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State v. Kevin Lobozzo
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MAINE SUPREME JUDICIAL COURT       Reporter of Decisions
Decision:1998 ME 228
Docket:Cum-97-511
Argued:	September 8, 1998
Decided:October 14, 1998

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





STATE OF MAINE v. KEVIN LOBOZZO



WATHEN, C.J.

	[¶1]  Defendant Kevin Lobozzo appeals from judgments entered in the
Superior Court (Cumberland County, Cole, J.) after a jury verdict finding him
guilty of gross sexual assault (17-A M.R.S.A. § 253(1)(A) (Supp. 1997)),
kidnapping (17-A M.R.S.A. § 301(1)(A)(3) (1983)), unlawful sexual contact
(17-A M.R.S.A. § 255(1)(H) (Supp. 1997)), and assault (17-A M.R.S.A. § 207)
(1983 & Supp. 1997)).  On appeal, defendant argues that the court erred in
ruling on evidentiary issues, that the evidence was insufficient to support his
convictions, and that the court erred in sentencing him.  Finding no errors,
we affirm the judgments.
	[¶2]  The facts presented at trial can be summarized as follows:  The
complaining witness, a thirty-four-year-old woman testified that on an
afternoon in August 1996, she was introduced to defendant by a mutual
acquaintance.  They shared alcoholic beverages at an outdoor location
frequented by homeless persons.  As she prepared to leave with the mutual
acquaintance, defendant attacked her from behind and pushed her to the
ground.  The mutual acquaintance presumably left the area, and defendant
punched the witness in the face and dragged her several feet before ripping
off items of her clothing.  He then raped her numerous times over the
course of approximately the next five hours.
	[¶3]  During the attack, defendant punched the witness repeatedly,
pulled hair out of her head, and held her down with his hands and the
weight of his body.  He scraped her vagina with his fingernails and when she
screamed he scraped harder.  When she tried to call for help or escape, he
punched her and bit her lip.  At one point, defendant stood over the witness
and urinated on her.
	[¶4]  As it began to get dark, in an attempt to escape, the witness
pretended to befriend defendant, asking him if they could go to the store to
buy beer and cigarettes.  He agreed and as they walked to the store he
pushed her down and raped her again.  When they approached the store, the
witness escaped by getting into a taxi cab.  She was treated at a local hospital
for serious injuries including a swollen lip and jaw, head swelling, multiple
cuts on her back, legs, and vagina, a large bump on her sternum, and bruises
and swelling on her inner thighs and vaginal area.  The attending physician
testified that in his approximately sixteen years of practicing emergency
medicine, the witness's injuries were the worst he had ever seen resulting
from a sexual assault.
	[¶5]  At the hospital emergency room, the witness described her
attacker and the location of the attack to police.  The police returned to the
scene of the attack and found defendant lying on the ground with the
witness's bra near his head and her belongings scattered around the site. 
Defendant matched the description given by the witness.
	[¶6]  The jury convicted defendant on all four counts.  The court
sentenced defendant to concurrent sentences of forty years for gross sexual
assault, forty years for kidnapping, ten years for unlawful sexual contact, and
364 days for assault.  Defendant appeals the judgments of conviction and his
forty year sentences.
	[¶7]   First, Lobozzo assigns as error the court's refusal to review
unrelated records of psychiatric tests performed on the witness seven years
before the incident in question.  Evidentiary rulings are reviewed for an
abuse of discretion.  See State v. Bowman, 681 A.2d 469, 471 (Me. 1996). 
We find no abuse of discretion in the court's ruling that the records were
irrelevant due to the lapse of time between the testing and defendant's
request that the court review the records.
	[¶8]  Second, defendant argues that the court erred by admitting
photographs of the injuries to the witness's genitals.  Because no objection
was made at trial, we review the court's ruling for obvious error affecting
defendant's substantial rights.  See State v. Sostre, 625 A.2d 910, 912 (Me.
1993).  Generally, photographs are admissible if "'they are true and accurate
depictions of what they purport to represent, if they are relevant to some
issue involved in the litigation, and if their probative value is not outweighed
by any tendency they may have toward unfair prejudice.'"  State v. Condon,
468 A.2d 1348, 1350 (Me. 1983) (citations omitted).  In this case, the
photographs were relevant to several elements of the charges, including
compulsion, restraint, and injury, and their probative value was not
outweighed by any tendency to unfairly prejudice defendant.  Defendant
demonstrates no error in the court's admission of the photos.
	[¶9]  Third, defendant argues that the court erred by admitting
evidence of his prior convictions for theft, escape, and possession of a
firearm by a felon for the purpose of impeaching his testimony pursuant to
M.R. Crim. P. 609.  We review to determine whether the court abused its
discretion or applied an incorrect legal standard.  See State v. Hanscome,
459 A.2d 569, 572 (Me. 1983).  Defendant's convictions were relevant to his
credibility and  the court did not abuse its discretion in determining that
their probative value outweighed their prejudicial effect.
	[¶10]  Fourth, defendant contends that the court erred by admitting
two items of evidence submitted by the prosecution, the whiskey bottle and
bra found at the scene.  Defendant argues that the chain of custody had not
been adequately established for this evidence.  We review the court's
foundational findings for clear error.  See State v. Barnies, 680 A.2d 449,
451 (Me. 1996).  As we have often stated, a minor break in the chain of
custody may affect the weight that is assigned to evidence but does not affect
its admissibility.  See State v. Johnson, 434 A.2d 532, 537 (Me. 1981).  In
this case, police officers testified about collecting the evidence from the
crime scene, transporting the evidence to the police station, and general
practices regarding the use of an evidence locker.  Thus the chain of custody
was sufficiently established, and we find no clear error in the court's
admission of the evidence.
	[¶11]  Furthermore, contrary to defendant's contention, there was
sufficient evidence to allow a jury rationally to find beyond a reasonable
doubt that he committed each of the elements of gross sexual assault,
kidnapping, unlawful sexual contact, and assault.
	[¶12]  Finally, defendant argues that the court erred in setting his
basic sentence at thirty years for  the Class A offense of gross sexual assault
and at twenty-five years for the Class A offense of kidnapping.  The court
determines a defendant's basic sentence by considering the nature and
seriousness of the offense.  See State v. Hewey, 622 A.2d 1151, 1154 (Me.
1993).  We review  that determination de novo for misapplication of
principle.  See id. at 1155.
	[¶13]  A sentence for a Class A crime may be for any definite period
not exceeding forty years.  See 17-A M.R.S.A. § 1252(2)(A) (1983 & Supp.
1997).  In State v. Lewis, 590 A.2d 149 (Me. 1991), however, we held that
only the most heinous and violent crimes committed against a person
warranted basic sentences in the twenty to forty year range.  Id. at 151
(citing Comm. Amend. A to L.D. 2312, No. H-720, Statement of Fact (113th
Legis. 1988)); see also State v. King, 1998 ME 60, ¶ 13, 708 A.2d 1014,
1018.  The upper range is appropriate in sexual assaults only if a weapon or
"heightened degree of violence, injury, torture, or depravity" are present. 
State v. Prewara, 687 A.2d 951, 954 (Me. 1996) (citing State v. Clark, 591
A.2d 462, 464 (Me. 1991)).
	[¶14]  In this case, although no weapon was used, the court was
warranted in finding that defendant committed gross sexual assault with a
heightened degree of violence, depravity, and torture, and intentionally
caused serious injuries to the witness.  Defendant continuously assaulted the
witness over the course of several hours, raped her numerous times,
threatened to kill her, pulled hair out of her head, bit her lip, and scraped
her vagina with his fingernails.  To effect his kidnapping of the witness,
defendant threatened to kill her, used serious force against her, and injured
her when she tried to escape.   We find no misapplication of principle in
sentencing defendant to sentences in the upper range.  The court was
warranted in concluding that his crimes were among the most heinous and
violent crimes that could be committed against a person.
	The entry is:
Judgments affirmed.

Attorneys for State: Stephanie Anderson, District Attorney Julia A. Sheridan, Asst. Dist. Atty., (orally) 142 Federal Street Portland, ME 04112 Attorney for defendant: Paul F. Macri, Esq. Berman & Simmons, Esq., (orally) P O Box 961 Lewiston, ME 04243-0961