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State v. Timothy Pierce
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 14
Docket:	Ken-99-297
Submitted
on Briefs:	November 21, 2000
Decided:	January 24, 2001	

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



STATE OF MAINE v. TIMOTHY PIERCE


DANA, J.

	[¶1]  Timothy Pierce appeals from a judgment of conviction entered
after a jury trial in the Superior Court (Kennebec County, Atwood, J.).  Pierce
was convicted of:  two counts of gross sexual assault (Class A), 17-A M.R.S.A.
§ 253 (Supp. 2000); three counts of unlawful sexual contact (Class C), 17-A
M.R.S.A. § 255 (Supp. 2000); three counts of aggravated trafficking or
furnishing of scheduled drugs (Class C), 17-A M.R.S.A. § 1105 (Supp. 2000);
and seven counts of procuring or furnishing liquor for minors (Class D), 28-A
M.R.S.A. § 2081 (1988 & Supp. 2000).{1}  On appeal, Pierce challenges the
Superior Court's decision not to separate the offenses, to deny his motion to
acquit on a single count, and to admit prejudicial testimonial evidence.  We
affirm.
I. FACTS AND PROCEDURE
	[¶2]  The events occurred between the summer of 1996 and March
1997, but the exact sequence is unclear.  Sean Estabrook was fourteen or
fifteen years old when he and Pierce became acquainted and began to spend
considerable time together.  Sean knew that Pierce was married with one
child and was a car salesman.  Pierce did not divulge his true age to Sean,
which was twenty-nine or thirty, but Sean knew that Pierce was older than
nineteen.  Pierce eventually and repeatedly asked whether Sean knew any
girls that Pierce could, in Sean's words, "get with" or "hook up with." 
Pierce told Sean that he liked girls who were "younger," "not overweight,"
with "long hair," and "small waist[s]."

A.  Counts 15-18-Island Party

	[¶3]  At the end of the summer of 1996, Pierce wanted to have a party,
and Sean arranged for five girls to attend.  Sean testified that Pierce
instructed him to tell the girls that Pierce's name was Ryan and that he was
nineteen years old.  Sean arranged for the girls to be picked up, and
everybody rode in Pierce's boat to an island.  At the island, Pierce provided
beer and hard liquor, and the girls became intoxicated.  Sean also indicated
that some of the girls removed some of their clothing.

B.  Counts 6, 13, 14-Van Incident

	[¶4]  Sean testified that Pierce drove a van full of Sean's friends to a
cabin.  Either outside the cabin or in the van, some of girls drank the beer
that was in Pierce's vehicle and smoked marijuana that Pierce had in his
possession.  One girl testified that Pierce and Sean had told her that
Pierce's name was Ryan and that he was nineteen years old.

C.  Counts 5-8-Roller Rink Incident

	[¶5]  Sean testified that either he or Pierce asked a girl if she had a
friend who "would like to come and party."  The girl testified that she
believed Pierce was a nineteen year old named Ryan.  Pierce and his friends
arrived at Sean's house in two separate vehicles, and the girl saw beer being
"transported from [Pierce's vehicle] to [his friend's] car."  They drove to a
roller rink to pick up the girl's friend, and after stopping at the roller rink,
Sean and Pierce were in one vehicle, and both girls and Pierce's friends
were in the other vehicle.  The girls both consumed beer while in the car
with Pierce's friends.  Once they arrived at a cabin, Sean testified that he
remembered that there was a conversation between Pierce and the girls
about dancing and money, and the girls were "dancing on tables and getting
sexual."  The girls discussed their wishes to run away from their homes. 
Pierce said that "he was connected with the mob" and "he did drug runs,"
and if they would strip for him, he would buy them plane tickets, find them
jobs as strippers in Florida, and give them money.

D.  Counts 9-12

	[¶6]  Sean testified that a girl was having troubles at home and needed
a place to stay.  Sean contacted Pierce, and Pierce drove Sean and the girl to
a cabin.  At the cabin, Pierce, Sean, and the girl "smoked marijuana, and
after that, [Pierce] and [the girl] got involved in sexual relations."  In
addition, the girl stated that Sean introduced Pierce as Ryan, and at the
cabin, Pierce forced her to have sex.

E.  Count 4

	[¶7]  Sean testified that he and Pierce went to a house to meet two
girls.  Sean identified Pierce as a nineteen year old named either Jeff or
Ryan.  While at the house, Sean saw a girl perform oral sex on Pierce. The
girl testified that while Pierce was at the house, he felt her chest, attempted
to put his hand down the front of her pants, tried to kiss her, threw her
down on the couch and got on top of her, and "[h]e unzipped his pants and
told me to jerk him off."

F.  Counts 1-3

	[¶8]  Sean testified that he arranged for him and Pierce to pick up a
girl who needed a place to stay because she was having problems at home.  
Pierce identified himself as Jeff and said he was nineteen years old.  While
in the vehicle, her shirt was removed, and Pierce touched her breasts and
body.  She asked Pierce for a cigarette and he said, first, she "would have to
jerk him off."  After doing as Pierce asked, he then demanded oral sex. 
Next, Pierce produced marijuana, which all three passengers smoked.  After
the incident, the girl informed the police.  Sean was contacted and Pierce
fabricated a story for Sean to tell the police, but Sean eventually disclosed
the truth.
	[¶9]  Pierce was indicted on nineteen counts, pleaded not guilty, and
filed a motion for separate trials pursuant to M.R. Crim. P. 8(a) and (d).{2} 
After a hearing, the court severed the charge for possession of firearms by a
felon (Count 19) and held that Counts 1-18 could be joined because "as it
appears from representations by counsel . . . the factual allegations in each of
these counts are connected to each other, suggesting a common scheme or
plan."
	[¶10]  Prior to trial, the State withdrew Count 10 of the indictment;
thus, the case went to trial on Counts 1-9 and 11-18.  During the trial,
Pierce renewed his motion for separate trials and made numerous motions
for a mistrial based on prejudicial joinder, but the court denied the motions. 
At the close of the State's case, Pierce again moved for a mistrial and made a
motion to acquit on all counts.  The court granted the motion for acquittal
on Count 7.  The jury found Pierce guilty of Counts 1-4, 6, 8-9, 11-18 and
not guilty of Count 5.  Pierce was sentenced{3} and filed a timely appeal
pursuant to M.R. Crim. P. 37.
II. JOINDER
	[¶11]  Pierce contends that the court erred by not separating the
offenses.   First, he contends that the offenses should not have been joined
because they involved different incidents, times and evidence, and at trial,
the State did not prove the purported "common scheme or plan."  Second,
Pierce contends that the court erred in denying his motion for separate
trials because the resulting prejudice from the joinder outweighs the policy
favoring trials of more than one offense.  Third, he contends that the court
erred in denying his motions for a mistrial due to the prejudicial joinder.  
	[¶12]  A trial court is authorized to order joinder and severance.  State
v. Rich, 395 A.2d 1123, 1128 (Me. 1978).  "The court has wide discretion
in deciding such matters, and its decision is not grounds for new trial unless
prejudice and abuse of discretion are shown."  Id.  (citation omitted).  "The
denial of a defendant's severance motion pursuant to Rule 8(d) is reviewed
for an abuse of discretion, and we will not vacate a decision to deny the
motion 'unless the case is one in which the potential for confusion or 
prejudice is obviously serious.'"  State v. Brown, 1998 ME 129, ¶ 6, 712
A.2d 513, 516 (quoting State v. Doody, 434 A.2d 523, 527 (Me. 1981)).
	[¶13]  The joinder of multiple offenses in a single indictment for trial
is authorized in certain circumstances by M.R. Crim. P. 8(a), which provides
in pertinent part:
(a)  Joinder of Offenses.  Two or more offenses should be
charged in the same indictment . . . in a separate count for each
offense if the offenses charged, whether of the same class or
different classes, are of the same or similar character or are
based on the same act or transaction or on two or more acts or
transactions which are connected or which constitute parts of a
common scheme or plan.	
We have interpreted Rule 8(a) broadly, stating:  "If the offenses charged are
connected in any reasonable manner, they are properly joinable."  State v.
Pierce, 474 A.2d 182, 184 (Me. 1984) (citations omitted).
	[¶14]  The "common scheme or plan" presented by the State during
the hearing on the motion to sever the counts was the following:  Sean
introduced Pierce, under false name and age, to young girls; Pierce provided
drugs and alcohol for the girls; and Pierce requested sexual favors from the
girls.  Pierce grouped the counts into six incidents and contends that the
State's "common scheme or plan" is not present in four of the incidents.
	[¶15]  In Counts 15-18, and likewise, in Counts 6, 13 and 14, Pierce
contends that the "common scheme or plan" fails because there was no
evidence that Pierce engaged in sexual conduct with any girl.  In Counts 1-3,
Pierce contends that the "common scheme or plan" was missing because
the marijuana was smoked after the sexual conduct; therefore, marijuana
was "not used in any way to ply [the girl]."  In Count 4, Pierce contends that
the "common scheme or plan" did not exist because there were no drugs or
liquor.
	[¶16]  That all the parts of the State's "common scheme or plan"
were not present in every incident does not mean that the "common
scheme or plan" did not exist.  The eighteen counts that the court
determined were properly joined involved six incidents and ten girls.  In
each incident Sean introduced the girls to Pierce, and Pierce used a false
identity.  In three of the incidents, three different girls were victims of
specific sexual crimes.  In two of those three incidents, drugs were involved. 
In a fourth incident, liquor was involved and Pierce propositioned the girls
to strip dance for money.  In a fifth incident, there was liquor and some of
the girls' clothing was removed.  In a sixth incident, liquor and drugs were
present, and one of the girls in this incident was propositioned during a
different incident.  The events were connected "in time, purpose, and
modus operandi,"  State v. Bradley, 414 A.2d 1236, 1238 (Me. 1980);
therefore, the eighteen counts were properly joined pursuant to the
minimum requirements established for joinder in M.R. Crim. P. 8(a), see
Pierce, 474 A.2d at 184.
	[¶17]  Even where joinder is otherwise proper, M.R. Crim. P. 8(d)
authorizes the motion justice to order separate trials of offenses if it appears
that the defendant is prejudiced by an otherwise appropriate joinder of
offenses.  Joinder can create a risk of undue prejudice to the defendant by
causing the jury to infer a criminal propensity, or to improperly cumulate
the evidence and confuse the issues.  Brown, 1998 ME 129, ¶¶ 7, 9, 712
A.2d at 516; Pierce, 474 A.2d at 184.  Therefore, we must "balance the
policy favoring trials of more than one offense against the potential prejudice
to the defendant that may result."  State v. Fournier,  554 A.2d 1184, 1186-
87 & n.4 (Me. 1989) (stating that "[j]oining offenses in a single trial
conserves judicial resources, avoids duplicative trials and provides the
defendant with a more prompt resolution of the charges") (citations
omitted).
	[¶18]  Pierce did not make any specific showing that the risk of
prejudice was enlarged by the joinder of the offenses.  See, e.g., Brown,
1998 ME 129, ¶ 8, 712 A.2d at 516 (finding that the number of the offenses
charged "alone is not dispositive of the joinder issue"); State v. Littlefield,
389 A.2d 16, 19 (Me. 1978) (holding that "a general assertion that it would
be impossible for the jurors to avoid cumulating the evidence. . . . is not a
persuasive showing of abuse of discretion").  In addition, to the extent that
the multiple charges suggested that Pierce's actions were a recurring modus
operandi or a "common scheme or plan," evidence of all or many of his
offenses could have been admitted even at separate trials pursuant to M.R.
Evid. 404(b).{4}  See M.R. Evid. 404(b) advisers' note; Brown, 1998 ME 129,
¶ 9, 712 A.2d at 516.  Therefore, the joinder was no more prejudicial to
Pierce than if the court had granted separate trials for each offense.  See
Littlefield, 389 A.2d at 19.
	[¶19]  Furthermore, to reduce the risk that the jury might improperly
cumulate the evidence, the court instructed the jury that the evidence
relevant to each distinct offense must be considered separately.  The court
stated:
[A]s I told you when we started this trial, it's very important for
you to deliberate on and consider each of these charges
separately.  You must not permit yourselves individually or as a
group to assume or to infer that the defendant is guilty of one or
more of these charges because you believe he is guilty of one
other or some other of them.  Moreover, you must not infer guilt
because of the number of charges.  The defendant is entitled to
the presumption of innocence on each of these charges and may
not be convicted on any one of them unless you are satisfied
beyond a reasonable doubt that the State has proven that
particular charge.  Accordingly, you may find the defendant
guilty of all the charges, of some of them, or of none of them. 
	[¶20]  Although we have established that the rules for severance
"should be liberally construed to avoid the potential for prejudice," we find
that the court did not exceed the bounds of its discretion by denying
Pierce's motion to sever the offenses.  Pierce, 474 A.2d at 184.
	[¶21]  Pierce also contends that the court erred in denying his
motions for a mistrial because the State did not establish a "common
scheme or plan" to justify joinder of the offenses.  "If the prejudice resulting
from joinder becomes manifest during trial and, in the view of the court,
such prejudice cannot be cured by appropriate instructions, the presiding
justice may grant a motion for a mistrial."  Id. at 185 (citation omitted).  "A
motion for a mistrial is addressed to the sound discretion of the trial court,
and we review a denial of the motion only for an abuse of that discretion." 
State v. Mason, 528 A.2d 1259, 1260 (Me. 1987) (citations omitted).
	[¶22]  The evidence, as presented above, supports the finding that
Pierce's "common scheme or plan" existed in whole or in part in the
offenses charged.  Furthermore, as we decided above, Pierce has failed to
establish prejudice.  As a result, the court did not abuse its discretion by
denying the mistrial.
III. ACQUITTAL
	[¶23]  Pierce contends that we should vacate his conviction on Count
8, procuring or furnishing liquor for one of the girls, because there were no
facts to support the elements of the crime charged; therefore, the jury
relied on "pure speculation" for the conviction.  Count 8 alleges, in violation
of 28-A M.R.S.A. § 2081,{5} that:
[I]n Kennebec County, State of Maine, Timothy D. Pierce did
knowingly procure, or in any way aid or assist in procuring,
furnish, give, sell or deliver intoxicating liquor, to wit, beer and
coffee brandy, for [a girl], age 15, the said [girl] being a minor
not legally able to purchase liquor for herself.
At the close of the State's case, Pierce moved for acquittal on all counts,
emphasizing Counts 5-8.  The court granted acquittal on Count 7, which
alleged that Pierce furnished the girl with a scheduled drug.  With respect
to Count 8, the court denied the acquittal, but stated:
[T]he evidence, frankly, is somewhat slim on Count 8, but
because the standard is to take the evidence in the light most
favorable to the State, it is possible that the circumstantial
evidence here might convince a jury that the beer that [the girl]
took a sip of in the car originated with the defendant, because
the testimony in this case suggests that the Bronco was a car
that was commonly used by the defendant; the beer came from
there; he, on other occasions, has transported beer in that
Bronco and distributed it to kids; that on this occasion, because
. . . it could be inferred that the beer was transported from the
Bronco into the car these two men were in, that it was the same
beer.  So, even though the evidence as to that count is thin, I'm
going to let it go to the jury.
	[¶24]  "When the improper denial of a motion to acquit is alleged, the
question before us is whether there was legally sufficient evidence to
support the guilty verdict."  State v. Fox, 494 A.2d 177, 179 (Me. 1985)
(citations omitted).  "The test of legal sufficiency is whether on the evidence
as a whole, assessed most favorably to the state, no trier of fact could
rationally find proof of guilt beyond a reasonable doubt."  Id. (citations
omitted).
	[¶25]  From the evidence provided by the State, the trier of fact could
rationally find proof, beyond a reasonable doubt, that Pierce did knowingly
"[p]rocure, . . . aid or assist in procuring, furnish, give, sell or deliver liquor"
to the girl.  28-A M.R.S.A. § 2081.  The State provided evidence that Pierce
wanted to "party" with one of the girls, that liquor was "transported" from
Pierce's vehicle to the vehicle in which the two girls were passengers, and
that the girl was given a beer while she was in that vehicle.  Thus, the
evidence was sufficient for the jury to find Pierce guilty beyond a reasonable
doubt of violating 28-A M.R.S.A. § 2081 by procuring or furnishing liquor for
the girl.
IV. TESTIMONIAL EVIDENCE
	[¶26]  Pierce contends that the court erred by allowing one of the
girls to testify about a statement in which he connected himself with the
mob.  Pierce contends that the minimal relevance of the statement is greatly
outweighed by the "severe prejudice that [he] would be tied to a criminal
enterprise that had nothing to do with this case," and he should be
acquitted on Counts 6 and 8.  The State contends that Pierce failed to
establish that unfair prejudice resulted from the girl's testimony, and the
statements were offered as proof of the defendant's motivation and modus
operandi.
	[¶27]  Pierce objected to the testimony at trial, and the court
overruled the objection, stating:
It seems to me that the probative value . . . is that it shows
purposeful conduct as part of the whole transaction that evening
. . . and that the . . . purposeful conduct was to give them the
alcohol and/or drugs to take advantage of them in one fashion or
another, and that the oral representations that he was a powerful
person and had money and could do things for them was all part
of that transaction.  So, the court believes that the relevance of
that outweighs the potential prejudice, particularly where it
seems . . . that a fair inference can be drawn that this was puffery
as opposed to Mr. Pierce being, in fact, a member of the mafia
and somebody who could, in fact, do this, which, as I
understand, the State is not claiming . . . .  
	[¶28]  A trial court's determination to admit evidence pursuant to M.R.
Evid. 403{6} is reviewed for an abuse of discretion.  State v. DeMass, 2000 ME
4, ¶ 11, 743 A.2d 233, 236.  In determining whether to exclude relevant
evidence, "[i]t is only the danger of unfair prejudice that the judge is
entitled to weigh against probative value."  State v. Patterson, 651 A.2d 362,
367 (Me. 1994) (emphasis in original) (citation omitted).  Prejudice, in this
context, "is an undue tendency to move the tribunal to decide on an
improper basis . . . ."  State v.  Hurd, 360 A.2d 525, 527 n.5 (Me. 1976)
(citation and internal quotation marks omitted).
	[¶29]  There is no indication that this testimony pertaining to Pierce's
purported mob connections moved the trier of fact to decide the counts on
an improper basis.  The State presented the testimony to prove Pierce used
a false identity when he was around the girls, which was part of the
"common scheme or plan" the State presented throughout the trial.  Other
witnesses testified that Pierce used a false name and age, and the "mob
connection" testimony was another incident during which Pierce falsified
his identity.  In addition, only one witness testified about Pierce's "mob"
connection, and the testimony did not indicate that she or the State actually
believed that Pierce was connected with the mob.{7}  Therefore, we find that
the court did not abuse its discretion by allowing the witness to testify about
Pierce's statements because the probative value was not substantially
outweighed by the danger of unfair prejudice.
	The entry is:
			Judgment affirmed.
                 
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