State v. Reed

Decision Date01 August 1984
Citation479 A.2d 1291
PartiesSTATE of Maine v. Glenn L. REED.
CourtMaine Supreme Court

William R. Anderson (orally), Asst. Dist. Atty., Belfast, for the state.

Silsby & Silsby, Sandra Hylander Collier (orally), Ellsworth, for defendant.

Before McKUSICK, C.J., ROBERTS, WATHEN, GLASSMAN, and SCOLNIK, JJ., and DUFRESNE, A.R.J.

GLASSMAN, Justice.

Glenn L. Reed appeals from a judgment of conviction entered by the Superior Court, Waldo County, after a jury found him guilty of Class B rape, 17-A M.R.S.A. § 252 (Pamph.1980). 1 Reed challenges the sufficiency of the evidence, certain evidentiary rulings made by the presiding justice, and the court's refusal to instruct the jury in the manner he requested. We affirm the judgment.

On August 24, 1981, a Waldo County grand jury returned an indictment charging that on or about July 9, 1981, Glenn L. Reed forcibly compelled the complainant to submit to sexual intercourse with him. At trial, the complainant testified to the following. During the late afternoon or early evening of July 9, she was walking alone along route 52 in Lincolnville, when a man, later identified as Glenn Reed, pulled over his truck and asked if she wanted a ride. After some hesitation, she decided to accept the ride, and told Reed her destination. When the truck reached this destination, she attempted to step out, but was prevented from doing so by the defendant, who grabbed her arm and pulled her back into the truck. The defendant asked her to accompany him to his house to determine if the heat had been turned off the previous evening. After entering Reed's house at Reed's insistence, there ensued an extended struggle between Reed and the complainant with Reed alternatively threatening her with sexual intercourse and promising her to take her home if she complied with his requests to allow him to touch her and view her in the nude. The complainant was twice prevented by Reed from leaving the house. Eventually, Reed grabbed the complainant's arm, pulled her into the bedroom, and after a struggle, threw her onto the bed by the ankle and wrist. Thereafter, the defendant pushed her hand and then head down to his penis, and ordered her to perform sexual acts. Finally, the defendant ordered her to "open [her] legs," so he could "rub against her." When she did not comply, the defendant forced her legs apart and penetrated her vagina with his penis.

During cross-examination, defense counsel inquired into the reason or reasons the complainant ultimately submitted to Reed. The complainant testified as follows:

Q Well, was it because of these promises that you say he made to you, or was it because of your feeling that you had to do what he wanted you to do, that you did the things that you have described?

A It's the same thing. He promised to take me home, and then he threatened to fuck me, that's exactly how he put it in the same sentence, practically.

Q Was it that threat, if you don't do this I'm going to fuck you, that led you to do each of the things that you have been telling us about here today?

A Yes.

Q It was that, wasn't it, it wasn't his touching you; it wasn't his pushing you down and you pushing him away; it was that statement made to you, wasn't it?

A I don't understand.

Q That was the great fear you had from the moment you first saw him, wasn't it?

A I didn't know what the fear was.

Q You didn't know what you were afraid of?

A No.

After the state rested, the defendant moved for a judgment of acquittal. The defendant argued that the complainant's testimony during cross-examination had shown she had submitted to sexual intercourse not because of force, but because of fear generated by the defendant's threats. The presiding justice, rejecting the defendant's contention that the prosecution had failed to make out a prima facie showing of forcible rape, denied the motion.

Thereafter, John Cookson testified on behalf of the defendant. Cookson testified that during the late morning of the day in question, he had given a ride in his brown and white Scout to a girl who was walking on route 52 in Lincolnville, and whom he could neither describe nor identify. Previously, the complainant had testified that in the late afternoon, prior to accepting a ride in the defendant's vehicle, she had been given a ride by a man driving a brown and white Scout. The presiding justice, finding Cookson's testimony to be irrelevant, refused to allow him to testify further, and ordered the already elicited testimony struck from the record. In an offer of proof, defense counsel asserted Cookson would testify the girl he picked up was hitchhiking, and that a law enforcement officer had associated him with the man the complainant had said gave her a ride.

Gwendolyn Loring, another defense witness, testified that on July 9, 1981, the defendant was with her at her home until 4:45 p.m., and then again from between 7:00-7:15 p.m. and shortly thereafter. This testimony had some tendency to contradict, at least in a general manner, the complainant's testimony regarding the time frame in which she was with the defendant. Loring testified that a friend, Susan Morse, was also at her home during this time. Defense counsel then requested a continuance so that Susan Morse could testify. Defense counsel informed the presiding justice she had been unable to serve Morse previously because Morse had been out-of-state. Defense counsel requested the court to allow her an opportunity to locate Morse, or, in the alternative, to make arrangements with a court reporter to read into the record Morse's testimony from the second trial. Stating defense counsel had the duty to make any such arrangements prior to trial, and the testimony sought was relatively unimportant, the presiding justice denied the request. In an offer of proof, defense counsel asserted Morse would testify to being at Gwendolyn Loring's on July 9, 1981, and to seeing the defendant at approximately 7:00 p.m. The jury returned a verdict of guilty of Class B rape, 2 and this appeal follows.

1. Sufficiency of the Evidence

The defendant contends the evidence at trial was insufficient to show he compelled the complainant by actual force to engage in sexual intercourse. The defendant is correct in his assertion that to convict him under the version of 17-A M.R.S.A. § 252 in effect when the alleged rape occurred, the state had to prove compulsion by actual as opposed to constructive force. 3

When the sufficiency of the evidence is raised, this court must consider whether a trier of fact, resolving all discrepancies in the evidence in favor of the state, rationally could find the essential elements of the offense charged beyond a reasonable doubt. See State v. Snow, 464 A.2d 958, 961 (Me.1983); State v. Spearin, 463 A.2d 727, 731 (Me.1983). In the specific context of this case, the question becomes whether the jury could reasonably have found that Glenn Reed, through the use of actual force, compelled the complainant to have intercourse with him.

The complainant's testimony, standing alone, 4 supports the jury's finding of actual force. 5 The complainant's testimony is replete with examples of actual force used on her. The defendant attempts to isolate a portion of the complainant's testimony on cross-examination to show she submitted because of the defendant's threats. It is clear, however, that although fear was generated by these threats, the complainant submitted because of actual force used against her. The isolated portion of the complainant's testimony on which the defendant relies cannot be read apart from the rest of her testimony, which amply demonstrates the force the defendant used was sufficient to compel her submission to sexual intercourse, and did in fact lead to such submission.

2. Exclusion of testimony of John Cookson

The defendant contends he was improperly deprived of an opportunity to attack the credibility of the complainant when the presiding justice refused to allow John Cookson to complete his testimony because the proffered testimony was not relevant. We disagree.

Cookson testified he picked up a girl hitchhiking on the morning of July 9, 1981. Therefore, his testimony in no way contradicted the assertion of the complainant that she was not hitchhiking when walking on route 52 in Lincolnville during the late afternoon of July 9. Moreover, Cookson could not describe the girl to whom he gave a ride. Cookson's testimony had no relevance. Its exclusion was entirely proper.

3. Denial of motion for continuance

The defendant contends the presiding justice abused his discretion by denying his motion for a continuance made during the trial. If such motion was granted, asserts the defendant, he would have been able to produce evidence (testimony of Susan Morse or previous testimony of Morse read into the record) corroborating Gwendolyn Loring's testimony that the defendant was briefly at her residence at approximately 7:00 p.m. on July 9.

The decision to deny a motion for a continuance is committed to the discretion of the trial justice, and will be disturbed on appeal only for an abuse of that discretion. See State v. Greenwald, 454 A.2d 827, 829 (Me.1982); State v. Holt, 391 A.2d 822, 825 (Me.1978). A party seeking a continuance for the purpose of securing the attendance of witnesses must show:

"[W]ho they are, what their testimony will be, that it will be relevant ... and competent, that the witnesses can probably be obtained if the continuance is granted, and that due diligence has been used to obtain their attendance for the trial as set...."

State v. Curtis, 295 A.2d 252, 255 (Me.1972) (quoting Neufield v. United States, 118 F.2d 375, 380 (D.C.Cir.), cert. denied, 315 U.S. 798, 62 S.Ct. 580, 86 L.Ed. 1199 (1941)). Although granting the defendant's motion for a continuance might have been proper, the denial did not constitute an abuse of discretion. Morse's testimony would relate only...

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