State v. Davis
| Decision Date | 16 October 1979 |
| Citation | 406 A.2d 900 |
| Parties | STATE of Maine v. Donald A. DAVIS. |
| Court | Maine Supreme Court |
Henry N. Berry, III, Dist. Atty., Peter G. Ballou, Asst. Dist. Atty., Portland, Barbara J. Mantigani (orally), Law Student, for plaintiff.
Daniel G. Lilley (orally), E. Paul Eggert, Portland, for defendant.
Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.
An indictment returned in the Superior Court (Cumberland County) charged defendant with two counts of unlawful sexual contact, in violation of 17-A M.R.S.A. § 255(1)(C) (Supp.1978). 1
The sole support for the verdict of the jury was the uncorroborated story of the complainant concerning two incidents alleged to have occurred when she was nine years of age (about two years before trial was had in March in 1979). Complainant's testimony was that on two occasions in the summer of 1977, after having been requested by the defendant, she pulled down her pants and defendant touched her genital parts. The presiding Justice refused to allow in evidence testimony proffered on behalf of the defendant that the complainant had manifested undue curiosity regarding the human sexual organs, as more particularly manifested by a preoccupation to pull down, or have pulled down, the pants of other people. Appealing from the judgment of conviction, defendant asserts, as one of several points on appeal, that this evidentiary ruling was prejudicial error. We agree.
We therefore sustain defendant's appeal without need to reach the other issues raised regarding instructions to the jury.
Complainant's testimony was as follows. She was a neighbor of defendant and friendly with his children. On two occasions in the summer of 1977, the first time in June and the second time about three weeks later, she was playing with defendant's five year old child in the front yard of defendant's house. Defendant asked her to go with him into the garage. When they were inside the garage, defendant closed the garage door, pulled down his pants and asked complainant to pull down her pants. She did, and defendant then momentarily touched her genital parts. The first time this happened, defendant immediately pulled up his pants and left. The second time, defendant pulled up his pants and asked complainant to go with him to a bedroom on the second floor of his house. Complainant went as far as the bedroom, but then turned away and left the house. Thereafter, she continued to play at defendant's house, never mentioning the two incidents to anyone for about six months. She then told her mother. She waited so long, she testified, because she was "scared" her mother would be "mad" at her.
Two critical witnesses testifying on behalf of the defendant were his wife, Linda Davis, and one of his neighbors, Deborah Hopkins. During the direct examination of Mrs. Hopkins the presiding Justice ruled that he would not permit defense counsel to produce testimony by Mrs. Hopkins that she had forbidden her children to play with the complainant "because of her (complainant's) sexual activity with them." This proffered testimony was excluded on the ground that Mrs. Hopkins lacked personal knowledge of the matters. When he made this ruling, the Justice added the statement:
"If you can . . . provide a witness . . . (who) will testify as to personal knowledge of sexual proclivities of the . . . (complainant), I would say that is admissible."
Yet, when Linda Davis was testifying, the Justice refused to permit her to tell the jury about her personal knowledge of acts of sexual aggressiveness, and sexual curiosity, by the complainant relative to the Davis children. Defense counsel's offer of proof revealed that Mrs. Davis would have testified that on more than one occasion, the complainant had pulled down the pants of one of her sons, and that at another time she had attempted to sneak down to the bedroom of another son, located in the cellar of the Davis house, "to peek in on him."
By so ruling in the particular circumstances of this case, the Justice...
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State v. Warren
...a jury might otherwise draw that the victim was so naive sexually that she could not have fabricated the charge. Id.; cf. State v. Davis, 406 A.2d 900, 901-02 (Me.1979) (pre-Rule 412 case observing that defendant was subjected to "grave risk that, not being otherwise informed, the jury migh......
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State v. Jacques
...412, we relied on just such an analysis to vacate a conviction where evidence of prior sexual activity had been excluded. State v. Davis, 406 A.2d 900 (Me.1979). Additionally, in State v. Albert, 495 A.2d 1242 (Me.1985) we implied that, notwithstanding Rule 412, evidence of prior sexual abu......
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Thompson v. State
...victim's sexual contact with others. The trial court interpreted Thompson's offer of proof as being based on our decision in State v. Davis, 406 A.2d 900 (Me.1979). The court decided that the Davis decision had been superseded by the adoption of M.R.Evid. The jury found Thompson guilty on b......
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State v. Preston
...I used you." Preston offered no evidence on this point other than the letter and the diary. Thus, the foundation present in State v. Davis, 406 A.2d 900 (Me.1979) (undue sexual curiosity of complainant) and State v. Nelson, 399 A.2d 1327 (Me.1979) (prior sexual intercourse) was lacking here......