State v. Roman

• Decision Date: 16 March 1993
• Citation: 622 A.2d 96
• Parties: STATE of Maine v. Jeffrey ROMAN.
• Court: Maine Supreme Court

Page 96

622 A.2d 96

STATE of Maine v. Jeffrey ROMAN.

Supreme Judicial Court of Maine.

Argued Feb. 4, 1993.

Decided March 16, 1993.

William R. Anderson, Dist. Atty., Leane Zainea (orally), Asst. Dist. Atty., Rockland, for the State.

Joanne Kroll (orally), Rockland, for defendant.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, COLLINS and RUDMAN, JJ.

RUDMAN, Justice.

Jeffrey Roman appeals from a judgment entered on his conviction of gross sexual assault in violation of 17-A M.R.S.A. § 253 (Supp.1992), following a jury trial in the Superior Court (Knox County, Brodrick, J.). Roman raises five issues on appeal meriting discussion. ¹ Roman argues that the trial court committed numerous errors including (1) improperly admitting evidence of prior sexual acts; (2) improperly allowing the State's medical expert to testify in a prejudicial manner; (3) permitting the victim to testify; (4) permitting prosecutorial misconduct during a trial recess; and (5) acting in such a prejudicial manner that his constitutional right to an impartial trial was violated. Finding no error by the trial court, we affirm the judgment.

I. Admission of Evidence of Prior Bad Acts

The victim, then eight years of age, was left in her parents' apartment in Rockland with the defendant alone when the acts giving rise to Roman's prosecution occurred. At trial, after the victim had testified to these events, and over Roman's objection, the State was permitted to introduce evidence of prior sexual acts between Roman and the victim. The admission in evidence of prior bad acts is within the discretion of the trial court. Accordingly, on appeal, we review the court's decision for an abuse of that discretion. State v. Dean, 589 A.2d 929, 933 (Me.1991); State v. Quellette, 544 A.2d 761, 763 (Me.1988).

Rule 404(b) of the Maine Rules of Evidence provides that: "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." M.R.Evid. 404(b). Such evidence is admissible, however, when offered for other purposes such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." State v. DeLong, 505 A.2d 803, 805 n. 1 (Me.1986) (quoting M.R.Evid. 404(b) advisers' note).

As we have said on numerous occasions, evidence of prior uncharged acts of sexual contact between the accused and the victim may be admissible if probative of relationship, opportunity, motive, and preparation. In State v. DeLong, 505 A.2d at 805, we stated that "[f]or more than a century our case law has declared that evidence of a defendant's prior or subsequent sexual relations with a victim is admissible to show the relationship between the parties or the intent of the defendant." See id. (citing long list of cases dating back to 1881). ² Nevertheless, "[e]vidence of prior conduct, otherwise probative and relevant, may still be excluded in the discretion of the trial court under M.R.Evid. 403 if its probative value is substantially outweighed by its prejudicial effect." State v. Giovanini, 567 A.2d 1345, 1346 (Me.1989) (citing Boone, 563 A.2d at 376, and DeLong, 505 A.2d at 806). ³

Turning to the present case, the evidence of prior sexual acts between Roman and the victim was probative of "the relationship between the parties that in turn sheds light on [Roman's] motive (i.e., attraction toward the victim), intent (i.e., absence of mistake), and opportunity (i.e., domination of the victim) to commit the crimes with which he was charged." State v. DeLong, 505 A.2d at 806 (citations omitted). Further, Roman has failed to demonstrate any abuse of discretion by the court in its application of the balancing test of M.R.Evid. 403. As we said in State v. Wallace, 431 A.2d 613, 616 (Me.1981),

[t]he presiding justice has broad discretion in ruling on the admissibility of evidence challenged as unfairly prejudicial; review of such rulings focuses on whether there was an abuse of discretion.

Id. (citing State v. Heald, 393 A.2d 537, 542 (Me.1978)).

Roman further argues that the trial court's failure to provide the jury with a limiting instruction on its use of the evidence of prior bad acts violated Rule 404(b) of the Maine Rules of Evidence by allowing the jury to consider it as evidence of Roman's character and, further, to determine whether he acted in conformity with that character trait. Since Roman failed to object to the jury instructions at trial and, further, failed to request a limiting instruction with regard to its use, we review the charge for obvious error. See M.R.Crim.P. 52(b); State v. Goodrich, 432 A.2d 413, 416 (Me.1981); see also Field & Murray, § 105.2 at 1-47 ("It is the obligation of counsel to request the limiting instruction"). ⁴

In State v. Gifford, 595 A.2d 1049 (Me.1991), cert. denied 502 U.S. 1040, 112 S.Ct. 893, 116 L.Ed.2d 795 (1992), we were faced with the identical issue in another prosecution for gross sexual misconduct. In that case, we disposed of the issue by noting the following:

Defendant does not dispute that the evidence of prior and other bad acts was admissible. See State v. DeLong, 505 A.2d 803, 805 (Me.1986). Instead, for the first time on appeal, defendant argues that the court's failure to give sua sponte a limiting instruction concerning the permitted purpose of the evidence was obvious error affecting substantial rights. We disagree. Although a limiting instruction should be given when evidence of prior and other bad acts is admitted, the failure to do so here was not obvious error.

Id. at 1052. Similarly, in the present case, the court's failure to provide a limiting instruction may not be deemed obvious error. Furthermore, in the absence of a request to the court to provide a limiting instruction, "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." State v. Rogers, 389 A.2d 36, 38 (Me.1978).

II. Admission of Expert Testimony

Roman contends that the trial court erred in admitting, over objection, a portion of the testimony of the State's expert, Dr. Lawrence Ricci, asserting that the testimony of Dr. Ricci that the injury to the victim was consistent with the use of a penis or adult digit, although relevant, should have been excluded pursuant to M.R.Evid. 403 because the emotional impact of the testimony was extremely prejudicial to Roman.

"The trial court has broad discretion in determining whether the probative value of evidence is outweighed by the risk of unfair prejudice ...." M.R.Evid. 403 advisers' note. See Field & Murray, § 403 at 4-13. The court, in the present case, did not abuse its discretion in admitting Dr. Ricci's testimony regarding the type of object that may have penetrated the victim. Rule 702 of the Maine Rules of Evidence provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." M.R.Evid. 702. Rule 704 further states that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." M.R.Evid. 704. Dr. Ricci's testimony that the victim's injury was consistent with injuries caused by a penis or adult digit was relevant and probative of the act for which Roman was charged, namely, penile-vaginal contact with an eight year-old.

In State v. Hebert, 480 A.2d 742, 749 (Me.1984), we concluded that it was not an abuse of the trial court's discretion to allow a physician to express his opinion that the ragged edges of the victim's hymen and enlarged opening of the introitus were consistent with tearing causing bleeding and with past sexual activity. Id. We noted that "[i]t is well-established that an expert need not be able to state his opinion with any special degree of certainty. The degree of certainty goes to the weight and not the admissibility of the evidence." Id. (citations omitted). See Lipez, The Child Witness in Sexual Abuse Cases in Maine: Presentation, Impeachment, and Controversy, 42 Me.L.Rev. 283, 304-07 (1990) (for discussion of use of expert testimony to corroborate testimony of child witness). Similarly, the court's admission of Dr. Ricci's testimony in the present case was not an abuse of discretion.

III. Competency of the Victim

Roman argues that the trial court committed reversible error by permitting the victim to testify at trial asserting that the court's failure to conduct a voir dire examination of the victim prior to her testimony was erroneous.

Rule 601 of the Maine Rules of Evidence is the controlling authority for determining the competency of a witness. It provides, in pertinent part:

(a) General Rule of Competency. Every person is competent to be a witness except as otherwise provided in these rules.

(b) Disqualification of Witness. A person is disqualified to be a witness if the court finds that (1) the proposed witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him, (2) the proposed witness is incapable of understanding the duty of a witness to tell the truth, (3) the proposed witness lacked any reasonable ability to perceive the matter or (4) the proposed witness lacks any reasonable ability to remember the matter....

M.R.Evid. 601.

A child of any age is presumed competent to testify as a witness unless disqualified under Rule 601(b). See State v. Hussey, 521 A.2d 278, 280 (Me.1987) (contrasting current law with pre-existing law). Although the trial court held no competency hearing, it did have the opportunity to listen...