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State v. Basil Barnes Jr.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 51
Docket:	Ken-00-272
Submitted
on Briefs:	February 28, 2001
Decided:	March 27, 2001	

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





STATE OF MAINE v. BASIL BARNES JR.


WATHEN, C.J.


	[¶1]  Defendant, Basil Barnes Jr., appeals from judgments entered on
a jury verdict in the Superior Court (Kennebec County, Marden, J.) finding
him guilty of gross sexual assault (Class A), 17-A M.R.S.A. § 253 (Supp. 2000)
and unlawful sexual contact (Class C), 17-A M.R.S.A. § 255 (Supp. 2000).
Defendant argues that the court (Humphrey, J.) erred in denying his motion
to suppress statements made by him.  He also argues that the court
(Marden, J.) erred in denying his motion to reconsider his motion to
suppress, his motion to dismiss the indictment for unnecessary delay, and
his motion for judgment of acquittal as to the unlawful sexual contact charge.
Finding no error, we affirm.
	[¶2]  The facts may be briefly summarized as follows: In December
1997, the Maine Department of Human Services contacted defendant to
arrange an interview with him at the Lovejoy Health Center in Albion in
connection with allegations that defendant had committed acts constituting
gross sexual assault and unlawful sexual contact against two children. A
Maine State Police Detective conducted the interview in a conference room
at the health center, and the DHS representative was also present and
participated to a limited degree. 
  	[¶3]  In May 1998, an indictment was filed against defendant on four
counts: three counts of gross sexual assault (Class A), 17-A M.R.S.A. § 253
(Supp. 2000) and one count of unlawful sexual contact (Class C), 17-A
M.R.S.A. § 255 (Supp. 2000).  Defendant filed a motion to suppress the
statements made during the interview at the health center that was denied. 
In May 1999, a second indictment was filed against defendant on seven
counts.  The first three counts duplicated the first three counts of the first
indictment, and the remaining four counts involved new charges. In October
1999, the State filed a dismissal of the first three counts of the second
indictment, leaving the remaining counts to be addressed later, and
proceeded on the first indictment.  Defendant sought to dismiss the first
indictment on grounds of unnecessary delay that was denied.  A jury trial
was held in February 2000 on the first indictment, and judgment was
entered in the Superior Court finding defendant guilty on Counts 2 and 3.
Defendant was found not guilty on Count 1, and Count 4 was dismissed by
the State prior to trial.  Defendant appeals.
	[¶4]  Contrary to defendant's contentions, the court did not err in
its determination that, despite the officer reading defendant the Miranda
warnings, defendant was not in custody and thus not entitled to the
warnings. See State v. Bragg, 604 A.2d 439, 440 (Me. 1992). Moreover, the
giving of Miranda warnings when not required does not per se necessitate a
determination whether defendant knowingly and voluntarily waived the
rights described in the warning before questioning can proceed. See id. In
any event, as with the court's determination concerning custody, its
determination that defendant made a knowing and voluntary waiver of the
rights was properly supported by its findings. See State v. Thibodeau, 2000
ME 52, ¶ 11, 747 A.2d 596; State v. Coombs, 1998 ME 1, ¶ 13, 704 A.2d
387.
	[¶5]  The court also did not err in finding that the statements were
made voluntarily.  A review of the interview as a whole supports the court's
finding that no promise of leniency or any coercion on behalf of the
detective occurred. See State v. Theriault, 425 A.2d 986, 990 (Me. 1981)
(finding "the officers' statements that telling the complete truth would
make [the defendant] feel better or make people think more of him are in
the nature of exhortations rather than promises of prosecutorial leniency"). 
	[¶6]  In addition, the court did not abuse its discretion in denying
the motion to dismiss the first indictment on the grounds of unnecessary
delay. A review of the procedural history supports the court's determination
that the delay caused by the second indictment was not unnecessary. See
State v. Murphy, 496 A.2d 623, 629 (Me. 1985).  
	[¶7]  Finally, the court did not err in denying defendant's motion for
judgment of acquittal as to the unlawful sexual contact charge. See State v.
Boone, 563 A.2d 374, 378 (Me. 1989).  The statute provides in pertinent
part as follows: "A person is guilty of unlawful sexual contact if the person
intentionally subjects another person to any sexual contact." 17-A M.R.S.A. §
255(1) (Supp. 2000).  "Sexual contact" is defined as "any touching of the
genitals or anus, directly or through clothing, other than as would constitute
a sexual act, for the purpose of arousing or gratifying sexual desire or for the
purpose of causing bodily injury or offensive physical contact." 17-A M.R.S.A.
§ 251(D) (Supp. 2000).  "Sexual act" is defined in part as follows: "(3)  Any
act involving direct physical contact between the genitals or anus of one and
an instrument or device manipulated by another person when that act is
done for the purpose of arousing or gratifying sexual desire or for the
purpose of causing bodily injury or offensive physical contact." 17-A M.R.S.A.
§ 251(C)(3) (Supp. 2000).  Contrary to defendant's argument, the use of an
instrument  or device manipulated by the defendant to touch genitals
through clothing fits within the meaning of "any touching" for purposes of
sexual contact and is not otherwise excluded as a sexual act because of the
absence of direct contact with the genitals.  Further, the details of the
touching, in the present case, do not permit the conclusion that the
touching was for any purpose other than arousing defendant's sexual desire. 
See State v. Boone, 563 A.2d 374, 378 (Me. 1989).
	The entry is:
				Judgments affirmed.

Attorneys for State: David W. Crook, District Attorney Alan P. Kelley, Deputy Dist. Atty. 95 State Street Augusta, ME 04330 Attorney for defendant: Robert E. Sandy Jr., Esq. Sherman & Sandy P O Box 499 Waterville, ME 04903-0499