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State v. Cloutier
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:  1997 ME 96   
Docket:  SOM-95-753 
Submitted on briefs January 10, 1997
Decided May 6, 1997

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

STATE OF MAINE v. EDMOND CLOUTIER

DANA, J.
	
	[¶1]  Edmond Cloutier appeals from the judgments of conviction
entered in the Superior Court (Somerset County, Kravchuk, J.) on jury
verdicts finding him guilty of one count of unlawful sexual contact and four
counts of gross sexual assault.  On appeal he argues (1) the court erred in
limiting cross-examination; (2) the evidence at trial fatally varied from the
allegations in the indictment; (3) there is insufficient evidence to sustain his
convictions on four of the five counts; and (4) the court erred in instructing
the jury.  We affirm the judgment.
	[¶2]  In March 1994 Edmond Cloutier was indicted on six counts:
Count I, unlawful sexual contact pursuant to 17-A M.R.S.A. § 255(1)(C) (Class
C), Counts II-V, gross sexual assault pursuant to 17-A M.R.S.A. § 253(1)(B)
(Class A), and Count VI, gross sexual assault pursuant to 17-A
M.R.S.A. § 253(2)(H) (Class B).{1}  The charges involve Cloutier's conduct
toward his daughter who was born in July 1979.  At the trial the victim
testified to various acts of sexual abuse committed by Cloutier when the
victim was eleven through fourteen years of age.  At the close of the State's
case Cloutier moved for a judgment of acquittal on all counts.  The court
denied the motion as to Counts I-V, but granted it as to Count VI.  The jury
returned guilty verdicts on all five remaining counts.  This appeal followed.
I. Cross-examination
	[¶3]  Before the trial the State filed a motion in limine requesting
Cloutier be prohibited from introducing copies of two letters sent to his
wife, the victim's mother.  The letters were found by the victim in the
summer of 1993, about six months before informing her mother of the
sexual abuse.  One letter contains information about the wife's dissatisfaction
with her marriage, and the other describes sexual activity between her and
another man.  Cloutier's theory regarding the letters was as follows:  The
victim was a rebellious child, resisting any parental limitation of her
behavior, and the letters provided her with "leverage" against her mother. 
After finding the letters she provided them to her father and requested that
he obtain a divorce and allow her to live with her grandmother, a desire she
had expressed previously.  After Cloutier refused, the victim made the
allegations of abuse.  Cloutier also theorized that his wife was fearful the
content of the letters would be disclosed in the couple's pending divorce
and diminish her ability to obtain custody of their children.
	[¶4]  The court ruled preliminarily:

that the letters themselves will not be admissible, although
counsel can question the witness surrounding events in
connection [to them.] . . . [Y]ou can ask the . . . victim some
questions about did you discover a letter that you thought
someone had written to your mother?  Yes.  Did that letter upset
you?  Yes.  Maybe she's going to say no, I don't know what she's
going to say.  Did you go to your father to try to get him to take
you out of the house?  You know, you can do all that without
admitting the letters into evidence.

Cloutier argues the court abused its discretion because the limitation
imposed on the use of the contents of the letters unconstitutionally limited
his ability to cross-examine his accusers regarding their potential bias and
motive to fabricate the charges against him.  The State argues that Cloutier
was permitted to thoroughly cross-examine the witnesses regarding their
potential reaction to the letters as well as about any possibility of bias, and
that the court merely placed a limit on referring to the inflammatory
contents of the letters.  We agree. 
	[¶5]  The decision to admit or exclude evidence is reviewed for an
abuse of discretion.  State v. Case, 672 A.2d 586, 588 (Me. 1996).  When
evidence is proffered by a criminal defendant, and the State argues for
exclusion pursuant to M.R. Evid. 403, the defendant's constitutional right to
confront and cross-examine the witness against him significantly
circumscribes the court's discretion to exclude the evidence.  State v.
Warren, 661 A.2d 1108, 1110 (Me. 1995) (citing State v. Graves, 638 A.2d
734, 737 (Me. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 90, 130 L.Ed.2d
41 (1994)).
	[¶6]  Although the court's discretion to exclude evidence pursuant to
M.R. Evid. 403 is limited in the circumstances of this case, Cloutier cannot
show a link between the contents of the letters and any bias or motivation to
lie on the part of his daughter or wife.  As the court stated, "I don't see how
the content of the letters moves forward that argument in any fair or
probative fashion."  Contrary to Cloutier's contention, the contents of the
letters do not provide the "critical link" in his argument that the victim had
a bias against him or a motivation to lie.  First, Cloutier was permitted to
question the victim about the letters and she admitted that their content led
her to believe her mother was "cheating on" her father.  Second, the
contents of the letters has minimal, if any, connection to her potential bias
against her father.  Furthermore, while Cloutier argues his wife's motivation
to lie arises from her fear of losing custody of the children, the link between
that fear and her dissatisfaction with the marriage or possible infidelity is
not strong, i.e., admission of the contents of the letters was unnecessary to
cross-examine the wife regarding her potential fear and bias.
II. Allegations in the Indictment and the Evidence at Trial
	[¶7]  Cloutier argues the State failed to present any evidence that he
had sexual contact with the victim during the period between September 1,
1989, and September 1, 1991, as alleged in Counts I, II, and III of the
indictment.{2}  He argues the victim was ten and eleven years old during the
time frame alleged in the indictment, but the evidence showed sexual
contact occurring only when she was six, twelve, thirteen and fourteen years
old.  Cloutier argues the indictment caused him to prepare a defense against
charges he committed separate counts of gross sexual assault when his
daughter was ten, eleven, twelve, thirteen and fourteen years of age,
respectively, while the evidence presented at the trial established multiple
acts committed within the same year.  He argues that because the State
failed to prove the elements of unlawful sexual contact and gross sexual
assault at a time reasonably close to the period alleged in Counts I-III of the
indictment, there is both a material variance prejudicing his substantial
rights and insufficient evidence to sustain the convictions.
A. The Indictment
	[¶8]  The State concedes that the victim's testimony discloses the
abuse occurred when she was twelve and thirteen rather than ten and
eleven years of age; however, the State argues that our decision in State v.
Carmichael, 444 A.2d 45 (Me. 1982) confirms the indictment is adequate. 
We agree.
	[¶9]  In Carmichael, we stated:

A variance between allegation and proof at trial will justify the
entry of a judgment of acquittal only when the State, as a result,
fails to prove the crime alleged. . . .
	With respect to the date of the offense '[t]he settled rule of
law is that . . . proof of the commission of the offense on any day
within the statute of limitations, regardless of the date alleged in
the indictment is not a material variance unless it prejudices the
defendant.'

Id. at 47-48 (alteration in original) (quoting State v. Clair, 418 A.2d 184, 187
n.4 (Me. 1980)); see also State v. Terrio, 442 A.2d 537, 540 (Me. 1982)
(same).  In the instant case the State proved all the elements of the crimes
charged in Counts I-V within the applicable statutes of limitation.  See 17-A
M.R.S.A. § 8(2)(A) (Supp. 1996) ("A prosection for a Class A, Class B or Class
C crime must be commenced within 6 years after it is committed . . . ."); id
at. § 8(1) (Supp. 1996) ("[I]f the victim had not attained the age of 16 years
at the time of the crime, prosecutions for . . . gross sexual assault . . . may be
commenced at any time.)  Moreover, in Carmichael we concluded the
variance did not prejudice the defendant.  We stated:  "In the absence of the
specificity provided by a bill of particulars a temporal variance between the
allegations of the indictment and proof at trial is not fatal to [the]
conviction."  Carmichael, 444 A.2d at 48.  Similarly, in light of Cloutier's
failure to request a bill of particulars pursuant to M.R. Crim. P. 16(c)(1), the
indictment provided him with adequate notice of the crimes charged.
B. Sufficiency of the Evidence
	[¶10]  A review of the record reflects that Cloutier's contentions
regarding the sufficiency of the evidence with respect to Counts I-III are
without merit.  At the trial the victim testified about multiple acts of sexual
abuse occurring over a period of about three years.  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. Marden, 673 A.2d 1304, 1311 (Me. 1996).  Viewing the evidence in such
light, the jury rationally could find Cloutier committed one count of unlawful
sexual contact and multiple counts of gross sexual assault.
	[¶11]  Cloutier also argues specifically that the proof of Count V
establishes only that he had sexual contact with the victim while she was in
the seventh grade, but that prior to entering the eighth grade she became
fourteen years of age; thus, the evidence is ambiguous whether the victim
was younger than fourteen at the time of the alleged offense.  We disagree. 
The victim testified about a continuous pattern of sexual incidents that
began about the time she was in the fifth grade and continued until she was
in the eighth grade.  From the evidence presented the jury rationally could
find beyond a reasonable doubt that the victim was abused while she was
thirteen years old.  Marden, 673 A.2d at 1311.  Moreover, the jury need not
have found the abuse occurred while she was thirteen, if the evidence did
not materially vary from the indictment and the jury found the abuse
occurred before the victim's fourteenth birthday.  Carmichael, 444 A.2d at
48.
	[¶12]  Cloutier's remaining contention on this issue-that the variance
between the evidence presented at the trial and the allegations in the
indictment fail to protect him from double jeopardy-is without merit.  See
State v. Clair, 418 A.2d 184, 189 (Me. 1980)  ("[W]hen an offense charged
consists of a series of acts extending over a period of time, a conviction or
acquittal for a crime based on a portion of that period will bar a prosecution
covering the whole period . . . .") (citation and internal quotation omitted).
III. Jury Instructions
	[¶13]  At the end of the trial Cloutier requested that the court instruct
the jury on the proper weight that it could attach, in considering his
credibility, to the favorable character evidence that he was a good father. 
Cloutier argues that, despite his objections, the court erred in refusing to
provide such an instruction.  He contends that the credibility of the victim,
her mother, and himself was critical to the determination of guilt. 
Therefore, it cannot be said that the court's failure to inform the jury of the
relevance of the evidence to witness credibility did not affect the judgment. 
The State argues the court did not err because Cloutier failed to request the
instruction at the proper time.  The State contends Cloutier should have
requested the instruction be given when the evidence was offered, rather
than at the end of trial, and that the court's action does not constitute
reversible error because it did not prevent the jury from considering the
evidence.
	[¶14]  On appeal we review jury instructions in their entirety to
ensure they are adequate.  State v. Michaud, 611 A.2d 61, 64 (Me. 1992). 
Our review of the record discloses the trial court's action does not amount
to reversible error.  We have stated:
 
[W]hen evidence of the good character of an accused has been
introduced, the court on request should instruct the jury as to
the application of, and weight they may attach to, the evidence.  
. . .  Nevertheless, the failure to instruct the jury on the proper
consideration of character evidence certainly should not result
in an automatic reversal.  See United States v. Baytank
(Houston), Inc., 934 F.2d 599, 614 (5th Cir. 1991) (upholding
conviction despite trial court's refusal to give character
instruction saying "abuse of discretion would occur only if the
failure to give the instruction prevented the jury from
considering the evidence.").

State v. Mingo, 628 A.2d 1042, 1046 (Me. 1993) (quotation omitted).  In
Mingo we concluded the trial court's failure was not reversible error because
(1) the defendant was allowed to submit a great deal of favorable character
evidence, (2) the defendant did not contend he was barred from arguing the
character evidence to the jury in closing argument, and (3) the trial court's
instructions did not restrict the jury's consideration of the evidence, but
rather instructed the jury to consider all of the evidence before it.  Id. at
1046-47.  Each of these considerations is present in the instant case: (1)
five witnesses testified Cloutier was a good father, including the victim and
her mother; (2) the court stated on three occasions that Cloutier could
argue the favorable character evidence to the jury; and (3) the court
instructed the jury to determine the facts by analyzing the evidence in the
case including, among other things, the testimony of witnesses, and that the
jury was to determine whether reasonable doubt existed by weighing all of
the evidence.  In light of these circumstances the court's failure to instruct
the jury did not prevent it from considering favorable character evidence. 
As recognized by the trial court, "the jury understands . . . the case clearly
presents . . . a straight credibility issue between [the victim] and her father."
	[¶15]  Cloutier next argues the court committed reversible error by
failing to give a limiting instruction regarding evidence of sexual misconduct
not within the time period covered by the indictment.{3}  Because Cloutier
failed to object or otherwise preserve the alleged error, we review for
obvious error affecting substantial rights.  M.R. Crim. P. 52(b).  Obvious error
is error that is so highly prejudicial and so taints the proceedings as to
virtually deprive the defendant of a fair trial.  State v. Pelletier, 673 A.2d
1327, 1330 (Me. 1996).  A review of the record discloses Cloutier's
contention is without merit.  We have "repeatedly stated that it is not
reversible error for the trial court to fail to give a limiting instruction to the
jury when none was requested by the defendant."  State v. Shuman, 622
A.2d 716, 718 (Me. 1993) (citing State v. Dube, 598 A.2d 742, 745 (Me.
1991); State v. Glidden, 489 A.2d 1108, 1110 (Me. 1985); and State v.
McDonough, 350 A.2d 556, 564 (Me. 1976)).  Here, Cloutier did not request
a limiting instruction regarding prior bad acts; indeed, he responded in the
negative when asked by the court whether he requested such an instruction.    
	[¶16]  Finally, Cloutier argues that the court committed reversible
error by failing to inform the jury of the court's dismissal of Count VI at the
close of the State's case.  We disagree.  In State v.