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State v. Searles
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 236
Docket:	Fra-97-167
Argued:	October 6, 1997
Decided:	December 30, 1997

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





STATE OF MAINE v. COREY A. SEARLES

ROBERTS, J.
  
	[¶1]  Corey A. Searles appeals from the judgment entered in the
Superior Court (Franklin County, Delahanty, J.) convicting him of unlawful
sexual contact (Class C) in violation of 17-A M.R.S.A. § 255 (1983 & Supp.
1996).  On appeal, Searles contends that his conviction must be overturned
because the State failed to prove beyond a reasonable doubt that "sexual
contact" had occurred as defined in 17-A M.R.S.A. § 251(1)(D) (1983 &
Supp. 1996).  We affirm the judgment.  
	[¶2]  The facts in this case are summarized as follows.  In September
1996 Searles was an overnight guest at the home of the victim's father and
mother.  The mother woke in the early morning hours to the sound of her
three-year-old daughter screaming.  She found her daughter naked from the
waist down, sitting up in her bed, with Searles lying beside her.  While
examining her daughter, the mother noted redness in the daughter's vaginal
area.  The father testified that Searles was intoxicated.  
	[¶3]  The victim was examined by a doctor at the hospital later that
morning.  When asked what happened, the victim told the doctor that "he
had hurt her pee pee."  The doctor found "marked redness to both lateral
walls of the vaginal introitus" and also blood in the vaginal area, but his
examination did not reveal semen in the vaginal area.  He stated that the
absence of semen is not uncommon in cases of sexual abuse of children
under five years old.  The doctor stated that the victim's injury was
"consistent with a digital or penile penetration."  In addition, a forensic
chemist testified that he could not find either semen or pubic hairs on the
victim's bedding or clothing, or on Searles's clothes.  
	[¶4]  Mark Cayer, the arresting officer, testified that Searles could not
remember what had happened.  He also testified that Searles was visibly
upset and "immediately started crying, saying he couldn't believe that he
had done this, and at that point I asked him what it was that he was
indicating and he stated that I should just pull my gun out and shoot him." 
In October 1996 Searles was indicted for gross sexual assault and unlawful
sexual contact in violation of 17-A M.R.S.A. § 253(1)(B) and § 255.{1}  
	[¶5]  After a jury-waived trial in February 1997, Searles was acquitted
of the gross sexual assault charge because the court could not find beyond a
reasonable doubt that penile contact had occurred.  The court found him
guilty, however, of unlawful sexual contact.  Thereafter, Searles filed a
motion for a judgment of acquittal and for reconsideration.  After a hearing
held in March 1997, Searles's motion was denied.  This appeal followed.  
	[¶6]  The gravamen of the defendant's argument is that the evidence
establishing vaginal injury is equally consistent with either penile or digital
penetration.  He contends, therefore, that the State has failed to disprove
the possibility of penile penetration beyond a reasonable doubt.  Although
section 251(D) defines sexual contact as "any touching of the genitals ...
other than as would constitute a sexual act," the State did not have the
burden of disproving the possibility of penile penetration beyond a
reasonable doubt.  The emphasized words are intended to prevent the
possibility that every charge involving a sexual act would have a lesser
included offense of unlawful sexual contact.  The phrase does not add a
separate, discrete element requiring proof beyond a reasonable doubt.  We
conclude that the evidence in the record does support Searles's conviction
for a violation of section 255.  
	The entry is:  
				Judgment affirmed. 
                
Attorneys for State: Norman R. Croteau, District Attorney Margot Joly, Asst. Dist. Atty., (orally) 38 Main Street Farmington. ME 04938-1818 Attorney for defendant: Walter Hanstein, III, Esq., (orally) Joyce, Dumas, David and Hanstein, P.A. P O Box 31 Farmington, ME 04938-0031
FOOTNOTES******************************** {1}. 17-A M.R.S.A. § 253(1)(B) provides: § 253. Gross sexual assault 1. A person is guilty of gross sexual assault if that person engages in a sexual act with another person and: .... B. The other person, not the actor's spouse, has not in fact attained the age of 14 years. "Sexual act" is defined in 17-A M.R.S.A. § 251(1)(C)(1) as follows: C. "Sexual act" means: (1) Any 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. § 255(1)(C) provides: § 255. Unlawful sexual contact 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. "Sexual contact" is defined in 17-A M.R.S.A. § 251(1)(D) as follows: D. "Sexual contact" means any touching of the genitals or anus, directly or through clothing, other than as would constitute a sexual act, for the purpose of arousing or gratifying sexual desire or for the purpose of causing bodily injury or offensive physical contact.