State v. Weisbrode, 7127
| Citation | 653 A.2d 411 |
| Decision Date | 01 February 1995 |
| Docket Number | No. 7127,Docket No. CUM-93-776,7127 |
| Parties | STATE of Maine v. Kenneth WEISBRODE. DecisionLaw |
| Court | Supreme Judicial Court of Maine (US) |
Stephanie Anderson, Dist. Atty., Julia Sheridan (orally), Asst. Dist. Atty., Portland, for State.
Judy Potter (orally), Cape Elizabeth, for defendant.
Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, and DANA, JJ.
Kenneth Weisbrode appeals a judgment of conviction on three counts of unlawful sexual contact, 17-A M.R.S.A. § 255(1)(C) (Supp.1993), following a jury verdict in the Superior Court (Cumberland County, Bradford, J.). On appeal he questions evidentiary rulings, asserts that the State failed to establish that he had attained the age of fourteen and was at least three years older than the victim, argues that the State's closing argument was improper, and finally, contends that the court erroneously instructed the jury with regard to the State's burden of proof. We affirm his conviction.
The acts for which Weisbrode was convicted occurred at a fraternity house at Bowdoin College in August 1991. At the time, Weisbrode had just graduated from Bowdoin, was still living at the fraternity house, and was about to begin graduate studies at Tufts University. The victim, who was 12 years old, often spent time at the fraternity house. In January 1992 the victim went to live with his brother in Ohio and while there told his brother of the abuse. The victim's mother contacted the Brunswick Police Department which, in turn, asked Detective Sergeant Lonero, a member of the Tufts University Police Department, to assist with the investigation. Lonero interviewed Weisbrode at Tufts in May 1992.
The victim testified at trial that the first incident occurred after he and Weisbrode started wrestling in the living room of the fraternity, ending up in Weisbrode's bedroom. The second incident occurred in Weisbrode's room two days later. On cross-examination Weisbrode sought to characterize the victim as troubled and dishonest. Weisbrode suggested that the victim might have fabricated his story because he became unhappy with his living situation in Ohio and wanted an effective way to return home to Maine.
The State offered the testimony of Katheryn Stuart, a former neighbor of the victim, pursuant to the rule that the first report of sexual misconduct may be introduced, and the trial court, after a sidebar colloquy, permitted the testimony for that purpose. Stuart stated that when she asked the victim during a telephone conversation why he had run away from home, he replied, She also stated that during a telephone discussion with the victim she suggested that he see a psychic. Stuart testified that she thought this psychic was the type of person with whom the victim might have been comfortable enough to discuss his problems. On cross-examination Stuart testified that she could not pinpoint the time of her conversations with the victim. The best she could say was that they occurred sometime between November 1991 and January 1992, and that she had received some telephone calls from the victim after he had gone to Ohio.
During its rebuttal the State called Deborah Zorach. Over Weisbrode's objection, the court allowed Zorach to testify that the victim told her that he had been abused and that he had told somebody else who had suggested he see a psychic. She testified that her conversation with the victim took place on the night before he went to Ohio. The testimony was allowed for the limited purpose of rebutting Weisbrode's suggestion that the victim's report to Stuart occurred after he had moved to Ohio.
Weisbrode sought to introduce the testimony of Scott Thompson concerning statements Weisbrode made to Thompson about the abuse allegations after Weisbrode was interviewed by Detective Sergeant Lonero. The trial court excluded the testimony, finding that it was not admissible as a prior consistent statement 1 because a motive to fabricate on the part of Weisbrode arose at the time of the Lonero interview. Weisbrode took the stand, and testified that his only physical contact with the victim occurred when they both ran after a ball during a ping-pong game.
Weisbrode argues that the trial court improperly admitted the statement about which Stuart testified, in which the incident was described as "gross" and "disgusting." He contends that the description amounts to details of the incident. Weisbrode also argues that this "first complaint" testimony should not have been admitted because the report was not made within a reasonable time of the incident.
A victim's out-of-court statements are admissible as a "first complaint" in the State's case-in-chief to show that the victim had reported a rape or sexual misconduct complaint to a third party. State v. Calor, 585 A.2d 1385, 1387 (Me.1991); see State v. True, 438 A.2d 460, 464 (Me.1981). The statements are admissible "to forestall the natural assumption that in the absence of a complaint, nothing ... had occurred." True, 438 A.2d at 464. To be admissible as a "first complaint," the victim's statements may not contain details of the complaint, such as the identity of the perpetrator, but are limited to evidence that the complaint was of rape or sexual conduct, and evidence of the time and place of the incident. Id. at 464-5. "The bare fact that a complaint has been made is admissible...." Id. at 464.
Because Stuart's testimony disclosed neither the name of the perpetrator nor details of what happened, admitting the testimony was within the discretion of the trial court. See State v. Tripp, 634 A.2d 1318, 1321 (Me.1994). Stuart relayed only that portion of the victim's statements necessary to identify the reported act, namely that the victim had described it as something gross and disgusting. Moreover, Stuart's testimony that she suggested that the victim see a psychic was not improper under the "first complaint" rule, because it did not concern a detail of the abuse, but rather was offered to locate the conversation in time. True, 438 A.2d at 464-5.
Weisbrode next argues that the trial court erred by admitting Zorach's testimony as part of the State's rebuttal to the defendant's case. "[R]ebuttal testimony is proper if it 'contravenes, antagonizes, confutes, or controls the inferences sought to be drawn by new facts introduced at the next previous stage.' " State v. Cyran, 586 A.2d 1238, 1240 (Me.1991) (quoting Payson v. Bombardier, Ltd., 435 A.2d 411, 413 (Me.1981)). The trial court's admission of rebuttal evidence is reviewed with considerable deference to its opportunity to "assess the evidence in light of the testimony to be rebutted and the manner in which it was presented to the jury." State v. Berry, 495 A.2d 1207, 1210 (Me.1985).
In this case, the trial court carefully limited the scope of Zorach's testimony. The record supports the trial court's finding that Weisbrode attempted, on cross-examination of the victim, to show that the victim became unhappy in Ohio and that he had a motive to fabricate his allegations against Weisbrode to find an effective way to return home to Maine. Zorach's testimony establishes that the victim made a complaint of abuse prior to his departure for Ohio. Therefore, the testimony contravened the inference that the victim had a motive to fabricate that arose in Ohio. Although the testimony was properly part of the State's case-in-chief, the trial court acted within its discretion in admitting this evidence as rebuttal testimony.
Weisbrode's third contention is that the trial court should have admitted the testimony of Scott Thompson about Weisbrode's prior consistent statement to him. The proponent of a prior consistent statement has the burden of establishing that the statement was (1) consistent with the in-court statement of the witness, (2) offered to rebut an express or implied charge of recent fabrication or improper influence, and (3) made prior to the time the supposed motive to falsify arose. Phillipo, 623 A.2d at 1267; State v. Fredette, 462 A.2d 17, 22-3 (Me.1983). The determination of when an implied motive to fabricate arose is left to the discretion of the trial court. State v. Zinck, 457 A.2d 422, 425 (Me.1983); M.R.Evid. 104(a)-(b).
The trial court found that Weisbrode's motive to fabricate arose at the time of the interview with Detective Sergeant Lonero and that Weisbrode's statements to Thompson did not tend to rebut the inference of recent fabrication. This determination was not clearly erroneous. See Zinck, 457 A.2d at 425. Weisbrode heard of the victim's allegations during the interview and was aware that he was being questioned as a suspect. Therefore, a motive to fabricate arose at the time of the interview, and the court did not err in excluding Thompson's testimony concerning Weisbrode's statements.
Weisbrode next argues that the State failed to establish his age at the time of the abuse. A charge of unlawful sexual contact requires that the State prove that the defendant had attained the age of fourteen years and was at least three years older than the victim. 17-A M.R.S.A. § 255(1)(C) (Supp.1993). Weisbrode raised this issue for the record after the court had instructed the jury.
The State presented no direct evidence of Weisbrode's age. Circumstantial evidence, however, is no less conclusive than direct evidence in supporting a conviction. State v. Kenney, 534 A.2d 681, 682 (Me.1987). A jury is entitled to rely on circumstantial evidence and its own observations in comparing a victim's and the defendant's physical characteristics and demeanor to determine the age differential of the defendant and victim. State v. Bickford, 497 A.2d 138, 141 (Me.1985).
The evidence showed that the victim was 12 years old when the abuse occurred. The jury also heard...
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