State v. Almurshidy

• Decision Date: 25 June 1999
• Citation: 732 A.2d 280,1999 ME 97
• Parties: STATE of Maine v. Ali Hussain ALMURSHIDY.
• Court: Maine Supreme Court

732 A.2d 280

1999 ME 97

STATE of Maine v. Ali Hussain ALMURSHIDY.

Supreme Judicial Court of Maine.

Argued May 4, 1999.

Decided June 25, 1999.

Stephanie Anderson, District Attorney, Julia Sheridan (orally), Assistant District Attorney, Portland, for the State.

William Maselli (orally), Auburn, for the Defendant.

Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.

CALKINS, J.

[¶ 1] Ali Almurshidy appeals from a judgment of conviction of gross sexual assault (Class A), unlawful sexual contact (Class C), and furnishing liquor to a minor (Class D) entered after a jury trial in the Superior Court (Cumberland County, Crowley, J.). On appeal, Almurshidy challenges the sufficiency of the evidence on the sexual assault counts and three evidentiary rulings. Because we agree with Almurshidy that his mug shot should not have been admitted in evidence, we vacate the judgment. Almurshidy also appeals the judgment revoking his probation, which appeal we dismiss because he has not properly pursued it.

[¶ 2] The indictment against Almurshidy alleges that the offenses occurred on August 9, 1997, in Cumberland County. Specifically, he was charged with engaging in a sexual act with the named victim, by direct physical contact between his genitals and her genitals, and she submitted as a result of compulsion. See 17-A M.R.S.A. § 253(1)(A) (Supp.1998). He was also charged with intentionally subjecting the victim to sexual contact to which she submitted as a result of compulsion. See 17-A M.R.S.A. § 255(1)(H) (Supp.1998). He was further charged with knowingly furnishing liquor to the victim, who was a minor. See 17-A M.R.S.A. § 208(A) (Supp.1998).

[¶ 3] The jury would have been justified in finding the following facts: On the afternoon of August 9, 1997, in downtown Portland, Almurshidy saw the victim, a seventeen-year-old girl whom he had met the night before at a friend's apartment. The victim described herself at trial as a "street kid," meaning a young person who is homeless, stays on the streets during the day and goes to a shelter at night. Almurshidy asked the victim if she wanted to get drunk again, and she said yes. She then accompanied Almurshidy and his friend Al-Shewaily in Almurshidy's car to Sebago. On the way Almurshidy stopped to buy beer. They stopped at a clearing in the woods in Sebago, and Al-Shewaily and the victim exited the car. Almurshidy left in the car. The victim began drinking from a can of beer, and Al-Shewaily asked her to have sex with him. He took a pink condom wrapper out of his pocket. The victim said no, and Al-Shewaily apologized, saying he would not ask her again.

[¶ 4] Almurshidy returned, and the two men conversed in a language the victim could not understand. Al-Shewaily took a walk in the woods, leaving Almurshidy alone with the victim. Almurshidy told the victim that he wanted to marry her, and he repeatedly asked her to have sex with him. She repeatedly refused. While she was up against a tree, and her pants were down, Almurshidy touched her genitals with his hand. She testified that she did not remember who pulled her pants down. She told Almurshidy to stop and pushed him away. She pulled her pants up, sat on a rock and drank more beer. Almurshidy exposed his penis, and she briefly touched it. He put her down on the ground and pulled her pants off. Although she told him not to, he got on top of her and touched her vagina with his penis. She testified that "it hurt like hell." She told him to get off and unsuccessfully tried to push him off. She poured beer on him, and he got up.

[¶ 5] The victim pulled up her pants and ran to the nearest building where she asked to use the phone. Her request was denied, and she ran to a restaurant where a waitress saw that she was very distraught and frightened. The victim did not tell anyone at the restaurant what had happened to her. A restaurant employee called the sheriff's office, and a deputy arrived. He saw that she was crying, and he gave her a ride back to Portland, to the shelter where she had been staying. She did not tell the deputy that she had been assaulted or raped. She told him she had been with two men who left her in the woods. Although she knew Almurshidy's name, she did not tell the deputy.

[¶ 6] At the shelter, staff members saw that she was nervous, timid and avoided people. She left the shelter and was found outside on the sidewalk curled up in a ball. Later when a staff member asked her if she had been raped, she nodded her head affirmatively. Staff members asked her not to shower, but she did so anyway. There was no medical or rape examination of the victim.

[¶ 7] Two days later the victim was interviewed by a sergeant from the sheriff's office. She showed the sergeant the location of the clearing in Sebago where he found a condom wrapper, beer cans and other items. The sergeant showed the victim an array of six photographs, each of a different male, and she identified Almurshidy as her assailant.

[¶ 8] A jury found Almurshidy guilty of gross sexual assault, unlawful sexual contact, and furnishing liquor to a minor.¹ The trial court also found Almurshidy to have violated the terms of probation that had been imposed in 1996 on a conviction for criminal threatening with a dangerous weapon. The basis for the probation violation was the finding by the trial court that Almurshidy engaged in new criminal conduct, specifically these three offenses. See 17-A M.R.S.A. § 1204(1) (Supp.1998). The Superior Court revoked his probation, and he was ordered to serve the time remaining on his sentence.

[¶ 9] Almurshidy noticed an appeal of the probation violation, but he did not perfect the appeal. "In a probation revocation proceeding in the Superior Court, a person whose probation is revoked may not appeal as of right." 17-A M.R.S.A. § 1207(2) (Supp.1998). The manner and conditions of the appeal are provided by rule. See id. Almurshidy did not follow the procedures set forth in M.R.Crim. P. 37F, and no certificate of probable cause was issued for the appeal. Therefore, the appeal of the probation revocation must be dismissed. See M.R.Crim. P. 37F(j)(2).

I. SUFFICIENT EVIDENCE ON THE ISSUE OF COMPULSION

[¶ 10] The State charged that the victim submitted to Almurshidy as a result of compulsion in both the unlawful sexual contact, 17-A M.R.S.A. § 255(1)(H), and gross sexual assault, id. § 253(1)(A).

"Compulsion" means the use of physical force, a threat to use physical force or a combination thereof that makes a person unable to physically repel the actor or produces in that person a reasonable fear that death, serious bodily injury or kidnapping might be imminently inflicted upon that person or another human being.

"Compulsion" as defined in this paragraph places no duty on the victim to resist the actor.

Id. § 251(E) (Supp.1998).

[¶ 11] On the gross sexual assault, the victim testified that Almurshidy put her on the ground, got on top of her, and she was unable to repel him. Viewing the evidence in the light most favorable to the State, the jury rationally could have found that the victim submitted to the gross sexual assault as a result of compulsion. See State v. Reynolds, 604 A.2d 911, 913 (Me.1992) (victim's testimony that defendants held her down and she pushed them away and begged them to stop sufficient to establish compulsion).

[¶ 12] While the evidence of compulsion on the unlawful sexual contact is not as strong as the evidence on the gross sexual assault, the jury rationally could have found that the victim submitted to the contact as a result of compulsion. The victim testified that she was up against a tree while Almurshidy touched her genitals with his hand. She testified that she was scared and that Almurshidy touched her even though she asked him not to. He did not stop until she pushed him, and he let go of her for a second. She pulled up her pants and sat down on a rock. From the victim's testimony, the jury could have reasonably inferred that Almurshidy held her against the tree or pushed her against it while he fondled her and for a brief period of time she was unable to get away from him. Furthermore, the fact that she was unable to repel him when he was on top of her shortly after the tree incident is probative of her inability to repel the unlawful sexual contact.

II. EVIDENCE OF THE PHOTO ARRAY

[¶ 13] The sergeant from the sheriff's department testified that he showed the victim an array of photographs from which she identified Almurshidy. The victim testified that she saw the photo array and picked Almurshidy's photo from it. The victim also made an in-court identification of Almurshidy. Although identification was not a contested issue, the State offered the photo array in evidence. Almurshidy objected on the grounds that identification had been already established and that the photos were unduly prejudicial because they were booking and arrest photos, but the photo array was admitted. The exhibit consists of six black and white photos, each of a different male facing forward. Each photo shows a height chart behind the head. The photos are clearly mug shots. The six photos are taped inside a manila folder with six holes cut in it.²

[¶ 14] In a similar case, we held it was an abuse of discretion to admit a photo array in evidence. See State v. Robbins, 666 A.2d 85, 87 (Me.1995). "The fundamental reason why a `mug shot type photograph' of a defendant may be inadmissible is that it tends to inform the jury that the defendant may have a prior criminal record, thereby reflecting unfavorably on [his] character." Id. (citing D.H. White, Annotation, Admissibility, and Prejudicial Effect of Admission, of "Mug Shot," "Rogues' Gallery" Photograph, or Photograph Taken in Prison, of Defendant in Criminal Trial, 30 A.L.R.3d 908 (1990 & Supp.1995)). In Robbins we cited a three-part test for the admissibility of such photos: "(1) the prosecution must show a demonstrable need to...