State v. Bickford
| Decision Date | 03 September 1985 |
| Citation | 497 A.2d 138 |
| Parties | STATE of Maine v. Barry BICKFORD. |
| Court | Maine Supreme Court |
David W. Crook, Dist. Atty., Alan P. Kelley (orally), Deputy Dist. Atty., Augusta, for the State.
James E. Millett (orally), Westbrook, for defendant.
Before NICHOLS, VIOLETTE, WATHEN, GLASSMAN, and SCOLNIK, JJ., and WERNICK, A.R.J.
The defendant Barry Bickford appeals from a judgment of conviction entered upon the verdict of a Superior Court (Kennebec County) jury. The jury found that on various occasions between March of 1982 and the summer of 1983 the defendant had engaged in gross sexual misconduct and in unlawful sexual contact, 17-A M.R.S.A. §§ 253 and 255 (1983), respectively.
On appeal, the defendant asserts that (1) some of the counts of which he was found guilty are fatally deficient as accusations of criminal conduct; (2) evidence essential to the proof of some counts under which he was convicted was inadmissible because it fatally varied from the scope of proof open to the prosecution; and (3) the evidence was insufficient to justify any conviction at all.
We affirm the judgment of conviction.
The defendant says that those counts of the indictment are fatally deficient that merely track general statutory language, by alleging that the defendant committed "sexual acts" without setting forth the particulars of what was done.
State v. Weymouth, 496 A.2d 1053 (Me.1985), together with State v. Hebert, 448 A.2d 322 (Me.1982), have settled that this is an unsound contention. Those decisions sustain the mode of allegation used in the counts the defendant attacks, holding it adequate to serve the requisite functions of an accusation of crime in that, first, it affords the accused a notice of the charge against him sufficient to permit him to prepare an informed defense through use of other available legal procedures; and second, it is precise enough to provide the basis for a plea of former jeopardy should there be occasion for such a plea.
After the defendant had filed a motion for a bill of particulars, the prosecution provided to him, well before trial, a statement of the boy who claimed to be the victim of the defendant's conduct. The statement set forth various details of sexual acts charged against the defendant. When the boy testified at trial, his description of the details of the sexual acts he maintained had occurred differed in several respects from the details mentioned in the pretrial statement.
The defendant argues that since the prosecution had provided the pretrial statement to him as the particulars he sought by his motion for particulars, the contents of the statement became the basic limits of the scope of proof allowable to the prosecution at trial. From this premise the defendant argues further that the variances between the contents of the pretrial statement and the boy's testimony at trial must be held fatal variances of proof because the trial testimony was an obvious surprise to the defendant that prejudicially impaired the presentation of his defense.
The argument is unconvincing. Without suggesting agreement with the defendant's premise that the prosecution provided the pretrial statement in circumstances making it the equivalent of a bill of particulars restricting the scope of the prosecution's proof at trial, we reject the defendant's conclusion that the variances in the details of the boy's pretrial and trial stories impaired the defendant's presentation of his defense.
Even if in reliance on the details of the boy's pretrial statement the defendant may have been surprised by what the boy said at trial, it is plain that the defendant suffered no impermissible prejudice. The defendant's position had always been that there never had been any sexual contact between him and the boy. Such categorical denial of the essence of the boy's accusation against him was the defense the defendant had always planned, and was preparing, to present. Moreover, by such defense the defendant made...
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State v. Brunette
...Mass. 433, 49 N.E. 632 (1898) (jury may consider a child's appearance in determining whether she was under sixteen); cf. State v. Bickford, 497 A.2d 138 (Me.1985) (jury entitled to rely on its own observations comparing boy's characteristics and general demeanor with defendant's to assist i......
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State v. Day
...§§ 251(1)(D) & 255 (1983). This specified intent was an essential element of unlawful sexual contact as then defined. State v. Bickford, 497 A.2d 138, 140-41 (Me.1985); State v. Lyons, 466 A.2d 868, 870 (Me.1983); State v. Smith, 394 A.2d 259, 262 (Me.1978). The erroneous jury instruction c......
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State v. Weisbrode, 7127
...and the defendant's physical characteristics and demeanor to determine the age differential of the defendant and victim. State v. Bickford, 497 A.2d 138, 141 (Me.1985). The evidence showed that the victim was 12 years old when the abuse occurred. The jury also heard testimony that Weisbrode......
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State v. Thompson
...victims, we discern no basis for the defendant to claim any surprise or impairment in the preparation of his defense. Cf. State v. Bickford, 497 A.2d 138, 140 (Me.1985). IV. The defendant's remaining contention is that the evidence was insufficient to support the jury's guilty verdict. A co......