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State v. Shulikov, continued.

C. CROSS-EXAMINATION
	[¶14]  Shulikov next argues that the prosecutor's cross-examination of
two of the defense character witnesses was so highly prejudicial as to affect
his substantial rights.  After two of Shulikov's character witnesses testified
to his reputation as a truthful man and a good father, the prosecutor asked
each, without objection, whether their opinion of Shulikov's reputation as a
good father would change if they heard from a truthful person that he had
provided alcohol to persons under the age of twenty-one.  No factual basis
for the prosecutor's question was given or asked for at trial.  Shulikov
contends that the questions amount to impermissible testimony by the
prosecutor as to a matter outside the record.  At the time it filed its brief in
this case, the State also filed an unopposed motion to supplement the
record with a police report that contained an allegation by Shulikov's son
that Shulikov provided alcohol to minors at a birthday party held for the
victim.  The State argues that this police report provided the prosecutor
with a good faith basis for asking the impeaching question.{3}
	[¶15]  When questions during cross-examination are not objected to,
they are reviewed for obvious error.  M.R. Crim. P. 52(b); State v. Roberts,
641 A.2d 177, 178 (Me. 1994).  "[T]he State's questions . . . would
constitute obvious error only if, in [their] probable effect on the jury, [they]
tend to produce manifest injustice."  Id. at 178 (quotations omitted).
	[¶16]  M.R. Evid. 405(a) provides that "[i]n all cases in which evidence
of character or a trait of character of a person is admissible, proof may be
made by testimony as to reputation.  On cross-examination, inquiry is
allowable into relevant specific instances of conduct."  The leading case
regarding this procedure advises that to guard against misuse of inquiry into
specific instances of conduct on cross-examination, the trial court should
ascertain out of the jury's hearing that the question is related to an actual
event.  Michelson v. United States, 335 U.S. 469, 481, 69 S. Ct. 213, 221,
93 L. Ed. 168 (1948).  See also Field & Murray, Maine Evidence § 405.2
(4th ed. 1997) (warning of the likelihood of unfair prejudice to a defendant
because asking whether the witness has heard of a given misdeed carries
the implication that the accused actually committed it).  The State did not
request such a procedure in this case.  The State, however, has provided its
factual basis for the questions by supplementing the record.  Shulikov
responds by contending that the report made to the police that he provided
alcohol to minors is untrustworthy, and that he was deprived of the right to
challenge such evidence because the prosecutor did not reveal the basis for
the allegation at trial.{4}
	[¶17]  In these circumstances, where the State has demonstrated that
it had a factual basis for the questions asked, where Shulikov acquiesced in
the questioning and did not ask the State to demonstrate its foundation for
the questions, and where no further reference to the allegation of providing
alcohol to minors was made during the trial, we conclude that it is not
probable that the effect of the questions on the jury produced manifest
injustice.{5}

III. THE SENTENCE APPEAL A. BASIC TERM OF IMPRISONMENT
	[¶18]  In challenging the sentence imposed upon him, Shulikov argues
that the court misapplied the principles of sentencing when it determined
that a basic term of imprisonment on each Class A crime of 20 years was
appropriate.  He maintains that the court's reference during the sentencing
hearing to the maximum term of imprisonment of 40 years demonstrates
that the court did not properly apply the two-tier sentencing structure of
17-A M.R.S.A. § 1252(2)(A) (Supp. 1997) as interpreted by this Court in
State v. Clark, 591 A.2d 462, 464 (Me. 1991). 
	[¶19]  We review the basic term of imprisonment imposed by the trial
court for misapplication of principle.  State v. Prewara, 687 A.2d 951, 953
(Me. 1996).  Pursuant to 17-A M.R.S.A. § 1252(2)(A),{6} the term of
imprisonment for a Class A crime may not exceed 40 years.  There are,
however, in effect, two discrete ranges of sentences for Class A crimes:  the
higher range of 20 to 40 years for "the most heinous and violent crimes
committed against a person," Clark, 591 A.2d at 464 (quoting State v. Lewis,
590 A.2d 149, 151 (Me. 1991)), and the lower range of up to 20 years for all
other commissions of a Class A crime.  We have held that "[c]lose-to
maximum sentences for sexual assaults are inappropriate in cases that
involve neither a weapon, nor a heightened degree of violence, injury,
torture, or depravity."  Id.
	[¶20]  The record reveals that the parties and the court were in
agreement that Shulikov's crimes, when compared against all the possible
means of committing gross sexual assault, did not warrant a sentence in the
expanded sentencing range.  At the sentencing hearing the prosecutor
stated:  "We recommend on counts one through ten, the Class A offenses of
gross sexual assault, twenty years to the Department of Corrections." 
Likewise, Shulikov's counsel conceded "that the original twenty year limit as
a maximum period is applicable to Mr. Shulikov."  The court concluded that 
"[t]he ten convictions of gross sexual assault on the defendant's daughter . . .
did not involve the heightened degree of heinousness which would warrant
the imposition of a sentence exceeding twenty years. . . . The crimes
committed, however, are among the most serious and for that reason, the
Court determines that a basic term of imprisonment on each Class A crime
of twenty years is appropriate."
	[¶21]  The record, as detailed above, does not support Shulikov's
contention that the court erroneously believed it was sentencing Shulikov in
the mid-range of the available sentence.  The court was justified in
determining a basic term of imprisonment for the ten counts of gross sexual
assault at the top of the permissible range.
B. AGGRAVATING AND MITIGATING FACTORS
	[¶22]  Shulikov next contends that the court improperly took his
relationship with the victim into account at both the first and second steps
of the sentencing process.  The court, in determining the basic term of
imprisonment, stated "not only did the conduct of Mr. Shulikov in
committing the Class A crimes involve the sexual abuse and emotional
scar[r]ing of an innocent child, it involved his own daughter."  During the
second step of the Hewey analysis, the consideration of mitigating and
aggravating factors to set the maximum period of imprisonment, the court
noted as an aggravating factor that "the crimes committed by Mr. Shulikov
were against not only a child, but against his own daughter."  The court went
on to describe the effect of the crimes on the victim, including the
destruction of her innocence, emotional scarring, the likelihood of future
difficulties in having normal relationships, and the rejection of her by some
family members.
	[¶23]  Although the court referred to Shulikov's relationship to the
victim at both the first and second steps of the sentencing process, the
court was in fact weighing different considerations at each step.  At the first
step, the court is required to consider the particular nature and seriousness
of the offense.  See 17-A M.R.S.A. § 1252-C(1).  This consideration focuses
on the objective nature of the offender's conduct.  The objective fact that
these crimes were committed against a family member is an appropriate
aspect of this initial consideration.  The effect of the offense on the victim,
which the sentencing court is statutorily instructed to consider during the
second step of the sentencing process, focuses on the subjective effect of
the crime on the victim.  See id. § 1252-C(2).  The effect of the crime on
the victim in this case was undoubtedly influenced by the fact that the victim
was the defendant's own daughter.
	[¶24]  Shulikov also argues that the court improperly considered the
rejection of the victim by some members of her family as an aggravating
factor during the second step of the sentencing process.  He contends that
it is improper to punish him based on factors over which he has no control,
namely, the family members' exercise of their constitutional right to express
their support for him and their rejection of the victim.  We disagree.
	[¶25]  As a result of Shulikov's crimes, the victim's family was
splintered and the victim was isolated from many of her own family
members.  The fact that this rejection was evidenced by the family members
expressing support for Shulikov does not infringe on their right to free
speech, nor does it punish Shulikov for their exercise of that right.  If this
aggravating factor had led to an increase in Shulikov's sentence, it would
have been because of his role in isolating the victim, which is appropriately
considered by the court during sentencing.  Id.
	[¶26]  Shulikov also contends that the court erred by refusing to
consider evidence of his ill health as a mitigating factor when computing his
sentence.  He cites no authority for the proposition that a defendant's health
should be considered as a mitigating factor, but argues that because one
purpose of sentencing is to provide a "just individualization of sentences,"
17-A M.R.S.A. § 1151(6) (1983), the court abused its discretion by failing to
take this important characteristic of the defendant into account.
	[¶27]  "A sentencing court has wide discretion in selecting sources of
mitigating factors and aggravating factors, provided they are factually
reliable."  State v. Weir, 600 A.2d 1105, 1106 (Me. 1991).  "[W]e accord the
sentencing court great deference in weighing these factors in order that it
may appropriately individualize each sentence."  Id.  The sentencing court
was made aware of Shulikov's health problems through the presentence
investigation report and through statements made at the sentencing
hearing.  The court did not address the state of Shulikov's health in its
sentencing order, however.  While the court had the authority to take
Shulikov's health into account, see Weir, 600 A.2d at 1106, it was not
required to do so, and its implicit rejection of Shulikov's bad health as a
mitigating factor was within its discretion.
C. CONSECUTIVE SENTENCES
	[¶28]  Shulikov finally argues that the court violated the law governing
consecutive sentences by imposing consecutive sentences on the crimes
that occurred after the victim reached age fourteen.  See 17-A M.R.S.A.
§ 1256 (1983 & Supp. 1997).{7}  We review a decision to impose consecutive
sentences for an abuse of discretion.  State v. Prewara, 687 A.2d 951, 954
(Me. 1996).  "When a defendant is subject to multiple sentences of
imprisonment, there is a statutory presumption that a sentencing court shall
impose the sentences concurrently."  State v. Michaud, 590 A.2d 538, 543
(Me. 1991) (citing 17-A M.R.S.A. § 1256 (2)).
	[¶29]  As a result of a single act of sexual misconduct,{8} the court
imposed two sentences on counts 13 and 14:  (1) six years of imprisonment
with all but four years suspended followed by four years of probation (count
14), and (2) three years of imprisonment all suspended with four years of
probation to be served consecutively to the previous four year term of
probation (count 13).
	[¶30]  17-A M.R.S.A. § 1256(3) (1983) provides:
	A defendant may not be sentenced to consecutive terms
for crimes arising out of the same criminal episode when:

	A.	One crime is an included crime of the other;
	B.	One crime consists only of a conspiracy, attempt,
solicitation or other form of preparation to commit, or
facilitation of, the other;
	C.	The crimes differ only in that one is defined to
prohibit a designated kind of conduct generally, and the other to
prohibit a specific instance of that conduct; or
	D.	Inconsistent findings of fact are required to establish
the commission of the crimes.

	[¶31]  The crime of sexual abuse of a minor generally prohibits sexual
acts between adults and children between the ages of fourteen and sixteen,
while the crime of gross sexual assault prohibits the more specific instance
of such conduct when the actor is a parent of the other person.  Because
Shulikov's convictions on these two counts arose out of the same criminal
episode, we conclude that the imposition of consecutive terms of
imprisonment on counts 13 and 14 is a violation of section 1256(3)(C).
	[¶32]  We have no quarrel with the court's determination that
consecutive sentences are appropriate based on the different criminal
offenses of Class A gross sexual assault (counts 1 through 10) and terrorizing
(counts 11 and 12).  See 17-A M.R.S.A. § 1256(2)(A) (consecutive sentences
may be imposed for offenses based on different conduct or arising from
different criminal episodes).  Nor do we question the court's decision to
make the sentence on Shulikov's convictions of sexual misconduct after his
daughter's fourteenth birthday consecutive to the previously imposed
sentences.  The longstanding nature of the sexual assaults perpetrated by
Shulikov clearly rises to the level of seriousness that warrants the imposition
of consecutive sentences pursuant to section 1256(2)(D).  We hold only that
the court's imposition of consecutive sentences on counts 13 and 14 was
unlawful, and we therefore vacate only that portion of the sentence imposed
on those two counts.
	The entry is:
Judgments affirmed.  Sentences on counts 1
through 12 affirmed; sentences on counts 13
and 14 vacated and remanded for resentencing
in accordance with this opinion.

Attorneys for State: Michael P. Cantara, District Attorney David D. Gregory, Esq., of counsel, (orally) Anne Marie Letourneau-Pazar, Asst. Dist. Atty.. P O Box 399 Alfred, ME 04002-0399 Attorney for defendant: Thomas J. Connolly, Esq., (orally) P O Box 7563 Portland, ME 04112-7563
FOOTNOTES******************************** {1}. Shulikov and several other witnesses in this case spoke Russian and required the services of an interpreter. M.R. Crim. P. 28 provides that "[t]he court may appoint a disinterested interpreter of its own selection and may determine the reasonable compensation of such interpreter. Interpreters shall be appropriately sworn." An interpreter is defined as "[o]ne who translates orally from one language into another." Webster's II New Riverside University Dictionary 638 (1988). Translate, in turn, means "[t]o express in another language, while systematically retaining the original sense." Id. at 1227 (emphasis added). An examination of the record reflects that the individual appointed as the interpreter in this case provided what properly can be characterized as "paraphrasing" of the testimony rather than translation in the strict sense of the word. Because the need for strict translation of testimony goes directly to the heart of the jury's critical task of evaluating the credibility of witnesses, we strongly encourage the trial courts to be vigilant in ensuring that interpreters perform their appropriate role in a judicial proceeding, namely providing a precise and accurate translation of the exact testimony of a witness. {2}. 17-A M.R.S.A. § 1252-C (Supp. 1997) is a codification of the sentencing process we enunciated in State v. Hewey: 1. The court shall first determine a basic term of imprisonment by considering the particular nature and seriousness of the offense as committed by the offender. 2. The court shall next determine the maximum period of imprisonment to be imposed by considering all other relevant sentencing factors, both aggravating and mitigating, appropriate to that case. These sentencing factors include, but are not limited to, the character of the offender and the offender's criminal history, the effect of the offense on the victim and the protection of the public interest. 3. The court shall finally determine what portion, if any, of the maximum period of imprisonment should be suspended and, if a suspension order is to be entered, determine the appropriate period of probation to accompany that suspension. {3}. The parties represented to us at oral argument that there were a number of unrecorded chambers conferences regarding evidentiary and other issues in this case. For example, the State maintained at oral argument that the defendant possessed a copy of the police report upon which it based its cross-examination questions, and that the proposed questions were likely discussed off the record. The State speculated that the defense counsel's knowledge of the police report was the probable reason no objection was raised to the questions at trial. Likewise, the parties agree that the admissibility of a videotape, see infra note 4, was presumably discussed during an unrecorded conference. We cannot review matters that are not properly a part of the record on appeal. We encourage parties to ensure that all material chambers conferences are appropriately memorialized to allow for full and adequate appellate review. {4}. In his reply brief and at oral argument, Shulikov strongly urged us to consider the content of a videotape when deciding whether the prosecutor's allegedly improper cross- examination resulted in a fundamentally unfair trial. According to Shulikov, the videotape, which depicts the events of the victim's birthday party, conclusively proves that the allegations against him regarding serving alcohol to minors were false. He argues that if the basis for the prosecutor's question had been disclosed at trial, he could then have introduced the videotape in evidence to rebut the charge. Shulikov concedes that the tape was in the possession of his defense counsel at the time of the trial, yet the record is devoid of any reference to the tape. Shulikov did not offer the tape in evidence, made no offer of proof regarding the content of the tape, and failed to challenge the basis for the prosecutor's question, which, according to his evidentiary theory, would have led to the admissibility of the tape. On direct appeal we will not engage in factfinding nor will we speculate as to the reasoning behind the trial counsel's decision to not offer the videotape at the appropriate time. We therefore decline Shulikov's invitation for us to consider the content of the videotape at this late stage of the proceedings. {5}. The State conceded at oral argument that the prosecutor's phrasing of the questions were improper based on our analysis in State v. Terrio, 442 A.2d 537 (Me. 1982). "The proper method of cross-examining the [character] witness is to inquire whether he has heard of the conviction in order to question whether there is an adequate basis for the community's opinion. The Maine rule does not permit proof of character by the opinion of the witness." Id. at 542-43 (citations and footnote omitted) (emphasis added). The prosecutor here asked the witnesses "would your opinion of his reputation as a good father change," and "would your opinion of him as a good father change." The improper questions, asked without objection, do not rise to the level of obvious error, however, and in any event are not challenged on this basis on appeal. {6}. "In the case of a Class A crime, the court shall set a definite period not to exceed 40 years. The court may consider a serious criminal history of the defendant and impose a maximum period of incarceration in excess of 20 years based on either the nature and seriousness of the crime alone or on the nature and seriousness of the crime coupled with the serious criminal history of the defendant." 17-A M.R.S.A. § 1252(2)(A) (Supp. 1997). {7}. 17-A M.R.S.A. § 1256 provides in pertinent part: § 1256. Multiple sentences of imprisonment . . . . 2. In all other cases, the court shall state in the sentence of imprisonment whether a sentence shall be served concurrently with or consecutively to any other sentence previously imposed or to another sentence imposed on the same date. The sentences shall be concurrent unless, in considering the following factors, the court decides to impose sentences consecutively: A. That the convictions are for offenses based on different conduct or arising from different criminal episodes; . . . or D. That the seriousness of the criminal conduct involved in either a single criminal episode or in multiple criminal episodes or the seriousness of the criminal record of the convicted person, or both, require a sentence of imprisonment in excess of the maximum available for the most serious offense. {8}. Counts 13 and 14 were based on the victim's testimony that her father forced her to engage in sexual intercourse in October 1995 after she had turned 14 years old. In count 13 Shulikov was charged with and convicted of sexual abuse of a minor. "A person is guilty of sexual abuse of a minor if ... [h]aving attained the age of 19 years, the person engages in a sexual act with another person, not the actor's spouse, who has attained the age of 14 years but has not attained the age of 16 years, provided that the actor is at least 5 years older than the other person." 17-A M.R.S.A. § 254(1)(A) (Supp. 1997). Violation of this section is a Class D crime, except that the violation is a Class C crime if the State pleads and proves that the actor "was more than 10 years older that the other person ... [or t]he actor knew the other person was related to the actor within the 2nd degree of consanguinity." Id. § 254(3)(A) and (3)(B). Count 14 charged Shulikov with Class B gross sexual assault. "A person is guilty of gross sexual assault if that person engages in a sexual act with another person and ... [t]he other person has not in fact attained the age of 18 years and the actor is a parent ... of that other person." 17-A M.R.S.A. § 253(H) (Supp. 1997). Both counts were based on the same episode of sexual misconduct.

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