State v. Branch-Wear, BRANCH-WEAR
| Decision Date | 21 May 1997 |
| Docket Number | BRANCH-WEAR |
| Citation | 695 A.2d 1169 |
| Parties | STATE of Maine, v. Augustina |
| Court | Maine Supreme Court |
Stephanie Anderson, Dist. Atty., Julia A. Sheridan, Asst. Dist. Atty., Portland, for State.
Dostaler & Evans, Karen A. Dostaler, Portland, for defendant.
Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
¶1 Augustina Branch-Wear appeals from the judgment entered in the Superior Court (Cumberland County, Cole, J.) pursuant to the jury verdict finding her guilty of tampering with a victim (Class B), 17-A M.R.S.A. § 454(Supp.1996). Branch-Wear contends that the court erred in allowing the jury to determine whether the facts presented by the State allege a crime of commission or omission; that the evidence was insufficient to establish that she tampered with a victim; and that the court abused its discretion in allowing two staff members of the homeless shelter where she and her children had resided to testify against her in violation of the privileges for communications to social workers and counselors, 32 M.R.S.A. §§ 7005, 13862 (1988 & Supp.1996). 1 We disagree and affirm the judgment.
¶2 The jury could have found the following facts. Branch-Wear is the mother of the alleged victim in a 1993 criminal prosecution for sex abuse against Branch-Wear's husband, Frank Wear. Branch-Wear took her daughter for treatment for three and one-half weeks at Boston Children's Hospital. She then took her daughter to live with her and her two other children at a homeless shelter in Massachusetts without notifying the Superior Court victim/witness assistant who had been assigned to her, Sandra Nobert, or the District Attorney's office. When Nobert first meets with witnesses she routinely tells them the importance of communicating address changes. She had met twice with Branch-Wear and her daughter that spring, once to prepare the daughter to testify before the grand jury and then to accompany her when she testified under subpoena. In two letters sent to Branch-Wear's Portland address, Nobert had made clear that the daughter would be subpoenaed for trial within the next three months and that it was important for the District Attorney's office to be informed of her current address. These letters were not returned for a failure to deliver.
¶3 Nobert discovered that the daughter had been moved to Massachusetts only because trial subpoenas were returned from Branch-Wear's former Portland address unserved and the police subsequently located the family in Massachusetts. Nobert received this information on approximately September 24th, just days before Wear's case was scheduled for a trial. Later that day, she telephoned Branch-Wear to inform her that the case was going to trial on the 29th and to request that she bring her daughter to Portland one day prior. Nobert offered Branch-Wear transportation, housing, and food to assist her in coming to Portland, but she refused the help and told Nobert she would drive to Portland in her own car. Branch-Wear called Nobert on the 28th to say that she and her daughter would be there the next morning at 8 a.m.
¶4 When Branch-Wear left the shelter slightly past 7 a.m on the morning of the 29th with her daughter and her other two children, she told her family life advocate and caseworker at the shelter, Nicole Schoen, that she was headed for Portland. Branch-Wear and her daughter never appeared for the trial. Although Nobert called the shelter three or four times that day to inquire as to their whereabouts, she was unsuccessful because Branch-Wear had not informed anyone of alternative travel plans. When she returned to the shelter that night she admitted to John Barbur, another caseworker who knew by means of weekly staff reports about the pending court case, that she had decided instead to take the children to the Plymouth Plantation historical park after passing a roadside advertisement for it. Branch-Wear decided not to take them to Maine because she did not want to deal with her daughter's distress and difficult behavior once she realized why they were traveling to Portland. Her daughter had become upset that morning when she learned that they were going to Portland, although she did not know that she was going there to testify against Wear. Branch-Wear never consulted with her daughter before deciding unilaterally that they would not attend the trial. She admitted that she had not been concerned about ensuring that her daughter had her day in court. Even after her daughter spoke to the police about Wear's alleged sexual abuse of her, and after the family moved to Massachusetts, Branch-Wear continued to maintain a relationship with Frank Wear, including telephone conversations and visits in person. Her daughter's failure to appear and testify at the trial resulted in the dismissal of the case against Wear.
¶5 Branch-Wear was indicted for tampering with a victim pursuant to 17-A M.R.S.A. § 454. 2 At a pretrial hearing, the court responded to Branch-Wear's motion to dismiss by determining that the facts presented by the State warranted the jury's consideration only of whether Branch-Wear, "believing an official proceeding was pending, did induce or otherwise cause the victim, namely [her daughter], to withhold testimony, information or evidence all in violation of certain Maine law...." See 17 M.R.S.A. § 454(1)(A)(2). Branch-Wear had argued, on the basis of the State's bill of particulars, that the State was prosecuting her pursuant to a different portion of the tampering statute that protects a victim summoned by legal process. See 17 M.R.S.A. § 454(1)(B)(3). The court correctly rejected that contention.
¶6 After the jury verdict finding her guilty of the charge, Branch-Wear moved for a judgment of acquittal, arguing that the court had erred by failing to make a legal determination whether the crime charged "was one of voluntary conduct or voluntary omission." Branch-Wear contended that the charge was one of voluntary omission, and that the court should have instructed the jury only on a "voluntary omission" theory of conduct. The court denied the motion and this appeal followed.
Jury Instruction
¶7 The jury charge included the following language:
The State has alleged that on or about the 29th day of September, 1993 ... that ... Branch[-]Wear did, believing that an official proceeding was pending, induce or otherwise cause a victim, that is [her daughter], to withhold testimony, information or evidence in violation of the law. A person commits a crime only if she engages involuntary conduct. Voluntary conduct includes an act or voluntary omission and omission is voluntary only if that person fails to perform an act which he is physically-of which he is physically capable and which he has a legal duty and an opportunity to perform.
The statute on tampering with a victim does not distinguish between acts of commission or voluntary omission. See 17-A M.R.S.A. § 454. The issue arises only because Branch-Wear, in her request for a bill of particulars pursuant to M.R.Crim. P. 16(c)(1), asked the State to address whether it intended to show victim tampering by means of acts of commission or voluntary omission, both of which fall within the definition of voluntary conduct. See 17-A M.R.S.A. § 31(1) (1983). In its response to the request for a bill of particulars, the State asserted that Branch-Wear "committed certain acts with the intent to make [her daughter] unavailable for trial that day," including "affirmative steps" to deceive the District Attorney's office into believing a subpoena would be unnecessary and to prevent communication with her daughter on the day of the trial. The State's response also explained that in its view, "[t]his conduct constituted a substantial step toward commission of the crime of [t]ampering, it went beyond mere preparation and is strongly corroborative of the firmness of the defendant's intent."
¶8 Branch-Wear took a different view of the State's case, arguing that its description in the bill of particulars of a crime of commission was actually a description of a crime of voluntary omission because the State was
trying to prosecute someone for failure to act, namely failing to bring her daughter to Maine for trial, failing to notify the District Attorney's Office of a new address, failing to disclose her change of plans after telling Ms. Nobert that she would bring her daughter to Maine for trial. Those failures to act alone or in combination do not constitute an "act"or "acts" which can be defined as a violation of a statute.
Branch-Wear's theory of voluntary omission involves a play on words. Pursuant to the tampering statute, Branch-Wear was prohibited from inducing or otherwise causing a victim to withhold any testimony, information or evidence. The "failures to act" described by Branch-Wear all involved, in the State's view, acts of evasion (e.g., taking her daughter to Massachusetts without disclosing her whereabouts) and deceit (e.g., promising to bring her to Maine for the trial and then not doing so) that caused her daughter to withhold testimony against Frank Wear. The State and Branch-Wear are looking at the same conduct. They are simply describing it differently.
¶9 Branch-Wear's insistence on this voluntary omission theory of the case reflects her effort to posture the case in a way that would permit her to make legal arguments favorable to her. Pursuant to 17-A M.R.S.A. § 31(2) an omission is voluntary "only if the actor fails to perform an act of which he is physically capable and which he has a legal duty and opportunity to perform." (Emphasis added.) Focusing on the "legal duty" component of this definition of a voluntary omission, Branch-Wear wanted to argue that neither she nor her daughter had been served with a subpoena to appear for trial, and hence that she had no legal duty to bring her daughter to...
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