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State v. Teddy Maizeroi
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 187
Docket:	Cum-99-756
Argued:	September 5, 2000
Decided:	October 30, 2000

Panel:	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.


STATE OF MAINE v. TEDDY MAIZEROI


RUDMAN, J.

	[¶1]	Teddy Maizeroi appeals from a judgment entered in the
Superior Court (Cumberland County, Atwood, J.) following a jury verdict of
guilty on one count of gross sexual assault.  17-A M.R.S.A. § 253(1)(A) (Class
A).{1}  The jury returned a verdict of not guilty for Maizeroi on a second
charge of unlawful sexual contact.  17-A M.R.S.A. § 255(1)(H) (Class C).{2} 
Maizeroi contends (a) that the trial court improperly instructed the jury
regarding what constitutes compulsion; (b) that the trial court erred in
instructing the jury that the victim had no duty to resist Maizeroi; (c) that
there was insufficient evidence to prove the compulsion element of the
offense of gross sexual assault; (d) that the guilty verdict on Count 1, gross
sexual assault, is inconsistent with the not guilty verdict on Count 2,
unlawful sexual contact, and therefore mandates reversal; (e) that the trial
court erred in excluding "inconsistent" grand jury testimony proffered to
establish motivation to fabricate a lack of consent; (f) that the trial court
erred in admitting evidence that the victim had attended counseling
following the rape allegation; and (g) that the trial court erred in instructing
the court reporter to excise certain portions of the cross-examination of the
victim, when reading back testimony to the jury.  We conclude that the court
did not err, and, therefore, we affirm the judgment of conviction.
I. BACKGROUND
	[¶2]	On April 18, 1999, 20-year-old Teddy Maizeroi and some of his
friends, including 19-year-old Lawrence Westbrook, went to a party in
Windham, at the home of a 16-year-old friend of the victim.  The friend's
parents were away on vacation at the time of the party.  The hostess and
Westbrook had met the night before the party, at the Metropolis, a
chemical-free Portland night club for teens. 
	[¶3]	Westbrook, Maizeroi, and his friends rode to the party together
in a white Suburban.  To avoid attracting attention to the fact they were
having a party, the group parked the Suburban at a home three (3) houses
down the street from the victim's friend's home.  Also present at the party
was the 16-year-old victim.  Although they were minors at the time of the
party, the party-goers were all consuming alcohol.  Early in the evening
Westbrook and the hostess engaged in consensual sexual relations.
	[¶4]	The victim admitted that, throughout the evening, she had been
drinking "sysco, and boonie's and vodka," and that she had kissed
Westbrook and Maizeroi.  She testified that she discovered, at some point
during the evening, that Westbrook and her friend had engaged in
consensual sexual intercourse.  Later in the evening Westbrook asked the
victim if she would like to go outside.  At first she declined but,
subsequently, agreed to go outside with Westbrook.  She assumed they were
"going out to smoke or something."  Maizeroi followed them outside.  When
they were outside of the house, the three walked toward the Suburban, with
Westbrook holding one of the victim's arms and Maizeroi holding the other. 
As a result of her alcohol consumption, the victim acknowledged that she
"couldn't really walk that good."   
	[¶5]	Once at the Suburban, the victim entered from the passenger
side and sat on the center seat with Westbrook, while Maizeroi initially
stood outside the vehicle.  The victim and Westbrook then began kissing. 
When Westbrook attempted to lay on top of her, however, she testified that
she told him to get off.  She testified that Westbrook then unbuckled her
pants and Maizeroi, who was still standing outside the car, reached into the
vehicle and pulled off her pants.  She further testified that while Westbrook
was engaged in intercourse with her, Maizeroi went to the driver's side
center seat of the Suburban and tried to put his penis in her mouth.  By
keeping her hand over her mouth, she was able to keep Maizeroi's penis
from penetrating her mouth, but it touched her face.  She stated that she
was saying "no" and "trying to move off" in order to get Westbrook off of her
person.  The victim testified that Westbrook persisted, even after she said,
"no."   While Westbrook was engaged in sexual intercourse with the victim,
he allegedly asked her if she liked what he was doing.  She testified at trial
that she did not remember Westbrook asking her this question, however,
she remembered telling Detective Boudreau that Westbrook had asked her if
she enjoyed the sexual intercourse.
	[¶6]	As the victim was recovering from the sexual intercourse with
Westbrook, Maizeroi came into the van, pushed her down, and began to have
sexual intercourse with her.  She testified that she also told Maizeroi "no"
and to "get off" but that she did not scream or yell aloud.  She further
testified that Westbrook told Maizeroi that "maybe you should get off." 
While Maizeroi was having sexual intercourse with her, she was "saying no,
moving around and stuff," but was unable to move him off her.  Eventually
Maizeroi stopped having intercourse with her.  She subsequently got
dressed, left the vehicle, and returned to the house.  Several witnesses
testified that, when the victim arrived back at the house, she appeared upset
and began to cry, and eventually recounted that Westbrook and Maizeroi
raped her.   
	[¶7]	The next day the victim told her friends the details of the rape. 
Although she remembered telling them that she had sexual intercourse with
Westbrook twice, she could not recall, at trial, the number of times she and
Westbrook had intercourse.  Specifically, during her grand jury testimony,
the victim acknowledged that she may have told "someone" that Westbrook
had sexual intercourse with her more than once, but at that time she could
not remember if Westbrook had sex more than once with her.  Upon further
questioning, the following exchange occurred:
	State:  "I guess I should be clear.  By more than once I mean, did
			they have intercourse with you, then stop, then they would
			have intercourse again, did that happen with either of the
			two of them?"

	Answer:"I don't think so.  I might have thought it happened with
			Lawrence, but then I didn't really know for sure, so I don't
			want to say something that I don't definitely know."

	State:"Why would you not know whether Lawrence had
			intercourse with you once or more than once?"

	Answer:"I don't know.  My mind wasn't in a good state of thinking
			right then, so.  . . . "
	[¶8]	Doctor Gina Marie Quinn-Skillings testified that she examined
the victim at the Maine Medical Center Emergency Room the day after the
party.  Dr. Quinn-Skillings testified that, in an attempt to determine if the
victim had suffered any physical injuries, she asked her whether there was
any resistance on her behalf.  The victim told her that she did not resist. 
	[¶9]	The jury found Maizeroi guilty of gross sexual assault.  17-A
M.R.S.A. § 253(1)(A)(Class A).{3}
II. DISCUSSION A.
	[¶10]	 Jury instructions are reviewed "as a whole to ensure that they
informed the jury correctly and fairly in all necessary respects of the
governing law."  State v. Day, 1999 ME 29, ¶ 8, 724 A.2d 1245, 1247
(citations omitted).  An erroneous instruction is one that "creates the
possibility of jury confusion and a verdict based on impermissible criteria."
Id. (quoting State v. Rivers, 634 A.2d 1261, 1263 (Me. 1993)).
	[¶11]	 Maizeroi asserts that the Superior Court erred in not giving jury
instructions premised upon State v. Robinson, 496 A.2d 1067 (Me. 1985).{4}
The State asserts that the court properly instructed the jury as there was no
evidence that the victim consented to consensual sexual intercourse with
Maizeroi.  The trial court instructed the jury as follows:
"Under Maine law a person is guilty of gross sexual
assault if that person engages in a sexual act with
another person and that other person submits as a
result of compulsion."
* * *
"A sexual act may be proved without allegation or proof of
penetration.  Compulsion means the use of physical force,
threat to use physical force or combination thereof that
makes a person unable to physically repel the actor.  This
legal definition of compulsion places no duty on the victim
to resist the act."
	[¶12]  There was no evidence or testimony that the victim agreed to
engage in consensual sexual intercourse with Maizeroi.  Robinson authorizes,
but does not require, the requested instruction when there is evidence that
the intercourse initially started as a consensual act between the parties.  The
trial court's instructions correctly and fairly informed the jury in all
necessary respects of the governing law.  See State v. Day, ¶ 8, 724 A.2d at
1247.  Given that there was no evidence that the sexual act in question
began as a consensual act between the parties, the court did not err in
refusing to give jury instructions based on State v. Robinson.
B.
	[¶13]  Maizeroi also argues that the court erred when it instructed the
jury that, pursuant to 17-A M.R.S.A. § 251(1)(E), the victim had no duty to
resist.  Maizeroi asserts that instructing that the victim had no duty to resist
the physical force was inappropriate under these circumstances because the
State was not proceeding on a theory of compulsion grounded on a threat, or
fear of kidnapping, serious bodily injury, or death.
	[¶14]  In construing a statute, we must attempt "to discern from the
plain language the real purpose of the legislation, avoiding results that are
absurd, inconsistent, unreasonable or illogical . . . ."  Fraser v. Barton, 628
A.2d 146, 148 (Me. 1983)(citation omitted).  When the plain language of the
statute is ambiguous, we will look to other indicia of legislative intent, such
as legislative history, to determine the purpose of the legislation.  Dumond v.
Aroostook Van Lines, 670 A.2d 939, 943 (Me. 1996)(citations omitted). 
	[¶15]	 The plain language of 17-A M.R.S.A. § 251(1)(E) is internally
inconsistent.  The statute requires that the victim be incapable of physically
repelling the actor, yet at the same time, explicitly states that the victim has
no duty to resist.  The legislative Statement of Fact indicates that the
purpose of "this amendment, which replaces the original bill, clarifies the
present statutory definition of compulsion by adding a clear statement that
the victim of compelled sexual assault is not required to 'fight back' or
otherwise resist in any way."  Comm. Amendments "A" to S.P. 217, L.D. 544.  
	[¶16]	 There was sufficient evidence for a jury to find that the victim
was compelled to engage in sexual intercourse with Maizeroi.  Here, there
was certainly some degree of drunkenness, and the victim testified that she
could not repel Maizeroi; the jury must have believed her.  Given the facts of
this case, and the legislative history of 17-A M.R.S.A. § 251(1)(E), because
the victim of the sexual assault repeatedly said "no" and "stop," and
Maizeroi continued to engage in sexual intercourse, his behavior constituted
"compulsion" within the meaning and intent of the legislation.  The
Superior Court did not err in declining to exclude the jury instruction that
the victim had no duty to resist Maizeroi.
C.
	[¶17]  Maizeroi further argues that there was insufficient evidence for
the jury to convict him of gross sexual assault.  When considering the
sufficiency of the evidence, we evaluate the evidence presented in the light
most favorable to the prosecution to determine whether the jury rationally
could find, beyond a reasonable doubt, every element of the offense charged. 
State v. Ardolino, 1997 ME 141, ¶ 20, 697 A.2d 73, 80.  "[I]t is the duty of
the factfinder to reconcile conflicting testimony, determine its relative
weight and decide what part of the testimony is credible and worthy of
belief."  Ardolino, ¶ 20, 697 A.2d at 80 (citing State v. Benner, 654 A.2d
435, 437 (Me. 1995)).
	[¶18]	 A reasonable jury could have found that the victim submitted to
sexual intercourse with Maizeroi as a result of compulsion.  Here the victim
continued to resist throughout the assault.  There is no evidence that she
initially consented to intercourse with Maizeroi.  Moreover, although she did
not specifically testify that she tried to "push" Maizeroi off, she testified that
she was "still saying no, moving around and stuff" when Maizeroi was having
sexual intercourse with her.  Finally, she testified that Westbrook told
Maizeroi that "maybe you should stop."
D.
	[¶19]	 Maizeroi argues that the guilty verdict on the gross sexual
assault, 17-A M.R.S.A. § 253(1)(A) (Class A) and the not-guilty verdict on the
charge of unlawful sexual contact, 17-A M.R.S.A. § 255(1)(H) (Class C), are
incapable of reconciliation, mandating reversal.  It is not without question
that the verdicts were inconsistent, but if they were, in State v. Engstrom,
453 A.2d 1170, 1174 (Me. 1982), we held that "inconsistent verdicts
require reversal only if they are incapable of logical reconciliation."  We have
subsequently clarified Engstrom, explaining that "[l]ogically reconcilable
verdicts are not inconsistent and therefore do not require reversal."  State v.
Snow, 513 A.2d 274, 277 (Me. 1986).  More specifically, in Snow we noted
that "[t]his court has never decided that inconsistent verdicts do require
reversal." Id. at 277.
	[¶20]  In State v. Finnemore, 1997 ME 44, ¶ 6, 690 A.2d 979, 980,
we were confronted with the issue of inconsistent jury verdicts on separate
counts of a single indictment.  We looked to United States v. Powell, 469 U.S
57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), which set forth four factors
courts should consider in instances such as this.  First, the court noted that
"inconsistent verdicts should not be interpreted as a windfall to the
prosecution because the jury may have properly reached its guilty verdict,
and 'then through mistake, compromise, or lenity, arrived at an inconsistent
conclusion . . . .'"  State v. Finnemore, 1997 ME 44, ¶ 8, 690 A.2d 979, 980
(citing United States v. Powell, 469 U.S 57, 65, 105 S.Ct. at 476).  Second,
"any attempt to separate a verdict that may be the product of an error that
worked against one of the parties would be based on pure speculation or
would involve inappropriate inquiry into the jury's deliberations." Id.  Third,
"a criminal defendant is already protected against jury irrationality or error
by independent review of the sufficiency of the evidence by the trial and
appellate courts." Id.  Finally, that the mere inconsistency between guilty
and not-guilty verdicts on separate counts of a single indictment will not
render the guilty verdict invalid.  Id. at ¶ 9, 690 A.2d at 981.
	[¶21]  For the foregoing reasons, we should not speculate about why
the jury found Maizeroi not guilty on the charge of unlawful sexual contact,
nor will we vacate the judgment on that basis. 
E.
	[¶21]  Maizeroi asserts that the victim's trial testimony{5} was
inconsistent with her grand jury testimony,{6} and therefore, her grand jury
testimony should have been admitted as a prior inconsistent statement. 
Whether a prior statement is inconsistent is a preliminary question for the
court, and is reviewed for clear error.  See Field & Murray, Maine Evidence,
§ 607.4 at 267, § 104.1 at 30 (2000 ed.).  Factual findings are clearly
erroneous only when there is no competent evidence in the record to
support them.  State v. Seamen's Club, 1997 ME 70, ¶ 7, 691 A.2d 1248,
1251.
	[¶22]	 The victim's trial testimony, after her memory was refreshed,
was virtually identical to her grand jury testimony.  She testified, both at
trial and before the grand jury, that Westbrook asked her if she "liked it."
She also testified at trial and before the grand jury that she answered his
question with a "yes."  Because the victim's trial testimony was not
inconsistent with her grand jury testimony, the Superior Court's preliminary
finding of fact that the testimony was not inconsistent was not clearly
erroneous.{7} 
F.
	[¶23]  At trial evidence was presented that the victim received
counseling following the rape.  Maizeroi argues that this information was
wrongly admitted because it was not relevant, and that "even if it was
relevant, its impact upon the jury was unduly prejudicial, in that it tended to
elicit sympathy for the victim and thereby, to bolster her credibility."  We
review the Superior Court's determination of relevancy for clear error. State
v. Napier, 1998 ME 8, ¶ 5, 704 A.2d 869, 871 (citations omitted).
	[¶24]	 The court explained that it allowed in evidence the testimony
regarding the victim's counseling because the victim's demeanor at trial was
"not what one commonly sees[,]" and, therefore, the court allowed in the
evidence as an explanation for the victim's unusual courtroom behavior. 
Moreover, the victim's testimony regarding the intimate details of the rape
by Maizeroi was far more likely to elicit sympathy than her comments that
she began counseling.  The court did not err by allowing the testimony.
G.
	[¶25]  Maizeroi argues that the Superior Court erred in instructing the
court reporter to read only certain portions of the cross-examination of the
victim.  The determination of whether to read-back the direct and cross-
examination testimony of a witness is within the trial justice's discretion,
based on all the facts of the case.  State v. Hebert, 455 A.2d 925, 930 (Me.
1983) (citation omitted).  It is not necessarily an abuse of discretion to allow
a read-back of only a portion of a witness's testimony.  See id. at 931 n. 4;
see also State v. MacDonald, 382 A.2d 553, 554 (1978) (no abuse of
discretion in rereading only the direct testimony of a witness).   
	[¶26]  Maizeroi argues that the Superior Court erred in editing the
read-back to exclude references to inconsistent statements by the victim to
others about whether she engaged in consensual sex with Westbrook after
Maizeroi left the Suburban.  Maizeroi further asserts that the jury wanted to
hear what the victim had to say about whether she did, or did not engage in
consensual sexual intercourse with Westbrook after Maizeroi left the vehicle.
The jury requested the following:
The members of the jury would like to have the following items
of testimony read back to them:

1)  [The victim's] testimony about the events inside the suburban
from the time the defendant engaged in sexual intercourse until
the underwear was returned to [the victim].
	
2) Detective Boudreau's testimony when cross-examined by Mr.
Levine in regard to the aforementioned sequence of events [the
events inside the suburban from the time Maizeroi engaged in
sexual intercourse until the underwear is returned], specifically
the written statement taken by the headmaster of Bridgton
Academy. 
	[¶27]  The jury's second request shows that the jury was capable of
being very specific regarding what testimony it wanted reread.  If the jury
wanted all portions of the victim's testimony, including all of the victim's
cross-examination, it would have requested that testimony.  The court did
not abuse its discretion in reading back to the jury only the materials it
specifically requested.    
The entry is:
Judgment affirmed.
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