State v. Pierce

• Decision Date: 11 December 1981
• Citation: 438 A.2d 247
• Parties: STATE of Maine v. Rexford PIERCE and Sandra Van Buren.
• Court: Maine Supreme Court

Page 247

438 A.2d 247

STATE of Maine v. Rexford PIERCE and Sandra Van Buren.

Supreme Judicial Court of Maine.

Argued Sept. 21, 1981.

Decided Dec. 11, 1981.

John R. Atwood, Dist. Atty., Robert B. VanWyck, Asst. Dist. Atty. (orally), Bath, for plaintiff.

Roger S. Golin (orally) and Paul A. Weeks, Bath, for Pierce.

William C. Leonard (orally) and George M. Carlton, Jr., Bath, for VanBuren.

Before McKUSICK, C. J., GODFREY, NICHOLS, CARTER, VIOLETTE and WATHEN, JJ., and DUFRESNE, A. R. J.

DUFRESNE, Active Retired Justice.

The defendants, Rexford Pierce and Sandra Van Buren, appeal from their convictions of gross sexual misconduct, 17-A M.R.S.A. § 253(2)(B) (Supp.1980), ¹ a Class C crime. Van Buren, the mother of the prosecutrix, was convicted as an accomplice under 17-A M.R.S.A. § 57(3)(A) (Supp.1980). ² In case docketed Sag-80-6, both defendants challenge the sufficiency of the evidence to support their convictions, argue that the indictments upon which they were tried were fatally defective, and claim that the trial court's denial of their motions for separate trials constituted an abuse of discretion. Defendant Pierce also challenges the trial court's instructions to the jury on the issues of consent and intent to threaten. In case docketed Law-81-326, both defendants argue that the trial court abused its discretion in denying their motions for a new trial based on recantations by the prosecutrix. We deny the appeal of defendant Pierce and affirm his conviction. We affirm the judgment of the trial court in denying Pierce a new trial. Because the defendant Van Buren was tried under a defective indictment, we sustain her appeal and therefore do not reach the issue presented by her motion for a new trial.

I.

Kathleen Van Buren, the prosecutrix, was fourteen years old when she chose to leave the home of her natural father in December 1978 to live with her natural mother, defendant Sandra Van Buren, and Sandra's boyfriend, defendant Rexford Pierce. Kathleen testified that on January 21, 1979, the defendants approached her in the bathroom and took her to the bedroom. Sandra told her not to worry. Pierce then massaged both Kathleen and Sandra.

Pierce next announced his intention to have sexual intercourse with Kathleen, who said "No". The defendants went into the next room and argued. Kathleen could see them. Pierce raised his hand and told Sandra to get out of his way. Kathleen then submitted to intercourse with Pierce, because she was afraid that he would hit her mother. Sandra Van Buren helped Pierce complete the act of penetration. Both defendants, however, testified that this incident never occurred.

II.

A.

The indictment upon which defendant Pierce was tried reads as follows:

That on or about the 21st day of January 1979 in the City of Bath, County of Sagadahoc, State of Maine, Rexford Pierce did engage in sexual intercourse with another person, not his spouse, namely: Kathleen Van Buren, and did induce the said Kathleen Van Buren to engage in such sexual intercourse by a threat to commit assault upon Sandra Van Buren.

Pierce argues that this language is insufficient, because it fails to allege facts indicating why the prosecutrix would have been induced to engage in sexual intercourse as a result of a threat made to a third person.

The object of an indictment is to fairly apprise the defendant of the offense of which he is accused so that he may properly prepare his defense to the charge and, if convicted or acquitted, make use of the judgment as a basis for a plea of former jeopardy. State v. Charette, 159 Me. 124, 126, 188 A.2d 898, 900 (1963). And, the test to be applied in determining whether the indictment is legally sufficient is, whether an accused of reasonable and normal intelligence would, by the language of the indictment, be adequately informed of the crime charged and the nature thereof, so that he could properly prepare his defense to the accusation and be protected against a subsequent prosecution for the same cause. Id. 159 Me. at 127, 188 A.2d at 900.

Hence, the long standing fundamental rule is that the validity of any indictment hinges on the question, whether the charge as contained therein sets out every essential element of the crime of which the defendant is accused. State v. Blais, Me., 391 A.2d 1198, 1201 (1978). One charged with crime has the constitutional right to demand that the charge be set forth with such particularity as will indicate with a reasonable degree of precision the offense with which he is charged. State v. Lunney, Me., 400 A.2d 759, 762 (1979).

Defendant Pierce relies upon State v. Sondergaard, Me., 316 A.2d 367 (1974), where this Court required precision in the indictment's description of a threat under the pre-Code crime of criminal threatening. There, we held that, where the threatening communication is made to a person other than the individual against whose person or property the promise of evil or menace of destruction is levelled by the communication, it is an essential element of a true substantive threat within the meaning of the then threatening communications statute (17 M.R.S.A. § 3701) that the threat be "made, published or sent" under circumstances indicative of the existence of a reasonable likelihood that some person will be caused "alarm" or "fear." Hence, the trial court's dismissal was properly affirmed as correct, where the indictment in Sondergaard failed to allege, in addition to the mere utterance of the threat, circumstances which showed the existence of a reasonable likelihood, in accordance with the ordinary course of human experience, that alarm and fear would probably be induced in some person. Since the reference statute, 17-A M.R.S.A. § 253(2)(B), requires for guilt of gross sexual misconduct that one who engages in sexual intercourse or a sexual act with another person, not his spouse, compel or induce the other to engage in such sexual intercourse or sexual act by any threat, Pierce argues that, as in Sondergaard, to be valid, an indictment charging gross sexual misconduct based on sexual intercourse induced by threat must explicitly carry allegations of the circumstances surrounding The gross sexual misconduct statute does not criminalize the threatening communication as such, but rather the sexual intercourse or sexual act induced by any threat. In the case of a statute punishing "the fact of communication," this Court, as stated in Sondergaard, must be "acutely sensitive to those factors by which the Supreme Court of the United States has differentiated 'constitutionally protected speech' from 'communication' which, although 'speech,' is without constitutional safeguard," and, for that reason, must insist on the particulars of the threat so as to obviate any danger of impairment of the freedom of speech guarantees of the First-Fourteenth Amendments to the Constitution of the United States. The gross sexual misconduct statute presents no such constitutional danger zone. Therefore, Sondergaard does not control the situation in the instant case.

the threat so as to indicate a reasonable likelihood of alarm or fright in the other person. We disagree.

In State v. Saucier, Me., 421 A.2d 57 (1980), this Court upheld as sufficient a similar indictment charging the crime of gross sexual misconduct under 17-A M.R.S.A. § 253(2)(B) which did not particularize the specific circumstances under which the threat was made, nor the minutiae of the threat itself. We reaffirm Saucier in this regard. We do note that the present indictment did provide some particulars of the threat involved in its allegation that the defendant

did induce the said Kathleen Van Buren to engage in such sexual intercourse by a threat to commit assault upon Sandra Van Buren.

The language of the indictment gave Pierce a clear identification of the exact offense charged and an instant indication of the very statute under which the indictment was found. Such is sufficient State v. Smith, Me., 277 A.2d 481, 484 (1971); Logan v. State, Me., 263 A.2d 266, 269 (1970).

B.

1.

Defendant Pierce requested a jury instruction that a threat is "any menace of such a nature and extent as to unsettle the mind of the person on whom it operates, and to take away from his acts that free and voluntary action which alone constitutes consent." This instruction was not given, and Pierce argues that, due to its omission, the jury was not required to find the causal connection between the threat and the intercourse, which is necessary to support his conviction.

However, in Saucier, supra, this Court held that lack of consent is not an element of gross sexual misconduct under 17-A M.R.S.A. § 253(2)(B). The trial court charged the jury that "(w)here the offense of gross sexual misconduct is challenged, as in this case (i.e. a charge of gross sexual misconduct under section 253(2)(B)), force and consent are by definition not an issue." This is a correct statement of the law.

The trial court then went on to make more explicit the causal connection between the threat and the intercourse, which Pierce claims was missing, when he instructed the jury as follows:

Under our law the threat must have been intended to compel or induce another person to engage in sexual intercourse, sexual intercourse if you find based on all of your evidence was a direct and foreseeable result of the threat. If you find in fact that a threat was made based on all of the evidence, the jury must find an offense as relates to the threat was committed by the defendant intentionally or knowingly.

Conviction of gross sexual misconduct carries no requirement of a culpable mental state. State v. Saucier, supra, 412 A.2d at 59. Proof of specific intent to induce submission by means of a threat, which Pierce argues is necessary, would be tantamount to proof of a culpable mental state. Such is not the law. While the jury instruction quoted above may be read to require the jury to find such intent, it is an

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