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State v. Branch-Wear
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:1997 ME 110
Docket:	Cum-96-94
Submitted 
on briefs:December 20, 1996
Decided:	May 21, 1997

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




STATE OF MAINE v. AUGUSTINA BRANCH-WEAR


LIPEZ, J.	

	[¶1] Augustina Branch-Wear appeals from the judgment entered in the
Superior Court  (Cumberland County, Cole, J.) pursuant to the jury verdict
finding her guilty of tampering with a victim (Class B), 17-A M.R.S.A. § 454
(Supp. 1996).  Branch-Wear contends that the court erred in allowing the
jury to determine whether the facts presented by the State allege a crime of
commission or omission; that the evidence was insufficient to establish that
she tampered with a victim; and that the court abused its discretion in
allowing two staff members of the homeless shelter where she and her
children had resided to testify against her in violation of the privileges for
communications to social workers and counselors, 32 M.R.S.A. §§ 7005,
13862 (1988 & Supp. 1996).{1}  We disagree and affirm the judgment.  
I
	[¶2]  The jury could have found the following facts.  Branch-Wear is the
mother of the alleged victim in a 1993 criminal prosecution for sex abuse
against Branch-Wear's husband, Frank Wear.  Branch-Wear took her daughter
for treatment for three and one-half weeks at Boston Children's Hospital. 
She then took her daughter to live with her and her two other children at a
homeless shelter in Massachusetts without notifying the Superior Court
victim/witness assistant who had been assigned to her, Sandra Nobert, or
the District Attorney's office.  When Nobert first meets with witnesses she
routinely tells them the importance of communicating address changes.  She
had met twice with Branch-Wear and her daughter that spring, once to
prepare the daughter to testify before the grand jury and then to accompany
her when she testified under subpoena.  In two letters sent to Branch-Wear's
Portland address, Nobert had made clear that the daughter would be
subpoenaed for trial within the next three months and that it was important
for the District Attorney's office to be informed of her current address. 
These letters were not returned for a failure to deliver.
	[¶3]  Nobert discovered that the daughter had been moved to
Massachusetts only because trial subpoenas were returned from Branch-
Wear's former Portland address unserved and the police subsequently
located the family in Massachusetts.  Nobert received this information on
approximately September 24th, just days before Wear's case was scheduled
for a trial.  Later that day, she telephoned Branch-Wear to inform her that
the case was going to trial on the 29th and to request that she bring her
daughter to Portland one day prior.  Nobert offered Branch-Wear
transportation, housing, and food to assist her in coming to Portland, but she
refused the help and told Nobert she would drive to Portland in her own car. 
Branch-Wear called Nobert on the 28th to say that she and her daughter
would be there the next morning at 8 a.m.
	[¶4]  When Branch-Wear left the shelter slightly past 7 a.m on the
morning of the 29th with her daughter and her other two children, she told
her family life advocate and caseworker at the shelter, Nicole Schoen, that
she was headed for Portland.  Branch-Wear and her daughter never appeared
for the trial.  Although Nobert called the shelter three or four times that day
to inquire as to their whereabouts, she was unsuccessful because Branch-
Wear had not informed anyone of alternative travel plans.  When she
returned to the shelter that night she admitted to John Barbur, another
caseworker who knew by means of weekly staff reports about the pending
court case, that she had decided instead to take the children to the
Plymouth Plantation historical park after passing a roadside advertisement
for it.  Branch-Wear decided not to take them to Maine because she did not
want to deal with her daughter's distress and difficult behavior once she
realized why they were traveling to Portland.  Her daughter had become
upset that morning when she learned that they were going to Portland,
although she did not know that she was going there to testify against Wear. 
Branch-Wear never consulted with her daughter before deciding unilaterally
that they would not attend the trial.  She admitted that she had not been
concerned about ensuring that her daughter had her day in court.  Even after
her daughter spoke to the police about Wear's alleged sexual abuse of her,
and after the family moved to Massachusetts, Branch-Wear continued to
maintain a relationship with Frank Wear, including telephone conversations
and visits in person.  Her daughter's failure to appear and testify at the trial
resulted in the dismissal of the case against Wear.  
    	[¶5]  Branch-Wear was indicted for tampering with a victim pursuant
to 17-A M.R.S.A. § 454.{2}  At a pretrial hearing, the court responded to
Branch-Wear's motion to dismiss by determining that the facts presented by
the State warranted the jury's consideration only of whether Branch-Wear,
"believing an official proceeding was pending, did induce or otherwise cause
the victim, namely [her daughter], to withhold testimony, information or
evidence all in violation of certain Maine law. . . ."  See 17 M.R.S.A.
§ 454(1)(A)(2).  Branch-Wear had argued, on the basis of the State's bill of
particulars, that the State was prosecuting her pursuant to a different
portion of the tampering statute that protects a victim summoned by legal
process.  See 17 M.R.S.A. § 454(1)(B)(3).  The court correctly rejected that
contention.    
	[¶6]  After the jury verdict finding her guilty of the charge, Branch-
Wear moved for a judgment of acquittal, arguing that the court had erred by
failing to make a legal determination whether the crime charged "was one of
voluntary conduct or voluntary omission."  Branch-Wear contended that the
charge was one of voluntary omission, and that the court should have
instructed the jury only on a "voluntary omission" theory of conduct.  The
court denied the motion and this appeal followed. 
II Jury Instruction
	[¶7]  The jury charge included the following language:

The State has alleged that on or about the 29th day of September,
1993 . . . that . . . Branch[-]Wear did, believing that an official
proceeding was pending, induce or otherwise cause a victim, that is
[her daughter], to withhold testimony, information or evidence in
violation of the law.  A person commits a crime only if she engages in
voluntary conduct.  Voluntary conduct includes an act or voluntary
omission and omission is voluntary only if that person fails to perform
an act which he is physically-of which he is physically capable and
which he has a legal duty and an opportunity to perform. 

The statute on tampering with a victim does not distinguish between acts of
commission or voluntary omission.  See 17-A M.R.S.A. § 454.  The issue
arises only because Branch-Wear, in her request for a bill of particulars
pursuant to M.R. Crim. P. 16(c)(1), asked the State to address whether it
intended to show victim tampering by means of acts of commission or
voluntary omission, both of which fall within the definition of voluntary
conduct.  See 17-A M.R.S.A. § 31(1) (1983).  In its response to the request
for a bill of particulars, the State asserted that Branch-Wear "committed
certain acts with the intent to make [her daughter] unavailable for trial that
day," including "affirmative steps" to deceive the District Attorney's office
into believing a subpoena would be unnecessary and to prevent
communication with her daughter on the day of the trial.  The State's
response also explained that in its view, "[t]his conduct constituted a
substantial step toward commission of the crime of [t]ampering, it went
beyond mere preparation and is strongly corroborative of the firmness of the
defendant's intent."  
	[¶8]  Branch-Wear took a different view of the State's case, arguing
that its description in the bill of particulars of a crime of commission was
actually a description of a crime of voluntary omission because the State was
 
trying to prosecute someone for failure to act, namely failing to bring
her daughter to Maine for trial, failing to notify the District Attorney's
Office of a new address, failing to disclose her change of plans after
telling Ms. Nobert that she would bring her daughter to Maine for trial. 
Those failures to act alone or in combination do not constitute an "act"
or "acts" which can be defined as a violation of a statute.

Branch-Wear's theory of voluntary omission involves a play on words. 
Pursuant to the tampering statute, Branch-Wear was prohibited from
inducing or otherwise causing a victim to withhold any testimony,
information or evidence.  The "failures to act" described by Branch-Wear all
involved, in the State's view, acts of evasion (e.g., taking her daughter to
Massachusetts without disclosing her whereabouts) and deceit (e.g.,
promising to bring her to Maine for the trial and then not doing so) that
caused her daughter to withhold testimony against Frank Wear.  The State
and Branch-Wear are looking at the same conduct.  They are simply
describing it differently.
	[¶9]  Branch-Wear's insistence on this voluntary omission theory of the
case reflects her effort to posture the case in a way that would permit her to
make legal arguments favorable to her.  Pursuant to 17-A M.R.S.A. § 31(2) an
omission is voluntary "only if the actor fails to perform an act of which he is
physically capable and which he has a legal duty and opportunity to
perform."  (Emphasis added.)  Focusing on the "legal duty" component of
this definition of a voluntary omission, Branch-Wear wanted to argue that
neither she nor her daughter had been served with a subpoena to appear for
trial, and hence that she had no legal duty to bring her daughter to Portland
for the trial.  To the extent that the lack of a subpoena would force the State
to argue some other source of the legal duty, such as a parental duty to
produce a child for trial, Branch-Wear wanted to argue that the State was
impermissibly impinging on her constitutional right to protect her daughter
from harm.
	[¶10]  This effort to import a favorable concept of legal duty into the
case fails for three reasons.  First, as already noted, the State presented
evidence of a crime of commission, not voluntary omission.  Second, as also
noted, the court had already ruled correctly prior to the trial that the State
was proceeding pursuant to that portion of the tampering statute which does
not require that the victim or witness subject to tampering also be subject to
a subpoena to attend an official proceeding.  Third, the State never relied in
its prosecution on a parental duty of Branch-Wear to produce her daughter
for the trial.  Instead, it relied on the general duty set forth in the tampering
statute itself, applicable to all persons subject to the criminal law of Maine,
to not engage in conduct that induces or causes a victim to withhold
testimony, information or evidence.
	[¶11]   Given these considerations, the defendant's theory of a
voluntary omission was irrelevant to the State's charge that the defendant
had acted affirmatively to induce or otherwise cause her daughter to
withhold testimony against Wear.  Although the court should not have
instructed the jury on a voluntary omission, the error only disadvantaged the
State by creating potential confusion among the jurors as to the relevance of
the voluntary omission theory.  Despite this potential for confusion, the
record demonstrates that the jury's verdict was not predicated on a
voluntary omission or "failure to act" theory.  When the jury requested an
instruction whether Branch-Wear's promise to bring her daughter to
Portland had created a duty to act, the court answered that it had not.  The
jury already knew that mother and daughter were not subject to any
subpoena.  The State never argued a parental duty to act.  The verdict,
therefore, reflected the jury's conclusion that Branch-Wear's acts of
commission violated the general duty established by 17-A M.R.S.A.
§ 454(1)(A)(2) not to tamper with a victim.  	
	[¶12]  Finally, Branch-Wear argues for the first time on appeal that
even if the only valid theory of the case is that of commission, the court
erred in failing to instruct the jury that as a parent she had a right to refuse
to bring her daughter to Maine if she determined that not testifying was in
her daughter's best interest.  Without deciding that this argument raises
constitutional concerns, and considering all of the evidence that Branch-
Wear was motivated by a desire to protect Frank Wear rather than her
daughter, we conclude that the court did not commit obvious error by
omitting a parental right instruction from the jury charge.  See State v. Mair,
670 A.2d 910, 913 (Me. 1996) (we review jury instruction challenged for
the first time on appeal in context of charge as a whole to determine
whether it constitutes obvious error, defined as highly prejudicial error
tending to produce manifest injustice); State v. Fowler, 676 A.2d 43, 44 (Me.
1996) (review for obvious error affecting substantial rights); M.R. Crim. P.
52(b).{3} 
  
Sufficiency of the Evidence
	[¶13]  When reviewing for a sufficiency of the evidence, we examine
the record 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. Marden, 673 A.2d 1304, 1311 (Me. 1996).  A
conviction may rest entirely on circumstantial evidence.  State v. Hayes, 675
A.2d 106, 109 (Me. 1996).  The weight to be given to the evidence and
determinations of witness credibility are the exclusive province of the
factfinder.  State v. Harper, 675 A.2d 495, 497 (Me. 1996).  
	[¶14]  The State prosecuted Branch-Wear on the theory that she was
guilty of acts of commission in violation of the statutory provision making it a
crime to induce or otherwise cause, or attempt to induce or cause, a victim
to withhold testimony, information or evidence, when the alleged tamperer
believes that an official proceeding or criminal investigation is pending.  
17-A M.R.S.A. § 454(1)(A)(2).  Contrary to Branch-Wear's arguments, the
statutory provision does not require proof of the alleged victim's intent to
testify, or that she has been subpoenaed.  Id.  As demonstrated by the facts
recounted above, ample evidence was adduced at the trial to support the
jury's determination that the State had proved beyond a reasonable doubt
that after promising to produce her daughter for the trial in Portland,
Branch-Wear removed her daughter from Maine to Massachusetts and took
affirmative steps to prevent her from testifying at the trial of Frank Wear.{4}   
Testimonial Privileges for Counselors and Social Workers
	[¶15]  Branch-Wear argues that the court should have excluded the
testimony of Barbur and Schoen pursuant to 32 M.R.S.A. §§ 7005, 13862,
establishing privileges for communications between licensed social workers
and licensed counselors, respectively, and their clients.  We review the trial
court's evidentiary rulings as to admissibility for abuse of discretion.   State v.
Case, 672 A.2d 586, 588 (Me. 1996); Hatch v. Maine Tank Co., 666 A.2d 90,
95 (Me. 1995).  Because neither Schoen nor Barbur meet the statutory
definitions of social worker or counselor, State v. Boobar, 637 A.2d 1162,
1169 (Me. 1994) (statutory privilege applies only to information disclosed to
licensed professionals), and because Branch-Wear waived any privilege she
may