State v. Terrell

• Decision Date: 14 June 1979
• Parties: STATE of Maine v. Ralph Edward TERRELL.
• Court: Maine Supreme Court

Page 483

402 A.2d 483

STATE of Maine v. Ralph Edward TERRELL.

Supreme Judicial Court of Maine.

June 14, 1979.

John McElwee, Dist. Atty., Thomas L. Goodwin, Deputy Dist. Atty. (orally), Houlton, for plaintiff.

Stewart, Griffiths & Quigley by David J. Edgar (orally), Houlton, for defendant.

Before McKUSICK, C. J., POMEROY, WERNICK, ARCHIBALD, JJ., and DUFRESNE, A. R. J.

MEMORANDUM OF DECISION.

Defendant Ralph Edward Terrell was convicted of gross sexual misconduct in violation of 17-A M.R.S.A. § 253 (Supp.1978). On appeal, defendant argues and the State concedes that the State failed to prove beyond a reasonable doubt that defendant committed the requisite "sexual act" as defined by 17-A M.R.S.A. § 251(1)(C). We agree. The defendant's conviction based on the indictment for gross sexual misconduct cannot stand.

Although the evidence may have been sufficient to prove a "sexual contact" as defined by 17-A M.R.S.A. § 251(1)(D), thus establishing the offense of unlawful sexual contact in violation of 17-A M.R.S.A. § 255, the latter crime is not a lesser included offense of gross sexual misconduct. 17-A M.R.S.A. § 251 defines "sexual contact" and "sexual act" to be mutually exclusive. We therefore must direct the entry of judgment of acquittal on the present indictment.

The entry is:

Appeal sustained.

Judgment of conviction reversed.

Remanded for entry of judgment of acquittal.

DUFRESNE, A. R. J., sat by assignment.

DELAHANTY, GODFREY and NICHOLS, JJ., did not sit.