State v. Krieger

• Decision Date: 19 August 2002
• Citation: 2002 ME 139,803 A.2d 1026
• Parties: STATE of Maine v. James R. KRIEGER.
• Court: Maine Supreme Court

803 A.2d 1026

2002 ME 139

STATE of Maine v. James R. KRIEGER.

Supreme Judicial Court of Maine.

Submitted on briefs: January 17, 2002.

Decided: August 19, 2002.

Geoffrey Rushlau, District Attorney, Richard hartley, Asst. Dist. Atty., Bath, for State.

Joel C. Vincent, Vincent & Kantz, Portland, for defendant.

Panel: SAUFLEY, C.J., CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.

CLIFFORD, J.

[¶ 1] James R. Krieger appeals his convictions following a jury trial in the Superior Court (Sagadahoc County, Studstrup, J.) on twenty-two counts of assault (Class D), 17-A M.R.S.A. § 207 (1983 & Supp.2001), contending that because the court erred and acted outside the bounds of its discretion in denying his motion for a mistrial, in admitting evidence of a prior bad act, and in impermissibly permitting a first complaint witness to name him as the subject of the first complaint, he is entitled to a new trial. We are unpersuaded by Krieger's contentions and we affirm the judgment.

[¶ 2] Krieger was indicted on one charge of unlawful sexual contact (Class C), id. § 255 (Supp.2001), and twenty-two counts of assault, id. § 207, following allegations that Krieger rubbed the minor victim's buttocks and tickled her inappropriately when he baby-sat for her between May of 1998 and February of 2000. At the first trial, the court (Warren, J.) declared a mistrial because the victim testified that Krieger "confessed," referring to a statement he made regarding incidents involving two other girls.

[¶ 3] Before the second trial, the State moved in limine for the admission of evidence that Krieger admitted to exposing himself to one other girl and touching the genitals of another. The State also moved in limine to admit evidence regarding an incident when the victim awoke on the couch nude after Krieger had been babysitting for her. The court (Studstrup, J.) denied the State's motion to allow evidence of Krieger's conduct with other young girls, but granted the in limine motion to admit the victim's testimony about waking up nude. During the trial, the victim testified about the incident when she woke up nude. The victim's mother also testified about the incident, stating that when she confronted Krieger, he said that the victim had spilled something on her clothes; the clothes, however, were not stained when the mother looked at them.

[¶ 4] When asked whether she had seen Krieger since she reported his behavior, the victim responded: "Last trial I saw him." Krieger objected, moved for a mistrial, and rejected the State's suggestion that a curative instruction would be appropriate:

[ASSISTANT DISTRICT ATTORNEY]: Judge, it was a very quiet answer, I heard it but just barely, and I think that this could be handled with an instruction to the jury.

[KRIEGER'S ATTORNEY]: That would be wonderful, it would emphasize the fact that he had another trial. I just don't think it can be cured, Judge....

The court denied the motion, stating:

I don't even think most of the jury would even have heard the answer, I certainly didn't. I am glad I didn't ask the Court Reporter to repeat it before we came over here to sidebar. The other fact being that we don't know whether the jury would not know who the trial — these particular charges or something else.¹

[¶ 5] During the trial, pursuant to the first complaint rule, the State asked Cheryl Benoit, an administrator at the church where Krieger met the victim, whether the victim spoke to her about incidents between the victim and Krieger. The court initially sustained Krieger's objection to the question, but after a discussion at sidebar, permitted the question, stating, "you have to at least know who the subject of the complaint was to indicate that there's any relevance ...." Benoit testified that in March of 2000 the victim spoke with her about incidents involving Krieger, but did not relate any of the details other than Krieger's name. Thereafter, on cross-examination, Krieger brought out that the victim told Benoit that Krieger had rubbed her buttocks, but that she did not believe the touching was wrong "because she loved Krieger like a dad."

[¶ 6] After the close of evidence, the State dismissed the count of unlawful sexual contact. The jury returned a verdict of guilty on the twenty-two counts of assault. On the first count of assault, the court sentenced Krieger to 364 days in jail with all but six months suspended, followed by one year of probation. For each of the other twenty-one counts, the court sentenced Krieger to 364 days of imprisonment, to be served concurrently with each other, but consecutively to the sentence for the first count of assault, all suspended, followed by one year of probation running consecutively with the probation period for the first count of assault.

I. PRIOR BAD ACT

[¶ 7] Krieger contends that the court erred in admitting the victim's testimony about a prior bad act because the testimony did not fall within an exception to M.R. Evid. 404(b), the testimony was speculative, and the incident described was different in kind from the conduct alleged by the State. We disagree.

[¶ 8] "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith." M.R. Evid. 404(b). "In cases involving sexual offenses, evidence of prior similar uncharged conduct has been admitted to `show the relationship between the parties that in turn sheds light on [the] defendant's motive (i.e., attraction to the victim), intent (i.e., absence of mistake), and opportunity (i.e., domination of the victim) to commit the crime with which he was charged."' State v. Poulos, 1998 ME 43, ¶ 4, 707 A.2d 1307, 1308 (quoting State v. Nadeau, 653 A.2d 408, 410 (Me.1995)). The probative value of the evidence must not be substantially outweighed by any prejudicial effect pursuant to Rule 403. State v. Turner, 2001 ME 44, ¶ 5, 766 A.2d 1025, 1027.

[¶ 9] We recently held that evidence of uncharged sexual behavior was admissible when the victim initially thought that the defendant's contact with her genitals was accidental, but later concluded that it was intentional because it occurred repeatedly. Poulos, ¶¶ 2-4, 707 A.2d at 1308. The evidence of uncharged acts was admissible to establish the defendant's relationship with the victim, which was probative of the defendant's motive, intent, and opportunity to commit the charged offense. Id. ¶ 4. In a similar case, we held that the victim's testimony that the defendant used sexual paraphernalia in her presence was admissible to establish the nature of their relationship. State v. DeMotte, 669 A.2d 1331, 1335 (Me.1996); see also State v. Ilsley, 595 A.2d 421, 423-24 (Me.1991) (holding that evidence of prior harassing behavior was admissible to establish the defendant's intent to harass his victim); Caron v. Caron, 577 A.2d 1178, 1180 (Me.1990) (upholding the admission of evidence of prior domestic abuse when the "contested incidents [were] relatively mild" and the evidence was probative of the defendant's intent and of the victim's reasonable fear of the defendant); State v. Heald, 393 A.2d 537, 541-42 (Me.1978) (holding that evidence of an unsuccessful attempt to rob the murder victim's house three weeks before the charged crime was admissible to establish the defendant's design, motive, knowledge, and identity with regard to the murder of the victim during a robbery). Evidence of a prior bad act is inadmissible when the evidence is not sufficiently probative of any issue raised by the case. See, e.g., State v. DeMass, 2000 ME 4, ¶¶ 7, 13-16, 743 A.2d 233, 235-37 (holding it was clear error to admit letters in which the defendant made advances on the victim's sister because the letters were not probative of any legitimate issue).

[¶ 10] In the present case, there is evidence that Krieger offered a questionable explanation of why on one occasion the victim awoke nude after Krieger baby-sat for her. This evidence is probative of his intent in placing his hands on her buttocks and torso on other occasions. Because some of the touching was characterized as "tickling," the evidence of the prior incident is probative of whether Krieger intentionally or knowingly caused offensive physical contact or was as he claimed, touching the victim in an innocent way. See 17-A M.R.S.A. § 207(1) (1983) ("A person is guilty of assault if he intentionally, knowingly, or recklessly causes bodily injury or offensive physical contact to another."). That the evidence is circumstantial does not mean that it is speculative; the jury may weigh the evidence regarding the intent element of the crime. See State v. Emery, 650 A.2d 1341, 1342 (Me.1994) (stating that circumstantial evidence is admissible when it "has any rational tendency to prove or disprove a factual issue in the case" (quoting State v. Doughty, 399 A.2d 1319, 1322 (Me.1979))).

[¶ 11] Although a limiting instruction would have been appropriate to ensure that the jury did not regard the testimony as character evidence, Krieger did not request such an instruction and the State, in its closing argument, contended that the evidence should be considered only to establish context for the conduct that gave rise to the indictment. The absence of an instruction is not, therefore, obvious error. See State v. Roman, 622 A.2d 96, 99 (Me.1993) ("[I]n the absence of a request to the court to provide a limiting instruction [on the jury's use of evidence of a prior bad act], `we can assume that counsel concluded that a limiting instruction would have overemphasized the importance of the evidence and decided to forego the request for strategic reasons.'" (quoting State v. Rogers, 389 A.2d 36, 38, (Me.1978))).

[¶ 12] The evidence of the prior act was not so unfairly prejudicial as to substantially outweigh the probative value of the evidence in establishing an element of the crime. M.R. Civ. P. 403.

II. MOTION FOR MISTRIAL

[¶ 13]...