? A:No. Q:Did you ever tell Detective Boudreau that you answered yes to that question if you liked it? A:No. Q:Do you remember telling Detective Boudreau why you answered yes to Lawrence's question if you liked it? A:I don't remember. Upon reexamination by the State, and after having her recollection refreshed, the victim testified as follows: Q:Does that refresh your recollection about Lawrence Westbrook asking you if you liked it while you were in the car seat with him? A:Yes. Q:What did Lawrence say about asking you if you liked it? What did he say? A:Yes. Q:And how did you respond? A:I said yes so that he would maybe stop and get off. {6} . Maizeroi points to the following grand jury testimony as inconsistent with the victims trial testimony: Q:Did Lawrence say anything to you while he was having intercourse with you? A:He just said, does it feel good or something. Q:Okay. When Lawrence said, does it feel good, did you answer him at first? A: Not at first. Q:Did he -- did you eventually answer him? A:Yes. Q:Why did you eventually answer him? A:For him to stop saying it. {7} . Because we find the trial testimony to be consistent with the grand jury testimony, the court did not abuse its discretion in excluding the grand jury testimony. See State v. Robbins, 666 A.2d 85, 86 (Me. 1995) (we review the trial court's evidentiary ruling to exclude evidence for an abuse of discretion).

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