State v. Lindsey

• Decision Date: 13 July 1982
• Citation: 447 A.2d 794
• Parties: STATE of Maine v. Paul A. LINDSEY.
• Court: Maine Supreme Court

Page 794

447 A.2d 794

STATE of Maine v. Paul A. LINDSEY.

Supreme Judicial Court of Maine.

Argued June 10, 1982.

Decided July 13, 1982.

Charles K. Leadbetter, Asst. Atty. Gen., Augusta, Gary F. Thorne (orally), Claire A. Julian, Asst. Dist. Attys., Bangor, for plaintiff.

Strout, Payson, Pallicani, Cloutier, Hokkanen & Strong, James W. Strong (orally), Rockland, for defendant.

Before McKUSICK, C. J., and ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.

VIOLETTE, Justice.

The defendant, Paul Lindsey, has appealed from a judgment of conviction entered in the Superior Court, Penobscot County, on a jury verdict finding him guilty of criminally threatening one Connie DeWitt with a dangerous weapon in violation of 17-A M.R.S.A. §§ 209, 1252(4) (Supp.1981). ¹ We deny the appeal and affirm the judgment below.

Defendant was charged with threatening Connie DeWitt and her husband Leroy in the late afternoon on December 19, 1976. According to several witnesses who testified at trial, defendant sat in his parked car in front of the DeWitts' home for four or five minutes while pointing a shotgun or rifle towards the living room picture window. Connie DeWitt was sitting in front of the window; her mother, two sisters, her husband, brother-in-law and a friend were present in the main living area of the house. Someone noticed defendant and the gun and informed the others, who reacted in various ways. Connie DeWitt, according to her testimony and that of the three witnesses who testified at trial, apparently sat unable to move for a few minutes, staring out of the window. She eventually crawled out of the room. Her husband left the room and returned with a shotgun which he testified he would have used to protect his family and property. Someone then called the police.

Defendant was spotted by the police about an hour later while he was driving erratically in the vicinity of the DeWitt house. The police followed defendant to his home where they arrested and searched him. Five shotgun shells and one expended 30.06 cartridge were found in a pocket of the coat he was wearing. Three shotgun shells were found in a box in defendant's car. The officers did not find a gun.

At trial, Connie and Leroy DeWitt testified that defendant had threatened them on two occasions about two weeks earlier. The first time they were driving their car when he, approaching from the opposite direction, allegedly crossed the center line as if to run them off the road, pulling over only after driving very near to their car. A second driving incident was less clearly described by the witnesses. Mr. DeWitt stated that he met defendant at an intersection just as defendant was making a right hand turn onto the road on which the DeWitts had been traveling. The defendant allegedly turned quite close to the DeWitt vehicle, and then stopped, started to back up, but drove off. Defendant's several objections to the admission of this testimony into evidence were overruled, as was his motion for a mistrial based on the highly prejudicial nature of the evidence.

The defendant also objected to the state's motion to admit into evidence the shotgun shells and rifle cartridge discovered when he was searched. Defendant asserted that the shells were not relevant absent introduction of an actual gun which the shells matched. The trial justice overruled the objection.

Defendant's direct appeal from the judgment of conviction was originally dismissed for failure to file a brief, but has since been reinstated by order of the Superior Court, Knox County, following a post-conviction review proceeding. On appeal, he contends that prejudicial error resulted from the admission into evidence of (1) Mr. and Mrs. DeWitt's testimonies concerning the two alleged threats which occurred prior to the conduct charged, and (2) the shotgun and rifle shells.

(1) Admission of Evidence of Prior Acts

Defendant argues on appeal that the evidence of the two driving incidents should not have been admitted under M.R.Evid. 404(b), which reads:

(b) other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.

Defendant apparently assumes that the evidence was improperly offered to prove that if the defendant did it before, he did it this time. State v. Goodrich, Me., 432 A.2d 413, 418 (1981).

The state asserts that the testimonies were offered to prove an element of the crime, i.e., that the DeWitts were placed in fear of imminent bodily injury. We have previously ruled that evidence of other wrongs or acts is admissible when offered to prove something other than that the defendant was acting in conformity with a character trait elucidated by such and when not deemed more prejudicial than probative by the trial justice. See, e.g., State v. Valentine, Me., 443 A.2d 573 (1982) (evidence admitted as relevant to element of intent to murder charge); State v. Wallace, Me., 431 A.2d 613 (1981) (evidence of prior robbery held relevant to issues of knowledge, common scheme and motive); State v. Heald, Me., 393 A.2d 537 (1978) (evidence of prior attempted robbery by defendant of murder victim held admissible as relevant to issues of design, motive, knowledge and identity). The Advisers' Note to Rule 404(b) is quite explicit on this...