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State v. Damboise
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Decision:	1997 ME  126
Docket:	Sag-96-357
Argued:	May 5, 1997
Decided:	June 5, 1997



	[¶1]  Hartley I. Damboise, II, appeals from the judgments entered in
the Superior Court (Sagadahoc County, Perkins, A.R.J.) on the jury verdicts
finding him guilty of an assault in violation of 17-A M.R.S.A. § 207 (1983 &
Supp. 1996){1} and unlawful sexual contact in violation of 17-A M.R.S.A.  255
(Supp. 1996).{2}  He contends the trial court erred by denying his motion for
a continuance of the trial and by imposing limitations on his cross-
examination of witnesses regarding the alleged prior sexual abuse of the
victim thereby depriving him of the right guaranteed by the United States
and Maine Constitutions to confront witnesses against him.{3}  Finding no
error in the record, we affirm the judgments.  
	[2]  The record discloses the following pertinent facts:  The male
victim, who was twelve years of age at the time of the alleged offense,
claimed that Damboise, who had renewed his prior relationship with the
victim's mother, had committed the charged offenses during the evening
hours while the victim and Damboise were at a campsite selected by
Damboise.  Damboise complied with the victim's request to go home. 
During the journey, Damboise told the victim not tell anyone because if he
did his mother would hate the victim.  The victim subsequently disclosed
the alleged abuse to his aunt.  She notified the police department and gave a
statement relating the entire conversation with the victim when he made
the disclosure to her.  The statement included, inter alia, the following
response to her inquiry of the victim as to what was the matter:  "'Auntie? 
Do you remember when I was molested by Brian?'  I said, 'Yes, I do.'  He
says, 'I have been molested again!'  I asked by who, he said 'Hartley
	[3]  Damboise's motion on the first day of the trial of this matter,
seeking a continuance of the trial on the ground of the unavailability of a
witness, was denied by the court.  The victim testified that the night before
the disclosure of abuse to his aunt he had dreamed that on the camping trip
Damboise had touched him inappropriately.  During the course of
Damboise's cross-examination of the victim and the victim's aunt, the court
refused to allow inquiry about alleged prior sexual abuse of the victim.{4} 
From the judgments entered on the jury verdicts finding Damboise guilty of
the charges, he appeals.  
	[4]  Damboise first contends the trial court erred by denying his
request for a continuance of the trial.  We disagree.  The resolution of a
continuance request is reserved to the discretion of the trial court, and we
review that ruling only for an abuse of that discretion.  We have previously
The party seeking the continuance has the burden of
establishing that the evidence sought will be relevant and
competent, that a continuance will make its procurement likely,
that due diligence was used to obtain the evidence before the
commencement of trial, and the length of the continuance is

State v. Chambers, 624 A.2d 473, 474 (Me. 1993) (citation omitted).  Here,
the record discloses that at the time Damboise made the motion requesting
a continuance of the trial, he offered no evidence as to the relevancy or
competency of the witness's testimony, the unavailability of the witness,{5} or
any attempt to procure the witness's attendance at the trial.  Accordingly,
the trial court acted within its discretion by denying Damboise's motion.  
	[5]  Damboise next contends that by not allowing him to question the
victim and his aunt regarding the alleged molestation by Brian, the court
erroneously deprived him of the constitutional right to confrontation.  He
makes no claim the evidence was necessary for impeachment purposes, but
argues that he was deprived of the opportunity to establish that the victim's
allegations against him may have arisen from the sexual abuse by someone
other than Damboise.  We disagree.  
	[6]  The right to confront and to cross-examine a witness is not
absolute and may, in appropriate cases, be restricted to accommodate other
legitimate interests in the criminal process.  Chambers v. Mississippi, 410
U.S. 284, 309 (1973).  In Delaware v. Van Arsdall, 475 U.S. 673, 679
(1985), the United States Supreme Court stated: 

It does not follow, of course, that the Confrontation Clause of the
Sixth Amendment prevents a trial judge from imposing limits on
defense counsel's inquiry into the potential bias of a prosecution
witness.  On the contrary, trial judges retain wide latitude
insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on concerns
about . . . confusion of issues . . . or interrogation that is only
marginally relevant . . . .  [T]he Confrontation Clause guarantees
an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever
extent, the defense might wish.  

(quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam).  The
constitutional right to confront one's accusers is not violated when the court
precludes irrelevant or immaterial evidence.  Wood v. Alaska, 957 F.2d
1544, 1549 (9th Cir. 1992).  
	[7]  The admission of evidence that some person other than the
defendant might have committed the charged crime is subject to the
threshold ruling of relevance which is largely discretionary with the trial
court.  State v. Deschaine, 572 A.2d 130 (Me. 1990).  In the instant case, the
record reflects that Damboise made no offer of proof of any connection
between the alleged prior abuse of the victim and the charges against
Damboise, nor did he request permission to question the victim outside the
presence of the jury.  Accordingly, we conclude that the ruling of the court
did not deprive Damboise of the constitutional right to be confronted by
witnesses against him.  
	The entry is:
				Judgments affirmed. 
Attorneys for State: Geoffrey A. Rushlau, District Attorney Michael P. Turndorf, Asst. Dist. Atty. (orally) P O Box 246 Bath, ME 04530 Attorney for defendant: Peter M. Rice, Esq. (orally) 46 Main Street Yarmouth, ME 04096
FOOTNOTES******************************** {1} 17-A M.R.S.A. § 207 provides in pertinent part: 1. A person is guilty of assault if he intentionally, knowingly, or recklessly causes bodily injury or offensive physical contact to another. 2. Assault is a Class D crime . . . . {2} 17-A M.R.S.A. § 255 provides in pertinent part: 1. A person is guilty of unlawful sexual contact if the person intentionally subjects another person to any sexual contact, and: . . . . C. The other person, not the actor's spouse has not in fact attained the age of 14 years and the actor is at least 3 years older; 2. [A] violation of subsection 1, paragraph C . . . is a Class C crime . . . . {3} Both the Sixth Amendment of the United States Constitution and Article I, § 6 of the Maine Constitution provide, inter alia, that in all criminal prosecutions the accused shall have the right to be confronted by the witnesses against him. {4} The court also denied the admission in evidence of the police report referencing the prior sexual abuse of the victim. Damboise does not challenge that ruling. {5} As the jury was entering the courtroom, Damboise stated on the record that the witness was unavailable for health reasons. At the time of his sentencing, Damboise filed an undated note from a medical doctor stating, "[the witness] is temporarily excused from court duty due to heart disease."