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State v. Cunningham
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 167
Docket:	Yor-97-172
Submitted
on Briefs:	June 15, 1998
Decided:	July  l, l998 


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



STATE OF MAINE
v.
    FRANK CUNNINGHAM

WATHEN, C.J.

	[¶1] Defendant Frank Cunningham appeals from a judgment entered in
the Superior Court (York County, Fritzsche, J.) following a jury verdict
finding him guilty of aggravated assault.  17-A M.R.S.A. § 208 (1983).  On
appeal, defendant challenges the sufficiency of the evidence and raises two
unpreserved claims of error.  Finally, he challenges the propriety of the
sentence, even though leave to appeal the sentence was previously denied. 
We affirm the judgment.
	[¶2] The jury could have found the following facts: After an evening of
drinking, defendant and a young female acquaintance began to fight while
riding in a vehicle.  The driver, a friend of defendant, pulled the vehicle to
the side of the road and defendant threw the woman into the roadway.  She
attempted to run but defendant caught her and swung her in the air like a
"rag doll." He threw her down, slammed his knee into her chest, and
placed his other knee across her throat.  She could not breathe and she
thought she was going to die.  A car stopped to investigate, shining its
headlights on defendant.  He then stood up and let the woman go.
	[¶3] The two passengers in the car that stopped to investigate
testified that they witnessed defendant jumping on, kicking, strangling, and
dragging the young woman.  They explained that, following defendant's
departure, the woman was in convulsions and was having difficulty breathing. 
She was later treated at a hospital for minor cuts and a 20% pneumothorax
(partial collapse of the lung), that, if left untreated, could have resulted in a
total collapse of the lung.
	[¶4] Contrary to defendant's contention, there was sufficient evidence
for the jury to conclude that the victim's injuries constituted serious bodily
injury as defined in 17-A M.R.S.A. § 2(23), see State v. Frost, 564 A.2d 70,
71 (Me. 1989), or alternatively, that he caused bodily injury under
circumstances manifesting extreme indifference to the value of human life. 
See State v. Dodd, 503 A.2d 1302 (Me. 1986).  Defendant argues that the
court erred in failing to define the term "cause" in instructing the jury
concerning the elements of assault.    He also argues that the court erred in
allowing the witness{1} in the second car to testify that she thought the young
woman would have been killed had she and her boyfriend not intervened. 
No objection was offered with regard to either claim.  We review for obvious
error and find none.
	[§5] Even though the Sentence Review Panel denied defendant's
application to appeal his sentence, he argues on direct appeal that the court
erred in setting defendant's basic sentence at seven years.  A departure from
the sentencing process set forth in State v. Hewey, 622 A.2d 1151 (Me.
1993) and now codified at 17-A M.R.S.A. § 1252-C (Supp. 1997), creates no
reviewable issue on direct appeal.  See State v. Cyr, 611 A.2d 64, 66 (Me.
1992).  Moreover, we do not consider the legality of a sentence on direct
appeal "unless a 'jurisdictional infirmity' appears on the record 'so plainly as
to preclude rational disagreement as to its existence.'" State v. Parker, 372
A.2d 570, 572 (Me. 1977).  Measured by this standard, defendant's claim is
truly frivolous.
	The entry is:
					Judgment affirmed.
                                                                                                                          

Attorneys for the State: Michael P. Cantara, Esq. District Attorney David Gregory, of counsel York County Courthouse Alfred, Maine 04002 Attorney for the Defendant: Joseph M. Wrobleski, Esq. 2 Saco Island P.O. Box 350 Saco, Maine 04072
FOOTNOTES******************************** {1} Contrary to defendant's contention, only one witness made the statement which he assigns as error.