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State v. Richard Demass

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 4 
Docket:	Kno-99-65
Argued:	December 7, 1999
Decided:	January 11, 2000

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




STATE OF MAINE v. RICHARD E. DEMASS JR.


DANA, J.

	[¶1]  Richard E. Demass Jr. appeals the judgment entered on his
conviction of twenty-three counts of gross sexual assault (Class A) in violation
of 17-A M.R.S.A. § 253{1} and five counts of assault (Class D) in violation of
17-A M.R.S.A. § 207,{2} following a jury trial in the Superior Court (Knox
County, Atwood, J.).  DeMass contends that the court erred by admitting in
evidence letters written by him to the victim's sister.  We agree, vacate the
conviction, and remand for a new trial.
I. TESTIMONY
	[¶2]  The victim testified as follows:  While she and her sister were
still living at home, their mother married DeMass.  Soon thereafter while
her mother was in the hospital, the victim woke up to find DeMass kissing
her.  She was eleven years old at the time.  She stated that she could smell
alcohol on DeMass's breath.  She estimated that he drank several times a
week, but that his drinking increased over time.  She also stated that he
would get violent and aggressive when he was drinking.
	[¶3]  The victim testified that shortly after this incident DeMass came
to her room while she was in bed and touched both her breasts and her
vagina.  He threatened to kill her mother if she told anyone.  The victim
indicated that thereafter such incidents happened on a regular basis,
roughly twice a month until 1994.  In 1994 her sister moved to
Massachusetts to live with their father.  It was at this point, according to the
victim, that DeMass first had intercourse with her.  She described
experiencing pain and bleeding following this first incident.  She went on to
testify that thereafter DeMass would either have intercourse with her or
masturbate in her presence roughly twice a month.  She also noted that
DeMass continued to threaten that he would harm her mother if she told
anyone what was happening.
	[¶4]  The victim eventually moved to Massachusetts in January 1996,
after an argument with her mother.  She returned to Maine, however, after
DeMass promised to leave her alone.  She testified that she returned to
Maine to be with her mother.  She also stated that, notwithstanding
DeMass's promise, he continued to touch her inappropriately, but that they
no longer had intercourse.
	[¶5]  In 1997 the victim moved back to Massachusetts.  She went to a
crisis center in Massachusetts after expressing to her stepmother a desire
to kill herself.  She testified that this was the first time she told anyone
about the sexual abuse by DeMass.  She eventually went to the police and was
referred to Dr. Lawrence Ricci at the Spurwink Child Abuse Program.
	[¶6]  Dr. Ricci testified as to the results of his examination of the
victim and the case history that she provided him.  He stated that the
results of his examination were consistent with the history provided to him
by the victim.  He found that her hymen was both thinned and that the
opening was enlarged, and that this was consistent with multiple occasions
of penile-vaginal penetration.  He also testified that this could not have been
caused by the two episodes of consensual sex with her peers that the victim
had described to him.  He observed absent tissue at the five o'clock position,
which was consistent with tearing and the bleeding that the victim had
described.  Dr. Ricci went on to state that tearing and injury are more likely
in a prepubicial adolescent.
	[¶7]  The victim's sister testified that DeMass drank excessively, that
he would fall asleep at the dinner table, and, on one occasion, spent the
night on the floor.  She also testified to an incident occurring in October
1998, in which he wrote her, while intoxicated, what she considered an 
inappropriate letter and then gave her two more letters.  The letters were
admitted in evidence over DeMass's objection.  The first letter appeared to
be soliciting romantic contact with the sister.  It said such things as, "I just
want to hold [you], feel you, love you, kiss you.  Please d[on't] freak out. . . . I
am not a perfert [sic]."  The next two letters repeated similar sentiments
while at the same time apologizing for the first letter.
	[¶8]  In addition to this testimony introduced by the State, on cross-
examination by DeMass, the sister testified that the victim went through a
period in her life in which she lied about things.  She stated that she initially
doubted the victim's allegations of abuse.  In response to a question by
DeMass regarding the letters, however, the sister stated that after she
received them she believed that the victim was telling the truth.
	[¶9]  DeMass testified that he never had any kind of sexual encounter
with the victim.  The State's numerous questions regarding the letters to
the victim's sister constituted the majority of its cross-examination of
DeMass.  He testified that his letters were not meant to have a sexual
connotation, but, rather, were meant to repair his familial relationship with
the victim's sister that had broken down after the victim's reports of abuse.
	[¶10]  The jury returned a verdict of guilty on all counts.  DeMass filed
a motion requesting a new trial or, alternatively, a judgment of acquittal
which the court denied.  He then appealed to this Court.
II. THE LETTERS
	[¶11]  DeMass argues that the letters to the victim's sister and
testimony regarding them should have been excluded either pursuant to
M.R. Evid. 404(b){3} or M.R. Evid. 403.{4}  Because DeMass properly preserved
his objection to the admission of the letters, we review the trial court's
decision to admit the evidence pursuant to Rule 404(b) for clear error and
its determination pursuant to Rule 403 for an abuse of discretion.  See State
v. Thompson, 1997 ME 109, ¶ 14, 695 A.2d 1174, 1179; State v. DeMotte,
669 A.2d 1331, 1335 (Me. 1996).
	[¶12]  As the Advisers' Note to Rule 404(b) indicates, evidence of
other crimes, wrongs or acts is admissible for purposes other than to show
propensity, such as to demonstrate motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake.  M.R. Evid. 404 advisers'
note; see also State v. DeLong, 505 A.2d 803, 805 & 806, n.1 (Me. 1986). 
We have also recognized that such evidence may be admitted to show the
relationship between the parties.  See DeLong, 505 A.2d at 805.  When a
proponent of such evidence, however, seeks to have it admitted for one of
these purposes, the party must articulate with particularity the purpose and
its relationship to a disputed issue in the case.  See Field & Murray, Maine
Evidence § 404.4 at 129 (4th ed. 1997).  We have stated previously, "[s]uch
evidence may be admitted only if it is relevant to some . . . issue [other than
acting in conformity with the behavior] at trial."  State v. Works, 537 A.2d
221, 222 (Me. 1988) (citation omitted) (emphasis added).  General
assertions that the evidence has some usefulness with respect to a laundry
list of permissible purposes does not satisfy this requirement.
	[¶13]  The State contends that DeMass's letters to the victim's sister
demonstrate motive, an attraction toward children, absence of mistake,
opportunity, domination of the victim, a pattern of conduct, and the
relationship between DeMass and his stepdaughter (the State does not
indicate which stepdaughter, however).  The absence or presence of
mistake was not at issue in DeMass's trial, nor was the absence or presence
of opportunity.  DeMass simply asserts that the alleged acts of abuse never
took place.  Cf. State v. Goodrich, 432 A.2d 413, 417 (Me. 1981) (because
defendant did not place intent or identity at issue, but rather made a simple
denial, testimony alluding to a prior bad act was not admissible).
	[¶14]  With regard to motive, although we have indicated that other
acts directed at the victim may be admissible to show motive or intent, see,
e.g., State v. Valentine, 443 A.2d 573, 578 (Me. 1982), the letters were not
directed at the victim and therefore have no bearing on DeMass's motive
with regard to her.  For the same reason, the letters to the sister have no
bearing on whether DeMass exercised domination over the victim.
	[¶15]  Similarly, if by "pattern of conduct," the State means plan, it is
hard to see how a temporally and factually isolated communication between
DeMass and the victim's adult sister demonstrates an ongoing plan or
scheme.  The letters were sent two years after the last charged incident of
abuse of the victim.  Furthermore, the act of sending a letter soliciting
romantic contact from the victim's nineteen-year-old sister differed in
nature from the charged acts of forced sexual conduct toward the young,
adolescent victim.  Compare Thompson, 1997 ME 109, ¶ 13, n.7, 695 A.2d
at 1179, n.7; State v. Lakin, 536 A.2d 1124, 1127 (Me. 1988).
	[¶16]  With respect to the State's claim that the letters demonstrate
the relationship between DeMass and the victim, the record is entirely to
the contrary.  As is evident from the content of the letters, they have no
bearing whatsoever on the relationship between DeMass and the victim. 
Therefore, admission of the letters pursuant to M.R. Evid. 404(b)
constituted clear error.  Unless the error was harmless, we must vacate the
conviction.  See M.R. Crim. P. 52(a); State v. Palmer, 624 A.2d 469, 471 (Me.
1993).
	[¶17]  Error is harmless when it is highly probable that it did not
affect the jury's verdict.  See State v. Donovan, 1997 ME 181, ¶ 9, 698 A.2d
1045, 1048.  In this case, however, other than DeMass's letters, the
testimony of the victim comprised the majority of the evidence against
DeMass.  While Dr. Ricci testified to his physical findings, he could not
comment on their cause except to the extent that they conformed to the
history provided to him by the victim.  In the absence of the letters, the case
devolves into the victim's testimony versus that of DeMass.  For that reason,
we cannot say that it is highly probable that the letters did not affect the
jury's verdict.  Cf. Goodrich, 432 A.2d at 419 (erroneous admission of
evidence not harmless when "[t]he evidence of guilt, while sufficient to
sustain a conviction, [was] far from overwhelming.  It consist[ed] of the
essentially uncorroborated testimony of the [victim]").  The error was not
harmless.{5}
	The entry is:
Judgment of conviction on all counts vacated;
remanded to the Superior Court for further
proceedings consistent with this opinion.

Attorneys for State: Geoffrey A. Rushlau, District Attorney Patricia A. Mador, Asst. Dist. Atty., (orally) Eric Morse, Asst. Dist. Atty. 62 Union Street Rockland, ME 04841 Attorney for defendant: Leonard I. Sharon, Esq., (orally) Sharon, Leary & DeTroy P O Box 3130 Auburn, ME 04212-3130
FOOTNOTES******************************** {1} . Title 17-A, section 253 provides in relevant part: 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; or B.The other person, not the actor's spouse, has not in fact attained the age of 14 years. . . . . 17-A M.R.S.A. § 253(1) (Supp. 1999). {2} . Title 17-A, section 207 provides in relevant part: 1. A person is guilty of assault if he intentionally, knowingly, or recklessly causes bodily injury or offensive physical contact to another. 17-A M.R.S.A. § 207(1) (Supp. 1999). {3} . Rule 404(b) provides in relevant part: (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. M.R. Evid. 404(b). {4} . Rule 403 provides in relevant part: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading to the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. M.R. Evid. 403. {5} . The State stressed in its argument that the act of writing the letters was not a crime because the victim's sister was nineteen years old, and did not have the requisite degree of relationship to DeMass for the solicited conduct to amount to incest. See 17-A M.R.S.A. § 556(1) (Supp. 1999) (requiring second degree of consanguinity). While this may be relevant to a Rule 403 analysis, it is in no way dispositive of the Rule 404(b) analysis, as the rule applies not just to crimes, but to other wrongs or acts. M.R. Evid. 404(b). We note, however, on these facts, that the risk of unfair prejudice flowing from the letters does outweigh their probative value pursuant to Rule 403, notwithstanding the fact that writing them was not a crime. See State v. Works, 537 A.2d 221, 222-23 (Me. 1988); Field & Murray, supra, §§ 403.11 at 121 & 404.4 at 128.