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State v. David Howe
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 181
Docket:	Som-00-643
Submitted 
on briefs:	November 30, 2001	
Decided:	December 27, 2001

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

								
								
									
STATE OF MAINE v. DAVID E. HOWE


ALEXANDER, J.

	[¶1]  David E. Howe appeals from a conviction of gross sexual assault,
(Class A), 17-A M.R.S.A. § 253(1)(B){1} after a trial by jury in the Superior
Court (Somerset County, Gorman, J.).  Howe argues that the trial court
improperly excluded evidence of the alleged victim's sexual history pursuant
to M.R. Evid. 412.  We disagree and affirm Howe's conviction.
I. CASE HISTORY
	[¶2] This case involves an act of oral sex between David E. Howe, age
39, and his eight-year-old daughter.  The State and defense agreed that the
sex act occurred.  The State contended that Howe directed his daughter to
perform oral sex on him in his bedroom.  Howe contended that the eight-
year-old initiated the sex act upon him while he was sleeping.	
	[¶3]  On September 7, 1999, Howe was indicted by the Somerset
County Grand Jury on a charge of gross sexual assault.  A jury trial was held
August 1, 2000, at which Howe and his daughter testified as to their
differing versions of the events.
	[¶4]  Prior to trial, the court heard arguments regarding Howe's
motion in limine, in which he sought to elicit testimony from his daughter
as to whether she had ever been exposed to inappropriate sexual contact
with either her cousin or her brother.  The court prohibited questions about
the young girl's sexual history pursuant to M.R. Evid 412.{2}  Before direct
examination of the alleged victim, Howe moved to admit testimony that he
argued would tend to show that the alleged victim had sexually acted out on
previous occasions, and that this evidence would go to the very core of his
defense.  The State objected to Howe's motion on the grounds that the
testimony was inadmissible pursuant to M.R. Evid. 412.  The trial court again
barred Howe's questioning about the alleged victim's sexual behavior. 
	[¶5]  The alleged victim testified that she was watching her sister
play Nintendo when Howe asked her to come into his bedroom.  Howe was
awake in his bed and asked her to take off her clothes and get into bed. 
Howe was naked under the covers and placed the alleged victim between his
legs and told her to begin performing oral sex on him.  
	[¶6]  After the State concluded its direct examination, Howe, once
again, made an offer of proof to admit evidence regarding the alleged
victim's sexual behavior.  Defense counsel stated that he would elicit
testimony that would tend to show that the alleged victim had engaged in
prior sexual acts and had a history of acting out in sexually inappropriate
ways, which would tend to show that Howe was not acting voluntarily at the
time of the incident.  In addition, defense counsel argued that the tender
years exception to M.R. Evid. 412, as articulated in State v. Jacques, 558
A.2d 706 (Me. 1989), had been generated due to the alleged victim's
testimony on direct examination.  As a result, Howe asserted that he should
be permitted to question the alleged victim as to her sexual history.  The
court maintained its prior ruling to exclude the evidence.
	[¶7]  At the conclusion of the trial, the jury found Howe guilty of
gross sexual assault (Class A), 17-A M.R.S.A. § 253(1)(B).  Howe was
sentenced to fifteen years in prison with all but five years suspended.  He
then brought this appeal.
II. DISCUSSION
	[¶8]  Howe argues that the trial court improperly excluded evidence
regarding the alleged victim's sexual history.  The trial court's exclusion of
evidence is reviewed for abuse of discretion or clear error.  State v. Tomah,
1999 ME 109, ¶ 7, 736 A.2d 1047, 1050.  The question of the relevancy of
evidence is reviewed for clear error, whereas the decision whether to admit
evidence is more frequently reviewed under an abuse of discretion standard.
State v. Robinson, 628 A.2d 664, 666 (1993).
	[¶9]  The State argues that the evidence was properly excluded
because Howe did not make an adequate offer of proof.  M.R. Evid.
103(a)(2){3} requires the proponent of evidence to make its substance known
to the court by an offer of proof, unless the substance was apparent from the
context of the question.  Even if we assume that Howe had made a sufficient
offer of proof, the trial court properly excluded the evidence of the alleged
victim's sexual history pursuant to M.R. Evid. 412.  
	[¶10]  M.R. Evid. 412 provides that, in a criminal case for sexual
misconduct, evidence of an alleged victim's sexual history is inadmissible
unless: (1) it is offered to show that the defendant was not the source of the
semen or injury; (2) it is offered to show that the victim consented to the
sexual behavior of the accused; or (3) the exclusion of such evidence would
violate the defendant's constitutional rights.  In Jacques, we recognized the
"tender years exception" to the general rule presented in M.R. Evid. 412, 
in cases where the alleged victim is a child.  This exception permits a
defendant to introduce evidence of sexual history in order to rebut any
inference that a child is sexually naive and could not possess the sexual
knowledge to fabricate the allegations.  Jacques, 558 A.2d at 708.  The
tender years exception is not intended to impede the purpose behind M.R.
Evid. 412, to prevent the proceeding from becoming a trial within a trial of
the victim's character.  See Field & Murray, Maine Evidence § 412.3 at 185
(2000 ed.).   
	[¶11]  Howe contends that the trial court erred in excluding
testimony regarding the victim's sexual history and claims that, as a
consequence, his right to a fair trial was violated.  Additionally, Howe argues
that the trial court's exclusion of evidence of the victim's past sexual
behavior was inconsistent with our interpretation of M.R. Evid. 412 as
articulated in Jacques and State v. Warren, 1998 ME 136, 711 A.2d 851. 
	[¶12]  Exceptions to the general prohibition on the introduction of
evidence of a victim's sexual history, M.R. Evid. 412(b)(1) and 412(b)(2), do
not apply to this case.  There are no issues here concerning the source of
semen or the injury, or whether the victim consented to the sexual
behavior, because consent is irrelevant with respect to 17-A M.R.S.A
§ 253(1)(B).  Further, the Jacques exception is inapplicable to the instant
case.  Howe is not asserting that the incident did not occur or that the
victim fabricated the story.  Instead, Howe claims that the victim was the
aggressor.  Howe cannot rely on Jacques if he admits that the incident
occurred, because upon admission of the events, the source of the
knowledge needed for the victim to make such allegations is evident. 
Therefore, the necessity for the tender years exception, which we
articulated in Jacques, disappears.
	[¶13] In Warren, 1998 ME 136, ¶ 8, 711 A.2d at 854, we also
reviewed whether the defendant was denied his constitutional right to a fair
trial when the trial court barred him from introducing evidence showing the
alleged victim was previously exposed to contact similar to the alleged
contact initiated by the defendant.  We held that the trial court erred by
excluding all evidence concerning the child victim's past sexual history
when the alleged victim was eight years old and her sexual knowledge was
"extraordinary for her age, creating the risk that the jury would attribute
enhanced credibility to her testimony by inferring sexual naivete."  Id. ¶ 14,
711 A.2d at 857.  Warren, like Jacques, does not create an exception to M.R.
Evid. 412 that permits admission of evidence of the alleged victim's sexual
history other than to rebut the inference of naivete.  
	[¶14]  Howe's real purpose in proposing to offer evidence of the
alleged victim's past sexual experiences was to suggest to the jury that if the
alleged victim had engaged in sexual improprieties on other occasions, she
may have similarly engaged in a sexual impropriety on this occasion, as
Howe contended.  Use of evidence of past improprieties to suggest that
similar improprieties occurred in the events on trial is expressly prohibited
by M.R. Evid. 404(a) and (b).{4}
	[¶15] Neither M.R. Evid. 412, nor the Jacques doctrine creates any
exception to M.R. Evid. 404 to allow evidence of past sexual impropriety to
be used to suggest that an alleged victim "acted in conformity therewith" in
a pending case.
III. CONCLUSION
	[¶16]  The tender years exception to M.R. Evid. 412 is not applicable
to this case, because Howe admitted that the incident took place. 
Therefore, he cannot now introduce evidence to rebut the presumption of
sexual naivete.  Howe is attempting to introduce evidence of sexual history
to demonstrate that the child victim was the aggressor.  There is no
exception in Maine law that permits the introduction of sexual history for
this purpose.  Such use of sexual history is barred by M.R. Evid. 404. 
	The entry is:
			Judgment affirmed.

Attorneys for State: David W. Crook, District Attorney James G. Mitchell, Asst. Dist. Atty. Court Street Skowhegan, ME 04976 Attorney for defendant: Joshua A. Tardy, Esq. Jude, Cox & Tardy P O Box 327 Newport, ME 04953
FOOTNOTES******************************** {1} 1. 17-A M.R.S.A. § 253 (1)(B) (Supp. 2001) provides: § 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: . . . . B. The other person, not the actor's spouse, has not in fact attained the age of 14 years. {2} 2. M.R. Evid. 412(b) states: (b) In a criminal case in which a person is accused of sexual misconduct toward a victim the only evidence of the alleged victim's past sexual behavior that may be admitted is the following: (1) Evidence, other than reputation or opinion evidence, of sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury; or (2) Evidence, other than reputation or opinion evidence, of sexual behavior with the accused offered by the accused on the issue of whether the alleged victim consented to the sexual behavior with respect to which the accused is charged. (3) Evidence the exclusion of which would violate the constitutional rights of the defendant. {3} 3. M.R. Evid. 103(a)(2) provides: (a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . . (2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. {4} . M.R. Evid. 404 states, in pertinent part: RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES (a) Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion . . . ; . . . . (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.