State v. Pierce

• Decision Date: 24 January 2001
• Citation: 770 A.2d 630,2001 ME 14
• Parties: STATE of Maine v. Timothy PIERCE.
• Court: Maine Supreme Court

770 A.2d 630

2001 ME 14

STATE of Maine v. Timothy PIERCE.

Supreme Judicial Court of Maine.

Submitted on Briefs: November 21, 2000.

Decided: January 24, 2001.

David W. Crook, District Attorney, Alan Kelley, Deputy District Attorney, Augusta, for State.

Walter F. McKee, Esq., Lipman & Katz, P.A., Augusta, for defendant.

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

DANA, J.

[¶ 1] Timothy Pierce appeals from a judgment of conviction entered after a jury trial in the Superior Court (Kennebec County, Atwood, J.). Pierce was convicted of: two counts of gross sexual assault (Class A), 17-A M.R.S.A. § 253 (Supp. 2000); three counts of unlawful sexual contact (Class C), 17-A M.R.S.A. § 255 (Supp. 2000); three counts of aggravated trafficking or furnishing of scheduled drugs (Class C), 17-A M.R.S.A. § 1105 (Supp.2000); and seven counts of procuring or furnishing liquor for minors (Class D), 28-A M.R.S.A. § 2081 (1988 & Supp.2000).¹ On appeal, Pierce challenges the Superior Court's decision not to separate the offenses, to deny his motion to acquit on a single count, and to admit prejudicial testimonial evidence. We affirm.

I. FACTS AND PROCEDURE

[¶ 2] The events occurred between the summer of 1996 and March 1997, but the exact sequence is unclear. Sean Esta-brook was fourteen or fifteen years old when he and Pierce became acquainted and began to spend considerable time together. Sean knew that Pierce was married with one child and was a car sales-man. Pierce did not divulge his true age to Sean, which was twenty-nine or thirty, but Sean knew that Pierce was older than nineteen. Pierce eventually and repeatedly asked whether Sean knew any girls that Pierce could, in Sean's words, "get with" or "hook up with." Pierce told Sean that he liked girls who were "younger," "not overweight," with "long hair," and "small waist[s]."

A. Counts 15-18 — Island Party

[¶ 3] At the end of the summer of 1996, Pierce wanted to have a party, and Sean arranged for five girls to attend. Sean testified that Pierce instructed him to tell the girls that Pierce's name was Ryan and that he was nineteen years old. Sean arranged for the girls to be picked up, and everybody rode in Pierce's boat to an island. At the island, Pierce provided beer and hard liquor, and the girls became intoxicated. Sean also indicated that some of the girls removed some of their clothing.

B. Counts 6, 13, 14 — Van Incident

[¶ 4] Sean testified that Pierce drove a van full of Sean's friends to a cabin. Either outside the cabin or in the van, some of girls drank the beer that was in Pierce's vehicle and smoked marijuana that Pierce had in his possession. One girl testified that Pierce and Sean had told her that Pierce's name was Ryan and that he was nineteen years old.

C. Counts 5-8 — Roller Rink Incident

[¶ 5] Sean testified that either he or Pierce asked a girl if she had a friend who "would like to come and party." The girl testified that she believed Pierce was a nineteen year old named Ryan. Pierce and his friends arrived at Sean's house in two separate vehicles, and the girl saw beer being "transported from [Pierce's vehicle] to [his friend's] car." They drove to a roller rink to pick up the girl's friend, and after stopping at the roller rink, Sean and Pierce were in one vehicle, and both girls and Pierce's friends were in the other vehicle. The girls both consumed beer while in the car with Pierce's friends. Once they arrived at a cabin, Sean testified that he remembered that there was a conversation between Pierce and the girls about dancing and money, and the girls were "dancing on tables and getting sexual." The girls discussed their wishes to run away from their homes. Pierce said that "he was connected with the mob" and "he did drug runs," and if they would strip for him, he would buy them plane tickets, find them jobs as strippers in Florida, and give them money.

D. Counts 9-12

[¶ 6] Sean testified that a girl was having troubles at home and needed a place to stay. Sean contacted Pierce, and Pierce drove Sean and the girl to a cabin. At the cabin, Pierce, Sean, and the girl "smoked marijuana, and after that, [Pierce] and [the girl] got involved in sexual relations." In addition, the girl stated that Sean introduced Pierce as Ryan, and at the cabin, Pierce forced her to have sex.

E. Count 4

[¶ 7] Sean testified that he and Pierce went to a house to meet two girls. Sean identified Pierce as a nineteen year old named either Jeff or Ryan. While at the house, Sean saw a girl perform oral sex on Pierce. The girl testified that while Pierce was at the house, he felt her chest, attempted to put his hand down the front of her pants, tried to kiss her, threw her down on the couch and got on top of her, and "[h]e unzipped his pants and told me to jerk him off."

F. Counts 1-3

[¶ 8] Sean testified that he arranged for him and Pierce to pick up a girl who needed a place to stay because she was having problems at home. Pierce identified himself as Jeff and said he was nineteen years old. While in the vehicle, her shirt was removed, and Pierce touched her breasts and body. She asked Pierce for a cigarette and he said, first, she "would have to jerk him off." After doing as Pierce asked, he then demanded oral sex. Next, Pierce produced marijuana, which all three passengers smoked. After the incident, the girl informed the police. Sean was contacted and Pierce fabricated a story for Sean to tell the police, but Sean eventually disclosed the truth.

[¶ 9] Pierce was indicted on nineteen counts, pleaded not guilty, and filed a motion for separate trials pursuant to M.R.Crim. P. 8(a) and (d).² After a hearing, the court severed the charge for possession of firearms by a felon (Count 19) and held that Counts 1-18 could be joined because "as it appears from representations by counsel ... the factual allegations in each of these counts are connected to each other, suggesting a common scheme or plan."

[¶ 10] Prior to trial, the State withdrew Count 10 of the indictment; thus, the case went to trial on Counts 1-9 and 11-18. During the trial, Pierce renewed his motion for separate trials and made numerous motions for a mistrial based on prejudicial joinder, but the court denied the motions. At the close of the State's case, Pierce again moved for a mistrial and made a motion to acquit on all counts. The court granted the motion for acquittal on Count 7. The jury found Pierce guilty of Counts 1-4, 6, 8-9, 11-18 and not guilty of Count 5. Pierce was sentenced³ and filed a timely appeal pursuant to M.R.Crim. P. 37.

II. JOINDER

[¶ 11] Pierce contends that the court erred by not separating the offenses. First, he contends that the offenses should not have been joined because they involved different incidents, times and evidence, and at trial, the State did not prove the purported "common scheme or plan." Second, Pierce contends that the court erred in denying his motion for separate trials because the resulting prejudice from the joinder outweighs the policy favoring trials of more than one offense. Third, he contends that the court erred in denying his motions for a mistrial due to the prejudicial joinder.

[¶ 12] A trial court is authorized to order joinder and severance. State v. Rich, 395 A.2d 1123, 1128 (Me.1978). "The court has wide discretion in deciding such matters, and its decision is not grounds for new trial unless prejudice and abuse of discretion are shown." Id. (citation omitted). "The denial of a defendant's severance motion pursuant to Rule 8(d) is reviewed for an abuse of discretion, and we will not vacate a decision to deny the motion `unless the case is one in which the potential for confusion or prejudice is obviously serious.'" State v. Brown, 1998 ME 129, ¶ 6, 712 A.2d 513, 516 (quoting State v. Doody, 434 A.2d 523, 527 (Me.1981)).

[¶ 13] The joinder of multiple offenses in a single indictment for trial is authorized in certain circumstances by M.R.Crim. P. 8(a), which provides in pertinent part:

(a) Joinder of Offenses. Two or more offenses should be charged in the same indictment ... in a separate count for each offense if the offenses charged, whether of the same class or different classes, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions which are connected or which constitute parts of a common scheme or plan.

We have interpreted Rule 8(a) broadly, stating: "If the offenses charged are connected in any reasonable manner, they are properly joinable." State v. Pierce, 474 A.2d 182, 184 (Me.1984) (citations omitted).

[¶ 14] The "common scheme or plan" presented by the State during the hearing on the motion to sever the counts was the following: Sean introduced Pierce, under false name and age, to young girls; Pierce provided drugs and alcohol for the girls; and Pierce requested sexual favors from the girls. Pierce grouped the counts into six incidents and contends that the State's "common scheme or plan" is not present in four of the incidents.

[¶ 15] In Counts 15-18, and likewise, in Counts 6, 13 and 14, Pierce contends that the "common scheme or plan" fails because there was no evidence that Pierce engaged in sexual conduct with any girl. In Counts 1-3, Pierce contends that the "common scheme or plan" was missing because the marijuana was smoked after the sexual conduct; therefore, marijuana was "not used in any way to ply [the girl]." In Count 4, Pierce contends that the "common scheme or plan" did not exist because there were no drugs or liquor.

[¶ 16] That all the parts of the State's "common scheme or plan" were not present in every incident does not mean that the "common scheme or plan" did not exist. The eighteen counts that the court determined were properly joined involved six incidents and ten girls. In each incident Sean introduced the girls to Pierce, and Pierce used a false identity. In three of the incidents, three...