State v. Terrio

• Decision Date: 02 March 1982
• Citation: 442 A.2d 537
• Parties: STATE of Maine v. Stanton TERRIO.
• Court: Maine Supreme Court

Page 537

442 A.2d 537

STATE of Maine v. Stanton TERRIO.

Supreme Judicial Court of Maine.

Argued Jan. 21, 1982.

Decided March 2, 1982.

James E. Tierney, Atty. Gen., Charles K. Leadbetter (orally), Wayne S. Moss, Frederick C. Moore, William R. Stokes, Asst. Attys. Gen., Augusta, for plaintiff.

Sandy & Sandy, Robert E. Sandy, Jr. (orally), Waterville, for defendant.

Before GODFREY, NICHOLS, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.

ROBERTS, Justice.

Following a jury trial in Superior Court, Somerset County, Stanton Terrio was convicted of gross sexual misconduct, 17-A M.R.S.A. § 253(1)(B). ¹ On appeal, we need discuss only Terrio's claims concerning (1) a variance between the indictment and proof at trial; (2) admissibility of rebuttal testimony regarding the defendant's prior conduct with the victim; (3) admissibility of defendant's statements to Sheriff Wright; (4) admissibility of defendant's prior conviction for theft; and (5) propriety of the prosecutor's closing argument. We vacate the judgment on the basis of improper rebuttal evidence.

The incident for which Terrio was convicted occurred at his residence in Solon in October of 1979. At that time, Terrio was living with his then wife and her two daughters from a previous marriage one of whom was the victim of the sexual misconduct. Terrio's step-daughter testified that the defendant attempted to have sexual intercourse with her when no one else was home. Terrio did not achieve penetration but direct physical contact between his sex organs and those of the victim occurred with subsequent emission by the defendant.

I. Variance Between Indictment and Proof

On a voir dire examination of the victim, she related accounts of a number of sex-related incidents, arguably proscribed by 17-A M.R.S.A. § 253, involving her and the defendant. Three of the incidents occurred in Solon in 1979, a fourth occurred in Anson in 1980. ² Following this preliminary hearing discussion ensued among counsel ³ and the court regarding what specific incident Terrio was to defend against at trial. The State, appearing to be undecided, eventually chose to proceed on the incident that occurred in October of 1979 in Solon-the Halloween incident. Although defense counsel had previously thought he was defending against another incident, he did not object to the State's decision, he unequivocably stated he would not be unfairly surprised and declined the court's offer of a continuance. On appeal, Terrio complains that the difference between the indictment and the proof with respect to the towns, Anson and Solon, and the dates, June and October, create fatal variances. ⁴ We disagree.

Assuming, without deciding, that the locus of the crime is an essential allegation in the indictment in order to establish venue, reference to the correct county is sufficient. ⁵ See Morgan v. State, Me., 287 A.2d 592, 595 (1972); State v. Warner, Me., 237 A.2d 150, 157 (1967); Glassman, Rules of Criminal Procedure with Commentaries §§ 7.1, 18.1, 52.2 (1967). With respect to the date of the offense, "(t)he settled rule of law is that ... proof of the commission of the offense on any day within the statute of limitations, regardless of the date alleged in the indictment is not a material variance unless it prejudices the defendant." State v. St. Clair, Me., 418 A.2d 184, 187 n.4 (1980); see State v. Miller, Me., 253 A.2d 58, 71 (1969); Glassman, Rules of Criminal Procedure with Commentaries § 7.7 (1967).

Here, the indictment satisfies the prescriptions noted above. We treat the pretrial colloquy as, in effect, the presentation of a bill of particulars more specifically identifying the date and place of the offense and detect no fatal variance in the proof. Moreover, the defendant admitted at trial that he was not prejudiced by proceeding to trial on the Halloween incident.

II. Rebuttal Testimony on Prior Misconduct

In her voir dire testimony, the victim described an incident where the defendant showed her a cartoon picture from a "dirty" book while victim's mother was attending a dog show-the dog show incident. Terrio denied the occurrence of this incident on cross-examination. The prosecutrix, then, for the first time in the presence of the jury, testified as to the dog show incident in her rebuttal testimony. On appeal, the defendant argues that this rebuttal testimony was improper refutation of Terrio's testimony and inadmissible under the proscriptions of M.R.Evid. 404 and 405.

We need not reach the question of whether the testimony is expressly excluded by M.R.Evid. 404 and 405 because we find that rebuttal testimony on this matter was improper. The trial court initially excluded all testimony bearing on sex-related incidents other than the charged misconduct apparently on the ground that the State had elected to proceed on the Halloween incident and, therefore, such testimony was not relevant. The State had argued that these incidents were probative in that the threats made during the other incidents and the fear they induced in the prosecutrix explained her delay in reporting the defendant's conduct. In response to this contention, the court indicated that the excluded evidence could become admissible if the defendant raised a question as to the delay in reporting.

Following the opening statements of the parties, the prosecution sought reconsideration of the court's ruling. Again, the court noted the prejudicial impact of the evidence and reiterated the belief that the evidence might be used if the defendant raised a question as to the delay in reporting of the incident. ⁶ The State then argued that the dog show incident was admissible to show Terrio's "disposition as to lewdness." After the trial court agreed with this view, defense counsel argued to the contrary. The court then apparently reserved judgment on the issue and indicated that direct examination was limited to the charged incident and the reason for the victim's delay in reporting the incident.

At the conclusion of Terrio's direct testimony, defense counsel asked the defendant if he had ever had any sexual contact with the prosecutrix "like she says." Terrio replied he had not and the State then argued at sidebar that this question opened the door to questioning about the dog show incident. Defense counsel raised no objection; the defendant denied the occurrence of this incident on cross-examination. As noted, the victim contradicted Terrio's denial in her rebuttal testimony.

The import of the previous discussion among counsel and the court and the action of the State following Terrio's testimony is twofold. First, it seems evident that the court excluded testimony on the dog show incident because the probative value of the evidence was outweighed by the danger of unfair prejudice-an implicit ruling under M.R. Evid. 403. Second, the conference discussions indicate that the probative value of this evidence might be more compelling if the defendant brought the matter into issue. In essence, a precondition to the evidence having sufficient probative value to be admissible was the defendant raising issues for which the evidence might have probative worth. The record is not clear on this point, but the State exhibited such an understanding when it claimed the door had been opened by Terrio's testimony on direct examination.

The trial court did not err in finding that the prejudicial impact of testimony about the dog show incident precluded its use at trial absent the defendant placing the matter in issue. Under M.R.Evid. 403, the trial court must decide, in the exercise of sound discretion, whether evidence should be excluded because its probative value is outweighed by other competing factors. See State v. Poland, Me., 426 A.2d 896, 898 (1981). We detect no abuse of discretion in the court's excluding of this evidence unless the defendant in the presentation of his case had increased the probative value of the testimony at issue.

What we find as error is the conclusion that Terrio's testimony opened the door to testimony about the dog show incident. Defense counsel's reference to "like she says" and Terrio's response can only relate to the victim's earlier testimony in the presence of the jury, not to her voir dire testimony. It therefore cannot be construed as opening the door to the cross-examination and rebuttal testimony elicited by the State. The State cannot assert that by its cross-examination of the defendant, the door was opened. State v. O'Neal, Me., 432 A.2d 1278, 1282 (1981).

The defendant's failure to object to the cross-examination is not telling on the issue. Defense counsel at the conference prior to the presentation of rebuttal testimony specifically disagreed with the State's contention that the defendant had opened the door thereby allowing the State to present rebuttal testimony. While not a textbook example of courtroom procedure, we believe counsel's statement at the threshold of the presentation of rebuttal testimony sufficiently called the question of the propriety of rebuttal to the trial court's attention and therefore preserved the matter for appellate review.

Without a doubt, this testimony does not present a case of harmless error. The trial judge indicated that the testimony about the dog show incident was too prejudicial to be admissible at trial absent the defendant placing the matter in issue. The probative value of this incident is slight in that it occurred four months prior to the charged incident and involves no physical contact with the prosecutrix. Nevertheless, as a sex-related incident, it retains the potential of improperly suggesting to the jury that the defendant is a bad person worthy of punishment or possesses a disposition to commit the charged act. See State v. O'Neal, Me., 432 A.2d 1278, 1282 (1981); State v. Goodrich, Me., 432 A.2d 413, 418-19 (1981); State v. Roy 385 A.2d 795, 798 (1978). Indeed, the State at one of the conferences viewed the evidence as probative of...