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State v. Krieger
MAINE
SUPREME JUDICIAL COURT
Reporter of Decisions
Decision: 2002
ME 139
Docket: Sag-01-415
Submitted
on
briefs: January
17, 2002
Decided: August
19, 2002
Panel: SAUFLEY,
C.J., CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.
Majority: SAUFLEY,
C.J., CLIFFORD, RUDMAN, and ALEXANDER, JJ.
Dissenting: DANA,
J., and CALKINS, J.
STATE OF MAINE
v.
JAMES R. KRIEGER
CLIFFORD,
J.
[¶1] James R. Krieger appeals his
convictions following a jury trial in the Superior Court (Sagadahoc County, Studstrup,
J.) on
twenty-two counts of assault (Class D), 17-A M.R.S.A. § 207 (1983 & Supp.
2001), contending that because the court erred and acted outside the bounds of
its discretion in denying his motion for a mistrial, in admitting evidence of a
prior bad act, and in impermissibly permitting a first complaint witness to
name him as the subject of the first complaint, he is entitled to a new
trial. We are unpersuaded by
Krieger's contentions and we affirm the judgment.
[¶2] Krieger was indicted on one charge
of unlawful sexual contact (Class C), id. § 255 (Supp. 2001),
and twenty-two counts of assault, id. § 207, following allegations that Krieger
rubbed the minor victim's buttocks and tickled her inappropriately when he
baby-sat for her between May of 1998 and February of 2000. At the first trial, the court (Warren,
J.)
declared a mistrial because the victim testified that Krieger "confessed,"
referring to a statement he made regarding incidents involving two other girls.
[¶3] Before the second trial, the State
moved in limine
for the admission of evidence that Krieger admitted to exposing himself to one
other girl and touching the genitals of another. The State also moved in limine to admit evidence
regarding an incident when the victim awoke on the couch nude after Krieger had
been babysitting for her. The
court (Studstrup, J.) denied the State's motion to allow evidence of Krieger's
conduct with other young girls, but granted the in limine motion to admit the
victim's testimony about waking up nude.
During the trial, the victim testified about the incident when she woke
up nude. The victim's mother also testified about the incident, stating that
when she confronted Krieger, he said that the victim had spilled something on
her clothes; the clothes, however, were not stained when the mother looked at
them.
[¶4] When asked whether she had seen Krieger
since she reported his behavior, the victim responded: "Last trial I saw him." Krieger objected, moved for a mistrial,
and rejected the State's suggestion that a curative instruction would be
appropriate:
[ASSISTANT DISTRICT ATTORNEY]: Judge, it was a
very quiet answer, I heard it but just barely, and I think that this could be
handled with an instruction to the jury.
[KRIEGER'S ATTORNEY]: That would be wonderful,
it would emphasize the fact that he had another trial. I just don't think it can be cured,
Judge. . . .
The court denied the
motion, stating:
I don't even think most of the jury would even
have heard the answer, I certainly didn't. I am glad I didn't ask the Court Reporter to repeat it
before we came over here to sidebar.
The other fact being that we don't know whether the jury would not know
who the trial -- these particular charges or something else.[1]
[¶5] During the trial, pursuant to the first
complaint rule, the State asked Cheryl Benoit, an administrator at the church
where Krieger met the victim, whether the victim spoke to her about incidents
between the victim and Krieger.
The court initially sustained Krieger's objection to the question, but
after a discussion at sidebar, permitted the question, stating, "you have to at
least know who the subject of the complaint was to indicate that there's any
relevance . . . ." Benoit
testified that in March of 2000 the victim spoke with her about incidents
involving Krieger, but did not relate any of the details other than Krieger's
name. Thereafter, on
cross-examination, Krieger brought out that the victim told Benoit that Krieger
had rubbed her buttocks, but that she did not believe the touching was wrong
"because she loved Krieger like a dad."
[¶6] After the close of evidence, the
State dismissed the count of unlawful sexual contact. The jury returned a verdict of guilty on the twenty-two
counts of assault. On the first
count of assault, the court sentenced Krieger to 364 days in jail with all but
six months suspended, followed by one year of probation. For each of the other twenty-one
counts, the court sentenced Krieger to 364 days of imprisonment, to be served
concurrently with each other, but consecutively to the sentence for the first
count of assault, all suspended, followed by one year of probation running
consecutively with the probation period for the first count of assault.
I. PRIOR BAD ACT
[¶7] Krieger contends that the court erred
in admitting the victim's testimony about a prior bad act because the testimony
did not fall within an exception to M.R. Evid. 404(b), the testimony was
speculative, and the incident described was different in kind from the conduct
alleged by the State. We disagree.
[¶8] "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). "In
cases involving sexual offenses, evidence of prior similar uncharged conduct
has been admitted to 'show the relationship between the parties that in turn
sheds light on [the] defendant's motive (i.e., attraction to the victim),
intent (i.e., absence of mistake), and opportunity (i.e., domination of the
victim) to commit the crime with which he was charged.'" State v. Poulos, 1998 ME 43, ¶ 4,
707 A.2d 1307, 1308 (quoting State v. Nadeau, 653 A.2d 408, 410 (Me. 1995)). The probative value of the evidence must
not be substantially outweighed by any prejudicial effect pursuant to Rule
403. State v. Turner, 2001 ME 44, ¶ 5,
766 A.2d 1025, 1027.
[¶9] We recently held that evidence of
uncharged sexual behavior was admissible when the victim initially thought
that the defendant's contact with her genitals was accidental, but later concluded
that it was intentional because it occurred repeatedly. Poulos, ¶¶ 2-4, 707
A.2d at 1308. The evidence of
uncharged acts was admissible to establish the defendant's relationship with
the victim, which was probative of the defendant's motive, intent, and opportunity
to commit the charged offense. Id. ¶ 4. In a similar case, we held that the victim's
testimony that the defendant used sexual paraphernalia in her presence was
admissible to establish the nature of their relationship. State v. DeMotte, 669 A.2d 1331, 1335 (Me.
1996); see also State v. Ilsley, 595 A.2d 421, 423-24 (Me. 1991) (holding
that evidence of prior harassing behavior was admissible to establish the
defendant's intent to harass his victim); Caron v. Caron, 577 A.2d 1178, 1180 (Me.
1990) (upholding the admission of evidence of prior domestic abuse when the
"contested incidents [were] relatively mild" and the evidence was
probative of the defendant's intent and of the victim's reasonable fear of
the defendant); State v. Heald,
393 A.2d 537, 541-42 (Me. 1978) (holding that evidence of an unsuccessful
attempt to rob the murder victim's house three weeks before the charged crime
was admissible to establish the defendant's design, motive, knowledge, and
identity with regard to the murder of the victim during a robbery). Evidence of a prior bad act is inadmissible
when the evidence is not sufficiently probative of any issue raised by the
case. See, e.g., State v.
DeMass,
2000 ME 4, ¶¶ 7, 13-16, 743 A.2d 233, 235-37 (holding it was clear
error to admit letters in which the defendant made advances on the victim's
sister because the letters were not probative of any legitimate issue).
[¶10] In the present case, there is evidence that
Krieger offered a questionable explanation of why on one occasion the victim
awoke nude after Krieger baby-sat for her. This evidence is probative of his intent in placing his hands
on her buttocks and torso on other occasions. Because some of the touching was characterized as "tickling,"
the evidence of the prior incident is probative of whether Krieger intentionally
or knowingly caused offensive physical contact or was as he claimed, touching
the victim in an innocent way. See 17-A M.R.S.A. § 207(1) (1983) ("A person is guilty
of assault if he intentionally, knowingly, or recklessly causes bodily injury
or offensive physical contact to another.").
That the evidence is circumstantial does not mean that it is speculative;
the jury may weigh the evidence regarding the intent element of the crime.
See State v. Emery, 650 A.2d 1341, 1342 (Me.
1994) (stating that circumstantial evidence is admissible when it "has
any rational tendency to prove or disprove a factual issue in the case"
(quoting State v. Doughty,
399 A.2d 1319, 1322 (Me. 1979))).
[¶11] Although a limiting instruction would
have been appropriate to ensure that the jury did not regard the testimony as
character evidence, Krieger did not request such an instruction and the State,
in its closing argument, contended that the evidence should be considered only
to establish context for the conduct that gave rise to the indictment. The absence of an instruction is not,
therefore, obvious error. See
State v. Roman,
622 A.2d 96, 99 (Me. 1993) ("[I]n the absence of a request to the court to
provide a limiting instruction [on the jury's use of evidence of a prior bad
act], 'we can assume that counsel concluded that a limiting instruction would
have overemphasized the importance of the evidence and decided to forego the
request for strategic reasons.'" (quoting State v. Rogers, 389 A.2d 36, 38, (Me.
1978))).
[¶12] The evidence of the prior act was not so
unfairly prejudicial as to substantially outweigh the probative value of the
evidence in establishing an element of the crime. M.R. Civ. P. 403.
II. MOTION FOR MISTRIAL
[¶13] Krieger contends that the court acted
beyond its discretion in denying his request for a mistrial because the
victim's statement about the last trial informed the jury that Krieger was
involved in a previous trial, and the court erred in concluding that the jury
probably did not hear the victim's testimony and would not make any improper
inference if it was heard.
[¶14] Because of the trial judge's superior
vantage point, we review a denial of a motion for a mistrial for an abuse
of discretion, overruling the denial only in the event of prosecutorial bad
faith or in exceptionally prejudicial circumstances. State v. Cochran, 2000 ME 78, ¶ 28, 749 A.2d 1274, 1281.
"[T]he trial court's determination of whether exposure to potentially
prejudicial extraneous evidence would incurably taint the jury verdict or
whether a curative instruction would adequately protect against consideration
of the matter stands unless clearly erroneous."
State v. Ardolino,
1997 ME 141, ¶ 18, 697 A.2d 73, 79.
"Knowledge by jurors that a prior trial ha[s] occurred is not
per se prejudicial to [a] defendant[]."
State v. Weidul,
649 A.2d 318, 319 (Me. 1994) (quoting State v. Libby, 435 A.2d 1075, 1079 (Me.
1981)).
[¶15] In Libby, 435 A.2d at 1078-79,
we concluded that the trial court acted within its discretion in denying a
motion for a mistrial when a witness stated that she and her husband had not
discussed the crime much "since the last trial," and the defendant did not
request a curative instruction. We
explained that the court did not commit clear error in finding that the
statement was not prejudicial because "[the] brief, cryptic reference to the
'last trial' left unclear who was tried, for what, and with what outcome. Moreover, fair deference is owed the
trial court's finding on the spot because it observed exactly how [the witness]
made her offending remark and how the jurors reacted to it." Id. at 1079. See also Weidul, 649 A.2d at 319
(concluding that the court did not abuse its discretion in denying a motion for
a mistrial based on testimony by the defendant's father that the defendant
"already served 29 months" when the defendant declined the court's offer to
instruct the jury to disregard the testimony).
[¶16] In this case, the trial court was in
the best position to determine the impact of the statement on the jurors, and
Krieger's attorney rejected the State's suggestion that a curative instruction
would be appropriate. The court did not commit clear error in finding that the
victim's mention of the "last trial" was not so prejudicial as to warrant a
mistrial, and acted within its discretion in denying Krieger's motion.
III. FIRST COMPLAINT
[¶17] Krieger also contends that the court
erred in permitting Cheryl Benoit, the person to whom the victim first reported
about being touched, to testify that the victim identified Krieger as the
subject of the first complaint.
[¶18] A complaint of a sexual assault made to a third party shortly
after the event is not hearsay, and is admissible to forestall the material
assumption that absent such a complaint, nothing occurred. State v. True, 438 A.2d 460, 464 (Me. 1981); Field & Murray, Maine Evidence §
801.11, at 419 (2000 ed. 1999). Neither
the details of the complaint, nor the identity of the perpetrator, however,
are admissible pursuant to the first complaint rule. State v. Lafrance, 589 A.2d 43, 45 (Me.
1991). "The only details
that are admissible are those necessary to identify the complaint as being
relevant to the charge on which the accused is being tried." State v. Joel H., 2000 ME 139, ¶ 23, 755 A.2d 520, 526 (internal
quotation marks omitted); compare State v. Tripp, 634 A.2d 1318, 1321 (Me.
1994) (holding that a victim's statement that he "'put a penis in [his]
mouth'" was admissible because it did not "identify [the] defendant
in any way, and [was] simply a statement that abuse had taken place"),
with State v. Naylor,
602 A.2d 187, 189 (Me. 1992) (vacating because the victim's out-of-court identification
of the defendant as the perpetrator should have been excluded).
[¶19] The admission of first complaint testimony
identifying the defendant as the perpetrator is error. Naylor, 602 A.2d at 189. An error in the admission of evidence
beyond what is allowed by the first complaint rule, however, need not result
in a conviction being vacated when the error is harmless. Joel H., ¶¶ 22-23, 755
A.2d at 526. An error in admitting
evidence about the victim's first complaint is harmless if the testimony restates
facts that were "brought out by other witnesses, and it is highly probable
that, in the circumstances of [the] case, the remaining inadmissible evidence
would not have affected the factfinder's judgment." Id. ¶ 25 (citation omitted).
[¶20] In Joel H., the father of the victim,
over the objection of the defendant, was allowed to testify that the victim
had reported sexual abuse to him. Id.
at ¶ 22. Although the father
did not reveal the name of the perpetrator named in the first complaint, he
did testify as to some of the details of the sexual abuse. Id. We noted that the evidence exceeded the
limits of the first complaint rule, and should have been excluded, but because
much of what the father testified to had been brought out by the other witnesses,
we concluded that the error was harmless. Id.¶ 25.
[¶21] Because Benoit was allowed to testify
that the victim complained to her about Krieger, the admission of Benoit's
testimony was error. The identity
of Krieger was the only detail of the first complaint to which Benoit testified,
however, and was no surprise to the jury.[2] The fact that the victim had reported
to Benoit that Krieger had touched her had been admitted in evidence without
objection prior
to the testimony of Benoit.
[¶22] During the direct examination of the
victim, when the victim was relating how Krieger touched her on many occasions,
the following testimony occurred:
Q.[Victim] in the
courtroom here today you have talked about some things that happened between
you and Mr. Jim [how the victim referred to Krieger].
A.Yes, sir.
Q.Is this the first
time that you have told anyone about this?
A. About my -- about the incidents?
Q. Right.
A. No, sir.
Q.Who is the first
person that you told about what happened to you?
A. Miss Cheryl Benoit and my mother.
Q.Okay. How do you know Miss Cheryl Benoit?
A. She attends our church.
Q.Do you remember about
when it was that you told Miss Benoit?
A.I spoke with her
about the bottom rubbing.
Q.I am sorry?
A. I spoke with her about the bottom
rubbing and how I felt --
Q.When was it -- let
me try to make this easier. When
was it in relation to when Mr. Jim started to come over and visit you at your
house?
A.I don't understand the
question.
Q.Well, you said it was
about a year ago --
A. Yes, sir.
Q.-- that he stopped
coming over to visit.
A. Uh-huh.
Q.When did you talk
with Miss Benoit about these incidents in relation to that, when he stopped
coming over?
A. The next day.
Q.Okay. How did you feel when you told Miss
Benoit about this?
A.I felt kind of sad and
kind of -- I felt a little bit ashamed in a way.
Krieger did not object
to that testimony.
[¶23] In the circumstances of this case,
because the details of the making of the first complaint to Benoit about
Krieger rubbing the victim's bottom had already been testified to in front of
the jury without objection, and the identity of the perpetrator, who touched
and tickled the victim, was not an issue in dispute, it is highly probable that
the brief testimony of Benoit did not affect the judgment of the factfinder and
that the error was harmless. See
Joel H.,
¶¶ 22-25, 755 A.2d at 526.
The entry is:
Judgment
affirmed.
_______________________
DANA, J., with whom
CALKINS, J. join, dissenting
[¶24] Although I agree with the Court's
discussion of the admission of Krieger's prior bad acts and his motion for a
mistrial, because I disagree with its conclusion that the violation of the
first complaint rule was harmless, I respectfully dissent. We vacated a court's admission of first
complaint testimony in a case indistinguishable from the present case. State v. Naylor, 602 A.2d 187, 189 (Me.
1992). We held that the
admission of a mother's testimony that the victim stated she was sexually
abused by Naylor was not harmless error because "[s]uch testimony identifying
[the defendant] as the perpetrator served to strengthen the victim's
credibility" and the court could not say that it was "highly probable that
[the] testimony did not affect the judgment." Id. As in the
present case, identity was not an issue in Naylor; we nonetheless
concluded that the error was prejudicial.
Id.
[¶25] The majority cites State v. Joel H., 2000 ME 139, 755 A.2d
520, to support its conclusion that the error was harmless. In Joel H., however, the father's
first complaint testimony did not identify the defendant, but merely gave
details of the assault that are not permitted pursuant to the first complaint
rule. Id. ¶¶ 22-25, 755
A.2d at 526. We held that the
testimony about the details was harmless because other witnesses had testified
about those same details. Id. ¶¶ 22-25,
755 A.2d at 526.
[¶26] In the present case, the victim's
statements to Benoit do more than overcome the presumption that absent a
complaint, no misconduct took place; the identification buttresses the credibility
of the victim, who was the only witness to testify about the details of the
charged conduct. Naylor, 602 A.2d at 189. If a witness may testify about the
victim's identification of the defendant in her first complaint as long as the
victim has previously identified the defendant in court and testified that she
told the witness about the assault, we have effectively overruled Naylor and eviscerated the
well-settled rule that the introduction of hearsay identity testimony under the
guise of the first complaint rule prejudicially buttresses the credibility of
the victim. Accordingly, I
dissent.
Attorneys for State:
Geoffrey Rushlau,
District Attorney
Richard Hartley, Asst.
Dist. Atty.
P O Box 246
Bath, ME 04530
Attorney for defendant:
Joel C. Vincent, Esq,
Vincent & Kantz
80 Exchange Street
Portland, ME 04101
[1] Krieger's counsel stated for the record that he was "further away from the witness than the jury," and he heard the testimony.