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State v. Chad B., part 2

II.
	[¶5]  The State's burden of proving the corpus delicti has two prongs: 
(i) "the State must 'produce, exclusive of any confession or admission of the
defendant, such credible evidence as will create a substantial belief that the
crime charged has been committed by some person'"; and (ii) "the whole
record, including any confessions or admissions made by the defendant,
must contain sufficient evidence to establish corpus delicti beyond a
reasonable doubt."  State v. York, 1997 ME 209, ¶ 8, 704 A.2d 324, 326
(quoting State v. Curlew, 459 A.2d 160, 165 (Me. 1983)).  Although we have
expressed "a strong preference for proof of the corpus delicti prior to
admitting in evidence a confession or admission of the defendant," we have
reserved for the trial court's discretion the order of proof pursuant to the
corpus delicti rule.  See State v. Curlew, 459 A.2d 160, 164 (Me. 1983).    
	[¶6]  The defendant contends that the State's evidence, exclusive of
his statements, did not suffice to create a substantial belief that a gross
sexual assault of the victim was committed by someone.  To gain admission
of a defendant's statement into evidence, "the State must introduce
sufficient evidence to warrant a substantial belief that someone committed
the offense [charged] . . . upon the person named in the indictment."  Id. at
165.  We impose this preliminary evidentiary burden on the State to
preclude "the use of a defendant's confession alone to convict him of a
crime" and "to prevent a conviction when no crime has in fact occurred." 
State v. Reed, 676 A.2d 479, 481 (Me. 1996).  We have cautioned that a
substantial belief requires neither proof beyond a reasonable doubt nor proof
by a fair preponderance of the evidence; rather, the substantial belief
standard "'resembles the probable cause standard.'"  Id. (quoting Curlew,
459 A.2d at 165).  "In the context of the corpus delicti rule, '[p]robable
cause exists where facts and circumstances within the knowledge of the
[fact finder] . . . would warrant a prudent and cautious person to believe' that
the crime was committed by someone."  Id. (quoting State v. Enggass, 571
A.2d 823, 825 (Me. 1990)). 
	[¶7]  Pursuant to 17-A M.R.S.A. § 253(1), "[a] person is guilty of gross
sexual assault if that person engages in a sexual act with another person and
. . . [t]he other person, not the actor's spouse, has not in fact attained the
age of 14 years."  A "sexual act" is "[a]ny act between 2 persons involving
direct physical contact between the genitals of one and the mouth or anus of
the other, or direct physical contact between the genitals of one and the
genitals of the other."  17-A M.R.S.A. § 251(1)(C)(1) (Supp. 1997).  The
State's evidence, exclusive of the defendant's statements, consisted of:  the
victim's testimony that the defendant removed some unspecified articles of
her clothing; the sister's testimony that the victim dared the defendant to
"'hump'" her; the sister's testimony that the defendant removed the
victim's clothes and his clothes and then "'started doing it . . . [h]umping at
[the victim]'"; and the sister's testimony that she did not see anything
happen between the victim and the defendant.
	[¶8]  "Whether the facts as found by the trial court are sufficient to
establish 'probable cause' to believe that a crime has been committed by
someone is a question of law" that we review de novo, but we review the
court's factual findings only for clear error.  Reed, 676 A.2d at 482.  Implicit
in the court's denial of the defendant's motion for a judgment of acquittal on
the basis of the corpus delicti rule is a factual finding that the sister actually
saw the defendant in physical contact with the victim when they were
undressed.{2}   There were inconsistencies in the sister's testimony about
what she had seen.  The court had to decide if these inconsistencies
precluded a factual finding that the sister saw the activity that she
described.  The court decided that the inconsistencies did not preclude
such a finding.  We defer to the trial court's "opportunity to view witnesses
and assess their credibility."  State v. Coombs, 1998 ME 1, ¶ 7, 704 A.2d
387, 390.  Because "'[i]t is for the fact finder to decide the credence to be
given the various witnesses and their testimony,'" State v. Webb, 673 A.2d
1345, 1346 (Me. 1996) (quoting State v. Reardon, 486 A.2d 112, 117 (Me.
1984)), we cannot conclude that the court committed clear error by finding
that the sister's testimony was based on personal observation.  
	[¶9]  Moreover, the court's decision to credit the sister's testimony is
not discordant with its acquittal of the defendant of the charge involving
her.  A motion for a judgment of acquittal tests whether the State's evidence
would permit a fact finder to find that every element of the charged offense
had been proven beyond a reasonable doubt.  See State v. Ardolino, 1997 ME
141, ¶ 21, 697 A.2d 73, 80; see also M.R. Crim P. 29(a) ("The court on
motion of a defendant or on its own motion shall order the entry of
judgment of acquittal of one or more offenses charged in the indictment,
information or complaint after the evidence on either side is closed if the
evidence is insufficient to sustain a conviction of such offense or offenses."). 
According to the investigating police officer, the defendant confessed to a
sexual act with the victim and denied such an act with the sister.  Thus, the
only evidence as to the alleged offense against the sister consisted of her
testimony that the defendant lay on top of her and rubbed an unidentified
part of his body against an unidentified part of her body.  The court's
determination that the sister's testimony, by itself, failed to establish beyond
a reasonable doubt the occurrence of a "sexual act," as defined by statute,
between her and the defendant did not preclude the court from concluding
that the sister was a credible witness in her description of the defendant's
conduct. 
	[¶10]  We therefore must determine whether a prudent and cautious
person could believe that the victim had suffered a gross sexual assault on
the basis of the State's evidence that the defendant, the victim, and the
victim's sister were playing "truth or dare"; that the victim dared the
defendant to have sex with her; that the defendant removed her clothing
and his clothing; and that the sister observed the defendant "'doing it . . .
[h]umping at [the victim].'"  Mindful that a substantial belief that a crime has
occurred does not require proof beyond a reasonable doubt or proof by a
preponderance of the evidence, and that circumstantial evidence often
suffices to meet these higher standards, we conclude that these facts would
warrant a prudent and cautious person to form a substantial belief that there
was direct physical contact between the genitals of the defendant and the
genitals of the victim.  The court did not err in its determination that the
State had met its burden to prove the corpus delicti pursuant to the
substantial belief standard.  There was a proper basis for the introduction of
the defendant's admissions.     
III.
	[¶11]  We reject the defendant's contention that the record in its
entirety does not contain sufficient evidence to support his conviction of
gross sexual assault.  When examining the sufficiency of the evidence, we
review the evidence "in the light most favorable to the State to determine
whether a trier of fact rationally could find beyond a reasonable doubt every
element of the offense charged."  State v. Beaudet, 1997 ME 133, ¶ 4, 696
A.2d 436, 438.  The sister testified that the victim dared the defendant to
have sex with her.  The victim and her sister both testified that the
defendant removed some of the victim's clothing.  The investigating officer
testified that although the defendant originally denied having sex with the
victim, upon further inquiry the defendant stated, "'[o]kay, I did it.'"  The
officer then asked the defendant if he had had intercourse with the victim,
and the defendant said yes.  The officer also asked the defendant, "'[d]id you
ever put privates in [the victim's] privates,'" and the defendant answered
affirmatively.  Based on these facts, the court rationally could have found
beyond a reasonable doubt that the defendant had engaged in genital-to-
genital contact with the victim, who was not his spouse{3} and who had not
yet attained the age of fourteen.  The defendant's conviction is supported by
sufficient evidence.  
	The entry is:
Judgment affirmed.

Attorneys for State: David W. Crook, District Court Alan P. Kelley, Dep. Dist. Atty. 95 State Street Augusta, ME 04330 Attorney for defendant: Brian P. Winchester, Esq. 116 State Street Augusta, ME 04330-5632
FOOTNOTES******************************** {1} We directly review the judgment of the District Court when the Superior Court acts as an intermediate appellate court. See State v. Spaulding, 1998 ME 29, ¶ 4, 707 A.2d 378, 378. {2} The trial court explained only that it denied the defendant's corpus delicti challenge to the admission of his statements on the basis of what the sister "observed vis-a-vis [the defendant] and [the victim]." This explanation was part of the court's corpus delicti analysis after the defendant rested. {3} The State established through the investigating officer that the defendant was not married.

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